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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-20] British Columbia. Supreme Court Jun 20, 1990

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 28751  Submissions by Ms. Koenigsberg  1 Vancouver, B. C.  2 June 20, 1990.  3  4 THE REGISTRAR:  In the Supreme Court of British Columbia, this  5 20th day of June, 1990.  Delgamuukw versus Her Majesty  6 the Queen at bar, my lord.  7 THE COURT:  Counsel won't believe this, but I have to entertain  8 seven Russian jurists for lunch today and I will have  9 to adjourn about quarter after 12.  I am sorry.  And  10 counsel will remember that I can't be here tomorrow  11 afternoon.  12 MS. KOENIGSBERG:  Yes, my lord and there is a good chance we may  13 come to this particular submission before that time  14 and leaving your lordship plenty of time, because the  15 balance won't be ready until two.  16 We left off yesterday, my lord, dealing with the  17 area of general law on extinguishment and coming up to  18 the question of who can extinguish or who is the  19 sovereign, as that word is used in relation to the  20 acts of extinguishment.  And that begins at page eight  21 at tab 5.  We say that following the entry of British  22 Columbia into Confederation in 1871, Section 91(24) of  23 the British North American Act gave exclusive  24 constitutional power to the federal government to  25 legislate in respect of Indians and lands reserved for  26 Indians.  The result of this provision is that only  27 the federal government can constitutionally express in  28 explicit terms a clear and plain intent to extinguish  29 aboriginal rights.  30 The sovereign acted and continues to act in  31 relation to matters that may indirectly affect the  32 survival of aboriginal rights however.  Accordingly,  33 the effect on the aboriginal rights to the operation  34 of laws of general application directed neither to  35 Indians nor lands reserved for Indians will now be  36 considered.  37 Your lordship may recall that Mr. Plant covered  38 this topic, and you might want to make a note that his  39 argument, which is similar and which I in fact adopt,  40 is found in the province's final argument, part nine,  41 sections one and two.  And it was a new part that was  42 a replacement.  43 THE COURT:  Are those Roman one and two?  44 MS. KOENIGSBERG:  It's a small one and two on my copy.  4 5 THE COURT:  Thank you.  46 MS. KOENIGSBERG:  It is our submission that as a general rule —  47 MR. GOLDIE:  That's volume three, my lord. 28752  Submissions by Ms. Koenigsberg  1 THE COURT:  Thank you.  2 MS. KOENIGSBERG:  Thank you, Mr. Goldie.  3 MR. GOLDIE:  I should perhaps ask my friend if she adopts our  4 pleadings with respect to this also?  5 MS. KOENIGSBERG:  No.  6 MR. GOLDIE:  In that case, I may be asking her to point out to  7 me in her pleadings where this argument fits in.  8 MS. KOENIGSBERG:  Perhaps I can address that when I get to the  9 end of it if any friend still has a problem.  10 THE COURT:  All right.  11 MS. KOENIGSBERG:  The sovereign, acted and continues to act — I  12 read that already.  As a general rule, provincial laws  13 validly enacted apply to Indians.  14 And I have -- we have here a quote from Cardinal:  15  16 "A provincial legislature could not enact  17 legislation in relation to Indians, or in  18 relation to Indian Reserves, but this is far  19 from saying that the effect of Section 91(24)  20 of the British North America Act, 1867, was to  21 create enclaves within a province within the  22 boundaries of which Provincial legislation  23 could have no application.  In my opinion, the  24 test as to the application of Provincial  25 legislation within a reserve is the same as  26 with respect to its application within the  27 province and that is that it must be within the  28 authority of Section 92 and must not be in  29 relation to a subject matter assigned  30 exclusively to the Canadian parliament under  31 Section 91.  Two of those subjects are Indians  32 and Indian reserves, but if provincial  33 legislation within the limits of Section 92 is  34 not construed as being legislation in relation  35 to those classes of subjects (or any other  36 subject under Section 91) it is applicable  37 anywhere in the province, including Indian  38 reserves, even though Indians or Indian  39 reserves might be affected by it.  My point is  40 that Section 91(24) enumerates classes of  41 subjects over which the federal parliament has  42 the exclusive power to legislate, but it does  43 not purport to define areas within a province  44 within which the power of the province to enact  45 legislation, otherwise within its powers, is to  4 6 be excluded."  47 28753  Submissions by Ms. Koenigsberg  1 That quote can be found in the Cardinal case at  2 page 703.  To the same effect can be found those  3 propositions in Hogg on Constitutional Law of Canada  4 at the pages cited.  5 As stated above, all of the judgments in Calder  6 proceeded on the footing that prior to Confederation  7 extinguishment could occur by the "exercise of  8 complete dominion" by the sovereign in a manner  9 clearly and plainly adverse to the continued exercise  10 of the aboriginal right.  And we have listed a number  11 of cases which we have canvassed at some length in the  12 previous argument.  13 The sovereign, we submit, for this purpose includes  14 acts under the Imperial Royal prerogative and Imperial  15 legislation prior to 1867, acts of the governors of  16 Vancouver Island and the mainland of British Columbia,  17 1858 to 1871, federal legislation since 1871, and  18 provincial legislation and conduct since 1871.  In  19 addition, Section 88 of the Indian Act states  20 expressly that provincial laws of general application  21 not inconsistent with treaty rights or other federal  22 laws, apply to Indians.  The courts have accepted that  23 Section 88 will make such provincial laws applicable  24 to Indians even where they impinge on particular  25 Indian rights such as hunting, so long as the  26 provincial laws are of general application.  This  27 opinion is also expressed in Dick vs. the Queen per  28 Mr. Justice Beetz.  In the present case, the  29 plaintiffs argue that whatever may be the effect of  30 federal legislation, aboriginal rights cannot, as a  31 matter of constitutional law, be extinguished by  32 provincial law.  This, however, ignores the  33 well-established constitutional doctrine that neither  34 Indians nor Indian reserves are enclaves immune from  35 the effects of provincial law.  36 On two occasions -- in Kruger at page 111, and  37 Cardinal, page 706 -- the dictum of Mr. Justice  38 Riddell in R. vs. Martin has been expressly adopted by  39 the Supreme Court of Canada.  40  41 "In other words, no statute of the Provincial  42 Legislature dealing with Indians or their lands  43 as such would be valid and effective; but there  44 is no reason why general legislation may not  45 affect them."  46  47 One major consequence of the pith and substance 28754  Submissions by Ms. Koenigsberg  1 doctrine, in Professor Hogg's words, is that each  2 level of government is entitled "to enact laws with  3 substantial impact on matters outside its  4 jurisdiction." As a general rule, therefore, valid  5 provincial legislation of general application  6 routinely has an effect on matters within federal  7 jurisdiction, including aboriginal rights in the  8 absence of over-riding federal legislation.  9 The full impact of the pith and substance doctrine  10 is of course limited in its application by the  11 constitutional principle of "interjurisdictional  12 immunity", that is, that a province by enacting  13 legislation in relation to valid provincial objectives  14 cannot "sterilize" a matter of federal jurisdiction.  15 For example, provincial laws which sterilize the  16 operation of federally-incorporated companies have  17 been struck down in a number of cases that were  18 referred to in the context of "Indian-ness" in Natural  19 Parents and Superintendent of Child Welfare.  Chief  20 Justice Laskin at pages 762 to 763 of that decision,  21 said the following:  22  23 "I cannot believe that any less care should be  24 taken in analysis before subjecting Indians,  25 coming as they do within a specific head of  26 exclusive federal jurisdiction, to general  27 provincial legislation unless the inclusion of  28 Indians within the scope of the Provincial  29 legislation touches them as ordinary persons  30 and in a way that does not intrude on their  31 Indian character or their Indian identity and  32 relationship."  33  34 In Dick and the Queen it was held that even so  35 fundamental an aboriginal right as Indian hunting for  36 the purpose of gathering meat for a religious ceremony  37 was not a subject so close to "Indian-ness" as to be  38 within exclusive federal legislation.  Accordingly,  39 such Indian hunting activities could be prohibited by  40 provincial law operating either ex proprio vigore or  41 more likely through Section 88 of the Indian Act.  The  42 doctrine of the exclusive federal power to deal with  43 "Indian-ness" has thus been given a limited  44 application by the Supreme Court of Canada.  45 Both "paramountcy" and "interjurisdictional  46 immunity" have been given more restricted scope in  47 recent decisions of the Supreme Court of Canada.  The 28755  Submissions by Ms. Koenigsberg  1 previous view of that court was recently summarized by  2 Chief Justice Dickson in OBSEU v. Attorney-General of  3 Ontario.  He said:  4  5 "The history of Canadian constitutional law has  6 been to allow for a fair amount of interplay  7 and indeed overlap between federal and  8 provincial powers.  It is true that doctrines  9 like interjurisdictional and Crown immunity and  10 concepts like 'watertight compartments' qualify  11 the extent of that interplay.  But it must be  12 recognized that these doctrines and concepts  13 have not been the dominant tide of  14 constitutional doctrines; rather they have been  15 an undertow against the strong pull of pith and  16 substance, the aspect doctrine and, in recent  17 years, a very restrained approach to  18 concurrency and paramountcy issues."  19  20 It's our submission that the federal Indian Act  21 contains detailed provisions for the regulation of  22 Indian reserves, including the prohibition on sale or  23 other disposition of reserve lands without a valid  24 band surrender.  However, there is no equivalent  25 federal regulation of other lands over which Indian  26 people may have aboriginal rights to pursue economic  27 activities such as hunting and fishing.  Accordingly,  28 it is only in respect of reserves within the meaning  29 of the Indian Act that the ordinary rules of  30 constitutional paramountcy preclude the application of  31 Provincial laws.  32 I would pause here to say, my lord, that this  33 argument clearly and squarely places the issue on  34 whether lands reserved for Indians can include lands  35 outside reserves and it is our position that they do  36 not.  37 As discussed above, provisions of the laws of  38 British Columbia which could not apply ex proprio  39 vigore to the federal Crown because of "paramountcy"  40 or "interjurisdictional immunity" are transformed into  41 federal legislation through the device of  42 incorporation by reference in Section 88 of the Indian  4 3 Act.  44 The Supreme Court of Canada has held that laws  45 regulating the hunting of moose in Cardinal, deer in  46 Dick, and migratory birds in George, are in relation  47 to Indians and not lands reserved for Indians.  It is 28756  Submissions by Ms. Koenigsberg  1 therefore submitted that the exercise of all of the  2 aboriginal rights referred to by Mr. Justice Steele  3 in Bear Island are within the scope of Section 88 of  4 the Indian Act -- your lordship may recall that in the  5 Bear Island case he enumerated the aboriginal rights  6 that he found and they were exclusively use rights --  7 and are thus rendered subject to extinguishment by  8 federal incorporation of valid provincial laws of  9 general application.  