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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-03] British Columbia. Supreme Court Apr 3, 1990

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 23600  Submissions by Mr. Grant  1 Smithers, B. C.  2 April 3, 1990.  3  4 THE REGISTRAR:  In the Supreme Court of British Columbia, this  5 3rd day of April, 1990.  In the matter of Delgamuukw  6 versus her Majesty the Queen at bar, my lord.  7 THE COURT:  Mr. Grant?  8 MR. GRANT:  Thank you, my lord.  9 I am at page 97 of this section of the argument, my  10 lord.  11 THE COURT:  Yes, thank you.  12 MR. GRANT:  This is the section of the argument that relates to  13 the population shifts in the period of time around  14 Temlaham and from the dispersal.  15 Now, the adaawk, and of course this is still with  16 respect to the Gitksan, the adaawk record the arrival  17 and incorporation of new groups into the existing  18 society, the departure of groups to other nations and  19 population movement within the socitey.  The era of  20 dispersal, first from the north and then from  21 Temlaham, is the last era of large-scale population  22 movement into and within Gitksan territory.  It ends  23 at Temlaham era and ushers in another, in which the  24 Gitksan villages as we know them today were formed and  25 house territories as opposed to large clan village  26 territories were delineated.  27 My lord, I spoke at length yesterday with respect  28 to the Mediik adaawk, and the point of all of that  29 evidence is quite straightforward:  We submit that  30 there is overwhelming evidence that the Gitksan people  31 lived at Temlaham 3500 years ago and that that should  32 be a finding of this court.  I say the Gitksan people  33 and their -- the ancestors of the Gitksan people.  34 And that is what I refer to next where I state, the  35 argument sets out, that on the basis of the analysis  36 of Dr. Matthews, Dr. Gotttesfeld and Mrs. Marsden's  37 analysis this time of dispersal occurred between 4000  38 and 3000 years before the present.  39 There is an explanation at this point in the  40 argument of the dispersal from the north.  And I will  41 refer you to the second part of that or the second  42 page of that, which states:  43  44 "A second stream, beginning also at Lax'wiiyit  45 migrated south along the Skeena attempting  46 settlement and leaving some members in a number  47 of Gitksan areas but eventually continuing on 23601  Submissions by Mr. Grant  1 as far as the coast.  Many of these finally  2 settled on the Nass where Aiyansh is today, one  3 group having travelled overland at Kittsemgelim  4 and the others having settled  temporarily with  5 the Tsimshian along the coast before returning  6 up the the Nass."  7  8 And that, my lord, is reflected in Exhibit 358-1 as  9 this migration here, from Lax'wiiyit that you see  10 moving in this general direction and coming out to the  11 mouth of the Nass at Gitgetso.  Now a significant --  12 THE COURT: I am sorry, Mr. Grant, my memory is failing me again.  13 Lax'wiiyit.  14 MR. GRANT:  Lax'wiiyit is right here.  15 THE COURT:  I have it here.  But where is it today in today's  16 nomenclature, where would you find it on the large  17 scale map?  18 MR. GRANT:  On the large scale map you would find it from the  19 headwaters of the Skeena and the Nass, the Nass coming  20 in here and the Skeena here.  It would be this area  21 and the evidence indicates that that is the area in  22 which it is.  As you recall, I appreciate the  23 difficulty with respect to these maps, the original  24 intent was to reflect communities or villages that  25 were there at that time, and that's why there isn't  26 contemporary villages.  27 THE COURT:  It's not the conventional map either.  Usually we  28 have a north-south perspective.  2 9 MR. GRANT:  I know.  30 THE COURT:  You have got the Gulf of Alaska there.  31 MR. GRANT:  They convinced us that that assumption of a north-  32 south axis wasn't necessary and under-estimated the  33 conventional mindset of all of us.  34 THE COURT:  We have to cure ourselves of our cultures, don't we?  35 MR. GRANT:  Including our cartographic culture, yes.  36 Now, as is pointed out through Matthew Gurney's  37 account of this, Matthew Gurney of Gitlaxdamks, this  38 is one of the Beynon recordings, what is remarkable in  39 the adaawk of these migrations as opposed to the  40 earlier migrations, are the explicit and numerous  41 references to established settlement areas among the  42 Gitksan where these people attempt to stay.  43 Now, I will just refer to the second part of  44 Matthew Gurney's account and I ask you, of course,  45 just because I am not reading this, I ask you to refer  46 to have it, this is important, both of these accounts,  47 but he says: 23602  Submissions by Mr. Grant  1  2 "The Lax Gibuu group that originally came from  3 the headwaters of the Stikine River, instead of  4 travelling down the river to the coast, as did  5 the other Wolf groups, went into the hills and  6 overland and reached the headwaters of the  7 Skeena River around the vicinity of what is now  8 Kisgagas.  They stayed for a long time and  9 having no exclusive territory for their own  10 large band, they followed the Skeena  11 downstream.  Among them was the large group of  12 Kyexw.  Together with them were the Ganeda..."  13  14 That's the Frogs,  15  16 "...spouses of the Lax Gibuu..."  17  18 That's the wolves,  19  20 "...and some of these when at Kisgegas, went  21 further inland to what is called  22 Wiltuu'sksehl'aks: where Blackwater.  When this  23 Lax Gibuu band came to a spot just above the  24 present Kispiox Village, they established a  25 village at what they call T'a'oots'ip.  As they  26 could find no open territory of their own they  27 had to suffer continual rebukes and taunts from  28 the other tribes.  So they went down the river  29 and established themselves at a point just  30 below where Kitwanga is now.  Again, the real  31 owners of the hunting and fishing areas they  32 were using began to taunt them as 'people  33 without origin.'"  34  35 That reflects what John Brown said in 1920 when he  36 said, "you are nothing if you have no origins."  37 Now, the references you can see to some of these  38 villages on the map of the creation of the Fireweed,  39 which is 9000 and 4000, B. P., estimated.  4 0 Now James Adams, another Frog Clan adaawk is given  41 by him to Beynon and, my lord, I want to be clear that  42 although these accounts are referenced in Ms.  43 Marsden's report and it refers to Exhibit 1050, of  44 course these are quotes from the accounts themselves  45 in this case, which are in themselves exhibits.  4 6 And James Adams stated that:  47 23603  Submissions by Mr. Grant  1 "At the headwaters of the Stikine River, at  2 Tahltan, the Lax Gibuu had fled from the Ganeda  3 and some of the Ganeda had followed them in an  4 endeavour to catch them.  A group of these  5 Ganeda was led by Xsimxsan, who also had as his  6 aides his nephews.  These men were great  7 leaders and their followers were large numbers.  8 Finally those who went overland to the Skeena  9 came upon the Lax Gibuu whose tracks they were  10 following.  But these had already established  11 themselves at the Kisgegas and they had already  12 made good alliances with the Lax Gibuu of  13 Kisgegas.  So when this Ganeda or Frog group  14 came it also stayed at Kisgegas.  Not very long  15 after a feeling arose among the people that the  16 newcomers were intruders, as they had no  17 hunting, fishing or berry traccts of their own  18 exclusive property.  They only went to the  19 other Ganeda territory by sufferance, which  20 permission was grudgingly granted.  This  21 greatly embarassed these people.  Some of the  22 Ganeda group had already married among the  23 Gitksan people and became part of their  24 spouse's families.  Xsimxsan was not satisfied  25 with these conditions.  Calling his brother  26 they both built a huge raft and agreed wherever  27 the raft would land them there they would  28 establish their permanent village.  This Ganeda  29 group  had as their spouses most of the Lax  30 Gibuu family of Kyexw, with whom they were in  31 flight and were now separated.  They had left  32 Blackwater River and were now at Kisgegas.  And  33 now they were going to set out.  Some of this  34 Ganeda group stayed behind and became leaders  35 among the Gitksan.  They passed many villages  36 on their way down and finally the raft landed  37 at a point just above the Gitsalasxw Canyon."  38  39 As I have stated, these adaawk an unlike those  40 that I referred you to yesterday, recording the  41 earliest migrations, state explicitly the  42 well-established nature of the society they attempted  43 to join.  They had numerous villages and hunting and  44 fishing territories which they owned as exclusive  45 property and which covered the landscape as there were  46 no new ones to be had in the north and along the  47 Skeena River.  The Gitksan acknowledged clan relatives 23604  Submissions by Mr. Grant  1 that were not Gitksan, allowing them to join them as  2 long as resources allowed but not relinquishing their  3 land to them.  4 As an aside, the historical record indicates that  5 the Gitksan were equally generous with the first white  6 man to share the resources, so long as there was  7 sufficient resources, but there was no relinquishment  8 of land to them.  9 Now, this time period, this is -- this is  10 demonstrative that at this early time, the 3000 to  11 4000 years, the concept of the territory was clearly  12 enunciated and delineated.  I go on to state that the  13 other conclusion that you should find in this era is  14 that clan exogemy is important here, as is the pairing  15 of the clan groups, wilnat'ahl, that's your mother's  16 side and wilksiwitxw, your father's side, and the  17 matrilineal system, the reference to uncles and  18 nephews, as being on the mother's side, the mother's  19 brother, et cetera.  20 The importance to the Gitksan of owning the land  21 of one's ancestors is shown in the Gitksan taunts  22 against the newcomers as "people without origins."  23 That is what is significant with respect to this  24 particular dispersal from the north.  25 We then come to the dispersal from Temlaham and  26 the first to leave Temlaham were members of the Wolf  27 Clan.  There was a quarrel within their own group.  28 Later the Fireweed, the Frog Clan and the remaining  29 Wolves were forced to move, in this case as a result  30 of "The Great Snowfall."  After a number of years in  31 which single-clan villages were established here and  32 there in the general area of Temlaham, people  33 regrouped to form Kispiox and Gitsegukla and joined  34 with others from the coast and the north to form  35 Gitanyow or Kitwancool.  36 Now, the Johnny Patsy of Gitanmaax told the adaawk  37 of the House of Spookw, that refers to the events of  38 the dispersal of the Wolves.  Now Spookw, of course,  39 is a Wolf Chief who has territory in the large map you  40 will see in the vicinity of Temlaham.  There were two  41 houses on    42 THE COURT:  I am sorry, am I -- do I not recall Spookw as a  43 Wet'suwet'en chief?  44 MR. GRANT:  No.  But I can appreciate your -- the ambiguity.  45 Spookw was Steve Robinson, he gave evidence on an  46 affidavit.  A member -- a leading chief in his house  47 is Dora Wilson-Kenni and Spookw's territory includes 23605  Submissions by Mr. Grant  1 Hagwilget, and that may be the reason for --  2 THE COURT:  All right.  3 MR. GRANT:  The last phase of — just referring to Johnny  4 Patsy's quote there:  5  6 "There were two houses on Temlaham, Ga'ugweets  7 and Giisha, Lax Gibuu, both brothers.  There  8 were many other people, at Temlaham too, Lax  9 Gibuu and Gisk'aast, that's Fireweed, were  10 together, one the Temlaham said so the Fireweed  11 and the Wolves are on the one side, and Lax  12 Se'el also lived on the same side as Temlaham  13 about six miles further down theriver at Lax  14 anwageisxw, on Cache."  15  16 The description of the location of these different  17 houses separated from each other on different sides of  18 the river indicates that in the Temlaham area there  19 was more than one what would he would call village.  20 And I believe that is an important concept for your  21 lordship.  The Mediik adaawk does specifically site  22 itself at Seeley Lake throughout the adaawk, but  23 Temlaham, the description of Temlaham is broad and  24 Antgulilbix, Mary Johnson's, description of it is  25 consistent, is the same as we see in many of the other  26 adaawk we see described earlier.  27 Now, just to summarize what happened is that  28 members of these two Wolf Houses quarelled and left  29 Temlaham to settle along the Kispiox.  Out of these  30 houses, who evolved?  Who are the descendents?  Wii  31 Mugulsxw, Art Wilson, who has a separate territory as  32 chief of Kispiox, he stayed at Temlaham and later went  33 to Kispiox, Spookw, who returned there and ultimately  34 became part of Gitanmaax, Skat'iin, who settled on the  35 Nass River and became Nisga'a, and Niislaganoos, who  36 joined the Wolf Clan group of 'Wiixa and Gwashlaam.  37 Wiixa.  Niislaganoos and Gwashlaam are Wolf chiefs of  38 Kitwancool at this time.  Wiixa and Gwashlaam had  39 moved from the coast after the push South of the  40 Tlingit and had founded Gitanyow, Gitanyow now being  41 Kitwancool.  42 Part of this Niislaganoos group later returned to  43 the Temlaham area and later again joined Kispiox as  44 the House Kliiyem lax haa.  45 Now here what you see, my lord, is the reason why  46 it's so easy to be confused or cloud it, because when  47 you see Martha Brown, Kliiyem lax haa's evidence, she 23606  Submissions by Mr. Grant  1 does refer to Malii, a Kitwancool Wolf Chief as her  2 brother.  What she is talking about is this ancient  3 connections.  And that, with -- in -- that connection  4 is made quite quickly in one or two sentences and then  5 interpretation of it is well, what does this all mean,  6 it's all a big mish-mash.  But when you look at the  7 history, it's not a mish-mash.  It's a reason why she  8 connects to Malii and why she connects with  9 Wii'mogulsxw.  Now, Jonathan Johnson, who was  10 Wii'mogulsxw in 1952, and his adaawk description is in  11 evidence, he finished his account and he described  12 this account in detail.  He said, and it's a written  13 account in the way Men of Mediik and Wars of Mediik  14 is, he had someone transcribe his words.  But he says:  15  16 "So along the big river and up its side valleys,  17 the people of Dim-la-ham't made new homes.  18 Their villages grew strong and multiplied."  19  20 Then he says :  21  22 "That was many, many thousands of years ago, yet  23 even today Dim-la-ham't was our root, from  24 which all grew.  Even  yet, its memory holds  25 all Gitksan people.  When good times come, we  26 rejoice together.  In dark times when our  27 hearts are in a steep place, we share each  28 other's sorrow."  29  30 Then of course we come to the Frog, Ganeda, the  31 Fireweed and the remaining wolves of Temlaham.  Now,  32 all of these three clans, through their adaawk,  33 describe the dispersal occurring at the time of "The  34 Great Snow Fall."  Now they end up with the same  35 difficulties in their dispersal as do the northern  36 groups that come down.  That is, that there are places  37 and territories and other people occupying territories  38 when they disperse.  39 These events, which I am not going to refer to in  40 detail, were given in detail by Stanley Williams and  41 Mary Johnson, and the citations in their evidence are  42 there.  Exhibit 446A is volume one of Stanley  43 Williams' evidence, my lord.  44 They were also told of their ancestors moved to  45 new villages and in Stanley Williams' cas to  46 Gitsegukla and in Mary Johnson's case to Wilt gallii  47 bax and Kispiox.  Wilt gallii bax is that place 23607  Submissions by Mr. Grant  1 upstream from Hazelton or Gitanmaax near Glen Vowell  2 area.  Gwaans told of the great snowfall and of the  3 history of the Fireweed houses at Gitsegukla  4 immediately after the dispersal.  Jonathan Johnson  5 also described "The Great Snowfall" as it affected the  6 Wolf Houses that eventually settled Kispiox.  Once  7 again, that's from his own adaawk which is quoted at  8 length by Ms. Marsden and is in a separate exhibit.  9 The founding of Kispiox, John Brown, he gave the  10 detailed account of the founding of Kispiox and his  11 account is set out there.  And this is the movement of  12 the House of Kwiiyeehl, which took them to the upper  13 reaches of the Kispiox River before joining with  14 houses of other clans to form Kispiox.  15 According to the Solomon Johnson account, the  16 founders of Kispiox were these chiefs, and you will  17 recognize these chiefs, Gitluudahlxw, that's Pete  18 Muldoe today, Delgamuukw, that's Ken Muldoe today,  19 Ma'us, that's Jeff Harris Jr. today, Xantxw or  20 Gwiiyeehl, that's Chris Skulsh today, Lelt, that's  21 Walter Harris, a Fireweed from Kiskegas, and Kliiyem  22 lax haa the late Martha Brown and now Eva Samson via  23 Kitwancool.  So the site of Kispiox has changed again  24 since then and is now slightly north.  That reference,  25 Exhibit 1045, is to one of the adaawk.  The Barbeau-  26 Beynon reporting of the adaawk.  So what you have at  27 this point at dispersal of Temlaham is that you have  28 the development of Kispiox, the founding of Kispiox,  2 9 and I shouldn't say the founding but the development  30 of it, with these chiefs, who remained there, remained  31 there relatively consistently until today.  In fact  32 consistently.  33 Then we find the founding of Gitsegyukla.  While  34 some of these Temlaxamit people travelled north to  35 found Kispiox, others were moving done river to  36 establish them at Gitsegyukla.  Now, the reference  37 here to the Tsibasaa group is a reference to a name in  38 the Fireweed Clan that is utilized more on the coast,  39 so when you see Tsibasaa, he would be one of the  40 persons moving down at the time with Gwis Gyen, Stanly  41 Williams' house, Mary Johnson's house, Antgulilbix,  42 and Hanamuxw and Guxsan, Herb Wesley's house.  43 This -- and he describes the founding of  44 Gitsegyukla with the Fireweed and opposite to a Frog  45 Village founded at the same time by those dispersing  46 from Temlaham.  Of course you have heard evidence from  47 are the Frog group, which includes Gwagl'lo, Ernest 2360?  Submissions by Mr. Grant  1 Hyzims, and others.  2 Now, my lord, I am going to not refer to each of  3 these, because I think it's set out in a summary form  4 there, except to say that the quotes of many of the  5 adaawk are references in Ms. Marsden's report.  But I  6 will go to page 107, this is the reference to the  7 founding of Kitselas and at the conclusion of that,  8 that Walter Wright in his Men of Mediik, described  9 that it was centuries later that the Fireweed  10 retaliated Sakxum higookx and the Eagles after  11 attempts peaceful settlement failed and they attacked  12 and burned Sakxum higookx's village which was now  13 upstream at Antkii'is and pursued his people as far as  14 Battle Hill where he had taken refuge with the Frog  15 Clan.  Now Antkii'is is that fishing site across the  16 Kitwanga River, which is actually -- it's on the  17 highway side just immediately downriver of the turn  18 off to Highway 37.  And that's a fishing site that  19 Vernon Smith, Sakxum higookx today, and Art Matthews  20 Tenimgyet today, both referred to and it had a joint  21 use by the Wolves and the Eagles of Kitwanga.  That's  22 where they moved to when they moved upstream.  23 Now, I would like to move into the section relating to  24 the rise of trade.  And this section demonstrates that  25 the adaawk record events concerning trade prerogatives  26 and trade relations with other nations, trade  27 alliances within their own nations and trade disputes.  28 Now, like the Temlaham period, the period following  29 the dispersal was a stable one free of major wars and  30 disasters, a period in which new social and political  31 institutions developed out of the own.  With the  32 Temlaham and the people from the north redistributed  33 among the three nations, the way was paved for  34 widespread trade networks which changed these nations'  35 economic and socio-political focus and greatly  36 increased an interdependence.  37 Now, I would like here to talk about the Men of  38 Mediik and The Wars of Mediik.  The history of —  39 THE COURT:  Before you go on, you have got in the first line of  40 the second full paragraph on page 108, I am not sure  41 that I have seen that word.  42 MR. GRANT:  Kitselas?  The second full paragraph, in the north  43 coast culture area which developed during this period?  Is that a translation of Kitselas?  Yes, that's a spelling of Kitselas, yes.  Thank you.  Which is that community just outside --  4 4 THE COURT  4 5 MR. GRANT  4 6 THE COURT  4 7 MR. GRANT 23609  Submissions by Mr. Grant  1 THE COURT:  Outside of Terrace, yes.  2 MR. GRANT:  So the history of Kitselas as told in The Men of  3 Mediik and The Wars of Mediik, the history of Kitselas  4 because of its unique location, also chronicles the  5 establishment of the extensive trade networks along  6 the Skeena and this history was told by Walter Wright  7 of Kitselas in the The Men of Mediik and Wars of  8 Mediik recorded by Will Robinson.  9 I would like to make as aside here, Exhibit 898 --  10 Exhibit 898 is The Men of Mediik Will Robinson as told  11 by Walter Wright, and it includes The Men of Mediik  12 and The Wars of Mediik, which are two -- and it's the  13 description, is the actual narration of this.  14 Now, in the prologue, the relevant parts for this  15 argument are set out here for this part of the  16 argument, although I think it's very important that we  17 consider The Men of Mediik and the Wars of Mediik very  18 carefully.  It's more than the history of the  19 wil'nat'ahl, that is the group of the Mediik group, or  20 the village, it's the single most complete in detail  21 account ever recorded at one time.  This is reflected  22 in the evidence of Dr. Daly, Ms. Marsden, as well as  23 others.  It's a very detailed account.  It was Walter  24 Wright's intention, since he had already told a  25 compressed account to William Beynon, which is set out  26 in the Beynon report as Exhibit 1045, he sought the  27 assistance of a friend in recording the adaawk in  28 full.  This process lasted several times.  He  29 explained his actions, and that is set out at the  30 bottom of page 109, he explained why.  He said:  31  32 "Niistaxhuuk is my name and I am the head chief  33 of the Grizzly Bear people of Kitselas.  I have  34 'power' on both sides of the big canyon.  On  35 the right-hand side I have the power of my  36 chieftainship.  For many generations  37 Niistaxhuuk has had that right.  On the left  38 hand side I carry the 'power' of Niis Haiwas,  39 for in my generation there is no chief of that  4 0 name.  When I was boy my grandfather, who was  41 Niis Haiwas, taught me the history of Mediik.  42 His had been the duty of carrying it throught  43 his generation  His was the responsibility of  44 choosing one of the Royal Blood to keep it safe  45 after he had died.  As a lad I sat at my  46 grandfather's feet.  Many times he told me that  47 story.  It is long. In the native tongue it 23610  Submissions by Mr. Grant  1 takes eight hours to tell.  So, several times  2 each year, I sat at his feet and listened to  3 our records.  I drank in the words.  In time I  4 became word perfect.  I knew all the story.  I  5 could repeat it without missing any of its  6 parts.  So I became the historian of Mediik.  7 So I took my place in a long line that had gone  8 before me. For so it is.  In our land of Ksan  9 there was no written word; the record had to be  10 passed down from man to man by word of mouth.  11 Now my years are increasing.  Now I have seen  12 65 summers.  Whin I was a lad, few white men  13 lived in our land.  Now there are many.  And  14 with the coming of those whose skins are white  15 like the peeled willow stick there hae come  16 many new modes of life.  The life of my people  17 has left its accustomed ways.  There is little  18 timeto learn the history of our people. Many  19 things have drawn the minds of our young men  20 from the habit of peacefully listening to their  21 elders.  So, lest the  record be lost, I tell  22 it that it may be written down and preserved.  23 Thus may the Men of Mediik now scattered in  24 many places, read."  25  26  27 MR. GOLDIE:  My lord, I don't think it matters very much, but  28 the word "history" is found in the exhibit where my  29 friend has used the word "records".  30 MR. GRANT:  Thank you.  31 THE COURT:  Where is that?  32 MR. GOLDIE:  The page, 109, the third line from the bottom, its  33 to our "history", and on the next page, fourth line  34 from the top, the first word is "history".  As I say,  35 I don't think it matters very much but that's what the  36 exhibit reads.  37 THE COURT:  Well, it says record here and you say the text reads  38 history?  39 MR. GOLDIE:  The exhibit reads history.  4 0 THE COURT:  I see.  41 MR. GRANT:  Yes, that is right.  Seems to be a translation  42 matter.  43 The result was over a hundred printed pages  44 covering the same events recorded by Beynon in 32  45 handwritten pages and another 200 typed pages,  46 describing events never previously recorded.  Not only  47 did Walter Wright leave the legacy he had hoped, he 23611  Submissions by Mr. Grant  1 also left a key to decode other compressed or  2 abbreviated recorded adaawk through a comparison of  3 his two versions.  4 Now, the contribution of Will Robinson to this  5 legacy, apart from his role as recorder, was a certain  6 skepticism which added an element of cross-examination  7 to the process, an element Walter Wright welcomed.  In  8 a letter quoted in the microfilm of Barbeau's notes  9 and papers, Will Robinson wrote, and this is exhibit,  10 in Exhibit 1045, the Barbeau files:  11  12 "Walter Wright knew Dr. Barbeau gathered the  13 gist of his story and that Professor Gordon  14 dealt with in some measure.  But the story in  15 its entirety, he says, has not been recorded.  16 Chief Walter Wright welcomed cross-examination  17 and a great deal of time was spent in checking  18 and cross-checking the details of the narrative  19 and in the matter of place names I worked at  20 detail until I tied them in with our modern  21 names for the same localities.  I was somewhat  22 curious as to whether Walter was drawing a long  23 bow at times, or whether he was recounting the  24 stories given to him by his grandfather.  By  25 cross-checking and cross-examining (I made use  26 of some of the methods I have learned as I have  27 sat in the Police Court) I became satisfied  28 that the record really is as he has it.  I plan  29 to try, as much as possible, to catch the  30 chief's mode of narrative, with its  constant  31 repetitions, 'cut backs', asides, and the  32 like."  33  34 Will Robinson adds in his preface:  35  36 "The history is in two parts.  A natural break  37 comes in the narrative.  While chronology as we  38 know it did not exist, close questioning led to  39 a reasonable assumption that the first part  40 ended some 600 to 700 years ago."  41  42 This point is important when you take into account  43 the compressed nature of the recorded adaawk of  44 Barbeau and Beynon and the expressly condensed  45 versions the court has heard.  This should be kept  46 constantly in mind by your lordship.  As well, it  47 should be remembered that the adaawk record 23612  Submissions by Mr. Grant  1 outstanding events that have taken place in the lives  2 of the ancestors of the house, events that concern  3 socio-political, economic and territorial status of  4 the house or wilnat'ahl.  In the absence of such  5 events on the unfolding of an era ushered in by events  6 already recorded, the adaawk are silent.  Many of the  7 period at Temlaham which probably covered centuries,  8 if not millennia, is such a silent period as is the  9 era in which trade flourished before intense  10 competition instigated its decline and the adaawk once  11 again takes up the tale.  12 Now, the creation, my lord, of Gitsalasxw stands at  13 the at the mid-point between two eras.  Their ancestry  14 reaches back to the age of Temlaham and forward to the  15 era of trade.  For this reason, the Men of Mediik and  16 Wars of Mediik, chronicling as it does the full span  17 of these events, can be used as a central sequence to  18 which other sequences can be added.  19 At this point I would like to refer you to Exhibit  20 1043.  Exhibit 1043 is the summaries of the adaawk,  21 the recordings of the adaawk, reviewed by -- this is  22 the summary of the Ancient History of the Giskaast or  23 Fireweed.  And it's entitled the Ancient History of  24 the Giskaast.  Just so that you recall it, my lord, if  25 you look at tab 1, you will see three pages of a  26 summary and then you will see a photocopy entitled The  27 Gitksedzaw Village of the Nass, informant Benjamin  28 Tate of Port Simpson, Interpreter, William Beynon in  29 1915.  This informant is different from Henry Tate,  30 whom Dr. Franz Boas used as his informant and  31 interpreter at an earlier date.  32 And this is the -- this is a five page, together  33 with two pages of crests description, and this is the  34 Beynon account, the Beynon -- from the Beynon records.  35 That is also referred to in other material.  The  36 summary at the front was what was prepared by Ms.  37 Marsden.  For this purpose, I would like to refresh  38 your mind and a take you to tab 33.  39 MR. GOLDIE:  What's the exhibit number again, please?  4 0    MR. GRANT  41 THE COURT  42 MR. GRANT  1043.  Tab 33?  Tab 33, please.  43 Now Ms. Marsden explained in her evidence, what she  44 did.  But one of the important elements in analyzing  45 the adaawk, was the Men and Wars of Mediik and what  46 you see at tab 33 is the chronology of events in Men  47 of Mediik and Wars of Mediik.  It is a reference to 23613  Submissions by Mr. Grant  1 how Walter Wright told Will Robinson the Mountain Goat  2 adaawk, the Mediigimts'aawee'aks adaawk, that's the  3 Grizzly Adaawk, the Mediik adaawk, and these  4 references, generations, many years, centuries, after  5 each of these pieces, are references made by Walter  6 Wright.  This is not Ms. Marsden or somebody else,  7 it's what Walter Wright told Will Robinson and what  8 Will Robinson recorded, and as he has explained, he  9 cross-examined on that.  10 Now, this is how the process of analysis of these  11 adaawk occurred.  Ms. Marsden, as she explained in her  12 evidence, took, for example, the Men and Wars of  13 Mediik, that chronology, then she would go to the  14 other adaawks of the same events, and what you would  15 end up having would be an overlap.  And I can refer  16 you to how that works by reference to -- there is a  17 two page introduction at the front.  And I just want  18 to note that of course you can see that the Men and  19 Wars of Mediik starts with the Mountain Goat adaawk  20 and it continues right through to the mid-1800s where  21 the adaawk ends.  And it talks about the -- it talks  22 about contact and the arrival and introduction of  23 gunpowder via Kitimat.  Then it goes many hundreds of  24 years and then the mid-1800s at the end of the adaawk.  25 Now, if you went -- if you go to the front of this  26 collection, of the table of contents, there is a  27 summary of the major events in the adaawk and the  28 chronology and that you can see, summarizes each of  29 the tabs as to the main events that occurred under  30 each tab.  And that is six pages long.  And then what  31 Ms. Marsden did for ease of reference is she made a  32 chart, the Ancient history of Kiskaast or Fireweed.  33 And it's sideways, my lord, do you have that?  Now,  34 there you can see, and each of the numbers at the top  35 refers to the adaawk reference.  36 Now, if you go down you see under 33, you see the  37 reference, the first reference to number 33 occurs --  38 just a moment.  Well, the reference occurs with  39 respect to the Mountain Goat crest, it's not reflected  40 there, but that's the first part of number 33, and you  41 see the, there should be a star along that line, the  42 one under the goat at Temlaham.  That is from the  43 Mediik adaawk.  But then if you go back you see that  44 the adaawks numbered 15 through to 24 refer to the  45 same event and adaawks numbered 1 to 14 refer to the  46 earlier events.  And what you have is cross-overs  47 where you can -- within I say cross-overs, you get a 23614  Submissions by Mr. Grant  1 linking between these adaawk where they talk about  2 different events.  And if I show you that with respect  3 to -- what Ms. Marsden did, and the entire summary of  4 Men of Mediik and Wars of Mediik is in tab 33 rather  5 than the entire adaawk, so she doesn't include it.  6 And at tab 33, the first reference in the summary of  7 the Mountain Goat adaawk and the second reference is  8 the Grizzly adaawk.  If you go to page 3 of the  9 summary, you will find, at adaawk number 15, Walter  10 Wright, which is the shorter version, talks about the  11 Mountain Goat adaawk -- sorry, my lord, are you with  12 me on page 3 there?  13 THE COURT:  Of the summary?  14 MR. GRANT:  Of the summary, yes.  Page 3 of the — the written  15 out summary.  16 THE COURT:  Yes.  17 MR. GRANT:  Adaawk number 15 refers to the Mountain Goat adaawk,  18 the Mediigimts'arwee'aks adaawk.  19 Adaawk 16 is Isaac Tens of the Fireweed and number  20 four and number five there refers to the  21 Mediigimts'aawee'aks adaawk and the Mountain Goat  22 adaawk.  23 So, what Ms. Marsden did in analyzing this  24 chronology, is she would look at Men of Mediik and  25 Wars of Mediik then she would look at adaawk from both  26 the interior and the coast, and she would record the  27 order in which they described events, and as you can  28 see, number 15 starts with the -- before the  29 Mediigimts'aawee'aks adaawk or Grizzly Bear adaawk, it  30 starts with the Giskaast house drifting to the  31 mountain near Kuldo.  Number 17, Charles Mark at the  32 bottom is the Mountain Goat adaawk once again, and if  33 you go back a page to adaawk number 12, you will find  34 Charles Mark talking about the snowfall dispersal and  35 of course that's snowfall dispersal is referred to by  36 Walter Wright in the Men of Mediik and it's part of  37 the chronology of the Men of Mediik.  And that's --  38 it's referred to as happening many years after the  39 Mediik adaawk and it's number three.  40 So it's the inter-connection of the adaawk that's  41 what's happened here.  And it's a painstaking process,  42 and my -- my friends cross-examined Ms. Marsden  43 extensively on this, but the problem is that is it's  44 because there is such a body of material and it takes  45 so long to do this analysis, that it hasn't been  46 completed.  It never was completed before.  But Beynon  47 started it, Barbeau started it, and Wilson Duff 23615  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  started it.  They all started to do this type of  chronology.  And that's reflected in the evidence of  those materials of those people.  MR. GOLDIE:  My lord, your lordship may recall that an objection  was taken to this exhibit insofar as it contained  opinions.  It was presented as purporting to be a  factual matter, or a collection of facts, and Mr.  Willms noted, and I am referring to the transcript at  Volume 262, page 19384,  THE COURT:  Sorry, just a moment.  MR. GOLDIE:  I should say 19383.  THE COURT:  What volume again?  MR. GOLDIE:  Volume 262.  And Mr. Willms said at line 41:  "To the extent that the summary is not submitted  submitted as Ms. Marsen's opinion but merely as  an attempt to factually encapsulate what's in  the adaawk, there is no objection.  But when  you read some of theme they are opinion and not  factual encapsulations.  So with that  reservations with respect to Ms. Marsden when  she calls them summaries, in some cases they do  summarize and other cases they go beyond  summary.  THE COURT:  You are saying I should give no weight  to those parts which are not factual?  MR. WILLMS:  No weight as your lordship said you  would take that into consideration."  And I take it that that is the aspect that my  friend is addressing.  MR. GRANT:  No, it's not.  The summaries that Mr. Willms was  referring to were the summaries under each tab.  What's happened here, these -- the summary of major  events in the adaawk and their chronology, that is the  order, each adaawk itself refers to each of these  events.  She has listed those events.  THE COURT:  You are saying that the summary in the first five or  six handwritten pages is an index.  MR. GRANT:  It's an index, that's right.  And it's an index of  the order and if you or if we read all of those  adaawk, we would find each of those topics covered.  And of course, I said that the material in each of the  summaries at the front of the tab was also a summary  but Mr. Willms suggested there was something else in  some of them and, of course, that's why we put in the 23616  Submissions by Mr. Grant  1 original adaawk.  So you have the version is right  2 there if there is a problem with the summary, the  3 entire version of what she is relying on is there.  4 But the summary is easier to read and is a summary of  5 it.  That's important.  6 Now, so what Ms. Marsden did is that she took the  7 very wealthy adaawk version of Walter Wright and  8 extrapolated back and forward, and of course she had  9 to also read many more than are referred to here  10 because the coastal versions reflect on what happened  11 at Temlaham.  So she, in effect, finished the work  12 commenced with respect to the Gitksan only, with  13 respect to what Wilson Duff and the others had  14 started.  15 Now, on page 112 and 113 of my argument, I will  16 return to my argument, I refer to what Wilson Duff did  17 in that he plotted the sequence of some of the events  18 in his notes on Kitkatla, and then the earlier events,  19 are described in either adaawk accounts for the  20 establishment of Temlaham as has already been  21 discussed, while others still earlier chronicle the  22 arrival on the north coast area of the ancestors of  23 the founders of Temlaham.  24 At the other end of the sequence, page 113, my  25 lord, Tsibasaa completes the Fireweed dispersal  26 centuries later when he moves to the coast and unites  27 the people there in a new village which would later  28 become Kitkatla.  All of these Fireweed from the coast  29 and the interior, found their root at the place at  30 Lax'wiiyit reflected in the map and Tsibasaa is at  31 Temlaham.  Tsibasaa goes down to the coast but of  32 course the name is kept in Antgulilbix's house as  33 well, as you know.  34 Now, in this way a span of interconnected events is  35 revealed to which other overlapping sequences of  36 events can be added.  For example, on Tsibasaa's  37 arrival the leading chief in the area is Lutkutzemti.  38 He is a Gwenhoot Eagle who joined the Tsimshian during  39 the dispersal from the north.   The adaawk of Gwenhoot  40 is a long sequence too.  So here, and elsewhere, where  41 these two sequences overlap, a base for a broader and  42 well substantiated sequence is formed.  As Ms. Marsden  43 pointed out, Wilson Duff began this process and it was  44 this process she used to discover sequences of events  45 in the adaawk.  46 Ms. Marsden, of course, obtained access to Wilson  47 Duff's files on this very topic.  The citation there, 23617  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.  MR.  MR.  MR.  MR.  MR.  my lord, I am going to provide for the hard copy.  THE COURT:  Thank you.  MR. GRANT:  Or the floppy, I should say.  Now, the Men of Mediik and Wars of Mediik, interconnects with the archeological record.  And I  introduced that on page 114 about the archeology on  the Skeena, and then I go to --  GOLDIE:  Well, are you leaving page 114?  GRANT:  I am sorry -- just one moment, Mr. Goldie.  GRANT:  Yes, page 114.  GOLDIE:  Well —  GRANT:  I am referring there to the archeology and the fact  that there are extensive finds in some places but  there is not extensive work throughout the archeology.  GOLDIE:  I wonder if my friend would provide us with the  reference to the evidence for the statements made on  that page, the last sentence in the first paragraph,  the whole of the second paragraph, where it is stated  that the Kitselas and Seeley railway construction  construction camps were both built in prime  archeological areas and the whole of the last  paragraph.  I just like to have the references to the  evidence on those points, my lord.  MR. GRANT:  I will review that and provide them later.  Now, the point of it is, and the archeological  sequence, is significant, that there are losses of  certain important events in the sequence that can't be  vested archeologically, however, archaeological work  at Hagwilget, Gitsalasxw and Prince Rupert Harbour  provide important parallels to the sequence of events  derived from Adaawk.  I am on page 115, my lord.  The oldest dates in  north coast area surrounding the Gitksan and in the  general area where some of their ancestors once lived,  archeologists have dated microblades at nine thousand  before the present at Edziza near the Stikine, at  Groundhog Bay near the Taku River in Alaska, on the  northern islands among the Tlingit, and at Namu just  south of Rivers Inlet.  THE COURT: I thought Namu was just north of Rivers Inlet?  MR. GRANT:  I think you're right.  THE COURT:  I think so too.  MR. GRANT:  I would certainly defer to you on that point.  These dates place people in these areas in the  millennia after deglaciation.  Microblades have also  been found on the Queen Charlotte Islands at 7500  B. P. and at Gitsalasxw at 5000 to 4000 B.P. 2361?  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  THE  COURT  16  17  18  19  20  MR.  GRANT  21  THE  COURT  22  23  24  MR.  GRANT  25  26  27  28  THE  COURT  29  MR.  GRANT  30  THE  COURT  31  32  MR.  GRANT  33  THE  COURT  34  MR.  GRANT  35  36  37  38  THE  COURT  39  40  41  42  MR.  GRANT  43  44  45  THE  COURT  46  MR.  GRANT  47  The significance of this, my lord, is that  consistent with the adaawk, when you look at this map  of the retreat of the recent ice sheet, and these  archeological finds, you find evidence of the presence  of humans in these areas comes relatively shortly  after, relatively shortly after the Ice Age and the  retreat of the ice.   And I urge upon you to look at  this section on the archeological sequence carefully,  but I think it is fully covered and I don't want to  deal with all of it.  I would like to focus on one  aspect rather than reviewing it all, because if refers  to the Hagwilget site, and I will come back to the  Hagwilget site later in the argument.  And then it  refers to Kitselas.  I remember having some uneasiness about the level of  my understanding of this inset map.  I am trying to  re-cast it, by the green area, I take it, in the  north, the left-hand side here, I take is what's been  referred to sometimes as the refugia, is it?  Yes, that's the Yukon refugia.  The south is around the Columbia River where the ice  didn't quite reach. I am trying to remember now, what  are the blue areas?  The blue areas are areas which, when the ice receded  it stayed latest.  The numbering, if you recall, if  you go to the piece, well the piece that's right from  the —  Let's look at Central Vancouver Island.  Okay.  That blue spheroid in there is ice that remained  after?  At 9500 years before the present.  Yes.  The circle, the dotted line around it is the 9500  year line and then you can see that there is another  line that's further in and because it's so small it's  not numbered.  And the large one that covers most of the coast of  what is now British Columbia to the Skeena, with a  dotted line through the middle of it, 85, is ice that  continued after the white area had become ice-free?  That's right. And it's ice that existed at 9500  years before present and 8500 years before present  where the dotted line is and it had receded that far.  I understand now.  Yes.  And so then you understand the dotted lines, I  recall that we had some discussion about that. 23619  Submissions by Mr. Grant  1 THE COURT:  I have a note here that it's all described in  2 Exhibit 1074 or maybe that's page 1074 and 75.  I am  3 not sure.  But I can find from that reference.  Thank  4 you.  5 MR. GRANT:  Now -- so what you find is at the Queen Charlotte  6 Islands at 7500 years before the present, you find  7 archeological finds at Kitselas at 5000 to 4000 and at  8 at Edziza where the obsidian, one of the two locations  9 of obsidian, you find at 9000 years.  10 As I say, I will refer back, but I go to 116, after  11 a brief review from the Skeena River pre-history,  12 which is an exhibit of Hagwilget, that the  13 information, the dating there is compatible with the  14 adaawk in which intensive occupation of Temlaham area  15 ends at a certain point in time said to be thousands  16 of years ago, La'ooy Mrs. Johnson said, Antgulilbix  17 said, and this is where you see at 3500 years before  18 the present in the paragraph before, multiple activity  19 ceased during this period, the site used only for  20 fishing thereafter.  Activity was light and sporadic  21 until 1820 A. D. when the locality was given to the  22 Carrier by the Gitksan.  23 Now, in that sense, as you know, that statement  24 should be that it was -- that statement is from Skeena  25 River Prehistory, but it is right to use the fishery  26 there were authorized to the Wet'suwet'en by the  27 Gitksan and it's still within the territory of Spookw,  28 a Gitksan chief.  29 Now, I refer you to the Gitsalasxw, Gitaus find,  30 which is described and referred to on page 116 and 117  31 but the Paul Mason I would like to deal with.  32 The second site to be excavated at canyon site has  33 microblades as old as 5000 B. P. and it is interpreted  34 as a temporary camp.  35 Now what I would like to do -- now I refer to  36 Exhibit 849, tab 9, and that exhibit is the thesis of  37 Dr. Coupland on pre-historic change at Kitselas  38 Canyon.  39 THE COURT:  Is this an exhibit?  40 MR. GRANT:  I will explain why I am giving it to you again.  I  41 am not going refer to it directly, but when I reviewed  42 that exhibit which was introduced in cross-examination  43 by Mr. Willms, it appeared that although the exhibit  44 was labelled as such, only some pages were put in.  45 This is not the entire dissertation, because much of  46 it, as far as I am concerned, isn't relevant, and as a  47 paper saving and -- I have the whole thesis available 23620  Submissions by Mr. Grant  1 if my friends have any concerns, but I know they have  2 it available as well, because they tendered it, but  3 this is the additional pages that are referenced in  4 the argument.  And it's for that reason that I am  5 tendering the balance or these pages as well.  6 THE COURT:  What is the exhibit number?  7 MR. GRANT:  849-9.  I make reference in the argument to others.  8 THE COURT:  All right.  9 MR. GRANT:  I am only going to refer to it in my argument but  10 the source is there.  11 MR. GOLDIE:  Well, the situation is that in chief, in the case  12 of I think Dr. Albright, the plaintiffs introduced  13 some pages from this document, in cross-examination  14 the defendants introduced some pages, my friend now  15 wishes to refer to pages which aren't in evidence.  16 And I think you should identify those for his lordship  17 and we will see whether that privilege will be  18 accorded.  19 THE COURT:  Are you able to respond to that, Mr. Grant?  20 MR. GRANT:  Hm-hmm.  Firstly, I want to be clear, it's my  21 understanding, my lord, from your rulings, and I think  22 this is important to get this clear, and I don't want  23 to spend a lot of time in our argument dealing with  24 it, but that you referred to the fact that counsel may  25 refer to treatises in argument, whether they are  26 marked as exhibits or not.  And you did that on a  27 number of occasions when arguments were raised about  28 treatises.  That was first point.  The second is this  29 treatise has been tendered, certain pages were marked  30 as an exhibit.  At that time, both sides referred to  31 some pages and not to others and so only those pages  32 were tendered.  But it is my submission that the  33 treatise itself can be relied upon as a treatise,  34 without being marked as an exhibit, but because this  35 one was marked in part as an exhibit, that these pages  36 can be put in with the exhibit number for ease of  37 reference so it's understood that it's part of the  38 same document.  And that it's not a situation in which  39 we have to argue over the introduction of new  40 exhibits.  It is a situation in which this is part of  41 the exhibit.  The pages to which I refer are set out  42 in the argument that my friends received, and at page  43 118 is 189 to 265.  And the pages are set out in the  44 red binder that I have tendered.  I have put in the  45 entire introduction, to which my friends referred in  46 part.  47 THE COURT: Well, were pages 189 to 265 put into evidence or are 23621  Submissions by Mr. Grant  1 they being ventilated here today for the first time?  2 MR. GRANT:  Well, the reference I had to this was that it was  3 846-9, my friends put in, when I referred to that,  4 only a few pages.  5 THE COURT:  We only have pages 11, 11 -- sorry, I guess it's  6 Roman II.  I am sorry, there are different numbering  7 sequences, there is only half a dozen pages here in  8 the exhibit.  9 MR. GRANT:  Yes.  And when I quickly went through the index of  10 the exhibits, I did not see, I did not see the  11 reference to it and I didn't check the reference to it  12 of what had been put in earlier that my friend now  13 suggests.  I am not going do dispute that with him, I  14 didn't note the references so for ease of reference I  15 have it here.  The intention was originally when we  16 filed the treatises upon which we relied, we would be  17 putting this in as part of treatises, but because I  18 have come to it on its own I felt I would give it to  19 the court ahead of time, I thought I would give it to  20 my friends ahead of time for reference.  21 THE COURT: All right.  I am not sure where we are, but — I  22 suppose I have to hear from you, Mr. Goldie.  23 MR. GOLDIE:  I think the -- my point is a simple one, my lord,  24 treatises may be referred to, my understanding, if  25 counsel adopts the proposition as his own, as part of  26 his argument.  There was always a reservation with  27 respect to any facts which counsel wishes to rely upon  28 because those facts, if the portions of the treatise  29 were not put in evidence, were not available or not  30 used for the purposes of cross-examination.  If there  31 is material in here that my friend wishes to adopt as  32 his argument, that is opinion on the part of the  33 author, that is within your lordship's ruling as I  34 understand it.  But the number of pages that were  35 extracted from this particular treatise, by each side,  36 are relatively slim and if my friend is concerned now  37 to rely upon the facts of these other pages, then I  38 think we ought to be able to have those identified and  39 give some thought to whether they ought to be  40 introduced at this stage of the game.  41 THE COURT:  Mr. Grant?  42 MR. GRANT:  Well, I differ with my friend's approach here, I  43 don't think that his characterization of the way  44 treatises can be utilized by counsel is correct.  I do  45 not propose to argue this point now and I also do not  46 propose that with respect to this kind of an  47 objection, that we argue this type of point during the 23622  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  MR.  THE COURT  MR. GRANT  MR. GOLDIE:  period of our arguments.  Our arguments are scheduled  on what we assumed and these objections we would deal  with it at some point arranged by counsel for the  court.  COURT:  Let's rush on.  MACAULAY:  My lord, before we argue this, perhaps Mr. Grant  could provide us with the passages that he intends to  rely on and inform us, and the court, on the point Mr.  Goldie raised, that is whether or not he seeks to  introduce new facts in evidence.  Our submissions on  those points, there is no point in arguing a point  that's not being pressed by the plaintiffs.  Yes.  I think, yes, I think there is merit in what  you say, Mr. Macaulay.  We shouldn't argue a point  that hasn't been defined.  But let's rush on.  I think if my friends looked at our summary that was  delivered before, this section is not -- I would  appreciate their point if this was something that had  been issued.  This was in the summary and the page  references are in.  And I set out what my argument is,  and they know what -- there it is.  It stands.  We noted we couldn't find the pages in the exhibit  on your summary.  Now you know why he complains.  I assumed my friend had more than those three pages  in his file so I was hopeful that he could have have  found them.  Let's by all means --  MACAULAY:  This is still a guessing game and we are trying  to avoid that.  COURT:  Yes.  GRANT:  I will rush on, my lord.  MACAULAY:  There are 3200 pages of summary.  I must have  missed that.  I am going to review it carefully right now.  The Kitselas Paul Mason is the site I would like to  focus on for this portion.  It has microblades at the  5000 to 4000 B. P. and is interpreted as a temporary  camp.  This was in Coupland at pages 189 to 265 in  which he does this analysis of the site.  The next level, 4500 to 3600 years before the  present time, corresponds to the oldest level at  Gitaus and Coupland agreed with Allaire's  interpretation of it, as a component of the type of  cultural pattern prevalent on the coast at the time.  Allaire, of course, as I recall, is in Skeena River  pre-history, which is an exhibit.  COURT  GRANT  COURT:  THE  MR.  THE  MR.  THE  MR.  MR.  MR. GRANT 23623  Submissions by Mr. Grant  1 This level has been interpreted as a seasonal camp,  2 probably for summer fishing.  Coupland sees it as a  3 break from the previous level in that the occupants or  4 users at that time did not show coastal affiliations.  5 Coupland's findings support those of Allaire and  6 therefore the compatibility of adaawk accounts of  7 coastal people being pushed upriver prior to their  8 establishing a seasonal round, which included summer  9 fishing along the lower Skeena.  The early level at  10 this site presides all thoughts at Gitaus, and is  11 therefore unique in the canyon.  It will be remembered  12 that the Frog/Raven Clan established themselves in  13 Kitselas area although not in the canyon in the  14 earliest times and had ancestral ties with the  15 Wet'suwet'en, which are still remembered in the use by  16 both of the name Satsan and Gubihlgan.  The obsidian  17 found at this early level is from Anaheim.  