10 And here, in support of that proposition, is the  11 quote from Mr. Justice Beetz in Dick, which was also  12 referred to earlier, he said:  13  14 "I believe that a distinction should be drawn  15 between two categories of provincial laws.  16 There are, on the one hand, provincial laws  17 which can be applied to Indians without  18 touching their Indian-ness, like traffic  19 legislation; there are on the other hand,  20 provincial laws which cannot apply to Indians  21 without regulating them qua Indians.  22 Laws of the first category, in my opinion,  23 continue to apply to Indians ex proprio vigore,  24 as they always did before the enactment of  25 Section 88. . .  2 6 I have come to the view that it is the laws  27 of the second category that Section 88 refers."  28  29 In the Bear Island case -- and perhaps we should  30 have a look at it, that's in the plaintiffs' volume  31 one of their authorities, and I think we have pulled  32 that out.  And it's at tab 8.  Do we have the right  33 one?  34 THE COURT:  Yes.  It is the Court of Appeal, do you want the  35 trial court or the Court of Appeal?  36 MS. KOENIGSBERG:  Your lordship is right.  37 Well, we won't look at it.  38 MR. GOLDIE:  Tab 9.  39 MS. KOENIGSBERG:  The trial judgment is at tab 9.  4 0    THE COURT:  Yes, it is.  41 MS. KOENIGSBERG:  And the uses that I made reference to before  42 are at page 392.  And it's about, just the beginning  43 down the page, he says:  44  45 "Bearing in mind the decisions in the Calder and  46 Smith cases, I find that the aboriginal rights  47 in these lands existing at the relevant date 28757  Submissions by Ms. Koenigsberg  1 are as follows:  To hunt all animals for food,  2 clothing, personal use and adornment, to  3 exclusively trap fur bearers, which right was  4 enjoyed by the individual family, and to sell  5 the furs, to fish, use herbs, berries, maple  6 sugar and other natural products for food,  7 medicines and dyes, to use ochre and vermillion  8 for dyes, to use turp, quartzite for tools and  9 other implements but not extensive mining, to  10 use clay for pottery, pipes and ornaments, to  11 use trees, bark and furs for housing but not  12 lumbering, and to use trees and bark for fires,  13 canoes, sleighs and snowshoes.  All of the  14 above are traditional uses for basic survival  15 and personal ornamentaion existing as of 1763."  16  17 Now, my lord, the range of provincial acts which  18 might affect or even prevent the exercise of obtaining  19 those types of rights, is very broad and as I go on to  20 point out in the next paragraph, those are all acts  21 which are, in effect, and they are comparable acts  22 which have been pleaded and relied on and are before  23 your lordship in this case, which are laws of British  24 Columbia.  And it's in that --  25 THE COURT:  You would include trapping and selling furs, even  26 though that practice, except, I suppose, for some  27 barter, arose after contact with the Europeans?  28 MS. KOENIGSBERG:  With a qualification, yes, my lord.  I don't  29 think that one can, looking at trapping and just --  30 there is considerable references in the early  31 explorers to trapping.  The point is that trapping, as  32 it has now devolved into what, in our submission,  33 account for the defined boundaries in a large part of  34 the Claim Area, are very recent and not aboriginal  35 source.  Trapping itself, within a less precisely  36 bounded area, is more than likely to have been an  37 aboriginal use.  The evidence is that trapping for  38 furs -- sometimes referred to as hunting -- was  39 engaged in, that it was used for -- that furs were  40 used for clothing although the evidence suggests that  41 it was not extensive.  These were not a people that  42 one would could say were dependent on trapping and  43 hunting but they did utilize the land and therefore I  44 don't think that one can say that it is not an  45 aboriginal use.  4 6    THE COURT:  I don't have any trouble with the trapping, I am  47 only questioning, and it's only a question, the 2875?  Submissions by Ms. Koenigsberg  1 addition of the words by Mr. Justice Steele, that is,  2 "to trap fur bearers and to sell the furs."  Conceding  3 for the purposes of this argument that the right to  4 trap isn't frozen and you can advance, or one can  5 advance technology, do you agree that it goes so far  6 as to convert limited trapping or trapping for the  7 limited purposes to commercial fur trapping?  8 MS. KOENIGSBERG:  I think that's a very hard question to answer  9 on these facts.  There is no evidence, of which I am  10 aware, of the source, if you will, of commercial fur  11 trading.  12 THE COURT:  It depended on the market.  13 MS. KOENIGSBERG:  Yes, that's correct.  The evidence also is in  14 conflict here.  There is evidence, for instance, and I  15 am going back to Brown now, and this evidence has been  16 canvassed before, so you will forgive me if I don't  17 have precise references, but the references in Brown  18 would support the following two propositions that have  19 relevance to this issue.  The first is that beaver was  20 not trapped universally, that is, in the early 1820s  21 at least there are indications that the Gitksan may  22 not have trapped beaver and at least not universally,  23 and that the Wet'suwet'en did trap beaver more  24 universally among themselves.  There is evidence that  25 hunting other fur bearers, such as marten, was not  26 done exclusively, anyone could hunt them anywhere.  27 Those two factors, in my submission, impact on the  28 findings that your lordship may make as to what  29 constitutes an aboriginal right, what the incident of  30 that aboriginal right is and how broad it is.  And,  31 ultimately, I would submit that the evidence is, on  32 the balance of probabilities, would not support  33 commercial fur trapping, pre-contact.  34 THE COURT:  All right.  Thank you.  35 MS. KOENIGSBERG:  In case there might be any confusion, Mr.  36 Goldie has reminded me that in  if we are relating  37 this to the Bear Island case, he is talking about  38 trapping commercially as an aboriginal right on the  39 facts there, where he is looking at the beginning date  40 as 1763.  And I believe that we have -- we actually  41 have evidence in this case, it ranged so far that  42 there would have been commercial trapping going on  43 sensibly in that area of Ontario, what's now Ontario,  44 and it would be on those facts that Mr. Justice Steele  45 found commercial trapping.  And Mr. Goldie points out  46 that that is found on page 401 in the judgment on Bear  47 Island. 28759  Submissions by Ms. Koenigsberg  1 And in the Bear Island case, Mr. Justice Steele  2 examined the following Ontario statutes as being in  3 relation to valid provincial objects but having the  4 effect of extinguishing aboriginal rights in the  5 Temagami land claim area, and I simply set them out  6 because they are comparable acts to those in issue in  7 this lawsuit enacted by the Province of British  8 Columbia.  9 It is submitted that an analysis of effect of  10 comparable British Columbia legislation would have the  11 same effect as that found by Mr. Justice Steele in  12 Bear Island for the following reasons:  13 The legislation relied upon is clearly related to  14 provincial matters in its general application and free  15 of any taint of colourability.  16 Second, the pith and substance doctrine allows for  17 the application of such legislation to activities of  18 all persons, Indian and non-Indian, within the land  19 claim area in the absence of paramount federal  20 legislation.  This point becomes important, my lord,  21 in my submission, when we are talking about land  22 outside of reserve law.  23 The operation of the provincial legislation does  24 not touch "Indian-ness" so as to preclude its  25 application to Indians under the principle of  26 "interjurisdictional immunity".  27 Three, there is no conflicting federal legislation  28 within the scope of the paramountcy doctrine as  29 enunciated by the Supreme Court of Canada in the OPSEU  30 case.  31 Any constitutional infirmity of the provincial law  32 in relation to the exercise by Indians of aboriginal  33 rights is met by Section 88 of the Indian Act which  34 incorporates by reference into federal law the  35 provincial laws of general application from and after  36 1951.  37 The Attorney-General of British Columbia's  38 argument, which as I have pointed out is set out in  39 volume three, part nine, sections one and two, and  40 this argument below identifies the trial evidence with  41 respect to non-Indian activity validly authorized by  42 the British Columbia legislation referred to.  Such  43 activity, it is submitted, had the effect of  44 extinguishing or diminishing aboriginal rights  45 throughout the land claim area prior to the  46 commencement of these proceedings wherever its  47 application prevented the exercise of an aboriginal 28760  Submissions by Ms. Koenigsberg  1 right.  And it is to these acts, my lord, that we say  2 the test, which we developed yesterday, of looking at  3 the legislative use and assuming it meets all the  4 tests of being valid provincial law of general  5 application and there is no federal legislation  6 occupying the field.  And that's in respect to  7 Indians, then it applies but it doesn't perform the  8 extinguishing or diminishing function unless it comes  9 into conflict with an aboriginal right in its  10 exercise.  11 You will be hearing extensive evidence, my lord, a  12 little bit this afternoon and quite a bit more on  13 Thursday and Friday, in which we have attempted to go  14 through using the territories for reference purposes,  15 territory by territory, and looking at what  16 extinguishing acts or diminishing acts have taken  17 place, just from the evidence, and what are the  18 alleged or claimed or where there is any evidence, of  19 the exercise of an aboriginal use.  And we have  20 attempted to put those together.  21 I would now like to deal with the general law on  22 abandonment upon which we will be relying.  I will not  23 be going into the, what I call the site specific  24 evidence, of abandonment.  I will be touching on it  25 generally, that will be dealt with later as well and  26 then I would like to come back to the effective  27 extinguishment in the claim area generally, leaving  28 the specific territory by territory analysis for  29 later.  So if we could look at -- and it's tab 8,  30 abandonment, and I handed up a replacement part, and  31 this very small number of pages replaces the very much  32 larger number of pages there.  33 THE COURT:  Has that been replaced, Mrs. Thomson?  34 THE REGISTRAR:  Yes, it has, my lord.  35 MS. KOENIGSBERG:  And your lordship should notice, so there will  36 be no confusion, that I have it replaced now just the  37 law part and the abandonment, or site specific  38 material that was there, will be replaced later by  39 much more extensive analysis.  40 Dealing then with the concept or the principle of  41 abandonment we say, as discussed above the law of  42 Canada recognizes that Indians have a legal right of  43 use and occupancy of traditional lands.  Those words,  44 of course, are used variously, and all of the cases  45 that are cited there, and we have talked about them at  46 some length through the course of this trial.  It is  47 submitted that when Indians voluntarily abandon, and I 28761  Submissions by Ms. Koenigsberg  1 would ask to you underline the word voluntarily and I  2 will come back and talk about that, the use and  3 occupancy of traditional lands, all their legal rights  4 or interests in those lands come to an end and are  5 extinguished.  Private rights can be lost through non-  6 use and so too will abandonment by original people,  7 aboriginal people, of the traditional uses  8 constituting aboriginal rights lead to a disappearance  9 in law of those rights.  