It is  18 compatible with the oral histories in that the early  19 Frog/Raven people here probably received obsidian  20 through theri interior relatives.  21 There is evidence, my lord, that when we come to  22 the Wet'suwet'en, that the Wet'suwet'en, I believe  23 Alfred Joseph, Gisdaywa', gave this evidence, the  24 Wet'suwet'en received obsidian through the interior  25 from the Anaheim source.  26 Then he refers -- then I refer to Coupland at 326  27 to 328 in which it's found that the obsidian in  28 subsequent coastal oriented occupation is from Mount  29 Edziza as is the obsidian found in Prince Rupert  30 harbour.  31 The next level, between 3600 and 3200 to the  32 before the present which is represented by the Skeena  33 Phase at Gitaus, at the Paul Mason site, is a temporal  34 hiatus during which the site is unoccupied.  35 The next level of the Paul Mason site was a  36 village dating between 3200 and 2700 B. P.  Coupland  37 interprets the occupants of this village as coastal in  38 life style having developed "in situ" in the canyon.  39 Now when you examine the events --  40 MR. GOLDIE:  Excuse me, you have a reference to that please?  41 MR. GRANT:  That is within the reference that I have but the  42 cite isn't there, the page reference.  When one  43 examines the house -- Men of Mediik or Fireweed from  44 Temlaham, is at Fsem-y-how, Tsunyow, which is on a  45 height of land on the west side of the canyon. While  46 established here Walter Wright speaks of "new ways of  47 life" being devised, of the first use by this group of 23624  Submissions by Mr. Grant  1 the canoe, of raids and trips along the coast and of  2 "other towns" that lay on the Skeena, "where coast  3 dwellers came for salmon."  He also spoke of permanent  4 villages at Gitnadoix and Gilots'aw with whom the Men  5 of Mediik form alliances.  6 While still -- then there is the reference to the  7 Haida group and the archeological finds there, and the  8 connections with the Haida group and going on to the  9 next paragraph, this time period beginning around 4000  10 B. P. is compatible with the arrival of the Haida at  11 Gitsalasxw as described in the adaawk, if the arrival  12 of Temlaham people was three 3500 before present,  13 especially since this group joined other coastal  14 villages and the Kitimat prior to establishing  15 themselves at Gitsalasxw.  16 As a result of Gitxoon joining the Men of Mediik,  17 they needed room for expansion and at this time they  18 moved to "the flat-topped hill on the east side of the  19 canyon's bank" where they established their village  20 and added Koom to their settlement.  Each "totem" had  21 its own site.  22 Now, then I refer to Koom, but conclude on 121 that  23 a date for the first village settlement on this site  24 of the canyon at 3200 before present, is compatible,  25 the archeological find is compatible with the oral  26 history accounts of the development of village sites  27 in the canyon.  28 Now, looking at Prince Rupert Harbour briefly, the  29 earliest components at Prince Rupert suggest  30 considerably smaller population than in the second and  31 third components.  This is between 5000 and 3500  32 before present.  And there is a reference there that  33 there is around 3500 before present, there is a rapid  34 midden buildup reflecting larger village occupations  35 and larger house construction and probably substantial  36 population increase.  37 This archeological data is compatible with the fact  38 that those early groups at the canyon at Kitselas that  39 showed coastal characteristics were coastal people  40 fleeing the Tlingit and they returned to the coast  41 after the Tlingit had been driven north.  The end of  42 the levels where they are represented is around 3600  43 before the present.  What they need to unify for  44 defence all the Tsimshian villages established village  45 sites in the harbour which accounts for the marked  46 changes noted by MacDonald and Inglis, and that's in  47 the Skeena River pre-history. 23625  Submissions by Mr. Grant  THE COURT  MR. GRANT  It is after of this 3600 before present departure  at Gitsalasxw and increase at Prince Rupert that those  of the Skeena complex arrived at the canyon.  And I believe that 1090 is the reference to the Skeena  River pre-history.  :  Should we take the morning adjournment?  :  Certainly, my lord.  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 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 23626  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  THE  MR.  THE  MR.  THE  MR.  THE  MR.  GRANT:  COURT  GRANT  COURT  GRANT  COURT  GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  REGISTRAR:  Order in court.  COURT:  Thank you, Mr. Grant.  Yes, my lord, I have just for your reference, I have  given you a transcript reference, right after page 90,  and just for your convenience I just photocopied those  three pages, so you can insert it.  Page 90?  Right after page 90.  The Gottesfeld exchange.  All right.  Thank you.  Page 122.  Yes.  Thank you.  Returning now to the most recent levels in the  archaeological excavation at Gitsalasxw.  And by the  way, the Skeena River pre-history, it's -- I believe  more than one place, but it's at Exhibit 849-12, and  not at Exhibit 1090.  What is it again?  849-12.  Thank you.  Now, the most recent levels in the archaeological  level at Gitsalasxw is described as having evolved  from the Skeena complex but with coastal influences,  with the 'emergence of a way of life with similar to  coastal cultures.'  Allaire described the sequence at  Gitaus as a striking case of pre-historic  acculturation.  At this point Gitaus is still an area  where intensive seasonal occupation is indicated.  This level begins around 2,500 B.P. and ends around  1,500 B.P.  Once again, my lord, this is compatible with the  adaawk record, in that the opportunities are all  described as on hilltops or below the canyon until the  most recent period at the head of the canyon.  As a  result fishing and food processing areas could well  have been located nearby.  And in Exhibit 1043, tab 33, at the end, and you  don't have to refer to it now, but at the end, of  course, is the mapping of those sites at Gitaus from  the archaeological evidence.  Now, by this time the permanent winter village at  the Paul Mason site is abandoned.  This parallels the  Men of Mediik chronology in that, during their  residence on the flat-topped hill on the canyon's east  bank, they decide to break the beaver dam at the head  of the canyon.  This dam created a large lake which  according to Walter Wright reached almost Usk.  Allaire's examination of aerial photos led to his 23627  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  conclusion that a lake could well have been present  above the canyon.  Again that's Exhibit 849-12.  This is from a layer  in Skeena River pre-history, and that layer account  may be in one of the other references.  What I intend  to do to save time is that I will check these  references, and in the -- also changing any  typographical errors, are also being corrected before  you receive a disk.  THE COURT:  I wouldn't worry about typographical errors.  I make  a few of them myself, therefore I recognize them quite  readily.  And I can tell you, Mr. Grant, that having  made notes on this copy, it wouldn't be helpful to  have another one.  MR. GRANT:  I am not going to re-photocopy.  What I mean is on  the hard disk that you have.  THE COURT: All right.  Thank you.  MR. GRANT:  I think you have enough paper.  THE COURT:  Yes, I think so.  MR. GRANT:  The breaking of the dam resulted first in a move of  some members of the settlement back to sem-y-how so  that control of the canyon could be maintained from  both sides of the river.  A number of further moves to  areas both below and above the canyon follow.  While  at Andudoon, below the canyon, the earth is undermined  and men are killed when it collapses.  This area is  abandoned and the event is seen as retaliation by the  Beaver people.  Certainly with the change of water  flow through the canyon the course of the river most  probably changes as a result.  This sequence of moves as described in the adaawk  and the fact that archaeology indicates a move from  the hilltop site around 2,500 B.P. are compatible.  Continued use of the canyon at Gitaus is shown after  2,500 B.P. by people exhibiting the same cultural  characteristics as those in the permanent village in  the preceding period.  Now this reference in the middle paragraph is to  the Men of Mediik, Exhibit 898.  Indications of status  resource use changes.  It is at 2500 B.P. both at Prince Rupert Harbour  and at the canyon that archaeologists have said status  differentiation is indicated.  THE COURT:  You mean the Kitselas Canyon or Hagwilget?  MR. GRANT:  Kitselas.  Yes.  Coupland analyzed the appearance of  labrets and slate mirrors at Gitaus at 2,500 B.P. as  an indication of status differentiation and MacDonald 2362?  Submissions by Mr. Grant  1 an Ingis state that in Prince Rupert Harbour around  2 2,500 B.P. "grave goods, copper ornaments, amber  3 heads ... reflect status differentiation.  4 Archaeological findings indicating shifts in  5 resource use are also compatible with the oral  6 histories.  Coupland states:  7 "The overal indication is that after 3,000 B.P.  8 there was a reduction in food niche width along  9 the entire lower Skeena.  At Prince Rupert  10 Harbour, the decline in the economic importance  11 of land mammals was associated with an increase  12 in the importance of inter-tidal resources.  13 The economic base began to shift from one of  14 resource diversity to one that placed  15 increasing emphasis on maritime and especially  16 foreshore resources."  17  18 Once again, the page references at the top of 124  19 I am going to be putting into the amended ones.  They  20 have been inserted, my lord, but for some reason  21 didn't take on this copy.  22 The era of trade and the Gitksan.  Page 125.  And  23 I am only -- I won't refer you to -- I won't read to  24 you page 124, 125, the balance, but I urge upon you to  25 look at them, because it completes that connection of  26 the relationship between the adaawk and the  27 archaeological find.  28 Now, with the concomitant rise of royalty and a  29 new economy involving extensive trade on the coast  30 Gitksan society also underwent change.  The chain of  31 intra-clan connections through Gitksan territory as  32 well as the political ties fostered through marriages  33 allowed the interior-coast trade to become an integral  34 part of their economic system and to effect greater  35 interaction and interdependence between the three  36 Gitksan areas, in the north, in the west and in the  37 east.  38 Now, at this point, my lord, I must say, as an  39 aside, that the enviromental material which I shall  40 refer to later on, the environments and the ecology of  41 the Gitksan territory is consistent with this, as is  42 the archaeological evidence to the extent that they  43 find obsidian, as is the evidence of Dr. Daly in his  44 analysis of the economic structure in his evidence,  45 which will be referred to in more detail later.  46 Now,  I would like to refer to Gitank'aat.  This  47 is the place at the mouth of Fiddler Creek. 23629  Submissions by Mr. Grant  1  THE  COURT  2  MR.  GRANT  3  THE  COURT  4  MR.  GRANT  5  MR.  GRANT  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  THE  COURT  41  42  43  44  45  46  47  MR.  GRANT  I don't recognize that other word.  Gitluusek.  Gitluusek is in that area.  All right.  Of Gitank'aat.  "A sense of the place of Gitank'aat in the  history of this area comes out of an  examination of the Eagle groups who ultimately  come together to make up the present Gitwingax  Eagles houses of T'ewelasxw, Skayeen,  Sakxwmhiigook, Gilawoo' and Simediik.  The original people at Skwoolekstaat  (Xsigwinekstaat) the Eagle/Wolf or Laxnadze,  usually referred to by the chief's name Gook,  Sakxwmhiigook, the Bear crest, the Gnawing  Beaver and the Eagle.  These people were joined by the Eagles and  Eagle-Wolves migrating from the north...who  (use) the Squirrel crest...The second group to  join Gook were the Tlingit Gwenhuut Eagles who  brought with them the Halibut crest while the  third and final group were the Gitxoon Eagles  with Haida connections, who brought the Dog  Salmon crest."  Now, clearly Gitank'aat grew as a village as  groups from the dispersal in the Haida redistributed  themselves among the Tsimshian and, to a lesser  extent, the Gitksan in strategic locations along  significant trade groups.  Now, after making reference to Gitluusek.  I go  on.  In both these villages there were royal chiefs and  common chiefs.  Both villages were also bilingual.  "The influences of the group centered at  Gitsalasxw  ..."  Excuse me, Mr. Grant.  One moment.  I wonder if it  will be helpful if Madam Reporter had a copy of this,  so she could see when you are quoting and when you are  not.  Because when you are quoting there is no reason  for her to take it all down, if she can keep track of  what you are quoting or if she is not.  Is there  another copy?  We had arranged -- 23630  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 REPORTER:  Our copy is in our office.  THE COURT:  Ms. Thompson can go get it right now, can't you, Ms.  Thompson?  THE REGISTRAR:  Yes.  THE COURT: You are about to start a long quotation here, and if  you're going to read it all, there is no reason for  Madam Reporter to try and keep up with you, when it's  all there, and can get it at her leisure, of which she  has too little, I'm sure.  But you go ahead.  MR. GRANT:  THE COURT  MR. GRANT  THE COURT  MR. GRANT  "The influence of the groups centered at  Gitsalasxw had spread upriver to build on the  strength of their inland relatives and to  expand the circle of power that came from being  at the centre of a great inland-coastal trade  empire.  At the easternmost border of this  trading network were the northern Gitksan, the  Lax'wiiyip and the Wet'suwet'en with access to  the north and east to the products of interior  peoples... the territory and wealth of these  people... provided much of the wealth in furs,  skins, and clothing that the coastal peoples  relied upon to perpetuate and enhance their  status... Through the Gitksan they had ensured  access to western markets where a burgeoning  royal class among the Tsimshian vied for power  and status...The towns of Gitsalasxw,  Gitank'aat and Gitluusek kept the access route  open, ensuring the flow of goods over hundred  of miles to the benefit of those to the east  and to the west.  Much as Gitk'aat and  Gitluusek were Gitksan, they also represented a  coastal foothold in key locations along the  Skeena River..."  Now here the dating of a da'aq style house  depression in the Gitank'aat area at around 1,700 B.P.  is compatible with the role of the Gitank'aat.  And I just have an insert.  Because this is an  insert, I think I can give copies to the Court.  Thank you.  My lord, I propose to incorporate this into -- I was  overly optomistic.  You added pages 128A and B to your argument?  Yes.  I have done something else.  I have given the  Court Reporter my copy of the inserts. 23631  Submissions by Mr. Grant  1 THE COURT:  I see.  2 MR. GRANT:  And I intend to -- these will be incorporated on the  3 other disk ultimately.  4 Now, this insert relates to Albright's evidence  5 that there was a small site area located one kilometer  6 southeast of Fiddler Creek in the area of Gitank'aat.  7 The largest depression of eight there was determined  8 upon visual inspection to be a house depression.  A  9 test sample was taken from a lens of black  10 carbon-stained silt found in this cultural features.  11 This sample was scientifically carbon-dated by Beta  12 Analytic, and the results showed a date of 1730 plus  13 or minus 60 B.P.  14 The inescapable conclusion to be drawn from this  15 date is that there has been occupation, most likely by  16 the Gitksan, dating back to at least 1730 B.P.  17 The archaeological evidence confirmed the adaawk  18 references to a village of the Gitksan at a place  19 called Gitank'aat.  It is also confirmed the great  20 antiquity of the village site.  This evidence refutes  21 the interpretation by Barbeau that Gitank'aat was not  22 occupied by the Gitksan until about 250 years ago.  23 Archaeological evidence in the territory of the  24 chiefs, in addition to the above, was found at  25 Kisgagas, fish caches and at Gitangus, cache pits, and  26 confirm occupation in these parts of the territory as  27 well.  28 Now, this finding at Gitank'aat is consistent with  29 the -- is consistent with the finding of -- with the  30 adaawk, and once again is corroborative of the adaawk.  31 My argument then proceeds to deal with Gitangasx,  32 and I am not going to review that, although I believe  33 that that summarizes the role of Gitangasx in this  34 period.  35 Page 129, I would like to consider what are the  36 socio-political consequences of this era of trade on  37 the Gitksan.  38  39 "The Gitksan, as a result of this era, had  40 become a more unified people.  Their common  41 origins, their ownership of the upper Skeena  42 river and its territories, the Gitksan  43 language, which by now had spread to the  44 furthest reaches of their territory, their  45 common socio-political institutions, all  46 contributed to their definition of themselves  47 as a people.  Their identity had been defined 23632  Submissions by Mr. Grant  1 in the north as non-Tsetsaut, at Temlaxam, as  2 non-Wet'suwet'en, on the middle Nass, as none  3 Nishga' and now, on their western border, at  4 non-Tsimshian."  5  6 Within these territory boundaries, as a result of  7 this era of intensified trade, they were interwoven  8 more tightly than ever.  Clan and marriage ties linked  9 each village to the others in dynamic relationships,  10 established in the earliest times, but fostered or  11 renewed as the situation dictated, the benefits of any  12 new situation being ultimately open to all.  13 Therefore what we find at this period, 1750 years  14 ago, my lord, corroborated by the adaawk of Mediik and  15 the archaeological find, we find the Gitksan as we  16 find them today.  17 The border pressures.  The adaawk in this  18 section -- next section deal with the final era of  19 pre-historic and proto-historic trade.  The adaawk  20 record press involving the defence of external  21 territorial boundaries, and the acquisition of crests  22 during these periods of conflict.  There is a  23 reference and a description here to Legyeex, and this  24 deals with the conflict of Legyeex trying to break  25 Gitsalasxw cold on the canyon.  26 I will turn to page 131.  I am saying of course to  27 refer to the rest, but just highlighting the points.  28 In the last decades of the 15th century, according  29 to the internal dating in Men of Mediik the conflict  30 between these two groups, that's Gitsalasxw and  31 Legyeex, escalated into war.  Two major battles were  32 fought over a period of years with the Gitsalasxw  33 retaining control, but not without losses.  In the  34 second battle or war they abandoned their village and  35 it was burned to the ground.  Legyeex, unable to  36 battle resigned himself for a time to defeat.  37 Excerpts from this account from the Men of Mediik are  38 in Exhibit 1050 at volume 2.  39 Now, the Gitksan were not directly involved, but  40 they were invited to a feast by Niistaxhuuk, at which  41 they agreed to be allies and come to his defence if  42 the need arose.  43 Now, the next reference is to the Haida wars  44 and the Haida Skeena River wars.  And that these  45 hostilities were interrupted by a threat from without,  46 around the end of the 17th Century, when raids by the  47 Haida became a serious threat to the Skeena River 23633  Submissions by Mr. Grant  1 peoples.  And in the account of Mr. Morgan of  2 Gitwingax he describes what the Haida did.  And I'll  3 just summarize this on page 132, rather than read it.  4 The Haida, my lord, what they did was they came up  5 and they would trade and they would find a group that  6 was where the men were out hunting or away and trade  7 in a friendly way and be very generous.  Then what  8 they would do is would leave and in the night they  9 would return, they would kill the people and take the  10 children.  And this is what this account of this  11 adaawk refers to.  And what the account refers to is  12 that this was going on and nobody knew who the  13 attackers were, because there was no survivors until  14 in one situation there was an old woman that kept  15 herself away from the village or hid herself because  16 she was afraid of a monster that was told that was  17 around, and she survived and discovered what they did  18 and told the other people.  19 Now, going to page 133.  What happened is, is that  20 the Tsimshian, Legyeex's groups at the coast, had also  21 suffered at the hands of the Haida, and so they formed  22 an alliance with the Gitsalasxw, who they had been  23 fighting with, and they also conscripted or brought in  24 the best warriors among the Gitksan.  25 And Jack Morgan, the account on page 133, who of  26 course is one of the late chiefs of the House of  27 Tenimgyet, gave a very detailed account of this war.  28 And he describes how they fought the Kitselas and the  29 Tsimshian with some Gitksan warriors fought the Haida.  30 Now, I would like to go to page 135, although I  31 ask you to -- although that's a long account, I ask  32 you to review it.  But as can be seen at the bottom of  33 135 when you review the account, that this adaawk  34 includes an account of the acquisition of the crest  35 Ganimtsim'aus by Wiiget of Gitsegyukla, who was one of  36 the conscripts.  37 Now, the warriors crossed the open waters and  38 attacked the Haida on their own soil, and they  39 returned victorious.  40 Prior to this war, the Gitksan had planned their  41 own defence against the Haida, and had begun to  42 prepare Battle Hill at Kitwangar.  Fred Johnson  43 describes the fortifications in some detail in his  44 evidence.  They differed significantly from Nekts'  45 later fortifications there.  They were not needed,  4 6 however.  47 So there are two sets of fortification at Battle 23634  Submissions by Mr. Grant  1 Hill.  2 Now, I would like to now come to Battle Hill,  3 because this assists in the dating.  The dating of the  4 events in which the warrior Nekt made history is  5 discussed by George MacDonald on the basis of his  6 excavation on Battle Hill.  This, of course, is Battle  7 Hill at Kitwangar.  I believe you had the chance to  8 see it.  9 THE COURT:  Yes, I climbed it.  10 MR. GRANT:  He states that the structures they have dated fell  11 between 1750 and 1835.  12 So again we have an archaeological dating that  13 assists in determining what's -- what time period we  14 are talking about.  15 Now, considering that the events involving Nekt  16 are said by the Gitksan to have followed the Haida  17 wars, and the Nekt adaawk is given in much detail by  18 the Gitksan in several accounts, they are not likely  19 to have proceeded the turn of the century 1700.  So  20 the Haida wars appear to -- I'm sorry.  Several adaawk  21 relates to Nekt's demise at the hands of a Nishga Wolf  22 group who own a crest commemorating this event.  This  23 consistently places this event before their move as a  24 result of the volcano.  And there we are of course  25 talking about the volcano on the Nass.  This would  26 place it in the first half of the 18th century.  Since  27 there is no account of the fortress being abandoned or  28 destroyed prior to Nekt being killed the dating of  29 Nekt's lifetime between 1700 and 1750 can be  30 concluded.  31 And Fred Johnson in his evidence -- or Fred  32 Johnson, the late Fred Johnson in an interview in  33 which he describes the adaawk said this:  34  35 "The battle hill was first built by the Frog  36 tribe - the people from Gitluusek.  They built  37 it in preparation of the Haida war.  They left  38 the village and moved up to Kitwanga, but the  39 first battle hill was never used.  It was built  40 with cedar - three stories high and it was  41 covered with dirt with huge logs with branches  42 made out of spikes sticking out on it.  They  43 were rolled up the hill.  They never were used  44 until about 20 years later there was another  45 war, an entirely different war.  That's when  46 these huge logs were rolled up again.  New logs  47 were built, battle was rebuilt and Nekt was 23635  Submissions by Mr. Grant  1 fighting.  2 This battle hill - they won the war.  3 That's what the song is about and there is this  4 totem pole that's carved - it's the story of  5 the event that took place quite a few years  6 ago.  That's the story of Nekt and his life.  7  8 Now, he refers to -- there is a number of  9 villages -- there is a number of poles in the villages  10 belonging to houses in this wilnat'ahl group.  Among  11 the crests are those that commemorte Nekt's defence of  12 the fortress against the Gitamaat, whose relations  13 with the Gitksan were much like those with the Haida.  14 Although the cause of his hostilities where the Nisga  15 is said to be their ill-treatment of him as a boy,  16 there may well have been hostilities of political  17 nature involved also.  18 In other words, the conclusion I submit you should  19 come to is that in this period of time is that in the  20 immediate historic and proto-historic the Gitksan  21 vigorously defended the western border, the Nekt's  22 defence of the western border through the first half  23 the 18th century, and legacy of the fortified village  24 was which was occupied into the 19th century kept the  25 Gitksan boundary intact during this short but intense  26 period of hostilities, and of course Nekt adaawks are  27 all in evidence, those including the Beynon versions  28 of those accounts.  29 As you recall, Nekt was -- he was the son of the  30 Gitksan women taken by the Haida who she escaped from.  31 Now, in the north, at Tsimlaxyip there is the  32 description of what is going on there, and there is a  33 reference to the adaawk of John Brown.  And the  34 conclusion is, as I submit, that the adaawk of John  35 Brown, when it is considered, they probably took place  36 at Gitangasx and accounted, at least in part, for the  37 move of many of the Gitangasx to more southerly  38 villages.  39 On page 139, the inland people to the northeast.  40 This is a section that, as you know, has been much  41 discussed in the evidence.  42  43 "Those that moved to Kisgagas joined members of  44 the Wolf and Frog clans that had been  45 established there since before the dispersal  46 from Temlaxam.  Some of those that moved back  47 to both Galdo'o and Kisgagas had also lived in 23636  Submissions by Mr. Grant  1 these places at other times in earlier  2 eras...As with the move of the western Gitksan  3 to Battle Hill, which may have been  4 contemporaneous with this move, the Gitksan  5 were marshalling their forces in a threatened  6 area, this time in the northeast.  7 The fact that Meluulek built a bridge there  8 and that his people become known as Gitganeexs,  9 People of the Bridge, indicates that perhaps  10 the move to Kisgagas, as that to Battle Hill,  11 was also for greater access or control of  12 trade...The building of the bridge, and the  13 feast at which Meluulek's ownership of it was  14 witnessed and acknowledged, gave Meluulek  15 control of a strategic position on an important  16 trail network north to the Finlay River area,  17 east to the Peace River area and south to Takla  18 and Babine Lake.  Acording to David Gunanoot it  19 was Takla people that attacked Meluulek shortly  20 after he had established himself at Kisgagas."  21  22 And Jimmy Williams told this adaawk in 1920.  And  23 that of course is in the evidence, in the adaawks of  24 the Beynon adaawks.  25 I would like now to move to the east.  And during  26 this era, as in all previous times since the founding  27 of Temlaxam and Dizkle, the Gitksan and Wet'suwet'en  28 maintained stable and peaceful relations.  The Gitksan  29 and the Wet'suwet'en histories, both of their  30 histories are not histories of war after the  31 settlement at Dizkle.  32 Now, the maritime fur trade I would like to  33 briefly allude to, and there is a reference in the  34 Wars of Mediik to ships arriving at Kitimat carrying  35 gun powder, a generation before guns were common in  36 the northcoast area.  There were shifts in power, and  37 possibly in population, to the east of the Gitksan and  38 Wet'suwet'en that indicated the influence of new types  39 of trade goods and intensification of fur trading  40 activities.  Certainly wherever the Europeans  41 appeared, there was an immediate Indian response,  42 respected in intensification of both trade and  43 competition for trade among Indian groups.  44 And I think I should pause there.  We'll deal with  45 it later in argument in detail, but I don't -- I don't  46 want to take the Court -- I think the Court should  47 take any -- make anything of any suggestion that this 23637  Submissions by Mr. Grant  1 society of the Gitksan and Wet'suwet'en is a society  2 that froze in time.  This ancient history that I have  3 described shows that every ebb and flow of history had  4 its impacts, as with any civilization, and of course  5 the fur trade and contact had its impact too.  And we  6 are not suggesting that it didn't.  We are suggesting  7 that of course there was a civilization extent long  8 before the white men arrived.  9 Now, I refer you -- I am not going to go through,  10 but there is the incident of the Nishga and Saniik  11 versus the Portland Canal people, and the Nishga  12 versus -- against Saniik, and those wars, which Fred  13 Johnson referred to in his evidence, Exhibit 73A, and  14 then there was a peace settlement.  And on page 144 I  15 refer to the period between the Nishga and the  16 Gitksan.  17  18 "During this period, the Nishga who had not been  19 able to establish access to the northern  20 heartland at Lakwiiyip, and who were now  21 confirmed enemies of the people there and their  22 Tahltan allies, attempted to open up their own  23 trade network inland along the trails of the  24 Gitksan.  The Gitksan had positioned themselves  25 in key locations along this trade network, not  26 necessarily to block travel within their  27 territories but, as with the Gitwingax and  28 Kisgagas, to control access, so that they would  29 have priority rights to goods and gifts in  30 acknowledgement of their ownership and control  31 over their land.  32 The Fireweed had strengthened their  33 presence in the north, primarily at  34 Anlagasemdeex but also at an outpost on the  35 Kispiox River at Luu'andilgan.  Of this lateral  36 location Barbeau was told the following:  37  38 'The Nass trail passed through this land and  39 crossed the Kispiox here, 'at the head of the  40 waterfalls'.  A bridge here and a salmon house.  41 They had a feast house here, into which they  42 invited people coming over the Nass trail.'"  43  44 And this is taken from Duff's file on the Kispiox,  45 arriving out of review of Barbeau's material.  46  47 "The Galdo'o also used their strategic location 2363?  Submissions by Mr. Grant  1 for trade control.  The upriver Nishga, in the  2 person of Skat'iin of the Wolf clan of  3 Gitlaxdamks, were not prepared to acknowledge  4 Gitksan control and they initiated a series of  5 attacks on the northern Gitksan, already  6 weakened by their battles with the Tsetsaut.  7 Skat'iin, also known as Maasgibuu, had land  8 strategically located at the easternmost border  9 of the Nass territories, and used his position  10 there to establish his own control of trade  11 traffic.  He had a fishing site very near the  12 border of Gitksetoosxwt.  He was also the  13 leading chief of Gitlaxdamks and, as such,  14 invited any newcomers who passed that way, to  15 stop at his feast house, where they were  16 entertained and thereby became in his debt.  17 Skat'iin's power peaked during this  18 post-contact trade era and was reflected in his  19 use of trade goods as symbols of power in the  20 peace feast he held for the Galdo'o through  21 which he ensured friendly relations with them  22 and trade access through their territory."  23  24 Now, that's significant in the John Brown adaawk  25 version referred to.  But what's important and is  26 reflected in the resolution with the Nishga on page  27 146 is that there was peace, and a peace settlement,  28 but there was no transfer of territory or access to  29 the resources.  It was the development of a trade  30 relationship.  31 Now, the Nishga, as Mary Johnson gave evidence of,  32 they attacked Kispiox, and these -- and from the  33 dating and the chronology, it appears that that attack  34 would have been around 1820.  I'm sorry, I said Martha  35 Brown described this in her evidence as well.  The  36 Nishga people may have been foolish, but they never  37 saved any shots to get food.  When they returned home  38 they were starved, they didn't have anything.  And  39 this is a description that goes on out of the adaawk  40 of the starvation.  It wasn't until the late 1800's a  41 peace ceremony took place at Gitwinksihbxw between the  42 people there and their guests, the people of Kispiox.  43 And that of course is a trade ceremony on the Nass.  44 MR. GOLDIE:  What is the quote again?  "Their song was really  45 nice."  Was that the quote?  46 MR. GRANT:  I'm going to refer to that in the quote, and I'll  47 give an amending page with that quote correctly set 23639  Submissions by Mr. Grant  1 out there.  2 MR. GOLDIE:  Thank you.  3 MR. GRANT:  My lord, now then on page 147 I deal with the  4 Nishga's efforts to get in to obtain free access to  5 inland trade goods in the west, and of course there  6 they were fighting directly with Legyeex.  7 Now, my lord, I believe you may recall, and I  8 refer you to that, but I won't read it, I believe you  9 may recall that there is much mention of Legyeex, but  10 there was several Legyeex over the period, and it's  11 not -- that's the use of the term Legyeex, it's like  12 using any other chief names, it doesn't mean one  13 person.  14 Section seven, the adaawk record -- page 149.  The  15 first encounters with the people of another race in a  16 socio-political context as historical events of  17 significance.  Accounts of the first encounter with  18 the white man, almost every family has a story.  19 Martha Brown, Mary Johnson and Thomas Wright each told  20 accounts.  Martha Brown is Exhibit 68, Mary Johnson is  21 volume 11, pages 671 to 673, and Thomas Wright is  22 Exhibit 75.  However, not all the encounters are  23 included in adaawk.  The exchange or the events must  24 first be one of socio-political import, such as the  25 establishment of trade relation or as the declaration  26 of peace.  27 THE COURT:  I'm sorry, Mr. Grant, can you go back and give me  28 the reference to Mary Johnson again.  Volume 11.  29 MR. GRANT:  Volume 11, pages 671 to 673.  And Thomas Wright is  30 Exhibit 75.  31 THE COURT:  Thank you.  32 MR. GRANT:  Now, I refer then to an encounter on the coast  33 that's reflected and connects to a ship landing.  What  34 I would like you to refer to is the encounter inland.  35 Much was made of this encounter as sort of humoristic  36 in cross-examination, but I think a careful analysis  37 shows why this was an adaawk rather than merely  38 personal history, and it demonstrates the difference  39 between the two.  40 This encounter is recorded in Meluulek's adaawk.  41 Meluulak being the Frog chief from Kisgegas.  In an  42 incident between Meluulak and the Tsetsaut,  43 Miluulak -- by the way, my lord, Raven Clan Outlaws is  44 Exhibit 1048, and that's the 83rd adaawk in there.  4 5 THE COURT:  Yes.  46 MR. GRANT:  Meluulek is killed and a young woman from his house  47 is kidnapped by the Tsetsaut.  The woman eventually 23640  Submissions by Mr. Grant  1 returned to Kisgagas unharmed, having been helped by  2 the Midoo or white people at Bear Lake.  The leading  3 chiefs of Kisgegas at the time planned to retaliate  4 against the Tsetsaut, but could not agree on their  5 position vis-a-vis the the Midoo.  These white people  6 had provided the Tsetsaut with guns that had killed  7 Meluulek, and so were guilty of contributing to his  8 death.  But on the other hand they had helped the  9 young woman.  It was finally decided not to retaliate  10 against the Midoo.  The adaawk continues as follows:  11  12 "And they found out that only one Tsetsaut was  13 living there.  The Tsetsaut raised his gun, but  14 they took it away from him, and they held him  15 fast, so that he could not move,"  16  17 This is when the Gitksan gets to the Tsetsaut.  18  19 "They were going to capture his wife but the  20 rest advised they should not take any women,  21 because every one will laugh at us if we take  22 only women captives.  They held the Tsetsaut  23 for a long time.  The Tsetsaut then confided to  24 them by his hands waving that they should let  25 him free.  They left him free and he stood up.  26 He explained to the Kisgegas people that  27 henceforth they would have possession of half  28 the mountain there.  This should now be their  29 territory.  They thought by his reasonings that  30 if they killed him, they would not get  31 anything, so they let him free, agreeing to  32 accept the gift.  They said, if there were 20  33 Tsetsaut, the Kisgegas warriors would kill them  34 all, but it would be wrong for them to kill  35 only one man.  36 This was the first time they had seen a  37 white man's dog. "  38  39 This was occurring in the Bear Lake area, my lord.  40  41 "The Gitksan dog's ears stands up, the white  42 man's hang down.  So then they decide that they  43 should adopt as a crest the white man's dog's  44 head with drooping ears.  They called this  45 'Ansem' Midaw, the white man's dog.  They asked  46 among themselves, 'Who will take this as a  47 crest?'  The fireweeds decided to take it, and 23641  Submissions by Mr. Grant  1 it was theirs, in the house of Wairet.  Then  2 they said, 'What will Kikyap take?  He shall  3 take half of the mountain that was given by the  4 Tsetsauts.'  Then, 'What will the house of  5 Meluleq have?' they asked.   They said, 'We wil  6 own the Yaes (Palisade) as a fortress,' this  7 they had seen surrounding the white man's  8 house.  And it became the crest of Meluleq.  9 Next they enquired as to the white man's house.  10 And it became the crest of Meluleq.  Next they  11 enquired as to the white man's name.  And the  12 white man said 'Maselaws (Mr. Ross).  He shall  13 take this name as his property.'  So they  14 agreed that the man that had taken as his crest  15 should also take the name of 'Ausem-Midaw'.  16 There was another Wolf clansman who had no  17 crest, that is, Yawle.  Then they agreed upon  18 his taking Sunbeams-as-Feet-of --  19 Feet-of-the-Sun, Yalehlelse'hlawrhs (the  20 sunbeams are the feet of the sun).  Still  21 another man had no crest.  They alloted it to  22 his sister.  This name had become his property.  23 After they had agreed to all that, they left  24 this place.  They received many gifts from the  25 white people, including axes, knives and many  26 other objects.  Afterwards, they discussed  27 among themselves who will give yuku feast.  So  28 they said 'Waiget must give the first white  29 feast.  So he will exhibit the Dog of  30 Maselaws.' Were to be invited to the yuk the  31 following tribes:  Kaldo, Kispayaks, Gitenmaks,  32 Gitawaeltku, Gitwanrae, and Gitwinkul.  33 Waiget then gave his yuku.  Everyone was  34 astonished at the sight of the Dog crest which  35 he exhibited and also the new name that he  36 assumed.  After his feast was over, they  37 decided that it was time to commemorate the  38 death of Meluleq.  They then gathered to plan  39 what to do, because the people of Gitsegyukla  40 were already taunting them, rebuking them.  The  41 Larhsail group of Kispayaks said, 'We will  42 invite them and the successor of Melueq to give  43 a yuk.'  The sister of Meluleq then declared,  44 "we must also exhibit the new crest of Meluleq,  45 to Yaes (Fortification).  Actually this crest  46 was shown a year later, when the people of the  47 same villages were invited again." 23642  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  Now, my lord, the significance of this is not just  the humour which is there of taking a dog with droopy  ears as a crest.  This was a peace settlement.  This  was the end of a battle, of a reprisal against the  Tsetsaut.  It was also a resolution -- how to deal  with the Midoo, the white man that arrived, and the  establishment of peaceful relations, the trade with  the white man were all formally recorded and  recognized through a series of feasts, and it wasn't  just one, because so many crests were taken, that the  different clans and the different houses had to put on  their feast.  And of course the humour of it is the memory of  that crest, which is still with us today.  This concludes the Gitksan ancient history.  And  in summary on this point, my lord, the analysis of  this history demonstrates the method of recording the  oral histories through adaawk has been maintained from  ancient times shortly after the Ice Age right up to  the arrival of the white man.  As the evidence has  demonstrated, the recording of the oral history has  continued with respect to major events in Indian -  white relations such as the hosting of feasts to  assert authority over the potlatch laws.  And there of course I am referring to something we  will discuss later, which is the evidence of holding a  feast specifically to protest the potlatch laws.  Now, what I would like to do -- that can be  inserted here, this is an exhibit, Exhibit 1042-13, is  the summary.  : Summary of what please?  :  The summary of the time-line of the Gitksan with the  socio-political and cultural characteristics, and  prepared by Ms. Marsden, and is Exhibit 1042, tab 13.  And what you see here is the -- in the period of  10,000 to 7,000 B.P. you have the people moving from  the northern inland moving down, as demonstrated on  the large map, and the southern coastal peoples coming  up.  The place, the land is referred to as empty as a  young spring, as bear, and there is no reference to  places.  You then get the period following that  approximating the 9,000, 4,000, with specific  reference to around 8,000 to 7,000 B.P.  The creation  of the Fireweed, and then moving down into Temlaxam.  And what you see is the socio-cultural aspects in the  first time you see the use of the resources, the 23643  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  MR.  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  COURT  GRANT  fishing around fish storage, groundhog drying and  smoking, large mammal hunting, gambling, feuding and  war, territorial ownership by the river or part of it,  Limx'ooy, the foundation of the wilnat'ahl and the  wilksiwitxw.  In the second period you find the developments of  the house group, the crest, the adaawk, the importance  of learning adaawk crests on the house fronts, the  personal names.  The matrilineal law for respect for  all forms of life and the crests and land relationship  and the chiefs, Wolves and Fireweed on one side of the  river, and Frogs and Ravens on the other.  You get a  relationship at Temlaxam between the Gitksan and  Wet'suwet'en, and you find that you have Sesatxw and  A'txesxw as individual rituals and halayt power.  This  is all reflected through the adaawk of this era.  : You mentioned a moment ago the Temlaxam period, but I  don't see it on the summary or the time line you have  just given me.  :  Yes.  It would be the two cultures merge, 9,000 to  4,000.  The creation of Fireweed and Temlaxam on page  one.  : Where do you see Temlaxam in there?  :  The heading, my lord, the two cultures merge, if you  go right over, you see creation of Fireweed and  Temlaxam era.  :  Yes.  Thank you.  :  And then if you go to page two, part three, the  3,500 period, you have the dispersal from Temlaxam and  the dispersal from Lakwiiyip.  :  Yes.  :  And that is the 3,500 period.  And the development  there, which is very significant, I submit in the  context of this litigation, is the development of --  as opposed to clan and village land owning groups,  there is land owning groups already developed, but it  becomes discreet house ownership of lands begins.  You  begin the distinct Eagle clan, the Skeena River  orientation for travel to the coast, the Tsimshian  unify and share winter sites, the royal status and  leading village chief concept, this is more Tsimshian  on the coast, which of course has an impact, access to  territory while owning none.  That's the people  travelling through and being given rights of access,  but they don't get the land.  Increased coastal inland  trade.  Then finally we have the rise of trade, the  borders of the people become more defined, and you 23644  Submissions by Mr. Grant  1 have Gitank'aat about 1700 years before the present.  2 Now -- and then you have that series of wars and  3 the trade relationships, and then you have contact.  4 Now, this development demonstrates the historical  5 development of the Gitksan up to the time of contact  6 through their history and their adaawk.  And we will  7 return to the more detailed analysis of the nature of  8 their society later in argument.  9 I would like to turn now briefly to the  10 Wet'suwet'en.  Now, the Wet'suwet'en Kungax and oral  11 history emphasize Wet'suwet'en presence on the  12 territory since antiquity, as opposed to migrations in  13 ancient times.  14 The archaeological record dates human presence at  15 Moricetown to 6,000 years before the present.  And I  16 will refer Your Lordship to another insert at 154A.  17 THE COURT:  Thank you.  18 MR. GRANT:  Now, this is the reference to the evidence of Ms.  19 Albright, in which she confirmed the occupation and  20 permanent settlement at Moricetown Canyon by 5600  21 before the present.  The radio-carbon dates obtained  22 at Moricetown, together with the analysis of the  23 stratigraphy, artifact assemblages and featural  24 remains, show a continuous settlement at the  25 Moricetown Canyon since 5600 B.P.  26 The spread of the dates obtained:  1650 to -- that  27 should be 1560 B.P., the house structures identified  28 there and the — I'm sorry 1650 to 5650 B.P.  The  29 house structures identified there and the types of  30 tools found, including microblades, a first for  31 Moricetown, indicate long continuous use of the site,  32 most probably by the Wet'suwet'en.  33 And here I pause to say, my lord, is that of  34 course when we are dealing with such antiquity, it is  35 difficult, but that there is certainly no evidence,  36 nothing, no suggestion of evidence by any of the  37 evidence tendered by the defendants or in their  38 cross-examination that anybody but the Wet'suwet'en or  39 Moricetown -- there is no suggestion of a major -- no  40 indication of a major move into the area or a major  41 move out.  42 THE COURT:  What about the evidence of Dr. Kari that suggested a  43 relatively recent separation of the Wet'suwet'en or  44 the Carrier or the Babine Carrier from the Athabaskan  45 at about 2500 years?  Isn't that what he said?  46 MR. GRANT:  I believe the evidence was that there was a  47 distinction between -- that first of all the 23645  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  THE COURT  MR. GRANT  linguistic evidence only goes back that far, to about  2500 years.  I'll have to review his evidence, and I haven't  thought of it since you mentioned this.  You said  there is nothing else, and I am trying to relate -- I  am trying to recall what he said, but it seemed to me  that he suggested a separation of a linguistic  separation, and I thought he was talking about Carrier  from Athabaskan of about 2500 years ago.  Well, I will deal with Kari further, and I think I  will speak to that point.  I look forward to having your clarification in due  course.  Thank you.  Now, Ms. Albright in her evidence testified that:  "Radiocarbon dates indicate occupation of  Moricetown and Hagwilget canyons by 6,000 years  ago.  This research suggested the middle Skeena  watershed was occupied at least as early, if  not earlier than Prince Rupert Harbour at the  mouth of the Skeena.  Archaeological evidence  in the form of faunal remains associated with  birch bark and storage pits as well as artifact  materials also suggested that salmon fishing  was an important part of the economy during the  early period of occupation."  I'm sorry, where are you, Mr. Grant?  Page 154, the quote of Ms. Albright's.  Oh, yes, you are at the quotation.  Thank you.  Dr. Kari concluded on the basis of his analysis of  the Wet'suwet'en language that the Wet'suwet'en:  "They've been there a long time and preserved  features of Proto-Athabaskan that other  Canadian Athabaskans do not preserve in the  same degree."  And I believe that's where Dr. Kari did talk about  that proto -- that the Wet'suwet'en are very close to  the -- maybe the Proto-Athabaskan language, and close  to the source of the Athabaskan language.  Kari testified that the Wet'suwet'en have many  river related place names, which is a common feature  of the linguistically reconstructed Proto-Athabaskan  language. 23646  Submissions by Mr. Grant  1 I'll deal with that evidence, as I said already,  2 further.  Later this morning and this afternoon.  3 Dr. Mills commented with respect to the oral  4 history of the Wet'suwet'en:  5  6 "The kungax do not recount the origin of every  7 house and crest and title.  Songs, called kun,  8 and enactment of personal crests called Kungax,  9 or 'own song' - the same word used with a  10 different verb, for oral tradition - serve the  11 Wet'suwet'en as validation of chiefly titles as  12 much or more than an oral account of the  13 history and origin.  Together songs and oral  14 accounts serve as the validation of title for  15 the Wet'suwet'en in the way the adaawk act as  16 the validation for the Gitksan.  At the same  17 time the Wet'suwet'en oral tradition provides  18 an invaluable window into the context in which  19 the Wet'suwet'en evolved their clans, chiefly  20 titles, houses and crests in the far distant  21 past and is particularly rich in depiction of  22 their ancient history."  23  24 Dr. Mills concluded:  25  26 "In my opinion we can safely assume that  27 significant events in a people's history are  28 recorded and encoded in their oral tradition.  29 While they are not described in the same terms  30 a geologist or modern historian or ethnographer  31 would use, they nonetheless provide a principle  32 source of information about their origins and  33 ancient history."  34  35 THE COURT  3 6 MR. GRANT  37    THE COURT  Should we adjourn, Mr. Grant?  That's fine, my lord.  Thank you.  38 THE REGISTRAR:  Order in court.  This court stands adjourned  39 until 2 o'clock.  40  41 (PROCEEDINGS ADJOURNED FOR AN ADJOURNMENT)  42  43  44  45  46  47 23647  Proceedings  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  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 2364?  Submission by Mr. Grant  1 (PROCEEDINGS RECONVENED PURSUANT TO LUNCH RECESS)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Grant.  5 MR. GRANT:  Thank you, my lord.  I'm at page 156 of this part of  6 the argument.  As Gisday wa, Alfred Joseph, explained,  7 there is a distinction between the kungax of the  8 Wet'suwet'en and the adaawk of the Gitksan.  And he  9 said, regarding kungax:  10  11  12 "It's not migration; it tells about happenings  13 within the territory, how clans and crests were  14 created, and how people defended their  15 territory and their people.  16 The kungax does not talk about what is  17 happening on the territory, it simply talks  18 about the identification of the territory in  19 terms of prominent features."  20  21 Nevertheless, my lord, you see here that the  22 Wet'suwet'en with the kungax, just as much as the  23 Gitksan with the adaawk, connect the history to the  24 territory.  We have evidence from Chief Lilloos, Emma  25 Michell, that "We were here...", being the  26 Wet'suwet'en, "...since the beginning of time."  And  27 Maxlaxleh, Johnny David, "Our people were born right  28 here."  2 9 Now, the Wet'suwet'en kungax do not recount  30 migrations of different peoples to the first  31 Wet'suwet'en village described in the kungax, which is  32 Dizkle.  Dr. Mills concludes:  33  34 "The kungax of the Wet'suwet'en give testimony  35 to the fact that the Wet'suwet'en occupied  36 their territory a very long before the arrival  37 of the Europeans and that they had named chiefs  38 who were the heads of houses and of territories  39 owned by them...while the Tahltan, other  40 Athapaskans in the Northwest coast area, retain  41 clear traditions of having migrated into their  42 present location, the Wet'suwet'en oral  43 tradition depicts them in their present  44 location from the first days."  45  46 Dr. Mills further clarified this distinction later  47 in her evidence, and I have an extensive quote there, 23649  Submission by Mr. Grant  1 but I will just read from half-way down the second  2 paragraph of Dr. Mills' evidence.  3  4 "The Wet'suwet'en kungax preserve the record of  5 the founding of the villages that are relevant  6 to the Wet'suwet'en:  Dizkle and Kya Wiget.  7 The Wet'suwet'en have not made large migrations  8 and founded new villages since the very  9 earliest times.  But the most telling  10 difference between the meaning of adaawk and  11 kungax rests on the translation of the  12 quadruple meaning of the word kungax, the  13 subtlety of which is almost a pun."  14  15 She then goes on to describe that:  16  17 "Kun means 'song'.  It also means 'spirit' or  18 'spirit power'.  Kungax means 'his own spirit  19 power' or 'his own song' or 'his personal  20 crest'.  Alfred Joseph, Chief Gisday wa,  21 explained that Chief Wah Tah Keg'ht has 'Old  22 Man' as his crest or kungax.  He would enter  23 the feast hall wearing the mask of an old man.  24 Thus to act out one's crest is considered the  25 same kind of validation as the recitation of an  26 oral history, which is also called kungax, and  27 translated as 'trail..."  28  29 That should be "trail".  30  31 "...of song'.  Kungax in the sense of oral  32 account are used less often by the Wet'suwet'en  33 to validate a title than the enactment of the  34 crest and the capturing of a song that  35 expresses the spirit trail of the title."  36  37 Now, with respect to the antiquity of the  38 Wet'suwet'en, the evidence of the Wet'suwet'en kungax  39 has been given in evidence by several Wet'suwet'en  40 chiefs including Maxlaxleh, Johnny David, Emma  41 Michell, and Alfred Joseph.  42 Dr. Mills summarized what the kungax does  43 regarding the Wet'suwet'en history.  44  45 "The kungax depict a series of battles between  46 the Dizkle Chief - Goohlaht and people from  47 down river, until the chief decides to make 23650  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  THE COURT  MR. GRANT  peace by holding a feast to put an end to  further warring.  