10 The concept of abandonment or non-use or non-  11 occupancy of a traditionally used area resulting in an  12 extinguishment of that right follows, we say, from the  13 very nature of the right as recognized by the Canadian  14 common law.  The nature of that right being  15 usufructuary -- a right of occupancy.  Implicit in the  16 test of whether an aboriginal right exists as set out  17 in Baker Lake is that there must must be a pattern of  18 recognizable continuity of those rights.  19 I think it might be helpful here if we looked at  20 page 559 to 561 in the reasons of Mr. Justice Mahoney  21 in Baker Lake.  That's in volume --  22 THE COURT:  Isn't that in your book of cases?  23 MS. KOENIGSBERG:  I didn't put Baker Lake in.  I should have.  24 It's in volume 5 of the plaintiffs' authorities.  And  25 unfortunately my copy, it won't be found at page 559  26 but I do have the page reference.  It's at tab 29.  27 And this is the Western Weekly Reports law report, and  28 the parts that I wish to make reference to are 227  29 through 230.  And this is the section of that judgment  30 in which the test, which is actually set out on page  31 226, is discussed.  And with reference to the  32 organized society aspects of that test, beginning at  33 the bottom of page 226, the very first line, and going  34 over to page 227, Mr. Justice Mahoney is talking about  35 organized society and he says:  36  37 "The estimation of the rights of aboriginal  38 tribes is always inherently difficult.  Some  39 tribes are so low in the scale of social  40 organization that their usages and conceptions  41 of rights and duties are not to be reconciled  42 with the institutions or the legal ideas of  43 civilized society.  Such a gulf cannot be  44 bridged.  It would be idle to impute to such  45 people some shadow of rights know to our law  46 and then to transmute it into the substance of  47 transferable rights of property as we know 28762  Submissions by Ms. Koenigsberg  1 them.  In the present case it would make each  2 and every person by a fictional inheritance a  3 landed proprietor 'richer than all his tribe'.  4 On the other hand, there are indigenous peoples  5 whose legal conceptions, though differently  6 developed, are hardly less precise than our  7 own.  When once they have been studied and  8 understood they are no less enforceable than  9 rights arising under English law.  Between the  10 two there is a wide tract of much ethnological  11 interest, but the position of the natives of  12 Southern Rhodesia within it is very uncertain;  13 clearly they approximate rather than to the  14 lower than to the higher limit.  15 Their lordships did not find it necessary  16 to pursue the question further since they found  17 that the aboriginal rights, if any, that might  18 once have existed had been expressly  19 extinguished by the Crown.  20 It is apparent that the relative  21 sophistication of the organization of any  22 society will be a function of the needs of its  23 members, the demands they make of it.  While  24 the existence of an organized society is a  25 prerequisite to the existence of an aboriginal  26 title, there appears no valid reason to demand  27 proof of the existence of a society more  28 elaborately structured than is necessary to  29 demonstrate that there existed among the  30 aborigines a recognition of the claimed rights,  31 sufficiently defined to permit their  32 recognition by the common law upon its advent  33 in the territory.  The thrust of all the  34 authorities is not that the common law  35 necessarily deprives aborigines of their  36 enjoyment of the land in any particular but,  37 rather, that it can give effect only to those  38 incidents of that enjoyment that were  39 themselves, given effect by the regime that  40 prevailed before."  41  42 We have looked at that quote so many times, my  43 lord, but I would submit, and I want to go on in this,  44 that what we are looking at here is really, and it's  45 implicit in this, that the activities which are going  46 to form the basis of recognized, recognizable  47 aboriginal rights, had to do with what has otherwise 28763  Submissions by Ms. Koenigsberg  1 been called harvesting activities, a way of life, a  2 pattern.  Walking through a territory once, obviously,  3 does not constitute a recognizable aboriginal right.  4 And that's the very -- but continued use, even  5 intermittent, if it has a pattern, of the use that can  6 be made of that land, will, as it did in the Baker  7 Lake case, constitute a use recognizable.  And that is  8 really the issue that Mr. Justice Mahoney was  9 grappling with in developing the organized society  10 test, because he was faced with a people living in an  11 area in which -- which were not called barren lands  12 coincidentally.  Nothing grows there.  The use that  13 can be made of that land is a wandering use, of being  14 able to take advantage of caribou, which are the only  15 land animals that are there.  And, therefore, the  16 actual use of any small tract of land might be once in  17 two years.  And yet that is the way in which the Inuit  18 people made their living, that is how they lived on  19 the land and therefore it constituted the only use  20 that could be made of that land for survival.  21 The fact is, as he goes on here:  22  23 "That the aboriginal Inuit had an organized  24 society, it was not a society of very elaborate  25 institutions but it was a society organized to  26 exploit the resources available on the barrens  27 and essential to sustain human life there.  28 That was about all they could do, hunt and fish  2 9 and survive."  30  31 And I point out here that even fishing was  32 extremely limited.  Baker Lake itself is under seven  33 feet of ice in April.  There is no fishing.  These  34 people subsist on caribou with incidental fishing in  35 one month of the year.  36  37 "That was about all they could do, hunt and fish  38 and survive.  The aboriginal title asserted  39 encompasses only the right to hunt and fish as  40 their ancestors did.  The organized society of  41 the caribou Eskimos, such as it was, and it was  42 sufficient to serve them, did not change  43 significantly from well before England's  44 assertion of sovereignty over the barren lands  45 until their settlement."  46  47 That occurred in 1952, my lord. 28764  Submissions by Ms. Koenigsberg  1 "For the most part the ancestors of the  2 individual plaintiffs  3 were members of that society, many of them were  4 themselves members of it.  If their society has  5 materially changed in recent years is of no  6 relevance here."  7  8 I stop there to just comment what he means there.  9 Subsistence on caribou remains the basis for survival,  10 physically and culturally, on the barren lands.  11 The way in which one goes about doing that, the way  12 the people live, their groupings is different but the  13 actual use that they make of the land is the same.  14 And, in my submission, this line marries up very  15 nicely with the purpose, the object has to be the  16 same, a traditional use.  But it can be exercised in a  17 contemporary manner.  18  19 "The specificity of the territory over which  20 aboriginal title has heretofore been made in  21 reported cases appears not to have been a  22 disputed issue of fact.  In the Calder case,  23 supra, the subject territory was agreed between  24 the parties.  In the Kruger case, the court did  25 not find it necessary to deal with the  26 questions of aboriginal title and  27 extinguishment and disposed of the appeal on  28 other grounds to which I will return.  It did,  29 however, give a clear signal as to what its  30 approach would be in the future.  Mr. Justice  31 Dickson for the court says:  'Claims to  32 aboriginal title are woven with history,  33 legend, politics and moral obligations.  If the  34 claim of any Band in respect of any particular  35 land is to be decided as a justiciable issue  36 and not a political issue, it should be so  37 considered on the facts pertinent to that Band  38 and to that land, and not on any global  39 basis. . . '  40 There were obviously great differences  41 between the aboriginal societies of the Indians  42 and the Inuit and decisions expressed in the  43 context of Indian societies must be applied to  44 the Inuit with those differences in mind.  The  45 absence of political structures like tribes was  46 an inevitable consequence of the modus vivendi  47 dictated by the Inuit's physical environment." 28765  Submissions by Ms. Koenigsberg  1 I pause here, it could not be the -- the  2 resources could not be exploited by permanent  3 villages.  4  5 "Similarly the Inuit appear to have occupied the  6 barren lands without competition except in the  7 vicinity of the tree line.  That too was a  8 function of their physical environment.  The  9 pressures of other people, except from the  10 fringes of the boreal forest, were non-existent  11 and, thus, the Inuit were not confined in their  12 occupation of the barrens in the same way  13 Indian tribes may have confined each other  14 elsewhere on the continent.  Furthermore, the  15 exigencies of survival dictated the sparse, but  16 wide ranging, nature of their occupation."  17  18 Then he cites the Mitchell case, Mr. Justice  19 Baldwin:  20  21 "'Indian possession or occupation was considered  22 with reference to their habits and modes of  23 life; their hunting grounds were much in their  24 actual possession as the cleared fields of the  25 whites; and their rights to its exclusive  2 6 enjoyment in their own way and for their own  27 purposes were as much respected until they  28 abandoned them, made a cession to the  29 government, or an authorized sale to  30 individuals...  31 The merits of this case do not make it  32 necessary to inquire whether the Indians within  33 the United States had any other rights of soil  34 or jurisdiction; it is enough to consider it as  35 a settled principle that the right of occupancy  36 is considered as sacred as the fee simple of  37 the whites. ' "  38  39 He then goes on to his discussion of the  40 usefulness of American jurisprudence, and then  41 dropping down to the next full paragraph:  42  43 "The nature, extent or degree of aborigines  44 physical presence on the land they occupied  45 required by the law as an essential element of  46 their aboriginal title is to be determined in  47 each case by a subjective test.  To the extent 28766  Submissions by Ms. Koenigsberg  1 human beings are capable of surviving on the  2 barren lands the Inuit were there.  To the  3 extent the barrens lent themselves to human  4 occupation, the Inuit occupied them.  The  5 occupation of the territory must have been to  6 the exclusion of other organized societies."  7  8 And here we go into the exclusiveness as a badge  9 but I would caution your lordship again that he is  10 talking about a set of facts in relation to  11 determining if these people were in fact able to  12 continue exploiting the use of caribou, the hunting of  13 caribou in relation to the Indians.  And the evidence  14 before him was that where there were Indians, there  15 could not be Inuit, they could not live together.  16 Therefore, if you found that Indians occupied and  17 utilized the resources in a given area, the Inuit by  18 inference would not be there.  19 THE COURT:  Do you think that's an accurate use of that word  20 subjective?  21 MS. KOENIGSBERG:  It's a very narrow use, I would say, of the  22 word subjective.  I don't think he means -- it's one  23 of those odd uses that is perhaps mor comparable to  24 the objective/subjective tests developed in tort law.  25 It is subjective in the sense that it emanates from  26 the actual facts or uses of the people that you're  27 looking at.  But it's objective in the sense that it's  28 what you infer from the facts.  2 9    THE COURT:  Do you think he means that?  30 MS. KOENIGSBERG:  I don't think he means objective in that  31 sense.  32 THE COURT:  All right.  