Thus the feast was instituted  as an international mechanism for settling  disputes and demonstrating ownership over  contested territory in the very earliest  Wet'suwet'en history.  The feast continues  today to have the function of making clear who  has succeeded to the chief's titles, associated  with jurisdiction over the discreete  Wet'suwet'en territories.  The feast operates  as a forum, in which Wet'suwet'en law is  enacted and upheld."  Now, with reference particularly to Dizkle, Dr.  Mills recorded the kungax as recorded by Jenness and  in the evidence of the hereditary chiefs, and she  describes:  "The kungax say that the first village was at  Dizkle on the Bulkley River at Mosquito Flat  twelve miles upstream from Hagwilget, 'whither  the salmon ascended in great shoals...'"  From the account recorded by Jenness.  And of course  Jenness' account is in evidence, his recording of  these kungax.  "All accounts say the Wet'suwet'en shared this  village with other peoples.  One account says  the Gitksan had a permanent village at Temlaham  at the time of Dizkle and another that Temlaham  was founded when the different peoples fled and  dispersed from Dizkle.  Both could well be  correct.  Dizkle had a long history of  occupation and repopulation.  One kungax cited  below describes a reoccupation of Dizkle after  the separate nations' villages were founded."  :  What does that mean, "separate nations' villages"?  :  That's with reference to the separate nations of the  Gitksan downstream and the Wet'suwet'en upstream, the  Temlaham, after the dispersal.  :  Well, I thought they were always separate nations,  weren't they, according to the evidence of the --  Oh, yes.  -- linguists anyway?  Well, I believe in the weight of the evidence 23651  Submission by Mr. Grant  1 throughout, but I think the founding is of the  2 villages were founded.  As you recall, the villages  3 of -- in the Gitksan I described the founding of their  4 villages, and there's a founding which we'll come to  5 with the Wet'suwet'en of Kya Wiget of their village of  6 Kya Wiget which is closer to Moricetown, and the  7 timing there is after those villages were founded.  8 THE COURT:  Well, what do you think I'm supposed to take Dr.  9 Mills to be saying there when she refers to "after the  10 separate nations' villages were founded."?  11 MR. GRANT:  This is how I would restate it.  The — one of the  12 kungax describes a reoccupation of Dizkle after the  13 Gitksan villages are founded out of the dispersal of  14 Temlaham and after Kya Wiget is founded, which is the  15 Wet'suwet'en village.  So that kungax suggests there  16 is a reoccupation at a later stage of Dizkle.  17 THE COURT:  Thank you.  18 MR. GRANT:  Now, Jenness goes on to say that there are locations  19 on the Dizkle village on both sides of the river.  20 Now, this kungax describes the history of the  21 first Wet'suwet'en chief and clan recorded by the  22 Wet'suwet'en, and here there's an account that I've  23 referred to of Goohlaht.  Goohlaht, of course, the  24 present Goohlaht, is Lucy Namox, and this is the first  25 record -- the earliest recording of the Wet'suwet'en  26 chief and clan.  And the description of that is in  27 Jenness and it is recounted and referred to by Dr.  28 Mills' reference there.  What's interesting about this  29 account, I point out on page 161, and I won't read the  30 whole account, and what's interesting about the  31 account is that as well as describing a war and  32 settlement at Dizkle, this kungax reflects feasting  33 laws, and of course, my lord, you recall this was a  34 key component of the Temlaham adaawk as well.  35 Now, the kungax goes on to make reference to one  36 of the wolf clan chiefs, Kanots, who was -- the former  37 Kanots was the husband of Madeline Alfred, whose  38 evidence you've heard.  Kanots of course is a chief in  39 the house of Madiik:  40  41 "The kungax does not identify the people down  42 river on whom Chief Goohlaht took revenge, the  43 people who had killed his wife's people.  We  44 are not told if they are Gitksan, Tsimshian,  45 Wet'suwet'en, or from other nations.  In  46 another version of the kungax, Goohlaht is  47 overcome by a canoe full of Kanots, a Gitksan 23652  Submission by Mr. Grant  1 term for dwarf women, transformed into  2 Wet'suwet'en adolescent women.  These powerful  3 creatures come up the Bulkley River to Dizkle.  4 This version is cited as the origin of both the  5 Frog Clan chief, Goohlaht, and a sub-chief of  6 the wolf clan, Kanots."  7  8 And here what you see, just as the kungax are  9 reiterated in the feast differently, is the type of  10 focus of the Wet'suwet'en in a kungax is a different  11 focus than on the -- than in the adaawk.  But the  12 crucial element here that we ask you to find on the  13 weight of the evidence, and I will come back to the  14 archaeological evidence and the linguistic evidence,  15 is that Dizkle is one of the ancient villages of the  16 Wet'suwet'en, and that the Wet'suwet'en were at Dizkle  17 prior to being at Kya Wiget, which is Moricetown, or  18 the ancestors of Wet'suwet'en were there.  And that at  19 this era which parallels the Temlaxham era of 3500 --  20 between 3,000 and 4,000 years ago, the Wet'suwet'en  21 had developed or were developing the clan, chief, such  22 as Goohlaht, and the feasting system.  23 Now, I've just summarized the kungax here, but  24 what happened, as described in the kungax, as  25 reiterated in evidence and in the Jenness accounts,  26 that is, Jenness' recording of the kungax, and Dr.  27 Mills' reiteration of that, that the village was  28 abandoned.  The people fled Dizkle to establish  29 separate villages.  30 Now, Gisday wa, Alfred Joseph, explained his own  31 kungax which connects to this in his evidence.  He  32 said:  33  34 "It's -- it's about a village where the --  35 the -- the whole population is wiped out by  36 some -- by enemies that came in to raid the --  37 the territory, and there's only one girl that  38 is spared or -- or she must have hid from them,  39 and she's the only one that's left in the  4 0 village.  And when she came out of hiding or  41 back to the village, she was -- she started to  42 cry, and her -- her tear drops turned into  43 human eyes.  And she picked up these human eyes  44 and rubbed it on her bosom and out of that she  45 became pregnant and had a boy.  So she repeated  46 the process and another boy was born.  And the  47 third time she done that she had a girl, and 23653  Submission by Mr. Grant  1 the girl turned out to be lame.  And when the  2 lame girl grew up she became very smart.  3 And then they -- they had a visit --  4 visitor, and the visitor came and gave them  5 presents.  He gave them a small box, and in the  6 small box was two arrows, and he gave one of  7 those arrows to the -- one of the boys, and the  8 other boy he gave another arrow.  And when  9 the -- and the other present to the girl was a  10 shovel.  11 And the man told them that they were his  12 children, and he said that whenever there was  13 any problems or -- you can destroy anything  14 with this arrow.  So they hit -- and you have  15 to -- when you hit this -- whatever you hit,  16 you have to say that it has to burst.  So they  17 hit the mountain with it, and the mountain --  18 they said let the mountain burst, so the  19 mountain burst.  20 So that -- it's the same thing with the  21 girl.  The girl's present was that -- when she  22 got the shovel, the promise was made to the  23 girl that all the girls, lame girls that were  24 born would be smart.  25 And then the man built them a house, and  26 that is how the -- the -- the two boys and the  27 arrow protected the -- the -- the people as the  28 village grew.  They protected them from all the  29 enemies by using this arrow that the man gave  30 them.  So that is the -- the history of the  31 arrow of Gisdaywa...  32 Q   And the village that you've made mention of, do  33 you know the -- do you know that village?  34 A   There is only one village that our people talk  35 about, and that's Dizkle."  36  37 Now, in this rendition you see a focus on  38 supernatural more than you see in the later adaawk,  39 for example, and even in the later kungax, but it also  40 is the reiteration of the crest of Gisday wa and the  41 confirmation of the early times through the connection  42 with the supernatural as a reflection of that.  43 Now, Alfred Joseph went on to explain that Dizkle  44 is around Mosquito Flats between Moricetown and  45 Hagwilget.  When asked how old the village of Dizkle  46 was, he responded:  47 23654  Submission by Mr. Grant  1 "It is -- when our people describe Dizkle, it  2 is -- they say it was here when they -- on  3 earth -- as old as this earth is the way they  4 describe it."  5  6 Now, I'd like to move from Dizkle to Kya Wiget.  7 Kya Wiget means ancient village.  It's located -- it  8 was located near where the present village of  9 Moricetown is.  Dr. Mills explained:  10  11 "While the Wet'suwet'en and the Wet'suwet'en  12 kungax are unanimous in citing Dizkle as the  13 earliest village, they also attribute a great  14 antiquity to the Kya Wiget as well.  One kungax  15 which takes place in and around Kya Wiget  16 begins:  17 'In the first days Utakke, the sky-god, created  18 for each animal species a boss that was more  19 monstrous than other animals of its kind."  20  21 And then that quote goes on:  22  23 "The kungax..."  24  25 And Dr. Mills goes on:  26  27 "The kungax goes on to portray how Kaigyet  28 killed the wife of a couple who, in the late  2 9 autumn, had moved to a camp in the mountains  30 above the village at Kya Wiget, to hunt  31 grizzly.  Kaigyet is eventually overcome and  32 the Laksilyu or Small Frog Clan adopt it as a  33 clan crest which they portray on their totem  34 pole.  The antiquity of Kya Wiget is revealed  35 further in it being the site of the marriage of  36 the chief's daughter to a frog, which is cited  37 as the origin of the frog crest of both the  38 Gilserhyu, Frog clan, and the Laksilyu or Small  39 Frog clan.  The Gilserhyu or Frog clan is the  40 clan whose chief is Goohlaht, unearthed at  41 Dizkle."  42  43 The description of the demise of Kya Wiget is  44 further explained.  45 THE COURT:  What does that passage intend to mean "unearthed at  46 Dizkle"?  47 MR. GRANT:  Oh, I didn't read all of the kungax there, but if 23655  Submission by Mr. Grant  1 you recall in the evidence it was described I believe  2 by a number of witnesses, as well it's referred to in  3 Dr. Mills' report, that the -- there was an attack on  4 Dizkle, there was a survivor, and the survivor dug in  5 the ground and pulled up -- and there was a person in  6 the ground and they pulled that person up and the  7 person was alive and that person was Goohlaht.  And  8 that is, the acquisition of that name as well as the  9 crest of Goohlaht, that's what's referred to in and  10 described in the kungax.  11 THE COURT:  Thank you.  12 MR. GRANT:  The description of the demise of Kya Wiget is  13 further explained in Dr. Mills' report:  14  15 "Kya Wiget or Moricetown is itself abandoned,  16 according to one kungax when untoward events  17 take place there.  The following account is by  18 John Namox, Chief Wah Tah Kwets:  19 'My grandmother used to tell us stories  20 about Moricetown... There was a teenage girl, a  21 chief's daughter, who lived with her family, in  22 a smokehouse...All the Moricetown people saw  23 that the girl had three little puppies and the  24 village people all got scared.  They all said  25 something bad, a bad omen is going to happen in  26 this village.  So the whole village moved to  27 Mosquito Flat, except for the chief's daughter.  28 She was left all alone in the village.  After  29 the three puppies were gone, the village people  30 moved back here, from Mosquito Flat (or  31 Dizkle) . '  32 Both Dizkle and Kya Wiget..."  33  34 Dr. Mills concluded,  35  36 "...then, have a very ancient and  37 inter-connected history.  The history of Kya  38 Wiget parallels the history of Dizkle:  Kya  39 Wiget, like Dizkle, goes from being a sizeable  40 village to a remnant which renews itself by  41 making peace with other peoples from different  42 villages and having them marry and join the  43 village."  44  45 Now, Madeline Alfred, in her evidence, testified  46 to a kungax that occurred near Moricetown at Kya  47 Wiget.  This kungax of Wah Tah K'eght, which is 23656  Submission by Mr. Grant  1 Madeline Alfred's house, of course her son is Wah Tah  2 K'eght, describes how a crest was acquired and also  3 explains certain Wet'suwet'en laws.  4  5 "A... The story goes this girl used to go  6 into -- to Cottonwood Grove and she used to go  7 there all the time and then all of a sudden one  8 day she disappeared and never came back.  9 And -- and then when -- after a bit, there's  10 two little frogs are packing one another.  They  11 come to the door and they keep trying to come  12 in and they would throw them out, and this one  13 man said, 'There must be a reason behind them  14 little frogs packing one of them coming in.  15 Maybe you should let them come in.'  So they  16 took a cedar bark mat and placed it in front of  17 the -- the person that had lost -- or had a  18 missing daughter and them two little frogs,  19 they come in and they sat on the mat in front  20 of that -- of that man whose daughter was  21 missing, and then they -- and from there, they  22 figured out what was happening, and then the  23 frogs, they went back to the pond whence they  24 came and they figured out what was taking  25 place.  So the people from that house, they  26 took and they dug a trench towards the river to  27 drain that pond.  28 The way it was told, after they drained the  29 pond there, these big frogs, they started going  30 towards the river and then -- and this other  31 frog was following him and then apparently it  32 was the daughter that was missing, and she  33 looked back and told her people, 'My body is no  34 good now, so just let me go', because she had  35 the body of a frog and it was -- just her face  36 was still a human face.  So that's when they  37 let her go back into -- back to the river with  38 the male frog.  Our grandparents told us these  39 stories which were handed down.  40 Q...The village -- the Cottonwoods that you  41 referred to at the beginning of the story, was  42 that near a village?...  43 A...These -- this pond was down from Moricetown  44 and near Tsee K'al K'e yex, and this pond was  45 directly behind Hagwilnegh's smokehouse.  That  46 is now -- it's been drained out, and there's a  47 highway going through there now. " 23657  Submission by Mr. Grant  1  2 Madeline Alfred described this kungax relates to  3 the small frog crest of the Laksilyu.  4 Now, what's significant here, my lord, and I think  5 it's very important to make it clear, that it's not  6 here that I'm urging upon you that you sitting as a  7 judge in this court have to find and -- and all of the  8 supernatural elements of the kungax.  What I say is,  9 is that the kungax in connection with the archaeology  10 and the linguistics establishes all that you need;  11 that the people, the Wet'suwet'en people's ancestors,  12 were there at Kya Wiget for a long long time, and I  13 say well over 5,000 years.  14 Now, the dynamic of connecting a particular kungax  15 to the crest of a Wet'suwet'en clan is quite common  16 among the Wet'suwet'en.  17  18 "The Wet'suwet'en kungax do not recount  19 migrations of these different people to Dizkle.  20 The clans appear as a given in the Wet'suwet'en  21 kungax depicting the earliest times.  22 Typically, after recounting an episode a kungax  23 relates that the protagonist belonged to a  24 particular clan, and therefore took the name of  25 its opponent as a title or as a crest.  Often  26 two different clans assume titles or crests  27 from the same sequence of events.  The  28 Wet'suwet'en concept of origin instead relates  29 to the different natures of themselves and the  30 surrounding peoples, natures acquired through  31 descent from or marriage to different species  32 of animals, which may have been the origin of  33 divisions or nations of people identified with  34 a particular totemic animal.  Thus the  35 Wet'suwet'en say:  36  37 'The Babine people came from a loon; The  38 Sekani came from a wolf, the Fraser Lake  39 Indians came from a mink; hence it is easy  40 for them to catch fish; the Kisgegas people  41 came from a mountain bird, tsildulte, that  42 once married a woman.'  43  44 As noted above, the Wet'suwet'en attribute the  45 Frog crest of two of their clans to the  46 marriage of the daughter of a chief to a frog  47 at Kya Wiget." 2365?  Submission by Mr. Grant  1  2 And of course there are five clans among the  3 Wet'suwet'en and they refer to them as the translation  4 of the frog clan and the small frog clan.  5 Now, there's some points in that comment that are  6 points of conjunction of Jenness in 1934. "The Babine  7 people came from a loon." The point of conjunction  8 there, as you may recall when I was describing the  9 early migrations to Temlaxam that Miss Marsden  10 referred to people from the west -- the east coming  11 from the -- as people of the loon, so it appears that  12 the Babine people were related to the people going  13 into Temlaxam.  Also "the Kisgegas people came from a  14 mountain bird".  That of course is the people of  15 Tsooda.  That's -- and "Tsildulte" I would say is  16 another way of saying Tsooda.  Thomas Wright explained  17 in detail the origin of these people of Tsooda who  18 went to Kisgegas, and it was the mountain bird.  19 Now, the next reference is an analysis of a kungax  20 relating to the origins of the frog and wolf clans and  21 I don't -- I ask you to refer to it, but I'd like to  22 focus on one of the most dramatic kungax of the  23 Wet'suwet'en, and a very significant one, which we  24 were fortunate enough that the present Kweese  25 described in her evidence by way of commission.  This  26 is the Kweese raid on Kitimat, and she -- Alfred  27 Joseph was asked, relating to his crest:  28  2 9 "Can you give an example of an event within the  30 Wet'suwet'en crests that is in the kungax?..."  31  32  33 And he said:  34  35 "There is one that was Kweese, the defence of  36 his people was one of them..."  37  38 Now, I have summarized the evidence that is  39 reflected, and then Florence Hall's evidence I've put  40 it in.  In this situation, this is later in time,  41 Kweese -- from the ancient Dizkle -- Kweese' wife was  42 trapping on his territory, Kweese' wife's son was  43 killed on that territory while trapping.  Kweese --  44 and I'm going to paraphrase here because there's some  45 typographical errors that may lead to confusion --  46 Kweese lived at a house in Moricetown and he was very  47 unhappy, and this is reflected in -- the evidence of 23659  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  THE COURT  MR. GRANT  Florence Hall describes it, so I'm summarizing it from  her evidence.  Kweese came back to Moricetown and  stayed in his house, and of course Moricetown wasn't  called that at the time.  The man -- there was a man  who had a hat on which was worn at the coast and he  was sitting on the hill above Moricetown.  He told a  Wet'suwet'en that he wanted to see Kweese, and Kweese  went and saw this man who -- and Kweese was mourning  the death of his son, and this man said that he had  been humiliated by his own people.  He told Kweese the  Haisla had killed, that should read his family, my  lord.  His family.  Not him.  That's a mistake.  The Haisla killed his  family.  And so he told Kweese that it was the Haisla  that had killed Kweese' son.  Kweese' son was on  Kweese' own territory when the killing took place.  This is the Bernie Lake territories which is near  Topley of Kweese.  Now, Florence Hall describes in a very similar way  to what we've already heard from Gitksan witnesses how  she learned the kungax of Kweese and it has been told  to her and it has been told at feasts.  Going to page 169 is the commencement of the  narration of this adaawk -- or this kungax, I should  say, by Kweese, which is in commission evidence,  Exhibit 239, and it goes from pages 9 to 12.  Is that the one that starts at 169?  Yes, at 169, and it goes to page 172.  Yes.  All right.  And I'm not going to read it because I put it all in  so you could refer to it because it's -- in the  evidence it is one of the -- among the Wet'suwet'en it  is one of the longest continuous sequences without  interruption in the testimony where you see how a  Wet'suwet'en chief actually narrates their kungax and  she did, uninterrupted, effectively uninterrupted,  throughout.  Now, what happens is that this kungax, I will just  summarize for you briefly, describes how Kweese,  having found that the Haisla had killed her son on her  territory, gathered the other Wet'suwet'en people  together at a place.  And at the bottom of page 169 it  refers to it, a place called Canyon Creek, and they  gathered everybody together and she provided and cut  out hides for moccasins.  And this was, and I believe  that Alfred Joseph gave evidence of this as well, this 23660  Submission by Mr. Grant  1 was within the Wet'suwet'en society, the binding  2 together of the warriors like a contract, in a manner  3 of speaking, to stand together.  And the warriors went  4 over.  They were very successful in their attack on  5 the Haisla, and as a result there was a tremendous  6 acquisition of crests by the Wet'suwet'en because,  7 like the Gitksan, the Wet'suwet'en, having  8 successfully fought a battle, acquired the crests from  9 those that were defeated.  10 Now, what's -- on page 172, after referring to  11 Kweese' narration of the kungax here, I've summarized  12 what I submit are the important elements that you  13 should find.  As Alfred Joseph, Emma Michell, and  14 Florence Hall all have indicated in evidence, the  15 utilization of crests among the Wet'suwet'en was  16 enhanced and developed through this particular war.  17 The Wet'suwet'en joined together against a common foe.  18 And that's very important because there's been  19 suggestion, I daresay, that you look at everybody as  20 individuals.  They are a nation and they stand  21 together.  And this Kweese raid or Kweese war is an  22 example of that.  23 The kungax describes the territories of the  24 Wet'suwet'en and their route of travel on this raid.  25 And that's what's very interesting, is that there's  26 place naming throughout the kungax as described by  27 Kweese.  There's not necessarily such place naming  28 when you look at Jenness, and it's an example of where  29 Jenness edited what he didn't find important to him,  30 but it certainly is important when you see how a  31 person like Kweese describes the kungax.  The crests  32 acquired by Kweese and the other clans came from this  33 raid on the Haisla.  Crests were acquired as part of  34 the settlement.  35 And here I make a comment because we have lots of  36 suggestion and implication, the Wet'suwet'en took all  37 their crests from the Gitksan, the Wet'suwet'en just  38 happened to pick up crests that the Gitksan gave them.  39 That I say, my lord, is wrong and this kungax  40 establishes that, and you had witness after witness of  41 the Wet'suwet'en referring to acquisitions in  42 different ways.  The Wet'suwet'en did get crests from  43 the Gitksan, and the Gitksan from the Wet'suwet'en,  44 but it wasn't just that two-way street.  It was --  45 certainly this was one of the major major events in  46 which the Wet'suwet'en acquired crests, specific  47 crests. 23661  Submission by Mr. Grant  1 The other point is that at the time of this raid  2 there were caribou throughout the Wet'suwet'en  3 territory to the south, and after the description of  4 the -- it should be kungax there, Kweese proceeds to  5 describe those who acquired crests.  The Tsayu clan  6 acquired crests they used on their blankets and  7 rattles from the Kweese raid.  Kweese' own blanket has  8 the crest of a beaver and a goat which were acquired  9 as a result of this kungax.  Muut acquired a crest  10 which arose from this raid as well, and Gisday wa  11 acquired a crest from this raid.  12 Now, the next subsection is the acquisition of  13 Wet'suwet'en chief names as demonstrated through the  14 kungax.  And I don't believe I have to reiterate that,  15 although I would like to refer you to it.  16 Now, just as I -- just as the adaawk record events  17 right up to early contact, so do the kungax, and this  18 is where I submit there's a suggestion of confusion  19 because names were acquired by the Wet'suwet'en with  20 respect to events relating to the Nisga'a and the  21 Gitksan.  One of the names, I'm on page 174, was  22 Samaxsam, which was given to the Wet'suwet'en by the  23 Nisga'a for a settlement as a result of a killing of a  24 Wet'suwet'en.  And this incident is described by many  25 Gitksan and Wet'suwet'en witnesses, and I will be  26 referring to it later in the jurisdiction under  27 International Relations.  28 Emma Michell described the acquisition of Lilloos  29 from Kitsegukla.  This pattern of bringing back and  30 conferring titles to one's children and in-laws in  31 situations when one of the spouses is Gitksan or from  32 some other nation has a history as old as the history  33 of Dizkle and Goohlaht.  34 There was another recent kungax in which an  35 Algathcho chief gave a Wet'suwet'en chief a crest  36 because of help given at the feast.  And this is  37 referred to in the middle paragraph there, the first  38 two paragraphs relating to the Cheslatta Lake person,  39 and it's from Jenness.  That crest was acquired,  40 according to Jenness' recording in the 1920's, about  41 1870, and it was presented to the present Hagwilnegh.  42 That would have been the Hagwilnegh in the 1920's.  43 And I just want you to note that Jenness' field work  44 was in the 1920's, although his publications are '34  45 and '43.  46 The bottom is that -- there's a reference of a  47 transfer by a Wet'suwet'en woman of the Gitdumden clan 23662  Submission by Mr. Grant  1 or a crest of a grouse from a Gitksan chief with whom  2 she and her husband were travelling to Kisgegas.  They  3 camped in the snow when they were overtaken by night,  4 and the woman strewed boughs for their beds and cooked  5 their supper and breakfast.  In acknowledgement for  6 her diligence, the Gitksan Indian gave her the crest,  7 but did not explain its origin.  8 Now, that reflects something we will come back to  9 later which is a distinction between the Gitksan and  10 the Wet'suwet'en.  It may have a -- and it's referred  11 to here that the Gitksan perception of that may have  12 been different than the Wet'suwet'en, but in any event  13 there was an acknowledgement and a gift to the  14 Wet'suwet'en woman.  15  16 "Barbeau recounts that the Gitksan chief  17 Hanamukw had a totem pole at Kitsegukla on  18 which there was a figure derived from the  19 Wet'suwet'en chief Goohlaht:  20  21 'the third figure, a human being with head down,  22 is an emblem named Hanging-across or  23 Half-a-man... Diamond Jenness recorded this  24 crest among the Carriers of Hagwilget, under  25 the name Tsimy'yaqyaq, the meaning of which is  26 unknown, the name being taken from the Gitksan.  27 The pole itself is said to have appeared in  28 'dead man's country' as part of Goohlaht's  29 supernatural experiences ... The Hanging-across  30 emblem, with head down, was ceded to Hanamukw  31 by Goohlaht, a chief of the neighbouring  32 Carrier village of Hagwilget, as compensation  33 for the murder of a member of Hanamukw's  34 family.  Goohlaht himself seems to have  35 obtained it from the neighbouring Gitksan,  36 possibly from Weemenawzek, of the Larhsail  37 phratry at Qaldo and from Kisgagsas, who also  38 owns it as part of his family traditions had it  39 painted on his house-front and boxes, and  40 carved on a totem pole.'  41  42 This interchange of titles and crests, then,  43 has gone on between the Wet'suwet'en and their  44 neighbours in both directions for a very long  4 5 time."  46  47 Now, at this point is what's important about this, 23663  Submission by Mr. Grant  1 and I believe you may recall because it wasn't that  2 long ago, when -- that of course Sheila Robinson did  3 not even know Hanamukw and Goohlaht as to which one  4 was Gitksan and which one was Wet'suwet'en.  So that  5 although she read the Barbeau "Totem Poles of the  6 Gitksan", she would not have made this connection  7 whatsoever.  And this is a connection of relationship  8 between the two nations.  9 You also see here that the Wet'suwet'en say they  10 they -- there's a reference that they possibly took  11 the crests from Wii Minosik.  I believe that's  12 probably Barbeau's own interpretation because he  13 doesn't have a source for that.  But he's referring to  14 it because he sees that Wii Minosik holds that crest  15 and that may have had something to do with the  16 Kisgagas events.  But the Gitksan would see it  17 differently of giving a crest than the Wet'suwet'en.  18 Now, in her analysis of acquisition of crests Dr.  19 Mills concluded the acquisition of title at Dzan'xal  20 originated from a fight with the Nisga'a.  And she  21 goes on to refer to the Nisga'a raid on Kispiox and a  22 dispute with the Wet'suwet'en.  According to Jenness,  23 two years after the Nisga'a had plundered Kispiox, the  24 brother, this is a Wet'suwet'en, heard they were  25 headed for Kitsegukla to trade.  He intercepted them  26 there, capsized their canoes, and killed the inmates  27 with his antler club as they struggled in the icy  28 water.  Henceforth the antler club became a crest in  29 the wolf clan, although the brother's name was  30 Kanaumadam, which is now a recognized name in the  31 Tsayu clan.  32 Now, this is also referred to in direct evidence  33 of Johnny David, Maxlaxlex, in his commission  34 evidence, my lord.  He described this incident where  35 the Wet'suwet'en went to Kitsegukla, discovered this  36 Nisga'a was there, and avenged the death, the killing  37 of the Wet'suwet'en.  38 Now, Dr. Mills concluded this kungax may have  39 actually occurred in post-contact period at the time  40 of one of the later Legaix.  41 Now, in conclusion, an analysis of the kungax of  42 the Wet'suwet'en demonstrates a number of key elements  43 of Wet'suwet'en history.  The kungax of the  44 Wet'suwet'en go back at least as far as the time of  45 Temlaham and apparently much further.  The  46 Wet'suwet'en kungax describe that they were always  47 here rather than that they migrated into the area. 23664  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  MR.  THE  MR.  MR.  THE  MR.  MR.  THE  MR.  THE  MR.  The development of the acquisition of crests among the  Wet'suwet'en came from many sources.  One of the  principle sources of the initiation of the crest  system was the war on the Haisla.  The Wet'suwet'en  kungax is interconnected with the significance of  songs among the Wet'suwet'en, and the Wet'suwet'en  kungax provides an historical and spiritual connection  between the chiefs who have acquired the crests and  the songs and their territories.  Now, I have now been referring with both the  history of the Gitksan and the Wet'suwet'en to crests  and I have extracted from the evidence certain  excerpts of the transcript relating to crests in light  of the question that you raised yesterday, my lord,  because I believe it's appropriate since the crest --  the whole crest issue, that is, the developments of  crests, arises here.  Now, what I propose to do is  that I would -- I've dealt with the Wet'suwet'en  first, and I propose to deal with the Wet'suwet'en  references first, which is the last couple of pages  here.  The first one is Alfred Joseph.  This is the  second page from the end.  COURT:  Yes.  GRANT:  And I've highlighted those pieces in that I think  are relevant.  Alfred Joseph was referred to a  photograph at tab 5 of his exhibit in which there was  a black bear crest on the pole.  And this is on  Exhibit 62-4, and I'll ask the court to provide -- I  can refer your lordship to these, 62-4 and 5.  These  are all in the same binder so --  COURT:  Thank you.  GRANT:  Now, 62, tab 4 —  GOLDIE:  I'm going to ask my friend to refer to it by the  transcript reference because we don't have these --  COURT:  Well, it's page 1591.  GRANT:  Of Volume 23.  The citation is on the bottom of each  one.  GOLDIE:  So that it's in this transcript that the reporter  is now taking.  COURT:  Yes.  You mean you want your friend to articulate  the reference so that it will show up on the  transcript.  GOLDIE: Yes.  COURT:  All right.  Thank you.  It's now being done.  GRANT:  Volume 23 of page 1591, Alfred Joseph's evidence is  that the black bear crest of the house of  Kaiyexweniits, and he's referring here to Exhibit 23665  Submission by Mr. Grant  1 62-4, and that's in the photograph that you have in  2 that exhibit, my lord.  3  4 "Q   Now, is that the black bear crest of the  5 house of Kaiyexweniits?  6 A   Yes.  7 Q   And I would ask you did that crest come  8 from an event that occurred on your  9 territory?  10 A   Yes."  11  12 THE COURT:  Well, Mr. Grant, if you're concerned about my  13 question I think you've answered it.  I think you  14 answered it yesterday, but you've answered it by  15 reference to this photograph.  I see the black bear is  16 on the totem pole and I think that testimony  17 demonstrates that I had it approximately correct that  18 the crest was not a badge or a symbol or an insignia,  19 but it was a pictorial representation of an event  2 0 somewhere.  21 MR. GRANT:  Yes, but the crest -- the reason why I paused and  22 I've put this is that the crest reflects -- the crest  23 relates to -- in this example Mr. Joseph's talking  24 about Kaiyexweniits' crest.  That's his house.  2 5    THE COURT:  Yes.  26 MR. GRANT:  And the crest is connected to his territory.  It has  27 a history in his territory that he described.  28 THE COURT:  Yes, I understand all that.  29 MR. GRANT:  Now, there are also clan crests that Mr. Joseph  30 referred to which his clan can refer to, and I believe  31 it's similar with the Gitksan.  And what I have -- in  32 this sense, and I have highlighted at the beginning of  33 my excerpt Mrs. McKenzie's description of the crest of  34 the -- at the first page Volume 4, page 216:  35  36 "Q...When you say the grizzly bear and the ram,  37 are those crests that belong to all the Lax  38 Gibuu, or do they belong to the houe of  39 Gyologyet?  40 A   They only belong to the house of Gyologyet  41 is the grizzly bear and the ram."  42  43 Your question was quite appropriate because there  44 is a distinction here.  And then the highlighting on  45 the next page, this is when she's talking about the  46 Suuwiigos adaawk, she says "This is how Gyologyet..."  47 THE COURT:  At page 229? 23666  Submission by Mr. Grant  1 MR. GRANT  2 THE COURT  3 MR. GRANT  Page 217.  All right.  I'm sorry, my lord, it's page 217.  It's a  4 continuation from the previous page, Volume 4, page  5 217.  6 THE COURT:  All right.  Yes.  7 MR. GRANT:  8  9 "This is how Gyologyet received the crest of  10 these shadows.  Now, on our blankets and on  11 our -- a painting of our houses we have these  12 figures.  They're a group of people and they  13 come in zig zag way on our blankets."  14  15 Then she goes on to say:  16  17 "Now, this is the way the Gitksan people get  18 their crests, is anything unique that they come  19 across or they've seen they've taken it as  20 their crests.  Now, the people that travel, any  21 more unique things happening you will find that  22 in other house, chief's houses.  Our chief has  23 more crests than the other house because they  24 go out to look for these things so they will  25 have a crest, and who has the more crests are  26 the people it shows that they work together,  27 and they make it very strong.  And this is how  28 these crests mean so much to us, is by looking  29 for it, and to keep it as ourselves in one  30 house.  Now, in another house a chief would  31 have a crest.  Now, we can't borrow crest from  32 other houses.  What house belongs, their crest  33 belongs to one house, is their property. Now,  34 these are how strong these crests stand in the  35 house of a chief.  No one can use other houses,  36 chief's houses what crests they have."  37  38 Now, what she's talking about there is the house  39 crest.  There's more than the house crest though.  And  40 at page 228 and 229 of Volume 4, going over to the  41 next page, she -- the word for crest of course is  42 Ayuuks, and then she talks about the split bear, and  43 one side -- half of the bear hide goes to Kuutkunuxws  44 and the other half went to Gyologyet she describes in  45 that highlighted portion there.  46 Now, in the evidence of Mary Johnson, Volume 11,  47 pages 689 to 695, Mary Johnson refers to Exhibit 17 23667  Submission by Mr. Grant  1 and if you -- the fifth page in of Mary Johnson's  2 evidence starts, this would be page 693 -- no -- 693,  3 yes.  She describes Geel's crests, of the huge snake  4 killing one member of Geel's house, and the black  5 whale, and she refers that both of those are crests of  6 Geel.  And then she describes his house and she's  7 referring there to tab 4 of Exhibit 17, and I believe  8 they were actually marked on tab 4.  9 And then going over to page 694, which continues  10 on the next page:  11  12 "Now can you recognize any of the other poles in  13 that picture?"  14  15 And that's on -- that's in tab 8, the picture of the  16 village poles.  She said:  17  18 "A  There's -- there's a House of Gutginuxw that I  19 showed you and there were three poles standing  20 in front.  21 Q   Okay.  Just —  22 A   This is the other one where the owl sits on, so  2 3 Gutginuxw means owl."  24  25 And then she points to a two-storey building, and  26 that's Gutginuxw' house.  27 Now, that, as I say, is from Volume 11, pages 689  28 to 695.  If you go to the page that at the bottom  29 starts "Olive Ryan", she was asked about the crest on  30 her pole at tab 14 of Exhibit 29, and that is a  31 depiction of one of her poles, the house of Hanamuxw's  32 poles.  And she goes from the bottom up on the next  33 page, and the one is gyadim max maaga'y, which means  34 the man of the rainbow.  And of course one of the  35 crests of Hanamuxw out of the ancient migration is the  36 rainbow.  37 And then she refers to -- this is on page -- I'm  38 sorry, this is page 1089, 1090, of Volume 17.  And she  39 refers to the star and the rainbow at the bottom -- or  40 at the top of page 1090.  And then she refers to the  41 upside down man, which you can see vividly in the  42 photograph.  And then there is the hat on top, which  43 is the -- she describes as the man of the rainbow.  44 Now, she's there referring to her house crests and  45 that's reflected at the page which has the citation of  4 6 Olive Ryan.  47    THE COURT:  1107. 2366?  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  MR. GRANT:  Yes, just above that.  Just above that.  "Q  Now, aside from that crest on the pole, tab 14,  that you described, the beaver, do the other  crests belong to Hanamuxw's house all on that  pole, the rainbow man, the rainbow and the hat?  A  That's Hanamuxw's ayuuks..."  Which is crest.  "...that's gyadim max maaga'y and the Billust  and the rainbow.  That's Hanamuxw's ayuuks."  So again this is with respect to the crest itself.  Then at 1107 she refers to Guxsan's crests, and  that is the earthquake, the earthquake charm.  Now, at tab 17 and 18 of Exhibit 29, which you  have, my lord, you see the two poles in tab 17 are  Guxsan's poles and those are his crests.  And she  describes those and there's a little man inside the  moon on one of those poles, and that's part of that  crest.  So these descriptions of crests are house crests.  In the next reference of Art Matthews junior with  reference to Exhibit 359 he points out the ensnared  bear crest.  And this crest was given, and I've  highlighted that, it was given as a result of a famine  that took place and the people -- a chief from  Kisgagas came and gave the crest of the ensnared bear  because of help they received from Gitwingak wolves.  Now, what I'd like to -- I have highlighted in  these excerpts, the other references to Gitludahl's  crests, and the bear from the Biis hoont adaawk.  Now, this is -- I'd like to take you to Pete  Muldoe's evidence, it's at page 6104.  THE COURT:  Yes.  MR. GRANT:  And you see he's shown a picture as well, which is  in evidence, and he says:  "Q   Now, there are six figures there, Mr. Muldoe.  Are they six heavenly children?  A   Yes.  Q   And does that represent a crest from an adaawk?  A   Yes.  Q   And do you -- what is the adaawk?  That is,  where these six heavenly figures come from?  A  Well, they figure they all sort of represent 23669  Submission by Mr. Grant  1 from the Gisgaast clan, and I believe that  2 adaawk has been already told by Ryan.  3 Q   Is that Olive Ryan?  4 A   Olive Ryan, yes.  5 Q   And is that the Skaawo'o adaawk?  6 A   Yes.  7 Q   Yes. Is that the adaawk of the Gisgaast?  8 A   Yes.  9 Q   Okay.  Now, do the six heavenly figures have  10 names?  11 A   Yes.  All these child, they have a name."  12  13 Now, in this case what he's here referring to is a  14 crest of such an ancient origin that it's a crest of  15 the fireweed clan, not a crest just of his house.  16 And then at the bottom of page 6105 he asks --  17 he's asked:  18  19 "Q   Can you say where the crest of Madig'em Gyamk,  20 where does that originate from?  21 A   It's originally from the house of Gitludahl.  22 Q   And can you tell me about how it came to -- how  23 it came to be a crest, how it was made to be a  24 crest by the house of Gitludahl?"  25  26 And he then describes how it's made a crest of --  27 from an event from the territory at Xsu Gwin Ya'a, and  28 that's at Volume 97, page 6107.  29 Now, James Morrison, if you go two pages over,  30 describes, and I'm not going to go through it here  31 because I will later, the ptarmigan of Nii Kyap, which  32 was presented at the feast in Burns Lake in  33 conjunction with the reference to territory.  But at  34 page 5255 of Volume 84 James Morrison says:  35  36 "Q   Now, what else do you say about the crest to  37 the people?  38 A   You see, before they do anything with the land,  39 to explain this how it started at that time,  40 that's how I understand the history of Nii  41 Kyap.  When he spoke about that and it was  42 really clear to me and also the other people  43 that are sitting there at that feast, before  44 the start in the feast, in those days, I know  45 my dad was attending one in Kisgagas, and  46 before they started on to the feast they wear  47 the blanket to explain why they are wearing the 23670  Submission by Mr. Grant  1 blanket and someone that came and put it on to  2 the man that took over the name."  3  4 Now, here he's referring to the crest of Nii Kyap  5 and the use of that crest in the feast hall to  6 establish Nii Kyap holds the territory at Thutade.  7 And at the next page 5256, the highlighted  8 portion:  9  10 "Q   If you will just carry on and say what else did  11 you say to them about the blanket or the crest?  12 A   You see, this is what I am saying to these  13 people, that what happened at that time, how to  14 identify this blanket to them, when the snow is  15 starting to fall at that time.  That's why they  16 call Abel Samson, he took the name now as  17 Xhaimaadimtxw and the snowflakes are coming  18 down.  This is what I told him.  This is what  19 this history is just told at that time.  20 Q   So, did the snowflakes and the ptarmigan  21 represent the land of Xhaimaadimtxw?  22 A   Yes.  23 Q   And that land was the land at -- around  24 Tuudaadii Lake?  25 A   Yes.  26 Q   Now, did the crests, did this crest show that  27 there was territory that belonged to Nii Kyap  28 in the Tuudaadii area?  29 A   Yes, they do.  Because they tell, spoken about  30 this history at that night.  And the people  31 heard what they were saying at that time."  32  33 So this is where he utilizes the crest, that is  34 Nii Kyap does, because Nii Kyap couldn't speak very  35 well.  He did tell it, but he could not speak loudly  36 because of his age.  He had James Morrison repeat it.  37 THE COURT:  Have you finished with that?  38 MR. GRANT:  I have one more concluding reference with respect to  39 this.  40 THE COURT:  All right.  Yes.  Thank you.  We'll do that before  41 we adjourn.  42 MR. GRANT:  And this is the culmination.  I submit that Glen  43 Williams in his evidence explained crests and the  44 meaning of them, and this is the final answer really  45 to the question you raised.  46 At page 6671, 6672 of Volume 105.  Line 47 of  47 6671: 23671  Submission by Mr. Grant  1  2 "The ayuuk is a -- is a very important symbol to  3 us as Gitksan people.  It was -- ayuuks were  4 attained with the initial taking of the land  5 and they are very well protected.  Nobody just  6 goes up and uses somebody's ayuuks.  There is  7 really strict laws that -- that are associated  8 to those ayuuks, because if you try and take  9 somebody's ayuuks you are going to try and take  10 their land away, and the ayuuks clearly  11 identifies who you are, which house group you  12 belong to.  It clearly defines how much land  13 you have, how much power do you have, and it  14 defines that you have ownership -- you own a  15 particular piece of land, and that you have  16 authority over that piece of land.  And, for  17 instance, like people like Tenimgyet in  18 Gitwangak, they have the bear cubs, that's  19 theirs.  Ours -- our house is the grizzly bear  20 with the two baby bear clubs on the ears.  That  21 identifies who I am, and I know who Tenimgyet  22 is because I know what his ayuuks are.  And  23 those ayuuks are demonstrated on their  24 particular totem poles, that's showing the  25 people that they have the power and the  26 authority, and that clearly identifies who they  27 are and that they have land, they have fishing  28 holes."  29  30 And at the bottom:  31  32 "A   The -- a lot of the ayuuks ties into how house  33 groups have attained land initially, how they  34 found land and how they either killed different  35 animals and that who inhabit that particular  36 piece of land, and they -- what they do is they  37 just take it.  And that ayuuks ties right into  38 that -- back to that land, that piece of  39 territory that the house group has, that's what  40 the connection is.  41 If you look at Malii with our grizzly bear  42 and the two baby bear cubs right on the ears,  43 that happened at Gitangwelkxw, that story  44 occurred there, and that tells people that that  45 land belongs to us.  And if you look at  46 Tenimgyet of how they -- the bear captured the  47 woman, that happened where Tenimgyet's 23672  Submission by Mr. Grant  1 territory is today.  That's how it ties right  2 back into the land."  3  4 And that I submit, my lord, is what the crests  5 are, and I think, although not a small emblem, but the  6 crest in a different format, they're the same  7 symbolism as crests as we would know in that sense  8 related to the territory.  9 THE COURT:  All right.  Thank you.  I'll take the adjournment.  10 THE REGISTRAR: Order in court.  Court stands adjourned for a  11 short recess.  12  13 (PROCEEDINGS ADJOURNED FOR THE AFTERNOON RECESS)  14  15 I hereby certify the foregoing to be  16 a true and accurate transcript of the  17 proceedings herein transcribed to the  18 best of my skill and ability.  19  2 0    21 Tanita S. French  22 Official Reporter  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 23673  Submission by Mr. Grant  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 REGISTRAR  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Order in court.  :  Mr. Grant?  :  Yes.  My lord, just one minor point.  I just  summarized the last quote of the Tenimgyet crest, the  ensnared Bear crest of Axtii Hiikw, but of course the  description given by Art Mathews was that the crest  was a result of a killing of two women by two men from  Kisgegas, and it's described in that transcript  excerpt.  So it wasn't misstated, the source of the  crest, and it was a compensation crest.  :  All right.  : I would like to move to Part C of my argument, which  is the Gitksan and Wet'suwet'en environment and  resource use through time. And underlying all of this  history that I have described the last two days, it is  my submission that you have seen a wealth of  biological evidence which shows that the territory was  a resource rich area suitable for seasonal pursuit and  harvest of a diversity of material resources.  And of course this was attested to by Dr. Hatler,  Mr. Morrell, Ms. Haeussler, Mr. Chilton and Dr. Daly  gave evidence concerning the human utilization of the  mixture of natural resources in the area.  Dr. Daly  concluded at volume 187.  On page 178 of my argument.  "The factor which is most distinctive of the  subsistence strategy of the Gitksan and  Wet'suwet'en is not merely the diversity of  species harvested but rather the conjunction of  bountiful and regular salmon runs with a wide  range of other edible and otherwise usable  flora and fauna in the varied biotic zones of  the territories' valleys, mid-elevations and  alpine regions.  This local divesity has long  been supplemented with the welcome addition of  coast foods obtained by means of exchange."  Now, firstly was the first significant factor was  attested to by Ms. Sybille Haeussler, who divided,  explained the ecological land classification system  and subdivided the land area into groups with similar  capabilities to support life and support similar types  of land practises.  And she testified this is known in  British Columbia and biogeoclimatic classification.  And map 2 of the map atlas in the enlarged version has  been marked as an exhibit.  The significant feature of  it, of course, is the uniqueness of the three -- of 23674  Submission by Mr. Grant  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 three areas, the northern, the coastal and the  interior at this juncture, which flows within the  territory, and what she described that's in yellow  here, and I believe in a light green on the map atlas  as the Hazelton variant.  And that leads to unique  wealth of resources.  Now, I must point out here, my lord, that the --  just as an aside, that of course none of the evidence  I am now referring to was considered or reviewed by  Sheila Robinson.  Now, Haeussler explains the  intermingling of zones on page 180 of my -- I'm sorry,  the bottom of page 179 where she says:  "...it's located at the very location where  those three broad ecoregions converge, so it's  the only place in North America, or even the  world, where those three different very broad  vegetation types or ecological units come  together."  And that's reflected in the map, in the map which  is on the left-hand side of the legend of map 2, my  lord.  And that is this map over this side.  THE COURT:  Yes.  MR. GRANT:  Now, Haeussler describes the intermingling in the  valley bottoms of the biogeoclimatic zone of Hazelton.  "In this area, in these river valleys you get a  mixing of the two.  You get some of the coastal  systems moving inland.  You get the interior  weather systems mostly prevailing.  And so you  have a species such as hemlock, western red  cedar that are typically found on the coast.  They're found there.  So too are species from  the interior such as -- lodgepole pine is very  abundant.  The spruce that occurs in that  variant is a hybrid of the coastal Sitka spruce  and the interior white spruce."  And she goes on to explain the variety of  vegetation as a foundation for the types of resources  that are available.  Now, Mr. Chilton gave evidence about the unique  qualities of weather and topography of this region of  convergent ecological zones where the valley bottoms  east of the coast mountains, enjoying the coastal  climatic effect, are at the same time in the lee of 23675  Submission by Mr. Grant  Submissions by Mr. Grant  1 the mountains and much dryer than coastal valleys.  2 And of course Mr. Chilton's evidence directly went  3 into the issue of evapotranspiration or the ability to  4 dry berries and fish or any other species for that  5 matter was better here than at the coast.  6 I am not going to read through the summation of  7 Chilton's evidence, because I believe it's fairly  8 clear there, but I do refer to you, my lord.  9 Now, what Ms. Haeussler also did was deal with the  10 major -- the major biogeoclimatic in the claimed area,  11 and she dealt with the -- I'll do this with reference  12 to the large map.  She dealt with the northern Gitksan  13 territories as being broadly transitional between the  14 coast and northern ecoregions to the west, with the  15 interior ecoregions in the north.  And this is what  16 you see happening up in this area up here, the  17 headwaters of the Skeena and the Nass, and in this  18 area where you see that transition period occurring.  19 And that's relevant for the resources that were  20 available to the people.  21 Then the southern Gitksan territories south of  22 Cranberry River and Kisgegas to the confluence of the  23 Bulkley and the Skeena, which is in this region in  24 here, that area in there, is a region with many  25 influences, many ecological variances and many  26 species.  And I believe you can see the ecological  27 units there by examination.  28 And of course there was extensive evidence of the  29 wealth of the western Tenimgyet territory, which is  30 right here, and the particular berries and resources.  31 And when you look at the varying maps, you see there  32 is a distinction here, because it's the western most  33 protruberance towards the coast of the Gitksan  34 territory.  And then the valley bottom -- I'll go over  35 to the next page.  36 The analysis is given by Dr. Daly in his report.  37 And he talked about -- and Mr. Morrell testified to  38 the spawning grounds of a large portion of the region,  39 salmon, steelhead runs, and of course that wealth  40 comes out in some of the other maps in this area.  But  41 Haeussler testified as well that the northern  42 Wet'suwet'en territories are part of the interior  43 ecoregion, with a strong influence in the Bulkley  44 River to a point upriver of Moricetown.  And so here  45 we have, if we have broadly speaking the Gitksan up  46 here, then you come to the Wet'suwet'en, and you are  47 talking about this area here, and you see a 23676  Submission by Mr. Grant  Submissions by Mr. Grant  1 distinction there.  2 Now, much of the terrain is gentler than the  3 Gitksan territories, with more interior spruce  4 vegetation, longer, dryer winters, a low snowpack,  5 which is important to the game animals, and warm, dry  6 summers.  The valley vegetation indicates a frequency  7 of fire and includes considerable dwarf blueberry,  8 soapberry and saskatoon.  