33 MS. KOENIGSBERG:  And to come back to my point, which is on page  34 one of this abandonment argument, implicit in the test  35 of whether an aboriginal right exists as set out in  36 Baker Lake is that there must be a pattern of  37 recognizable continuity to the exercise of the rights.  38 And I have just taken you through that which I say  39 supports that it is implicit there that there must be  40 continuity, there might be a pattern.  There must be,  41 in fact, one must be able to infer that this is the  42 way of life.  43 That abandonment is a concept which applies to  44 aboriginal rights is supported by the judgment of Mr.  45 Justice Baldwin which I just read to your lordship.  46 MR. JACKSON:  My lord, may I just interrupt my friend, at an  47 earlier part of her submission which she didn't read 28767  Submissions by Ms. Koenigsberg  1 to your lordship, there is some suggestion in the  2 Federal case that Mitchell is not part of the common  3 law as it's received in Canada.  I wonder if my friend  4 can advise me whether or not she resiles from that  5 position.  It seems to me she is adopting what you  6 will hear as part of the federal case.  7 MS. KOENIGSBERG:  No, and I don't think it's a particularly  8 subtle argument and say in fact it is our position,  9 and I think I did read this part of the argument to  10 your lordship, that those parts of American  11 jurisprudence which have found their way into Canadian  12 cases, and adopted for the purposes for which they  13 were intended, form part of the Canadian jurisprudence  14 today.  15 Our submission on the Mitchell case was that other  16 propositions in the Mitchell case, upon which my  17 friend relies, have never been adopted.  I do not go  18 so far in fact as to adopt Mr. Justice Baldwin's  19 statements which I have quoted here.  I say that this  20 quote supports the proposition that it follows from  21 the nature of aboriginal rights that abandonment of  22 those rights will result in their extinguishment.  And  23 I say that simply because that is the analysis from  24 the nature of the right that Mr. Justice Baldwin has  25 put here.  26 THE COURT: Well, you are adopting his judgment as expressing the  27 submission you're making?  28 MS. KOENIGSBERG:  Oh, yes.  But he doesn't in fact go on to  29 discuss abandonment, it wasn't an issue.  In my  30 submission, it so follows that in fact you find from  31 time to time in cases that do not discuss abandonment,  32 in fact, Bear Island may be the only case that  33 actually makes findings where that issue has been  34 raised and litigated.  It simply appears that it seems  35 to flow from the nature of the right.  36 Mr. Justice Steele, and we now quote from what I  37 believe is the only case so far, it deals with the  38 concept of abandonment, certainly in Canada, and I  39 should note that while Mr. Justice Steele's general  40 findings were affirmed in the Court of Appeal, this  41 point, along with several others, was not expressly  42 adopted.  His opinion was affirmed, in other words, on  43 other grounds.  They didn't say no, they just didn't  44 deal with it and this matter is currently on appeal to  45 the Supreme Court of Canada and the issue of  46 abandonment is an issue before that court.  47 We say, then quoting from Mr. Justice Steele: 2876?  Submissions by Ms. Koenigsberg  1  2 "Finally, from the coming of the railway in  3 1905, major changes in the location of the  4 defendants have taken place, and the evidence  5 indicates that since approximately 1950, the  6 defendants reside either outside the land claim  7 area or within the land claim area on Bear  8 Island or in established white settlements such  9 as the town of Temagami.  The last person to  10 live in the Land Claim area, other than on Bear  11 Island or om established white communities,  12 lived at Obabika Lake, in 1962, although it is  13 possible Jack Pierce seasonally occupied a  14 cabin on Duncan Lake until 1963 or 1964.  Under  15 these circumstances, even if with were found  16 that the Province of Canada, and subsequently  17 Ontario, exercised complete dominion over the  18 lands in issue and enacted legislation allowing  19 for settlement but erred in law in failing to  20 expressly state its intention to extinguish  21 aboriginal title, I find that such title was in  22 fact extinguished because the Indians have  23 abandoned their traditional use and occupation  24 of the Land Claim area.  In other words, there  25 is no evidence of exclusive aboriginal use of  26 any of the lands except the Bear Island reserve  27 continuing to the date of the commencement of  28 the action."  29  30 There are other authorities, none of which deals  31 with it in the same direct way that Mr. Justice Steele  32 does, and I have cited them there. The American  33 authorities --  34 THE COURT:  Wasn't there an article in the Canadian Bar Review  35 about two years ago where the learned author said that  36 an abandoned aboriginal right could be resurrected by  37 resuming occupation?  38 MS. KOENIGSBERG:  It wouldn't surprise me, my lord, but I don't  39 know on what authority the learned author would have  40 come to that conclusion.  41 THE COURT:  I don't either.  42 MS. KOENIGSBERG:  I suppose one could argue it either way.  43 However, if it amounts to an extinguishment, I think  44 that that would be clearly wrong and perhaps begs the  45 question as to whether abandonment does amount to  46 extinguishment.  We say it does.  And I will try to so  47 persuade your lordship. 28769  Submissions by Ms. Koenigsberg  1 The American authorities also hold that  2 abandonment will extinguish aboriginal rights.  In  3 Williams and Chicago, the Supreme Court of the United  4 States held that the band could not claim more than  5 the right of continued occupancy, and that when this  6 was abandoned, all legal right or interest which both  7 tribes and its members had in the territory came to an  8 end. Very similar statements are made in the cases  9 referenced there as well.  10 MR. JACKSON:  My lord, are those authorities available?  11 MS. KOENIGSBERG:  Yes, they are, in my friend's authorities.  12 And I -- I am sure my friend recognizes U.S. versus  13 Sante Fe and Beecher vs. Wetherby and probably even  14 U.S. vs. Cook, and if he has a problem that he thinks  15 I am taking that out of context, I suggest he deals  16 with it in reply.  17 THE COURT:  What about Williams and Chicago?  18 MS. KOENIGSBERG:  Yes, it's in the authorities as well.  And, I  19 am sorry, I just didn't have time to reference this to  20 my friend's books.  21 It is submitted that the voluntary non-use and  22 non-occupation of traditional lands and in the  23 non-exercise of traditional practices for more than a  24 generation, perhaps a minimum of 20 years, constitutes  25 abandonment.  It is submitted that changes in economic  26 strategies, demographics and social structure are  27 evidence of abandonment.  And I would like to just  28 deal with the topics that I have just raised here.  29 And perhaps I should just back up and say that as far  30 as the American authorities are concerned, they really  31 fall into the category again of our use of the Baldwin  32 quote from the Mitchell case.  And that is that they  33 do deal with the issue of abandonment, they do say  34 that if it's a -- if lands are abandoned, they are --  35 rights are extinguished.  However, they say it in  36 circumstances which are easily distinguishable one  37 from the other and from the situation here.  And it's  38 simply pointed out that it is a concept which again  39 tends to flow from the nature of the right.  And the  40 nature of the right has been held to be the same in  41 American jurisprudence as in Canadian, a right of  42 occupancy.  43 Now, dealing with the voluntariness here.  It is  44 essential, in our submission, that to find abandonment  45 you have to be able to find that it is voluntary.  And  46 in that sense that is why changes in economic  47 strategies, demographics and social structure, are, I 28770  Submissions by Ms. Koenigsberg  1 should put there, good evidence of abandonment.  They  2 go to the voluntariness of it.  If, for instance, my  3 lord, one were to find that Indians no longer occupy  4 the place because they have been illegally  5 dispossessed, in my submission, that would not  6 constitute abandonment in a Canadian -- that a  7 Canadian court would find.  8 THE COURT:  Might be something else, I suppose, laches,  9 limitation?  10 MS. KOENIGSBERG:  There might be something else but in my  11 submission it would not be abandonment.  Abandonment,  12 in my submission, which flows naturally from the  13 analysis of the right itself, it's also implicit that  14 it must be voluntary.  The Indian people must be  15 choosing, in the sense that any of us have the right  16 to choose, an alternative way of life and have  17 abandoned the other way of life.  And whether it's the  18 whole way of life or a particular area makes no  19 difference.  It will -- that will address the issue of  20 whether we are talking about the abandonment of  21 trapping which, in my submission, the evidence is  22 almost overwhelming, that it has been abandoned, and  23 voluntarily, in the sense that we say that the  24 evidence is overwhelming that the reason why the  25 aboriginal people are not trapping is that it is no  26 longer a viable economic, from their point of view,  27 economic alternative.  2 8    THE COURT:  Your argument on abandonment must be related to  29 specific territories?  30 MS. KOENIGSBERG:  Yes, it is, and we have done the analysis  31 which we will be presenting to your lordship.  32 Now dealing with this minimum of 20 years, that is  33 nearly an arbitrary number but we have attempted to  34 address the issue of how long is long enough.  A  35 generation is often found to be 20 to 25 years.  A  36 generation accounts for being able to imply a real  37 intent not to engage in that activity, that it's not  38 just a temporary change, it's a change which has had,  39 which has affected the structure, the entire social  40 structure and that, in our submission again, is what  41 has happened in the Claim Area, particularly in  42 relation to trapping.  Your lordship has heard the  43 evidence that many of the younger generation, two  44 generations ago now, the 1950s, that the substantial  45 stoppage of trapping occurred, do not know how to trap  46 any longer.  The effect of not trapping has been, has  47 become so pervasive, that the normal ways in which the 28771  Submissions by Ms. Koenigsberg  1 aboriginal society continued that, have also stopped,  2 the teaching of it, which was part of their way of  3 life.  4 We then go on to say that the evidence at trial  5 demonstrates fundamental changes in the Gitksan-  6 Wet'suwet'en economic and social structure since the  7 time of contact.  During the past 150 years the  8 plaintiffs and their ancestors have shifted from a  9 subsistence economy based primarily on the  10 exploitation of the local salmon resource to full  11 integration into the Canadian cash wage economy.  12 And your lordship has heard extensive evidence  13 from my friend, Mr. Macaulay, and of course throughout  14 this trial on that subject.  15 THE COURT:  That's not what Dr. Daly says.  16 MS. KOENIGSBERG:  Yes.  But, in my submission, Dr. Daly's  17 evidence, when he deals with this subject, remains at  18 the generality and does not hold up in relation to the  19 actual evidence.  2 0    THE COURT:  Thank you.  21 MS. KOENIGSBERG:  We say since the time of contact the  22 plaintiffs and their ancestors have taken advantage of  23 the new economic opportunities that have arisen as a  24 result of the Claim Area's integration into the larger  25 regional economy.  As the plaintiffs and their  26 ancestors have taken up jobs in the commercial  27 fishing, packing, railroad, forestry and other  28 industries, their reliance on traditional foods, such  29 as salmon, and traditional economic activities, such  30 as fishing, hunting and trapping, declined.  Also  31 knowledge of traditional practices and places was  32 lost.  