The mid-elevations are  9 moister, with spruce, Englemann fir, lodgepole pine  10 and black huckleberry.  11 Then you go to the southern Wet'suwet'en  12 territories.  On page 184 I have summarized Ms.  13 Haeussler's evidence, and it's marked by an abrupt  14 change from a moist coastal hemlock type of forest to  15 sub-boreal spruce on the Nechako Plateau, and this is  16 where she is talking about here.  There is the Nechako  17 Plateau of the far south, but you see that extensive  18 relatively sharp change there.  19 Now, Haeussler like Chilton stresses that in all  20 of these areas topography is an important determinate  21 of climate, vegetation and ecological composition.  In  22 general the territories are influenced by the  23 temperate, moist coast via the valley corridors  24 through the mountains, and by the colder, drier  25 conditions of the boreal north from the eastern  26 plateaus.  27 Then Haeussler testified about the elevation and  28 topography, and of course the legend on Exhibit 2  29 shows how the relationship occurs.  30 Now, I would like to go -- I am going to short-cut  31 that portion or end that and go to the berries.  32 Now, what we have here, and of course there are  33 many other varying maps, but here we have the map  34 number 3, which is the soapberries.  35 And Ms. Haeussler testified as to their locality  36 at the low elevations, and in the driest location of  37 valleys, and the driest locations in valleys  38 throughout the claim area.  From the  39 Kitwanga/Kitwancool Valley, the main Skeena Valley,  40 Gitsegyukla Valley, Kispiox, all of the Bulkley and  41 the lakes.  She stated that the suppression of forest  42 fire is detrimental to this berry.  And of course you  43 see with the chart the dark -- it's very prominent,  44 the dark grey is the most prominent, and then it moves  45 up the valleys.  And the lighter grey is where it's  46 less common, and it's uncommon to rare in the other  47 areas.  So the soapberry is a resource from the 23677  Submission by Mr. Grant  Submissions by Mr. Grant  1 interior coming towards the coast that benefits the  2 Wet'suwet'en and to a degree in certain of the Gitksan  3 territories.  4 On page 185 I refer to map 4 in which we talk  5 about the saskatoon.  And map 4 is not -- I don't have  6 a wall sized map to refer to, but it occurs with  7 basically the same distribution as soapberries in the  8 dry valley bottoms.  There is a sparse occurrence of  9 the species on the coast at Kitimat and Prince Rupert.  10 Now, once again you see the development of it.  11 Now, I just want to pause here, my lord,  12 because -- and I will raise this again with the  13 animals.  If you remember Sheila Robinson's evidence,  14 she said that these people, who presumably had some  15 sense of survival, only used the river bottoms and the  16 fishery until the fur trade arose.  That was the tenor  17 of her evidence.  She never looked at the geography,  18 although she espoused herself as a cultural  19 geographer, and that geography was important, or this  20 kind of evidence about the resources.  Needless to say  21 she never looked at the ancient histories, except the  22 totem poles of the Gitksan.  But the point is, is that  23 these people surviving on this territory living on it  24 for thousands of years did use these resources, and  25 Dr. Daly in his evidence analyzed the adaawk not as  26 history, but as resource use.  And you keep hearing,  27 and he referred to all of the berry references in his  28 report, for example, and the different berries used.  29 So they had to go to different regions to get the  30 different resource or utilize different portions of  31 the territory.  And that's what this evidence, I say,  32 demonstrates.  33 Now, if you go to the dwarf -- you go from the  34 highbush cranberry, which is the same kind of flow as  35 the soapberry to map 6, the dwarf blueberry, and you  36 see again it is an interior to coastal evolution.  It  37 is more common on the interior than at the coast.  For  38 example, if you look at the area on map 6 of  39 Tenimgyet's territory, you see that it's quite rare  40 there.  And this is consistent with Art Matthews'  41 evidence, that was a resource that they didn't get  42 from that territory.  43 Then we come to the black huckleberry.  This is  44 referred to in my evidence on page -- or my argument,  45 I should say, on page 186.  The reference by Sybille  46 Haeussler is given, and this species grows in  47 abundance between mid-elevation and the edge of the 2367?  Submission by Mr. Grant  Submissions by Mr. Grant  1 Alpine tundra.  2 Now, that's what -- this is what Ms. Haeussler was  3 analyzing, is -- just determining where these things  4 are.  You couldn't just rely on the river valleys.  5 You had to go up to different elevations to get the  6 different berries and the different resources.  7 And finally map 81, the oval-leafed blueberry, and  8 here we have the entirely reverse effect in which this  9 resource is found abundantly.  For example, on the  10 Cedar River territory of Tenimgyet it's found on the  11 Skiik'm lax ha territory in the northwest, but -- and  12 it's found as far interior as Gitsegukla in abundance.  13 That would include territory such as Hanamuxw and  14 Gwagl'lo in the south and Gitsegukla there.  But  15 further east you find it is uncommon, and when you get  16 to the southeastern Wet'suwet'en territories where  17 other berries are very common, you find that it's  18 extremely rare or non-existent.  19 And similarly with map 9, the Alaska blueberry.  20 And it's even further focused on the coast and goes  21 only as far, in terms of commonality, as around the  22 area of Gitwangak, the western territories of the  23 Gitksan.  24 Map 10, the red huckleberry, is even more rare and  25 clearly is a resource only found in the Cedar River  26 territory, and slightly, probably in that Luulak  27 territory I referred you to yesterday, a little  28 protuberance up the Skeena.  29 Now, going back to my argument.  Ms. Haeussler  30 testified that berry production over the mapped area  31 is relative to fire effects on the land.  She stated:  32  33 "Over most of the study area, fire would be the  34 single most important growth factor in the  35 natural environment."  36  37 Her evidence is that the coast-oriented species,  38 the last three I referred you to, Alaska blueberry,  39 oval-leaf blueberry and red huckleberry, respond badly  40 to fire damage and thrive in shady conditions.  41 Saskatoon and soapberry, valley bottom species,  42 respond favorably to fire -- the fire opens the forest  43 cover and their roots and seeds tend to be fire  44 resistant.  The black huckleberry, dwarf blueberry and  45 highbrush cranberry are intermediate in fire  4 6 dependency.  47 Haeussler gave evidence that the high proportion 23679  Submission by Mr. Grant  Submissions by Mr. Grant  1 of successional growth forest in the Hazelton Variant  2 valley bottoms indicated a high degree of forest  3 burning in these ecological areas.  This is the area  4 of warm, dry valleys in summer, where two highly  5 fire-resistant species, saskatoon and soapberry grow,  6 along with two of the moderately fire-resistant  7 species (highbush cranberry and dwarf blueberry).  8 These species require sunlight to produce abundant  9 crops.  Haeussler testified that the natural cycle of  10 fire in the region ranges from under two hundred years  11 years to greater than three hundred years.  12 Now, she assumes from -- on the basis of records  13 of aboriginal landscape burning in North America and  14 elsewhere that some burning by human agencies has  15 contributed to the forest profile of the Hazelton  16 Variant, and she testifies that the present policy of  17 surpressing human fires on the landscape, while not  18 affecting the distribution of berries on the mapped  19 area, has nonetheless probably affected their  2 0 abundance.  And of course there was evidence that up  21 until the 1930's and 1940's that the Gitksan did  22 engage in burning.  23 Now, I would like to move to the fishing resources  24 in the Gitksan territories.  And of course here is  25 Mike Morrell's evidence.  Mr. Morrell, a fishing  26 biologist, gave evidence that mounting catch figures  27 for sockeye and parallel evidence regarding chinook  28 and coho.  He found that in the early years of the  29 20th century indicate the existence of a relatively  30 unexploited lightly harvested stock of fish.  Morrell  31 concluded:  32  33 "The inference that I draw from this is that at  34 the time of the beginning of the coastal  35 industrial fishery the Skeena salmon stocks  36 were quite abundant and were not heavily  37 harvested, were not overfished by any means.  38  39 Now, here I am pointing out the relevance of the  40 coastal fishery here is not -- as you said, does it  41 matter if the rights -- if they have the rights to all  42 the fish and they are taken away, does it matter to me  43 the quantum.  Of course the focus was that his  44 analysis was that when you look at the coastal fishery  45 catches in the early parts of the century, you  46 demonstrate a relatively very abundant fishery that is  47 not impacted for some decades after the commercial 23680  Submission by Mr. Grant  Submissions by Mr. Grant  1 fishery becomes increasingly efficient.  And of course  2 that is reflected in map 23 of the series, Exhibit  3 358, and which he shows the river stocks.  And you  4 recall this charting that was done.  5 MR. GOLDIE:  Is that map 23?  6 MR. GRANT:  Yes.  7 MR. GOLDIE:  Your Lordship will recall that map was marked  8 without the editorial comment.  9 THE COURT:  Oh, yes.  All right.  Yes, I have that marked.  10 MR. GRANT:  Now, the map 20 in the atlas shows the diversity and  11 distribution of fisheries in the mapped area,  12 including the salmon, steelheads, trout, as well as  13 the oolichan fisheries.  And the map indicates the  14 actual and target escapement for salmon species.  15 Now, this is on page 189, and I am referring to map  16 20, my lord.  17 THE COURT: Yes.  18 MR. GRANT:  Mr. Morrell concludes regarding the fishery based on  19 salmon -- an analysis of salmon consumption and  20 escapement.  21  22 "My conclusion is that in all probability the  23 salmon stocks of the Skeena system were  24 adequate to supply the needs of the aboriginal  25 people of the system that were feeding them,  26 that were eating them, that were fishing them  27 in the precontact period and into the - up to  28 at least the period when the stocks began to  29 decline in response to overfishing by the  30 commercial fisheries of the coast."  31  32 Now, at the bottom of that page Mr. Morrell -- I  33 refer to map 23.  Mr. Morrell testified the  34 significance of Exhibit 358-23, the map that you have  35 on the wall there, the map of spawning stocks in the  36 study area, also lies in the fact that this map, which  37 its diagrams, shows the diversity of runs.  And I  38 emphasize that, and explains a considerable amount  39 about the behaviour of the fishers themselves.  And he  40 stated.  41  42 "If you add to this, information on the timing  43 of the migrations of the different stocks, each  44 of which is following its own timetable, it  45 would explain, for example, not only why  46 Moricetown Canyon on the Bulkley is an  47 important spring salmon, chinook salmon fishing 23681  Submission by Mr. Grant  Submissions by Mr. Grant  1 area; it would also explain why people from the  2 Fraser River system and from the Babine system  3 might come here to get spring salmon earlier in  4 the year when those fish are not available in  5 their systems.  If you look at the Kispiox  6 River it would explain to you why people might  7 fish chinooks in the Kispiox River itself early  8 in the season, and then switch to the fishing  9 grounds on the Skeena River later in the year  10 to take advantage of the Babine sockeye passing  11 through."  12  13 Mr. Morrell testified that the response in terms  14 of human activity to this diversity of spawning areas,  15 runs and cycles is a comparable degree of diversity in  16 the actual Gitksan and Wet'suwet'en fisheries, and he  17 said in evidence:  18  19 "...the fishing itself is decentralized, it is  20 widespread; that the units of production, if  21 you will, are family units operating  22 independently of each other; that fish are  23 never concentrated at one point after they are  24 caught, as they frequently are in industrial  25 fisheries, as when a number of catcher vessels  26 deliver to a central processing location.  Also  27 that although it is the same river and the same  28 fish - that different people have different  29 objectives in their fishing, and that there are  30 many fishing strategies going on at any one  31 time that relate to the needs and the  32 objectives of the particular family units that  33 are doing the fishing at different locations.  34 In parallel with this, the ownership and  35 decision-making structure is also decentralized  36 and composed of more or less autonomous units."  37  38 Now, here what he is saying is his analysis of the  39 fishery that he observed by the Gitksan and  40 Wet'suwet'en together with the fishery resource is  41 that they intermesh in a logical and natural way.  And  42 of course on page 191 he refers to the canyons at  43 various locations referred to on page 358-22, and  44 those tend to be places where fishing, where the dots  45 indicates fishing sites concentrate.  46 Now, referring to the mammal resources.  Dr.  47 Hatler gave evidence on the range and distribution of 23682  Submission by Mr. Grant  Submissions by Mr. Grant  1 nine mammalian species within the study area.  2 I should just stop here with respect to the  3 fishery.  It's our submission that just as with the  4 berries, my lord, that the fishery resource and the  5 organization of the Gitksan and Wet'suwet'en social  6 systems and social organization, which we will return  7 to later, intermesh in an appropriate way, and that  8 the history of the Gitksan and Wet'suwet'en and the  9 archaeological evidence indicates that they have been  10 doing this for thousands of years within the  11 territory.  They being the Gitksan and Wet'suwet'en  12 and -- and the ancestors of the Gitksan and  13 Wet'suwet'en.  14 Now, Dr. Hatler gave evidence on the range and  15 distribution of nine mammalian species within the  16 study areas, maps 11 to 19.  And his research in  17 relation to the evidence he gave focused on  18 zoogeography, which he defined as the study of  19 distribution of animals, but it has in context not  20 just where they are, but where they came from and how  21 they got there.  Some of the explanatory details of  22 that distribution.  23 Now, Dr. Hatler gave evidence, this is the middle  24 paragraph on 192, that in the general region of the  25 claim area, prior to the 20th century, settlement in  26 the Skeena-Bulkley Valley corridors, caribou were to  27 be found in the area north and east of the Nass River  28 and southeastward to Bear Lake; from the south side of  29 the Babine River in a westward line to Aiyanish on the  30 Nass, then south to Terrace, southeast to  31 Zymoetz/Copper River, then south down the Coast Range  32 divide to Bella Coola, and east to Fraser Lake and  33 Takla Lake.  34 Now, map 11 shows what he is referring to there,  35 and you can see the strong prevelance of the caribou  36 from the north and from the south, but not in that  37 central area north of Kisgegas, that is between the --  38 to Kisgegas-Kuldoe region, if I may say it generally.  39 Now, he refers, and on the map depicts Mount  40 Edziza (?) as a place where there's been no caribou  41 wintering since 1920, but clearly they were from the  42 evidence.  And he concludes that the break in map 22,  43 which is a logical -- map 11, my lord, which is an  44 apparent break there, you can see is as a result of  45 the creation of the corridor, and human developments  46 directed in development, especially transportation  47 developments and dams which separated the southern 23683  Submission by Mr. Grant  Submissions by Mr. Grant  1 herd from the northern herd.  2 Now, once again, one sees, though, that range of  3 the caribou.  4 Now, the next map.  I don't believe I have the  5 large map.  It's map 12.  You have a moment to look at  6 it.  And this is, of course, the mountain goat which  7 Dr. Hatler explained this is the centre of the world's  8 distribution of mountain goats in north -- it's the  9 centre in the largest populations.  10 I want to pause here, because when you look at  11 this -- and he concludes the mountain goats were there  12 for a long, long time.  In order for the Gitksan or  13 the Wet'suwet'en to access mountain goats, they had to  14 go up the mountains.  They couldn't stay in the valley  15 bottoms.  That's why they have this large territory.  16 And the adaawk and the Kungax referred to the mountain  17 goats.  We have the major reference to the mountain  18 goats, 3,500 years ago at Temlaxam, and clearly  19 mountain goats were a resource utilized by the Gitksan  20 and Wet'suwet'en that long ago.  21 Now, Dr. Hatler concluded that mountain goats are  22 more numerous today than caribou.  He then talks about  23 the moose.  And I should say also with respect to the  24 mountain goat, before leaving it, that you see the  25 sporadic distribution of them, and of course in  26 obviously the high mountain areas and the northern  27 areas they are more common and the coastal mountain  28 range.  So people had to have mobility and access to  29 them.  But they are in all the ranges that the ancient  30 history of the Gitksan refer to, and when you look at  31 that protuberance through just west and, of course,  32 includes Hudson's Bay Mountain, you see that within  33 the Wet'suwet'en territory they are common access that  34 way, and also in the eastern side of the Wet'suwet'en  35 territory near Mountain Cronin.  36 Now, this, I say, once again, the proposition --  37 proposition, of course, of Sheila Robinson that the  38 people lived in the river bottoms and didn't have to  39 go out on the land until the fur trade is observed  40 when one combines the oral histories and the relation  41 to the mountain goat and their presence.  And of  42 course she didn't look at any of that.  43 Now, Hatler also talks about the moose, which of  44 course move into the area, and -- but there are in  45 oral histories references to moose, which is -- which  46 I believe much was made of in cross-examination, but  47 Dr. Hatler, I will refer to it later, suggested that 23684  Submission by Mr. Grant  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 moose, and on page 194 and 195 he refers to it  from his report, Exhibit 795, he states:  "French (1921) reported that moose had only  recently replaced caribou as the number one  species."  Sorry, my lord, on 194.  I have it.  "In the economy of natives in north-western B.C.  However, he had been told that the species was  formerly present, but had disappeared in about  1800, making an appearance again in 1877, and  steadily increasing and spreading south and  west thereafter.  MacFarlane (1905) also  reported that there had been a period of  earlier occurrence in and then another  increase, the latter accompanied by an apparent  movement south during 'the remarkably mild  winter of 1877-78'.  Albright (1984) cited  Emmons (1911) in support of a statement that  '...moose inhabited the Stikine Plateau in  earlier times, but dramatically declined from  1800 to 1877. . .  If the above records are accurate, the  species may actually have arrived in northern  portions of the study area earlier, only to be  pushed back.  A possible factor under such a  scenario is the harsh climate of the Little Ice  Age.  Possibly only slight changes in the  winter snow regime, from that existing now,  would be necessary to virtually eliminate  significant population growth and to reduce  local survival."  Now -- so what -- and although Dr. Hatler mapped  the area in 18 -- in the seasons of the species to  1860, he in reviewing this material, he does not -- he  is talking about the recent movement in of the moose,  but he in his evidence demonstrates that they could  well have been here earlier.  And I am going to return  to the Little Ice Age.  The mule/black-tailed deer Dr. Hatler testified is  found -- and it makes a movement in from the south.  It's found at least since 1960 over the southern half 23685  Submission by Mr. Grant  Submissions by Mr. Grant  1 of the claim area as far north as the Babine River, as  2 well as in the upper Skeena Valley to the Sustut River  3 and in the Meziadin area.  So what you have is access  4 to the mule/black-tailed deer entirely throughout the  5 Wet'suwet'en area, and in these protuberance through  6 the Gitksan area, including the area that would be  7 referred to in the map, that is the area up in here,  8 Delgamuukw's, Gyolygyet and this area.  So that would  9 mean that there was access to the northern Gitksan, as  10 well as to the Wet'suwet'en to that resource.  11 Now, the range of the hoary marmot is again very  12 similar to that of the -- to that of the mountain  13 goats in some respects, although it's not as populous  14 in the southern areas, that is in the Wet'suwet'en  15 areas.  This is a significant, I think, as Dr. Hatler  16 would say, critter for the case in this regard.  The  17 adaawk -- the adaawk refer marmot as an important  18 element for the people in the utilization of the  19 territory.  And of course Samuel Black, an early  20 Hudson's Bay employee, record the use of marmots for  21 clothing and food in the general claim region in the  22 early 1800's.  And if he was like the other traders,  23 and as I recall Samuel Black did not attend feasts,  24 but if he had he probably would have seen the  25 utilization of the marmot skin.  26 MR. GOLDIE:  My lord, I didn't realize that there had been  27 evidence that Black was in the claims area.  Can my  28 friend assist me in that regard.  2 9 MR. GRANT:  Uh-huh.  And what happened —  30 MR. GOLDIE:  Well, I asked a question.  31 MR. GRANT:  I will give you the reference.  32 MR. GOLDIE:  All right.  33 THE COURT:  Gentlemen.  Carry on, Mr. Grant.  34 MR. GRANT:  I will provide —  35 THE COURT:  There is no need for this.  Carry on.  36 MR. GRANT:  The hoary marmot is a significant resource of the  37 Gitksan, and that's -- and it's referred to more in  38 the Gitksan adaawk.  And that is, I say, further  39 evidence that the people, the Gitksan people utilize  40 the resources throughout the territory.  Of course  41 they have to access the higher regions to get to it.  42 Then we come to the beaver, which, as you can see  43 map 16, is throughout the valleys and the smaller  44 creeks and watersheds, throughout the territory, more  45 common in the southern and the southeastern part of  46 the territory than in the northern part.  And Hatler  47 concluded that the beaver on page 196 is an ancient 23686  Submission by Mr. Grant  Submissions by Mr. Grant  1 and prolific species that will try to survive whenever  2 there is water deciduous vegetation.  And of course  3 the beaver is again referred to in the adaawk in the  4 Men of Mediik.  It's a big issue regarding -- at  5 Kitselas.  And finally what I -- Hatler concluded:  6  7 "There is no reason to suspect that the  8 distribution of beavers at European contact  9 differed substantially from that today, that  10 is, in suitable habitats."  11  12 Hatler also testified to the snowshoe hares'  13 presence, and you will see it in the -- it's very  14 prominent in the south -- in the southern and eastern  15 side of the territory, much more so than in the  16 western side, but it's prevalent throughout the  17 populations.  And he concludes that the hare  18 population reach a maximum every ten years and then  19 die away dramatically.  They are the base of a food  20 chain for a number of furbearers, such as lynx and  21 fish.  The cycles of these furbearers fluctuate in  22 direct relationship to the fluctuations in the hare  23 population.  24 The bottom of 197, my lord.  Dr. Hatler concluded  25 his evidence that of the nine species mapped, six have  26 maintained their general abundance in range since  27 1860.  The black bear, grizzly bear, marmot, hare,  28 beaver and mountain goat.  Then he stated the deer,  29 moose and caribou populations and range have changed  30 since 1860.  The caribou range has shrunk, deer have  31 expanded into the marginal habitat areas of the north,  32 and moose have expanded south and west into the claim  33 area.  But there is nothing magical about 1860.  He  34 makes it clear that many of these species, my lord,  35 were in existence long before, but what he says is  36 that in terms of -- there was no reason for them not  37 to be there, but his data, that is the written  38 material that he could look at, suggested that that's  39 how he could only map to 1860.  But of course the  40 evidence through -- and he didn't -- of course he did  41 not refer to the adaawk, but he did refer to the  42 historical written record, and he found the historical  43 written record demonstrated -- demonstrated that the  44 people were there before.  45 Now, my lord, I note the time.  It's my -- it's up  46 to Your Lordship of course, but I am proposing to  47 endeavour to complete this section, so that we can 23687  Proceedings  Submissions by Mr. Grant  1 commence a new section tomorrow morning.  2 THE COURT:  Madam Reporter, is that satisfactory?  We are going  3 to change reporters.  4 MR. GRANT:  I advised them of my —  5 THE COURT:  Yes, all right.  All right.   When Mr. Roy comes in  6 I will -- I think I hear him coming in.  7 MR. GRANT:  I will now stop.  8  9 (CHANGE OF REPORTER)  10  11 I HEREBY CERTIFY THE FOREGOING TO BE  12 A TRUE AND ACCURATE TRANSCRIPT OF THE  13 PROCEEDINGS HEREIN TO THE BEST OF MY  14 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  47 236?  Submissions by Mr. Grant  Submissions by Mr. Grant  1  2 THE COURT:  All right, Mr. Grant, your words are being  3 immortalized again.  4 MR. GRANT:  I would like now to refer to the second part of this  5 section, which is the which is the ecological  6 continuity through time in the Gitksan and  7 Wet'suwet'en evidence.  And here, I refer to the  8 biophysical, archeological and linguistic evidence  9 which suggests a remarkable degree of ecological  10 continuity through time in the claim area and the  11 surrounding regions.  12 Firstly, the biophysical.  In the course of his  13 evidence, Dr. Gottesfeld, the geomorphologist and soil  14 scientist, affirmed that between the period of about  15 2500 years ago and what is sometimes called the Little  16 Ice Age, ending approximately 150 years ago, the  17 climate in northwest British Columbia became wetter or  18 cooler or both, and that these conditions were  19 conducive to the growth of glaciers.  20 Now, Mr. Chilton, the only climatologist called in  21 this case, testified that scientists are not certain  22 that the temperature actually cooled as it became  23 through the centuries more moist.  He stressed that  24 any increase in glaciation during the Little Ice Age  25 could well have been due to the effect of increased  26 wetness of climate without a corresponding decrease in  27 temperature.  The effect of this trend to wetter or  28 cooler conditions on the vegetation was discussed by  29 Dr. Mathewes in his evidence.  