It's at this point that the evidence of some  33 becomes relevant.  It is evidence, and in my  34 submission, incredibly cogent evidence, that stopping  35 a particular way of life, that is, going to a  36 particular place en masse to fish and then stopping  37 doing that sometime after 1920, the place as a place  38 known to these people, on the evidence, appears to  39 have vanished.  Because it is undisputed and  40 uncontradicted that not one witness, even those who  41 would have had a connection, as best we could tell, to  42 that place, mentioned it.  And I think it's  43 significant, my lord, that the name Xsun that's  44 referred to by Loring, is obviously an Indian name.  45 A corollary of this shift in the local Indian  46 economy was a migration of people from remote villages  47 such as Kuldo and Kisgegas to settlements closer to 28772  Submissions by Ms. Koenigsberg  1 the new job sources in the growing transportation and  2 resource industries of the region.  As such, the  3 abandonment of these villages is perhaps the best  4 example of the change from the traditional to the new.  5 Now we don't say that abandonment has any relevance  6 in fact to those sites because they have been made  7 into reserves, but it has to do with the evidence of  8 the, if you will, of the voluntary aspect of  9 abandonment of a way of life.  Your lordship will  10 probably recall that Mr. Justice -- Mr. Macaulay went  11 through the migrations or the leaving of Kisgegas and  12 Kuldo, and from Mr. Loring documented, and these were  13 the traditional villages in the Sessional Paper  14 reports --  15 THE COURT:  I didn't think Kuldo was a reserve, is it?  16 MS. KOENIGSBERG:  Yes, it is.  It was allocated by Vowell in the  17 late 1890s.  It was so far north that there wasn't any  18 concern about settlement until later.  Subsequently,  19 of course, it dwindled in population around '30 or  20 '31, before the last contingent of those people moved  21 into, I believe, Hazelton by and large.  22 And it's important in the context of the argument  23 on abandonment to put Kuldo and Kisgegas in a  24 particular context.  I believe it was in 1902 in the  25 Sessional Report of Mr. Loring, he gives the  26 occupations of the Indian people, their general and  27 most predominant pursuits, and for all the other  28 Indian villages the pursuits are already shifted into  29 the cash, white regional economy, not Kuldo and  30 Kisgegas.  Those were remote and those were still very  31 traditional, fishing, hunting, trapping.  And it is  32 the abandonment of those villages for places closer to  33 the services and jobs, that is the evidence as to the  34 reason why they were abandoned, is important.  The  35 sites themselves are irrelevant in this particular  36 lawsuit.  37 Abandonment of rights should not be lightly  38 inferred but the law does not support aboriginal  39 claims to a territory larger than that reasonably  40 relevant to the current use and occupation of  41 aboriginal peoples.  The resurgence of interest in  42 traditional practices and territories arising out of  43 the Land Claims process should not be accepted as  44 evidence of continued traditional use.  It is the  45 submission of the Attorney-General of Canada that the  46 change in the plaintiffs' entire way of life has led  47 to the general abandonment of occupation of village 28773  Submissions by Ms. Koenigsberg  1 sites and camps --  and I draw your lordship's  2 attention actually to all of the winter camps which  3 were described by Mr. Loring -- other than reserve  4 lands, an abandonment of use of many remote areas  5 within the Claim Area.  6 And an actual territory by territory analysis of  7 that will be engaged in at the end of this week.  And  8 that's going to take me into a new part, which is  9 relatively short, but now would be a convenient time  10 to take the morning adjournment.  11 THE COURT:  All right.  Thank you.  12  13 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  14  15  16  17  18  19 I hereby certify the foregoing to be  20 a true and accurate transcript of the  21 proceedings herein to the best of my  22 skill and ability.  23  24  25  26  27 Wilf Roy  28 Official Reporter  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28774  Submissions by Ms. Koenigsberg  1 (PROCEEDINGS RESUMED AT 11:20)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Miss Koenigsberg.  5 MS. KOENIGSBERG:  Thank you, my lord.  I would like now to come  6 back to Part VI.  And there will be more of this  7 coming, but there is no replacement for it, and  8 without being facetious, this is the general specific  9 argument on extinguishment, and Miss Russell will this  10 afternoon deal with the evidence of specific -- the  11 specific evidence of extinguishment.  In the Statement  12 of the Attorney General of Canada's position on  13 extinguishment, diminution or abandonment of  14 aboriginal rights in the claim area filed with this  15 court December 11, 1989 and by addendum filed with the  16 court December 18, the Attorney General of Canada  17 submitted that the following types of use and  18 occupation rights have been extinguished, diminished  19 or abandoned where the evidence indicates activities  20 necessarily inconsistent with traditional use and  21 occupation or discontinuance of traditional use and  22 occupation.  And we should stop there and put "clearly  23 and plainly necessarily inconsistent".  24 THE COURT:  Clearly and —  25 MS. KOENIGSBERG:  And plainly, and I would ask your lordship to  26 simply put in there our submissions on the difference  27 between the Hall and the Judson test as we say it now  28 has been developed in Sparrow.  And that's to reflect  29 that if "necessarily inconsistent" had any ambiguities  30 in it, then those ambiguities must now be resolved in  31 favour of preserving the Indian interest, which should  32 make it clear and plain that there's been  33 extinguishment.  We list there --  34 THE COURT:  Do you mean ambiguities or do you mean  35 uncertainties, or both?  36 MS. KOENIGSBERG:  I think I mean both, and I think it would  37 depend on the context of using that, but if there's  38 any ambiguity about what I mean, and of course I don't  39 think this is meant by the Supreme Court of Canada to  40 be a word play, but there is a danger that I'm sure  41 we're all, especially in this trial, aware of, of  42 making pronouncements, general pronouncements, and  43 using words when we're not on the ground and applying  44 them to see --  45 THE COURT:  Certainly hasn't bothered the Supreme Court of  4 6 Canada.  47 MS. KOENIGSBERG:  No, it certainly hasn't.  And I'll just 28775  Submissions by Ms. Koenigsberg  1 venture into that territory for a moment, if your  2 lordship is interested.  3 THE COURT:  Yes.  4 MS. KOENIGSBERG:  It's our submission that Sparrow does not  5 override or discount the Baker Lake test, and your  6 lordship will recall that Mr. Justice Mahoney  7 attempted to reconcile Judson and Hall's differing  8 descriptions.  And in my submission, at bottom what he  9 did, Mr. Justice Mahoney, was to take the two and  10 marry them by applying them.  When you're on the  11 ground and having to determine whether a legislative  12 purpose extinguishes the exercise of an aboriginal  13 right, call it a use-to-use conflict, that which is  14 necessarily inconsistent becomes clear and plain.  And  15 that's not a word play when one takes examples.  So,  16 for example, the one done by Mr. Justice Mahoney in  17 Baker Lake, he --  18 THE COURT:  Well, you started out by you said "on the ground  19 when legislative purpose extinguishes a right on  20 use-to-use basis", what, depends on --  21 MS. KOENIGSBERG:  Depends on whether the right can live with the  22 effect of the legislative purpose.  23 THE COURT:  All right.  24 MS. KOENIGSBERG:  Mr. Justice Mahoney put it, I'm going to  25 paraphrase a little bit, but he put it as it becomes  26 clear and plain that that's the intention of the  27 sovereign if the legislative purpose is necessarily  28 inconsistent.  If you -- and another way of looking at  29 it, in the Sparrow decision, and that's in our book of  30 authorities, and it might be helpful to look again at  31 where they deal with -- the way the court deals with  32 the extinguishment test, and it's on page 16.  33 THE COURT:  16?  34 MS. KOENIGSBERG:  16.  35 THE COURT:  Yes.  36 MS. KOENIGSBERG:  They go through, interestingly, the two cases  37 where the tests have been applied, and that is Baker  38 Lake and Bear Island, and then they go back to Mr.  39 Justice Judson's view, which was developed, albeit, in  40 relation to looking at specific statutes, but not on  41 the ground in the sense that there was not evidence of  42 actual -- the actual exercise of aboriginal rights in  43 the Calder case.  And Mr. Justice Judson's view, which  44 is I think fairly rejected in the Sparrow decision, in  45 applying "necessarily inconsistent" was prepared to  46 see that a series -- as he says:  47 28776  Submissions by Ms. Koenigsberg  1 "...a series of statutes evinced a unity of  2 intention to exercise a sovereignty  3 inconsistent with any conflicting interest,  4 including aboriginal title."  5  6 There was no analysis in Mr. Justice Judson's test of  7 given that the sovereign may have evinced an intention  8 to sell off -- to settle an area, could aboriginal  9 right still be exercised consistently with that  10 right -- with those -- that legislative purpose.  And  11 in my submission, when Mr. Justice Mahoney looked at  12 the Judson test and looked at the Hall test, he said  13 that they can be put together, because when you look  14 use to use, you find it raises the issue of can the  15 right be exercised and the legislative purpose have  16 its effect and live together, and if they can, there's  17 no extinguishment, and if they can't, then there is  18 extinguishment.  And I think Sparrow helps us this  19 far, that when we're applying the test, which I say in  20 fact Mr. Justice Mahoney did in Baker Lake, they're  21 saying to us "You must resolve any uncertainty or  22 ambiguity in favour of the Indian interest surviving".  23 And in my submission, there is assistance in an  24 analysis of the Sioui case, as we went through  25 yesterday, of the extent frankly to which the court is  26 prepared to go, albeit that was in relationship to a  27 treaty right, and there are differences and the  28 standards are higher, but still, it's instructed, in  29 my submission, that they looked and looked and looked  30 for a way to make those two uses, which appear to be  31 in conflict, live together so as not to diminish  32 either one.  And it's in that sense that I say that  33 the Baker Lake test has not been overturned or  34 distinguished away, it's been put in a context that  35 requires the emphasis to be put on clear and plain.  36 THE COURT:  Does — Mr. Justice La Forest doesn't deal with  37 Baker Lake in this context, does he?  38 MS. KOENIGSBERG:  You mean in Sparrow?  3 9 THE COURT:  Yes.  40 MS. KOENIGSBERG:  Yes, he does, just above there.  41 THE COURT:  Mm-hmm, oh, yes.  42 MS. KOENIGSBERG:  On page 16.  43 THE COURT:  Yes, I see.  44 MS. KOENIGSBERG:  He says:  45  46 "In the context of aboriginal rights, it could  47 be argued that, before 1982, an aboriginal 28777  Submissions by Ms. Koenigsberg  1 right was automatically extinguished to the  2 extent that it was inconsistent with a statute.  3 As Mr. Justice Mahoney stated in Baker Lake at  4 page 568:  5 'Once a statute has been validly enacted, it  6 must be given effect.  If its necessary  7 effect is to abridge or entirely abrogate a  8 common law right, then that is the effect  9 that the courts must give it.  That is as  10 true of an aboriginal title as of any other  11 common law right.'  12  13 See also Bear Island."  14  15 Which quotes Mr. Justice Mahoney.  Then he goes on to  16 Mr. Justice Judson's view in Calder and says they're  17 adopting the words "clear and plain" from Mr. Justice  18 Hall.  