And he testified to the  30 consistency of flora species present in the pollen  31 stratigraphy cores taken from the bottom of Seeley  32 Lake near Hazelton.  Referring to his report, Dr.  33 Mathewes said in evidence:  34  35 "If I were to draw out a major conclusion with  36 regard to the zones..."  37  38 This is, of course, the time zones, my lord,  39  40 "...in other words, the major long-term changes  41 that are indicated in both of these diagrams, I  42 am going to speak mostly to figure seven, which  43 we discussed already, what was somewhat  44 suprising to me about this diagram was that  45 there weren't more substantial changes.  It's  4 6 more common for me to find in the very early  47 stages of a lake that you get a vegetation type 23689  Submissions by Mr. Grant  Submissions by Mr. Grant  1 very different from what you get in the present  2 day.  At Seeley Lake, although there are  3 changes reflected in zones 1, 2 and 3, the  4 changes are of a relatively minor nature.  5 There are no really striking changes where one  6 species suddenly dominates and then maybe  7 disappears.  Virtually all the species, with  8 the exception of a few, are present in the  9 early part of the record at the present day and  10 just simply fluctuate in between."  11  12 That, my lord, I say is dramatic evidence of the  13 stability of the environment.  14 Mathewes then noted among the exceptions the  15 gradual increase in the presence of western hemlock  16 over the last 5 to 6000 years.  This suggested to him  17 that:  18  19 "It had become somewhat wetter climatically  20 compared to the earlier periods when lodge pole  21 pine was more common and hemlock was less  22 common."  23  24  25 And then he says, with the parallel increase in  26 pollen from the cedar-juniper family, which together  27 with the gradual increase in hemlock pollen, led him  28 to conclude:  29  30 "there has been an increasing coastal influence  31 over the last 3000 years in this area, because  32 these -- these groups have expanded and I am  33 assuming here that the Cypressaceae  34 (cedar-juniper) is most likely representing  35 pollen of Western Red Cedar which presently  36 grows around the shores of Seeley Lake and is  37 there right now."  38  39 He concluded by making comparison with other  40 pollen analysis:  41  42 "There is very good evidence, in fact, that  43 approximately over the last 3000 years,  44 beginning somewhat earlier, perhaps as early as  45 5000 years, there has been a long-term trend  46 toward increasing wetness of climatic  47 conditions." 23690  Submissions by Mr. Grant  Submissions by Mr. Grant  1 In other words, Mathewes' evidence shows that  2 despite a gradual trend to a wetter climate over the  3 last 3 to 5000 years, the vegetational record shows a  4 remarkable consistency.  Chilton, as well, remarked  5 upon the consistency to the whole area that any  6 changes of temperature or moisture and that the unique  7 topography of the region, would tend to replicate a  8 set of local climatic conditions parallel to recent  9 conditions.  Areas of good drying conditions, for  10 example, would still have occurred in the same places  11 they do today.  12 Then Hatler finds similar consistency.  He made a  13 similar observation regarding the probable warming  14 trend since about 1860, saying that despite cooler,  15 wetter climatic conditions the same habitats were in  16 existence and the relative hardship -- that's  17 hardship, it should be hardiness -- hardship for the  18 species would have been the same across the board.  In  19 the course of his evidence, he affirmed that the  20 species studied would have survived and existed in the  21 same habitats with two exceptions, the moose and the  22 deer, which would flourish in the mapped area when the  23 climate was experiencing a drier and warmer trend such  24 as at present.  And that's already been discussed.  25 Hatler gave evidence that caribou that had been in  26 the area back to the Wisconsin glaciation 20 to 30,000  27 years ago, that fossil caribou antlers have been found  28 west of the northern Gitksan territories, and that's  29 on 358-11 my lord, remains dated at 3500 B. P., have  30 been found at an archaeological site at Usk, near the  31 western Gitksan boundaries.  32 Regarding the mountain goat, Hatler's evidence is  33 that the mountain goat is an Ice Age species, that has  34 lived in the general region for 70,000 years.  He also  35 recorded that deer remains have been found in Kitselas  36 Canyon archeological sites which date to 1400 years.  37 Similarly, there is archaeological evidence of marmot  38 remains dating to 3500 years B. P. in the Usk/Kitselas  39 area.  Beaver has been dated at archaeological sites  40 in the study area to 2400 B. P. While hare bones do  41 not fossilize well or preserve well in archaeological  42 sites, they have been in North America since the  43 Wisconsin Glaciation and has been found in  44 archaeological sites in northern British Columbia at  45 strata of a thousand years ago.  46 As for the two bear species, Hatler testified:  47 23691  Submissions by Mr. Grant  Submissions by Mr. Grant  1 "Archaeological materials confirm that both  2 species have been in the province, and the  3 study area, since long before European  4 contact."  5  6 Hatler suggests that the moose and deer may not  7 have moved into the claim area until recently because:  8  9 "something like the cooling effect of that  10 neoglacial may well have been holding them back  11 for so long within our recorded history."  12  13  14 Now, Hatler then goes on to talk about the Little  15 Ice Age, and I go -- and that's referred to on page  16 203, but Chilton, again the climatologist, again  17 cautioned against making hypotheses about the effects  18 of the Little Ice Age in British Columbia.  He states,  19 that its climatic consequences are known for Europe,  20 but not for the study area:  21  22 "There is little, very little, if any,  23 information for this region in the Little Ice  24 Age.  We don't even know if if affected this  25 region."  26  27 He goes on to add:  28  29 "That we don't seem to correspond in our climate  30 to the European situation.  It seems when they  31 get very cold winters, we have very warm  32 winters, it's the way the atmosphere seems to  33 be set up."  34  35  36 Now, pausing there, my lord, is that the evidence  37 is not because the mapping of Hatler is 1860 that  38 that's when all of a sudden these species arose, but  39 of course he expands and says they go back.  There is  40 no reason except regarding the moose and deer that  41 they would have, that they would not have been here  42 for a long, long time.  And I would like to comment on  43 the Little Ice Age now, because it's suggested  44 sometimes in cross-examination I think to Ms. Marsden,  45 that the Great Snowfall at Temlaham happened 1815 or  46 1816.  That, my lord, is totally -- unless people were  47 literally running down the river and running up the 23692  Submissions by Mr. Grant  Submissions by Mr. Grant  1 river, they would never have been able to have the  2 history that developed after that time in that short  3 time span.  But even more problematic for that  4 proposition, is that a major event did occur in that  5 area in 1820 and that event is the Hagwilget slide  6 into the river.  That event is recorded in the adaawk  7 and that event is also recorded by fur traders at the  8 Babine, that they hear about it.  And it's dated quite  9 specifically.  So something occurring in 1815, and a  10 great migration of Gitksan down to the coast, surely  11 the sea coastal traders would have written something  12 about it.  Or it would have been reflected.  13 Now, I would like to go to the archaeological  14 evidence here briefly and this is to part of the time  15 depth.  And here what I would like to go to is  16 Hagwilget which I did not deal with under the history.  17 Albright gave archaeological evidence of the presence  18 of human beings and some of the species they harvested  19 in the claim area.  She found, for example, that the  20 combination of human habitation and salmon used 6000  21 years ago:  22  23 "Radiocarbon dates indicate occupation of  24 Moricetown and Hagwilget Canyons by 6000 years  25 ago.  This research suggests that the middle  26 Skeena watershed was occupied at least as early  27 if not earlier than Prince Rupert Harbour at  28 the mouth of the Skeena.  Archaeological  2 9 evidence in the form of faunal remains  30 associated with birch bark and storage pits as  31 well as artifact materials also suggests that  32 salmon fishing was an important part of the  33 economy during the early period of occupation."  34  35 In relation to fishing, Albright also testified  36 that biface tools used for cutting fish and other  37 foodstuffs, were found at the lowest as well as the  38 upper strata of the Moricetown archaeological site.  39 Albright concurs with Ames and MacDonald that the  40 permanent year-round settlement at Hagwilget gave way  41 to seasonal occupation for fishing fishing activities  42 about 3500 years ago.  3500 years ago is a very  43 crucial period in this region, my lord.  You now find  44 that at the time of the great landslide or the Mediik,  45 as dated by Gottesfeld and Mathewes, is the time  46 period around which there is suddenly a much less  47 seasonal occupation at Hagwilget.  It coincides with 23693  Submissions by Mr. Grant  Submissions by Mr. Grant  1 Ms. Marsden's conclusion from analysis of the adaawk  2 of the time of the dispersal.  3 Now, Albright gave evidence for the whole study  4 area that developed -- Albright gave evidence that  5 over the whole study area that there developed a  6 sophisticated fishing economy:  7  8 "The intensification of salmon production and  9 storage of large quantities of dried salmon for  10 winter use or later use for purposes of trade  11 indicate -- is an indication of very  12 sophisticated technology. For that  13 intensification process, gathering large  14 quantities of a particular resource and  15 processing it for later use implies more  16 sophisticated technology for catching the  17 salmon.  For processing salmon in terms of  18 drying requires drying racks and smokehouses.  19 It also involves organization of people to be  20 able to carry out these activities in that  21 salmon resources are not an abundant resource.  22 They are very restricted in time and place."  23  24 And of course your lordship had an opportunity to  25 observe a smokehouse in operation and has heard  26 evidence of the organization required relating to  27 that.  28 So, storage pits are evidence of the fishing  29 technology as well.  And Albright mapped 230 cache  30 pits slightly upstream from Kisgagas village on the  31 north bank of the Babine River and she testified that  32 this large cluster of cache pits:  33  34 "Indicates intense utilization of local riverine  35 resources, fish resources in the area, other --  36 as well as perhaps other resources."  37  38 This cache pit site indicates a sizeable group of  39 people living in the area in permanent settlement.  A  40 similar settlement with a large number of storage pits  41 occurred in Kitselas Canyon, a region that  42 archaeological research shows to have been occupied  43 for at least 5000 years.  44 Albright also recorded house depressions and cache  45 pits at Doreen, in the western portion of the claim  46 area, along the Skeena River, in the general area of  47 old village of Gitank'aat, which I have already 23694  Submissions by Mr. Grant  Submissions by Mr. Grant  1 referred to.  2 Now, in relation just to this last point here is  3 that in relation to the long-term exploitation of big  4 game animals, Albright reported projectile points at  5 the oldest levels of the Morricetown and Hagwilget  6 sites:  7  8 "The lanceolate leaf-shaped points were used in  9 earlier times as spear points, and given their  10 size, would have been used for hunting large  11 game."  12  13 And a spear point similar to those found at  14 Moricetown occurred at Hagwilget and was radion carbon  15 dated to 4700 years before the present.  There is also  16 evidence of woodworking at Hagwilget and there were  17 large adzes at Hagwilget.  I am at page 207 of my  18 argument.  Allaire had also found them at Kitselas.  19 These were used in woodworking activity:  20  21 "But one is a large, very heavy tool that was  22 used in heavy duty used woodworking activities,  23 such as the felling of trees and heavy duty  24 shaping of wooden planks."  25  26 Now, in the Morricetown site, Albright found  27 evidence of human use of a wide variety of species  28 throughout the 6000 year history of the location.  And  29 she testified:  30  31 "Acidic soils work against good preservation of  32 faunal remains, animal bones, at the site.  33 Howerver, burnt bone fragments were recovered  34 from all layers of the excavation.  Mammal,  35 bird and fish appear to be present at all  36 layers of the site."  37  38 Now she then goes on to obsidian and copper -- I  39 am sorry, that reference is to Dr. Daly's report,  40 Exhibit 844.  No, it's Dr. Albright's report.  41 In relation to obsidian, which occurs naturally in  42 only two locations in British Columbia - Mt. Edziza  43 and Anaheim Peak - Albright testified:  44  45  46 "So, in determining which source the material  47 is from, the sourcing of materials gives us 23695  Submissions by Mr. Grant  Submissions by Mr. Grant  1 some idea of previous movement of materials by  2 people from one area to another and trading  3 patterns between people in different parts of  4 the region."  5  6 She says that -- she gave evidence that the  7 obsidian found at Moricetown site and that analysis  8 has shown it originated at both of the known sources  9 in the province.  She testified that Fladmark's  10 obsidian flakes at Mt. Edziza were dated 4900 B. P.,  11 that Allaire's obsidian at Kitselas was dated to 3430  12 B.P. and that Ames' Hagwilget obsidian point was dated  13 at 4700 B. P.  14 So, unlike the proposition that these people were  15 solely at the river, only using the fishery resource,  16 the evidence, the archaeological evidence just stands  17 as a wall against such a preposterous proposition.  18 And it establishes that they used all of these  19 resources at the time, and that trade was going on.  20 Anaheim and Mt. Adziza, obsidian were found were found  21 in these areas from 4900 and 4700 B. C.  22 Albright testified that seven tubular copper beads  23 in association with a cremated burial has been found  24 at Moricetown.  She cited an archaeological report of  25 MacDonald and Shaeffer describing "closed copper  26 tubes" or "tinkler" decorations for dance costumes  27 found at the Kitwanga Fort Site.  This is interesting  28 because it includes both post-contact trade copper,  29 and native copper:  30  31 "Apparently there were two groups of copper  32 tinklers found at dawdzep.  One type is  33 believed to have been made from materials  34 obtained after contact.  And the second group  35 of tinklers were made from a native copper  36 which had been manufactured according to cold  37 hammer chipping."  38  39 Now, that again is consistent with the adaawk and  40 the dating of the adaawk and, of course, doctor -- in  41 terms of the utilization in the area around Kitwanga.  42 Now, the linguistic evidence.  Further evidence of  43 time-depth and continuity of use of species by human  44 populations in the region provided by Dr. Kari.  And  45 Dr. Kari, I have summarized there the analysis of the  46 proto-Athabaskan language, and he says that the  47 linguists developed a proto-Athabaskan language, for 11 THE COURT  12 MR. GRANT  13 THE COURT  14 MR. GRANT  23696  Submissions by Mr. Grant  Submissions by Mr. Grant  1 example,  for the 40 daughter languages in existence  2 today.  The parent, or proto-Athabaskan language,  3 probably was in existence between 10,000 and 2,500  4 B.P. and the dispersal of the Athabaskan languages  5 appears to have been relatively recent, about 2,000 to  6 2,000 B.P.  7 Now, I would like to stop at that point.  I asked  8 madam registrar for volume 179.  Because this is where  9 I would deal with the point that you raised earlier.  10 At page 1146 —  You need another digit in your number, I think.  11466.  Thank you.  At the bottom, Ms. Mandell, who led the evidence  15 directed the evidence of Mr. Kari, Dr. Kari, said,  16 referred him to the report:  17  18 "All right.  You say at page 48 in the second  19 paragraph, the second line:  20 'The dispersal of bands cannot be of great  21 antiquity because of the striking homogeneity  22 of the modern languages.'  And then later you  23 say: '...that a proto-Athabaskan language  24 immediately ancestral to the modern language  25 was still spoken as recently as 2,000 to 2,500  26 years, ago.'   And it's those statements I am  27 asking you to explain.  If we can first go to  28 the statement about 'the dispersal of bands  29 cannot be of great antiquity', could you  30 explain whether or not it is controversial that  31 there was a dispersal of bands?  32 A  Well, there is no controversy there was some  33 dispersal because you have the southwest  34 occupation of Navaho and Apache and you have  35 the Pacific Coast Athabaskans there, I mean, so  36 minimally you have that dispersal.  37 Q   And then you say: '...that a proto-Athabaskan  38 language immediately ancestral to these modern  39 languages.'  I take it that means immediately  40 ancestral to the dispersal?  41 A   Yes.  42 Q   'Was still spoken as recently as 2,000 - 2,500  43 years ago.'  44 A   Yes.  45 Q   Could you explain whether this is later or an  46 early horizon on the date of the dispersal?  47 A  Well, that's a sophisticated estimate based on 23697  Submissions by Mr. Grant  Submissions by Mr. Grant  1 the close similarity of the languages  2 throughout this North American spread as well  3 as similar patterns in world languages, and  4 these dates have been published several times.  5 I am not the one who is publishing these dates  6 or anything.  Especially Dr. Krauss is the one  7 who is basing  these dates and he is the one  8 who is basing these dates and he is the person  9 who's worked with the Eyak language by the way.  10 Krauss is the specialist in this very distantly  11 related Eyak language so his feeling for Eyak  12 first to the rest of Athabaskan and then his  13 knowledge of say Simitic and either european  14 and other languages that he works with are the  15 way he bases these -- these kind of dates.  I  16 could give a mor technical comment here too  17 about so-called glotochronology but I don't  18 know that that's -- if you are interested or --  19 Q   Let me first establish with you, are these  20 dates of 2,000 to 2,500 years ago, are thes on  21 the late horizon of the estimate of dispersal  22 dates?  23 A   That is late -- strikingly late date for a  24 large group of --  I mean, if you model the  25 North American distribution and you look at  26 this date for the northern North America  27 proto-homeland you woud say that they stayed  28 unified until fairly late and then the last  29 2,000 years ago -- the last 2,000 years are  30 very interesting, too, as to, you know, how to  31 figure their sequence of moves into, say,  32 western Alaska, eastern Canada, the southwest  33 and so forth.  So, yeah, that's a rather late  34 date but you need that date because say Navaho  35 is so close to some Alaskan languages.  You  36 need that date to say they were unified very,  37 you know, till relatively recently, say, 2,000  38 years ago."  39  40  41 Now, there is two things going on here, I submit,  42 my lord, one is that he is talking about two different  43 things.  One is he is talking about the dispersal and  44 he later talks about the move of the Navaho and Apache  45 in the 2500 to 2000 years ago.  And that's a movement  46 of people.  But the other is he is talking about a  47 movement of language, not people.  And when one looks 2369?  Submissions by Mr. Grant  Submissions by Mr. Grant  1 at that earlier map, the map one, and sees the Yukon  2 refugium, and if one accepts -- which, of course  3 spreads up into the north, and accepts the concept of  4 of that being the Athabaskan homeland or the  5 Athabaskan source, then the Wet'suwet'en are very  6 close to that refugium.  And that refugium refers to a  7 time of 10,000 years ago.  So, if he is not saying  8 that the Wet'suwet'en moved to Wet'suwet'en territory  9 then, he is saying that the language, the Wet'suwet'en  10 language, developed.  And from the proto-Athabaskan.  11 And of course the proto-Athabaskan is a synthesis of  12 language, not of place.  And that's what he is talking  13 about there.  14 Now, at the bottom of my argument, on page 209, the  15 Babine-Wet'suwet'en ranks as one the of the most  16 conservative Athabaskan languages in regard to grammar  17 and phonology, and Kari concludes, regarding the  18 Babine-Wetsu'wet'en they have been there a long time,  19 and:  20  21 "Preserve features of proto-Athabaskan that  22 other Canadian Athabaskans do not preserve in  23 the same degree."  24  25 Then he goes on to refer to the loan words for  26 caribou, moose, mountain sheep, and arctic ground  27 squirrel, for example.  28 Now, he states that the loan words for species  29 between the Wet'suwet'en asnd their regional  30 neighbours, tend to reflect the regional distributions  31 of various species.  He concluded from a list of  32 interior species, whose names are diffused into the  33 Gitksan language from Athabaskan that the Wet'suwet'en  34 have a longer upriver occupation than the Gitksan do  35 in an upriver direction of the Skeena drainage.  Once  36 again, this is consistent with the adaawk and the  37 Kungax and the biophysical evidence and the  38 archaeological evidence.  39 I would like to go down to the bottom, one aspect  40 of word borrowings clearly reflects the ancient  41 exchange and intercourse between peoples of the  42 region.  This, according to Kari, is the phenomenon of  43 deep diffusions and ancient borrowings.  Kari  44 explained:  45  46 "That involves looking at these words in  a  47 larger regional network in the northwest coast, 23699  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by Mr.  Submissions by Mr.  Grant  Grant  such as Gitksan does borrow rabbit from  Athabaskan, but so does Haida in the Queen  Charlotte Islands, and what this impokes is  ancient contact with Athabaskan peoples and  northwest coast peoples that is reflected in  this list; so these borrowings are necessarily  strictly as a result of recent contact with  Babine, Wet'suwet'en and Gitksan."  That should be are not necessarily strictly as a  result.  THE COURT:  Are not?  MR. GRANT:  "Are not necessarily strictly as a result of  recent contact with Babine, Wet'suwet'en and  Gitksan.  Some of these are ancient contacts  with proto-Tsimshianic and proto-Athabaskan  peoples."  In other words, many of the diffused species words  between the two languages and two language families  are of very ancient time depth.  Without going back to the hare map of Dr.  Hatler, what you see is there is an incredible logic  to it.  The hare, that species is in the Wet'suwet'en  area and trade towards the coast of that species, it  would be logical to the coastal groups when told this  is what we are trading with you, would use the word of  the group that's trading it, because they didn't have  access.  Now Kari then gave evidence of Old Athabaskan words  for caribou, rabbit, snowshoe hare, fern root and bag  or sack, which have diffused out not only to the  Gitksan and other Tsimshian speakers but also to other  coastal peoples as well.  He also gives the example of  moose as a deep and ancient diffusion.  He testified  that the Gitksan word for moose is borrowed from  Babine-Wet'suwet'en yet another more ancient Gitksan  word for moose, ke'sa, is also a loan word from  Wet'suwet'en:  "We identify it as an old loan word into Gitksan  before the recent movement of moose into the  area."  So here, you can see evidence that is consistent 23700  Submissions by Mr. Grant  Submissions by Mr. Grant  1 with doctor Hatler's theory that the moose, although  2 though not prevalent up to the 1800s, it appears that  3 they were there before.  Or in the 1800s, it appears  4 they were before, up to 1800.  5 In general, Kari postulated in his evidence a very  6 old settled relationship between the Gitksan and the  7 Wet'suwet'en, and between them and the species upon  8 which they relied.  Well, he says:  9  10 "Well, in many ways the Babine-Wet'suwet'en, you  11 know, it is safe to say is a long-term  12 occupation area by Athabaskan speakers who've  13 been speaking other languages as well in a  14 stable way and have maintained their language  15 in a pure way too and who have been something  16 of interesting crossroads for the coastal  17 culture and the northern Athabaskans."  18  19 Kari testified that the Athabaskan languages  20 probably predated the Tsimshianic languages in the  21 upper Skeena draining area:  22  23 "The Athabaskan loans for animals into Gitksan  24 (and Nisgha), may be reasonably interpreted as  25 the evidence for the arrival of Gitksan and  26 Nishga speech in the upriver Interior areas  27 after Athabaskan speech was already established  28 there."  29  30  31 And he stressed that the structure of loan words  32 for natural species from Tsimshianic to the  33 Wet'suwet'en reflected the nature of relations of  34 trade and exchange in the area:  35  36  37 "The Tsimshianic loan words for plants and  38 animals into Wet'suwet'en reflect the middleman  39 position of the Tsimshianic-speaking peoples in  40 the regional trading system, as well as their  41 mediating role in introducing the Wet'suwet'en  42 to coastal species."  43  44 In conclusion, my lord, the biological,  45 geological, archaeological, I say anthropological as  46 well, and historical evidence, all corroborate, all of  47 them corroborate the oral history of the people, and 23701  Submissions by Mr. Grant  Submissions by Mr. Grant  1 what's most important, my lord, is that the chiefs'  2 own evidence, which they stated in a forthright and  3 honest way, was detailed and uncontradicted and it  4 stands as valid evidence of the oral histories of the  5 Gitksan and Wet'suwet'en.  6 In summary, my lord, I ask that you find that both  7 the Gitksan and Wet'suwet'en were in this territory  8 for thousands of years and had the structures  9 developed of their society for those thousands of  10 years as demonstrated through their oral histories.  11 That's my submission.  12 THE COURT:  All right.  Thank you, Mr. Grant.  13 MR. GRANT:  With respect to tomorrow, my lord, firstly, I just  14 wish to review the disc and I will deliver it to you  15 tomorrow of this part.  I understand that those two  16 inserts that I had have been inserted into it so there  17 may be some pagination change, just so that you are  18 aware.  And we propose tomorrow morning to take up  19 your proposal and we would commence at 9:30 and  20 propose to go to 4:30 to maintain the schedule  21 tomorrow.  22 THE COURT:  All right.  Thank you. 9:30 then.  23  24 (PROCEEDINGS ADJOURNED UNTIL 9:30 A.M., WEDNESDAY,  25 APRIL 4, 1990)  26  27  28 I hereby certify the foregoing to be  29 a true and accurate transcript of the  30 proceedings herein to the best of my  31 skill and ability.  32  33  34  35 Wilf Roy  36 Official Reporter  37  38  39  40  41  42  43  44  45  46  47

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