And in my submission, they don't quote --  19 THE COURT:  Well, if it's clear and plain, then it's not  20 different from Judson's judgment, is it?  21 MS. KOENIGSBERG:  Well, in my submission, again, it's a question  22 of application.  2 3    THE COURT:  Mm-hmm.  24 MS. KOENIGSBERG:  And that's why I say that Mr. Justice Mahoney  25 has the right idea of saying well, if we are actually  26 going to look at use to use and not on a more abstract  27 general level, we will require that it be clear and  28 plain.  They can't -- it's really, I think, a part of  29 the words of Mr. Justice Mahoney, what is its  30 necessary effect, that is the statute in action.  And  31 that's the effect the courts must give it.  Now, I  32 don't think that that in any way takes away from the  33 test propounded by Hall that the intention must be  34 clear and plain.  35 Coming then down to the areas that will -- we will  36 be asking your lordship to apply that to, we say to  37 apply that test you will be looking at village and  38 fishing sites outside reserves, and I'm back onto page  39 1 of Part VI.  4 0    THE COURT:  Yes.  41 MS. KOENIGSBERG:  2,  fishing itself, outside reserves; 3,  42 hunting and trapping; and 4, berry picking.  Those are  43 the traditional activities which have been identified  44 as forming the basis of the aboriginal rights of these  45 people.  46 Dealing then with village sites.  All traditional  47 village sites have been made into reserves.  Thus the 2877?  Submissions by Ms. Koenigsberg  1 issue of extinguishment is not a relevant one in this  2 lawsuit.  3 Some traditional village sites, however, were  4 abandoned and not made into reserves.  And we will be  5 dealing with those very specifically later on.  6 To the extent that any part of what is now  7 Hazelton was part of a claimed traditional village  8 site and was not made into a reserve, such part has  9 been extinguished by the cumulative effect of  10 settlement and land transfers in the area.  Your  11 lordship will recall that the evidence is a bit  12 confusing on that, but there's quite a bit of evidence  13 on that subject.  14 Dealing with fishing, it is our position that  15 fishing as an aboriginal right has two distinct  16 components, the right to fish and the right to  17 continued use of fishing sites.  18 Dealing with the right to fish:  Fishing in the  19 claim area is subject to the jurisdiction of the  20 Federal government.  There is no issue raised in this  21 lawsuit impugning the Federal power over Indian  22 fishing, and therefore no argument is addressed to  23 this issue or the issue of its extinguishment.  In any  24 event, that topic, except for its site specificity,  25 has been dealt with in Sparrow.  2 6    THE COURT:  Yes.  27 MS. KOENIGSBERG:  Dealing with fishing sites:  Most claimed  28 fishing sites are covered by the reserve system.  29 Again, there is no issue in this lawsuit regarding the  30 right to fish at those sites.  31 Off-reserve sites have been claimed as traditional  32 Indian fishing sites.  And those are set out on  33 Exhibit 358-22, and I believe Mr. Macaulay dealt with  34 those as well.  These sites fall into two categories  35 to which this Defendant addresses its argument.  Both  36 abandonment and extinguishment as concepts will apply.  37 There is no evidence of actual present use for  38 aboriginal food fishing at sites on the Kispiox,  39 Kitwanga or Kitsegukla Rivers or on the Upper Bulkley  40 or Upper Skeena River systems.  There is evidence that  41 these are areas where active sports fishing takes  42 place.  And your lordship will recall the testimony of  43 the fisheries officers in that regard, and we'll be  44 coming to that a little more specifically.  45 It is this Defendant's position that where all  46 fishermen have access to fishing sites, any exclusive  47 aboriginal right is extinguished. 28779  Submissions by Ms. Koenigsberg  1 Dealing then with hunting, and we canvassed this  2 in the context of it being a variation on the theme of  3 extinguishment that we set out yesterday, the  4 aboriginal right to hunt wherever, whenever or by  5 whatever means the Plaintiffs choose has been  6 extinguished by provincial legislation.  The "right to  7 hunt over unoccupied Crown lands" is a right enjoyed  8 by all members of the general public, without special  9 rights accorded to Indians.  Hunting regulations have  10 universal application:  See the Wildlife Act.  11 In Colonial times, during the reserve allocation  12 process, the Governor assured the Indians that they  13 could hunt over unoccupied Crown lands.  And I make  14 reference there to those references to Douglas'  15 speeches, and in particular Cayoosh and others.  This  16 policy was continued during the post-Confederation  17 reserve allocation in the claim area.  And I gave you  18 sites for all of those yesterday.  19 Thus, hunting in the claim area is not a classic  20 "aboriginal right" recognized by the common law, and  21 by that we mean an exclusive hunting right.  It lacks  22 the necessary exclusivity.  According to the evidence  23 anyone, including the Plaintiffs, could and did hunt  24 anywhere on unoccupied Crown lands.  And we cite  25 examples from the evidence.  26 In addition, the granting of Guide Outfitter  27 certificates throughout the claim area is inconsistent  28 with such an exclusive aboriginal right to hunt.  29 Guide Outfitter certificates afford exclusive rights  30 to guide hunting parties in areas claimed as  31 traditional hunting grounds:  See, for example, Mr.  32 Steciw's certificate.  This is further evidence of a  33 use inconsistent with recognition of an exclusive  34 aboriginal right to hunt.  35 And here again is perhaps another illustrative  36 example of how when you try to put together a use  37 that's legislated, that is an exclusive right to  38 commercially hunt in a given area, a defined area, and  39 you put that next to the exclusive claimed exclusive  40 right to hunt, generally they cannot live together.  41 Other legislated uses have affected traditional  42 hunting lands in ways largely or entirely incompatible  43 with hunting.  Examples of such activities are:  44 Grants of land in fee simple; Dedication of land for  45 public uses such as highways, railways, public  46 utilities, parks, townsites, game reserves; leases for  47 certain forms of resource tenure such as tree farm 28780  Submissions by Ms. Koenigsberg  1 licenses, grazing permits, petroleum and natural gas  2 permits, and mineral leases.  See the site specific  3 analysis of extinguishment, which is coming later  4 today.  5 Dealing with the topic of trapping:  Where  6 trapping has been continuous since the time of contact  7 it is still subject to extinguishment by inconsistent  8 uses.  And I might say that, at this point, the  9 continuity of it is in very few places.  For example,  10 where a tree farm license has been granted under the  11 Forest Act, and clear cut logging is the form of  12 logging required under the terms of that tree farm  13 license, then by the Plaintiffs' evidence, such a use  14 is inconsistent with the continuation of trapping.  A  15 number of lay witnesses testified to the detrimental  16 effect of clear cut logging on their traplines.  And  17 we've listed them there with their cites to their  18 transcripts.  19 While evidence of the extent of clear cut logging  20 is not entirely defined by the evidence in the case,  21 it is a fair statement that a number of the  22 territories have been affected by clear cut logging.  23 And we give examples from the evidence of the  24 Plaintiffs.  25 THE COURT:  What would you say about an aboriginal right to hunt  26 and trap in an area that is clear cut, 15 years later  27 when there's a new forest is there a right to continue  28 during that time?  29 MS. KOENIGSBERG:  That brings up, my lord, one of the issues  30 that is difficult but not, in our submission,  31 impossible of resolution, and we come back again to  32 defining the incidence of the aboriginal right.  If  33 you say, and I think now it's clear on the law that  34 these rights have no proprietary aspect to them, if it  35 is a right to hunt or trap, that is, in fact,  36 non-exclusive in the sense that it can be done on  37 unoccupied Crown land, and you have a use, a  38 legislated use which is inconsistent temporarily, and  39 there's no evidence that it's going to be repetitious,  40 then in my submission the aboriginal right continues,  41 because to say that you can hunt here but not here in  42 year 1 does not mean that you've extinguished the  43 right to exercise that right or the ability to  44 exercise that right, you've only stopped it or  45 diminished it in the sense that you have stopped it  46 from being exercised here.  If five years later you  47 can exercise that right there because there is no use 28781  Submissions by Ms. Koenigsberg  1 that competes with it, in my submission you have not  2 extinguished that right, but it very much depends on  3 the actual analysis.  What is the nature of the right  4 and what is the nature of the use.  And in my  5 submission, what you see is a real spectrum of  6 evidence, most of it unfortunately, as will be brought  7 home to your lordship I believe when we take you  8 through the analysis of the actual evidence and trying  9 to apply it, these are not points that are easy of  10 resolution.  Nevertheless, they depend essentially for  11 resolution on defining the right precisely and its  12 incidence and then looking at the actual legislated  13 use.  Some legislated uses are very, in nature, quite  14 temporary.  I don't think clear cut logging happens to  15 be one, because it takes quite a while for  16 regeneration.  On the other hand, certain aboriginal  17 uses will live with the clear cut --  18 THE COURT:  Well, take the case of an aboriginal right to trap,  19 and leaving out for the moment the exclusive part of  20 the equation, if Indian A has an aboriginal right to  21 trap on block 1 and government gives a trapline permit  22 to B for block 1, you would say that extinguishes the  23 aboriginal right, would you?  24 MS. KOENIGSBERG:  Yes.  25 THE COURT:  So breaching the aboriginal right extinguishes it?  26 MS. KOENIGSBERG:  If it's clear and plain, and in that instance  27 I would say it's clear and plain, those two rights  28 cannot live together.  29 THE COURT:  It seems to me that your proposition means that  30 there have been practically no aboriginal rights since  31 British Columbia entered Crown Colony status, because  32 from that time on the legislative purpose was  33 inconsistent with the continuation of the aboriginal  34 rights wherever they applied.  35 MS. KOENIGSBERG:  Well, yes and no, my lord.  We haven't done a  36 map to actually look and see.  We've done the  37 analysis, and referencing it is a large enough task.  38 We haven't done that last part, and I don't think it  39 would be possible for us to do actually in the time  40 allowed, but to look at a map and see how much is  41 left, but I bring you back to two different kinds, if  42 you will, of aboriginal right.  We can put them into  43 two different categories, and one of those categories  44 are the aboriginal rights that are related to  45 permanent occupation of areas.  Now, the fact is that  46 those areas where the aboriginal rights reserves have  47 been made and they're there in their reserves, period, 28782  Submissions by Ms. Koenigsberg  1 but there are also the places where aboriginal rights  2 have been exercised.  Then there are the kinds of  3 rights which have a strongly amorphous quality about  4 them, that is they are not exercised over discreet  5 defineable parts of land, hunting.  Trapping --  6 trapping becomes one which you could sort of, between  7 hunting and occupied site, in that you can define it  8 by a trapline, but it's a huge area, and within that  9 you can be doing a lot of things and not come into  10 conflict with settlement purposes.  Those amorphous  11 type of rights are rights which can be exercised in a  12 wide area, today here and tomorrow there, and in my  13 submission if you look at them, if you define them  14 that way, then they continue in at least what I would  15 call a core area of this claim area.  I believe that  16 those uses have in fact been abandoned where they're  17 far away.  18 THE COURT:  But the aboriginal right that you're describing  19 there is one that is held in common with every other  20 citizen.  21 MS. KOENIGSBERG:  Yes, with some exceptions.  22 THE COURT:  Do you need a trapline license -- do you have to  23 have a registered trapline in order to trap in areas  24 that are not the subject of a previous trapline  25 license?  26 MS. KOENIGSBERG:  I don't think I can answer that question.  I  27 would expect you do.  I'm getting nods from the  28 Province.  2 9 THE COURT:  Yes.  30 MS. KOENIGSBERG:  I believe you do.  31 THE COURT:  Assuming you do, then the Indians' aboriginal right  32 to trap is extinguished on that basis, by your  33 argument, anyway.  34 MS. KOENIGSBERG:  I don't —  35 THE COURT:  The legislature says thou shall not trap without a  36 license.  37 MS. KOENIGSBERG:  Well, in my submission, that would not  38 extinguish it, if we look at it as a right to trap.  39 THE COURT:  They can trap.  40 MS. KOENIGSBERG:  You can exercise that right to trap, yet  41 that's the argument about regulation.  42 THE COURT:  Without a license?  43 MS. KOENIGSBERG:  No.  But you can do it with a license.  You're  44 controlling it, but you're not doing away with the  45 ability to do it.  46 THE COURT:  Then you're not better off than anybody else.  47 MS. KOENIGSBERG:  Maybe, except that there probably is this 28783  Submissions by Ms. Koenigsberg  1 residual part where it is -- well, at least after  2 1982 -- not possible or almost not possible to deny  3 that right to an Indian, but it's imminently possible  4 to deny it to a white person.  5 THE COURT:  All right.  6 MS. KOENIGSBERG:  And I perhaps could just pause here to  7 illustrate these kinds of problems, as I think, as I  8 said, they will become apparent to your lordship when  9 we go through this material territory by territory.  10 The way in which this case has been pleaded and  11 developed in evidence by the Plaintiffs and  12 responsively to that pleading and that evidence by the  13 Province, the actual evidence of the use-to-use level  14 is not very great.  And we will be addressing your  15 lordship --  16 THE COURT:  Actual evidence of use to use what?  17 MS. KOENIGSBERG:  Conflict.  18 THE COURT:  Conflict, yes.  19 MS. KOENIGSBERG:  We've attempted to deal with what there is,  20 and it will certainly have, in my submission,  21 illustrative impact, but there can be no actual  22 inch-by-inch resolution on the basis of the evidence.  23 THE COURT:  Well, some of the Indian witnesses said that "When  24 we're trapping, we're trapping pursuant to our  25 aboriginal right", and the Defendants have been saying  26 "You're trapping pursuant to your trapline license".  27 MS. KOENIGSBERG:  Yes.  2 8 THE COURT:  It comes -- on the ground it becomes the same thing.  29 MS. KOENIGSBERG:  Well, in my submission, that's not —  30 THE COURT:  But in the other view, that's a conflict.  31 MS. KOENIGSBERG:  Yes.  And it is our submission that on the  32 law, particularly as Sparrow has developed it, it is  33 not clear and plain that the registration requirement  34 of a trapline extinguishes the underlying right.  It's  35 quite analogous to the fishing right.  36 THE COURT:  Well, you told me a moment ago that granting a  37 trapline license would extinguish the right if granted  38 to a third party.  39 MS. KOENIGSBERG:  Yes.  I'm sorry, I must have misunderstood  40 your lordship.  I thought you were saying that if an  41 area is given exclusively to someone else, a  42 non-Indian, then you've extinguished the Indian right.  43 THE COURT:  But if there's aboriginal right to trap on  44 Blackacre, and the owner of that right requires a  45 trapline license for Blackacre, then he would say that  46 the extinguishment is not clear and plain and he can  47 trap under either umbrella. 28784  Submissions by Ms. Koenigsberg  1 MS. KOENIGSBERG:  I might have missed part of what your lordship  2 said.  I'm sorry, can you repeat that.  3 THE COURT:  If there's an aboriginal right to trap on Blackacre  4 and then he requires a trapline license for Blackacre,  5 then he can trap under either aegis or --  6 MS. KOENIGSBERG:  And both at the same time.  7 THE COURT:  And both at the same time.  8 MS. KOENIGSBERG:  Yes.  9 THE COURT:  And not be clear and plain that the aboriginal right  10 is extinguished.  11 MS. KOENIGSBERG:  That's correct.  In my submission, if you take  12 the test, if you adopt the test, that it has to  13 prevent -- to be clear and plain it has to prevent the  14 exercise of the right.  15 THE COURT:  Yes.  16 MS. KOENIGSBERG:  Then registration of trapline controls the  17 right, it does not extinguish it.  18 THE COURT:  Yes, thank you.  19 MS. KOENIGSBERG:  And coming back to the clear cut logging and  20 trapping conflict, there is a potential of conflict,  21 and there is the legislative purpose, which has a  22 definite effect on the ability to exercise the right.  23 And here what is interesting is one can speculate, as  24 we are left to do quite frequently in this case, about  25 whether we get down to a use-to-use analysis, and the  26 speculation would be well, probably you could trap in  27 a clear cut, but the Plaintiffs' evidence is that they  28 cannot.  And in my submission there, you would have on  29 that evidence a clear and plain extinguishment, but  30 there is going to be substantial evidence of  31 substantial clear cutting where there is no evidence  32 of the Plaintiffs' actual trapping and no evidence of  33 the Plaintiffs saying that they've been interfered  34 with or that they've stopped trapping because of the  35 clear cutting.  The instances where we actually have  36 evidence are small.  37 Dealing then with berry picking, we say that berry  38 picking is the only claimed aboriginal right which is  39 not subject to specific regulation.  Therefore berry  40 picking, where the evidence indicates continued  41 exercise of the right, may subsist as an aboriginal  42 right in certain parts of the claim area.  As a use,  43 berry picking would only be extinguished where all  44 other aboriginal rights are extinguished as well.  And  45 that's because it can basically be done in a lot of  46 different areas, and unless the people -- any use of  47 the area has been extinguished or the area has been 28785  Submissions by Ms. Koenigsberg  1 abandoned and thus extinguished, it's very likely that  2 berry picking is still exerciseable.  It would be  3 inconsistent with any legislated right to a use under  4 which the holder of that right can lawfully prevent  5 others from access to the area.  Such uses would be a  6 grant of land in fee simple, dedication of lands for  7 use such as townsites, and resource tenures which are  8 inconsistent with the exercise of the right to pick  9 berries.  For example, a tree farm license which  10 results in clear cut logging, one of the terms of  11 which is to require the holder of the tree farm  12 license to replant the area after logging, may also  13 require the license holder to use herbicides to  14 inhibit the natural growth of brush including the  15 desirable species of berry bushes.  Such a forestry  16 management practise would remove the ability to  17 exercise the right to pick berries in a continuous  18 fashion.  And by "continuous" we're again looking at a  19 considerable period of time, and this is just another  20 example of the relationship between the amorphousness  21 or ephemerality of the right and its ability to  22 continue in the face of conflicting uses.  23 Berry picking is a right which is, on the  24 evidence, largely non-exclusive among the Plaintiffs  25 themselves, but it can be done almost anywhere, and  26 therefore defined an instance in which that right  27 cannot be exercised because of conflicting legislation  28 on much of this area.  You simply will not find that.  29 As a general proposition, it cannot be said that  30 all limited forms of resources tenures can be taken to  31 extinguish aboriginal rights.  However, for the  32 duration of some resource tenures, it may be  33 impossible to exercise any aboriginal right.  It must  34 also be pointed out that the cumulative effect of such  35 leases renewed over a long period of time could  36 extinguish aboriginal rights where, as illustrated  37 above, those leases are necessarily -- and I say there  38 again clearly and plainly -- inconsistent with or  39 adverse to the exercise of the aboriginal right.  Many  40 of the acts dealing with limited resource tenures  41 provide for renewal.  42 And it's a matter of evidence whether -- and it  43 would be a balancing of is it so likely to be renewed,  44 has it been historically so, that it's going to  45 continue to be an area which is totally inaccessible  46 to the exercise of the right.  And I end there with  47 the general -- leaving the issue of some of the 28786  Submissions by Ms. Koenigsberg  1 specific evidence which I think will again illustrate  2 these points that I've tried to generally put before  3 your lordship.  4 And I would just close that segment by saying that  5 if it was possible before the most recent Supreme  6 Court of Canada decisions to imagine making decisions  7 about the exercise of aboriginal rights and  8 extinguishment on a general basis, I think those  9 cases, both Sioui and Sparrow, dictate that we must  10 engage in this particular activity at looking at use  11 to use, albeit general statements can be made in the  12 sense that one can set out the principles of what has  13 to occur without determining it on the ground on  14 Blackacre it has occurred, and we will attempt to deal  15 with that issue, if you will, your lordship's wish for  16 a form of order, we will attempt to deal with that  17 when we put one before you.  18 THE COURT:  All right.  Well, let me leave this with you, and  19 you don't need to answer it now, but with relation to  20 Section 35, if an aboriginal right is one which, on  21 your submission, was inherently capable of being  22 extinguished or diminished by clear and plain  23 legislative interference, is that -- is that an  24 impediment in the right, or is that an inherent vice  25 in the right to use commercial language which existed  26 at the time of the Charter and the right is preserved  27 only subject to that inherent vice.  2 8 MS. KOENIGSBERG:  Yes.  29 THE COURT:  So Section 35, in your submission, doesn't freeze  30 these aboriginal rights forever?  31 MS. KOENIGSBERG:  Those kind of aboriginal rights.  32 THE COURT:  Yes.  33 MS. KOENIGSBERG:  But it tells us, that decision goes on, I  34 believe, to make broader and to raise the standards,  35 if you will, of when that will have occurred.  36 THE COURT:  Yes, all right.  37 MS. KOENIGSBERG:  And Mr. Jackson has brought to my attention  38 that on page 2 of tab 8, where I have referred to a  39 series of American decisions, he can't find two of  40 them.  41 THE COURT:  Which one?  42 MS. KOENIGSBERG:  Sorry, it's tab 8, the abandonment argument.  4 3 THE COURT:  Yes.  44 MS. KOENIGSBERG:  Page 2, I refer — I refer there to American  45 authorities, Williams and Chicago, U.S. and Cook, and  46 a few others.  He has advised me that he's looked and  47 he cannot locate Williams and Chicago and U.S. and 28787  Submissions by Ms. Koenigsberg  1 Cook in the Plaintiffs' authorities, and I will  2 double-check him simply because the plethora of their  3 authorities is so great and oddly described that he  4 might have missed it, but if not, we will make copies  5 of those and provide them to the court and they can be  6 inserted in our authority binder.  7 THE COURT:  Yes, all right, thank you.  You want to adjourn then  8 until two o'clock?  9 MS. KOENIGSBERG:  Two o'clock, yes.  10 THE COURT:  Yes, all right, thank you.  11 THE REGISTRAR:  Order in court.  Court stands adjourned.  12  13 (PROCEEDINGS ADJOURNED AT 12:05)  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  20  21  22  23 Graham D. Parker  24 Official Reporter  25 United Reporting Service Ltd.  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 287?  Submissions by Ms. Koenigsberg  Submissions by Mr. Macaulay  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS)  2  3 THE COURT:  Ms. Koenigsberg.  4 MS. KOENIGSBERG:  Yes, my lord.  I have a copy of the two cases,  5 the American cases that had not been included in the  6 plaintiffs' authorities, and they should be added to  7 the Attorney General of Canada's binder of  8 authorities.  And I believe I've handed that up, and  9 that will give you a new index.  10 THE COURT:  Yes.  11 MS. KOENIGSBERG:  And the tabs with the cases.  12 THE COURT:  All right.  Thank you.  13 MR. MACAULAY:  My lord.  14 THE COURT:  Go ahead, Mr. Macaulay.  We can do at least two  15 things at once here.  16 MR. MACAULAY:  I had made some submissions regarding the  17 evidence of Mr. Boys, the Indian agent in Hazelton in  18 1946 to '51, and Mr. Mclntyre, who had that same  19 position in Burns Lake in the early '60s, and I had  20 referred to the evidence of Richard Benson, one of the  21 plaintiffs' witnesss.  It was my -- up to that time I  22 had handed up submissions regarding these little --  23 the discussion of the various witnesses evidence.  And  24 I would like to hand up -- I'm not going to make you  25 read it or make any further submission, but it puts  26 perhaps in a better organized form what my submissions  27 were in Volume 359 of the transcript.  That should go.  28 Now, I'll give -- give you another group of unmarked  29 tabs.  That's just for convenience, my lord.  30 THE COURT:  All right.  31 MR. MACAULAY:  Because I'll hand up something else.  This is  32 simply a repetition of some of the submissions I made.  33 Now, my lord, I have to turn to the two other  34 federal witnesses we are not going to deal with.  And  35 I don't think we have to deal with the evidence of Mr.  36 Palmer, but I had not mentioned the two fisheries  37 witnesses and I'm going to make brief submissions  38 concerning their brief evidence, and I will hand up  39 since there's --  40 THE COURT:  Mr. Macaulay, I'm sorry, I've just looked at this  41 submission about Mr. Boys and Mr. Mclntyre.  42 MR. MACAULAY:  Yes.  43 THE COURT:  I thought you said this had something to do with Mr.  44 Benson.  45 MR. MACAULAY:  Yes.  I refer in there to Mr. Benson.  46 THE COURT:  He's mentioned in the second paragraph.  There are  47 no references. 28789  Submissions by Mr. Macaulay  1 MR. MACAULAY:  He was referred to if you look in that tab, the  2 tab concerning Boys.  3 THE COURT:  Yes.  4 MR. MACAULAY:  The evidence of Boys.  5 THE COURT:  Yes.  6 MR. MACAULAY:  You'll see that at the last paragraph.  7 THE COURT:  Oh, yes.  8 MR. MACAULAY:  Paragraph number 12.  What I say is right after  9 he left.  10 THE COURT:  All right.  11 MR. MACAULAY:  There was a fall in prices and traffic stopped  12 but didn't revive.  And I have the references there.  13 That's simply the submissions following on those 12  14 paragraphs, really.  It's the submissions following on  15 both Boys and --  16 THE COURT:  Yes.  17 MR. MACAULAY:  — Mclntyre.  18 THE COURT:  Thank you.  19 MR. MACAULAY:  Now, may I hand up just a single page plus  20 attached the references on Mr. Woloshyn.  Your  21 lordship may recall Mr. Woloshyn was, and is, the  22 fisheries officer at Hazelton.  Woloshyn is in charge  23 of the Hazelton sub-district.  And his companion Mr.  24 Turnball was, and is, in charge of the Smithers  25 sub-district.  They work together, and their two  26 districts cover the claim area.  He has been there  27 since 1978.  And the reference is there and the page  28 is there behind it.  I don't think I need to refer to  29 the page though.  Pages 22661-2.  30 And his duties include monitoring the fish  31 habitat, the sports fishing and the Indian food  32 fishing.  And the reference is given there as well.  33 Because of the fact that the Kispiox River is a --  34 he described it as a major salmon producer in that  35 sub-district, Woloshyn pays particular attention to  36 the tributaries of the river, of the Kispiox River,  37 and he's concerned about the effect on the fishery of  38 the large beaver population there.  And he mentioned  39 log jams and other things as well.  So he knows that  40 river well, and he has to.  41 He says -- he gave evidence at page 22661-2 that  42 there has been no food fishing on the Kispiox River to  43 his knowledge, and that it's a sports fishing river.  44 Steelhead, I believe.  45 Loring identified 12 fisheries on the Kispiox  4 6              River.  And I have that attached.  That's the same  47              document we were using when we were calculating 28790  Submissions by Mr. Macaulay  1 mileages.  2 THE COURT:  Yes.  3 MR. MACAULAY:  Well, the second half of the page that we were  4 using lists the Kispiox fisheries.  That is the  5 Kispiox village fisheries on the Kispiox River.  And  6 some of the names that were given by Loring correspond  7 with names on Mr. Morrell's map, map 22.  That's  8 358-22.  And I have the excerpt from that map here  9 too.  You see that map, it goes sideways rather than  10 north, but that's how the Kispiox River is laid out on  11 that map.  12 THE COURT:  Now, that map is the one you gave me earlier this  13 week which was put --  14 MR. MACAULAY:  Now, Mr. Grant handed up another section of this  15 same map.  16 THE COURT:  Yes.  And I put it in —  17 MR. MACAULAY:  You put it in this book.  18 THE COURT:  I don't think I put it in this book.  19 MR. MACAULAY:  I thought —  2 0 THE COURT:  I may have.  Let's see.  Oh, yes.  You're quite  21 right.  I have it, yes.  22 MR. MACAULAY:  This is another section of the same map, map 22.  23 It's 18 inches by two feet, or something like that.  24 THE COURT:  All right.  25 MR. MACAULAY:  And I've included this particular segment because  26 it shows the Kispiox River.  And to the left --  27 actually to the north of Kispiox.  2 8 THE COURT:  Well, did you intend to hand up a copy of that map  29 that you're looking at with these documents?  3 0 MR. MACAULAY:  Yes, my lord.  31 THE COURT:  Oh, yes, there it is.  I found it.  Yes.  32 MR. MACAULAY:  See to the left of Kispiox we have a whole lot of  33 fishing sites along the Kispiox River.  And a number  34 of them, not all, but a number of them correspond with  35 Loring's list.  And I've set out the corresponding  36 ones there on page two of my little memo.  For  37 instance, the very last, or almost the last one  38 anyhow, Luu'andilgon, and the one above it, Skonsnat.  3 9 THE COURT:  Yes.  40 MR. MACAULAY:  And Nadaat and Wiluuwak, all those four appear  41 on -- appear on Mr. Loring's list, albeit with  42 slightly different spellings.  4 3 THE COURT:  Yes.  44 MR. MACAULAY:  In fact the famous fishing, winter fishing place  45 at what Loring called Gotguidon, G-O-T-G-U-I-D-O-N,  46 appears here as Katgaiden, K-A-T-G-A-I-D-E-N.  Others  47 don't correspond with the names given by Mr. Loring in 28791  Submissions by Mr. Macaulay  1 1910, and that's about the time he produced that list.  2 There is no evidence of food fishing at any of the  3 Kispiox fisheries listed either by Loring or by Mr.  4 Morrell on his map 358-22 was given by any of the  5 plaintiffs.  There was no evidence of use of those  6 stations.  7 And that's the only comments I wish to make about  8 Woloshyn's evidence.  9 THE COURT:  All right.  10 MR. MACAULAY:  It's interesting to note that Loring if you add  11 up the figures, you know, he does it the same way as  12 he had, but for the Skeena he starts at eight miles  13 above the village and then he goes another half mile,  14 another mile and a half, and so on.  He locates  15 Gotguidon at 22 and a half miles.  And it goes up many  16 miles beyond that his list of fisheries, 70 miles I  17 make it, into areas where there doesn't seem to be  18 anything there today.  19 And, finally, may I refer to Mr. Turnball's  20 evidence.  And that's equally brief.  I'll hand up to  21 your lordship another page.  If I can hand one up, my  22 lord, and I'll leave one on the registrar's desk.  23 THE COURT:  All right.  24 MR. MACAULAY:  Turnball was Woloshyn's opposite number farther  25 south in the Smithers sub-district.  Although, as I  26 call it, his sub-district included the west of the  27 claim area.  I'm sorry, the east of the claim area as  28 well as the southern part of the claim area, and it  29 included the Morice Bulkley River system.  30 Of course, Turnball's duties included the  31 controlling of the sports fishery and the Indian food  32 fishery.  33 And he gave evidence that the Indians do not fish  34 in the Smithers sub-district on the Bulkley River  35 upstream from Trout Creek.  The food fishing he said  36 was done on the Bulkley River between Trout Creek  37 which is near Evelyn, Evelyn is just north of Smithers  38 and north of Catherine Lake, and Porphy Creek, which  39 is near Beament.  That's the stretch in which the food  40 fishing is done.  41 The plaintiffs show fishing sites on the  42 Bulkley-Morice River systems south of Trout Creek on  43 Exhibit 358-22.  That's that same map.  And I've  44 included in here, my lord, another section of the same  45 map.  And although it goes from right to left it's  46 actually showing the north to south.  You can see  47 Smithers — 28792  Submissions by Mr. Macaulay  1 THE COURT:  Yes.  2 MR. MACAULAY:  On it —  3 THE COURT:  It doesn't have the Fourth Avenue Cafe.  4 MR. MACAULAY:  It doesn't seem to, no.  5 But the southern end of that stretch would be  6 north of Smithers.  But as you can see there are many  7 on the -- on the Bulkley-Morice system there are a  8 number of fishing sites listed by Mr. Morrell.  That  9 is apparently outside the area where food fishing is  10 done today.  And there is no evidence of any food  11 fishing on those sites on the Bulkley-Morice system.  12 The plaintiffs also show several fishing sites in  13 the McDowell Lake area and on the Burnie Lakes.  Well,  14 there is no evidence of food fishing on or near  15 McDowell Lake, at least, following the obstruction of  16 the Copper River in the 1890's.  And in that  17 connection I've attached Helgeson's, the fishery  18 officer, the original fishery officer Helgeson's  19 report of October 25th, 1905 in which he describes the  20 landslide that had blocked the Copper River or Zymoetz  21 River.  Same thing.  And he notes the abandoned smoke  22 houses.  Of course there wouldn't be any salmon there  23 after that, or steelhead.  24 THE COURT:  This Copper River is the one that runs more or less  25 across the bottom of the map, isn't it, or is that --  26 MR. MACAULAY:  The Copper River doesn't show I don't think very  27 well in that map.  The Copper River starts outside the  28 claim area below Kitwanga.  2 9 THE COURT:  Yes.  30 MR. MACAULAY:  And it rises into the claim area.  And at the end  31 of that, the Copper River system, are McDowell Lake  32 and two other lakes.  33 THE COURT:  I think this heavy line I see here, that's the  34 external boundary, I think.  35 MR. MACAULAY:  The external boundary, yes, my lord.  36 THE COURT:  I think that's what it is.  Yes, all right.  So the  37 Copper River runs from the McDowell Lake area down the  38 Skeena near Kitwanga.  39 MR. MACAULAY:  That's right, my lord.  The mouth is actually  40 outside the claim area I seem to remember, but it was  41 apparently at one time a salmon river, and is again.  42 They have cleared it now, I gather.  43 THE COURT:  But it's shown here — I'm sorry.  It is shown here  44 just up into the document and slightly to the right  45 from Terrace is the Zymoetz, Z-Y-M-O-E-T-Z, River.  4 6 It's shown on this map.  47 MR. MACAULAY:  Yes, that's the Copper River.  It enters the 28793  Submissions by Mr. Macaulay  Submissions by Ms. Russell  1 claim area and ascends to -- of course McDowell Lake  2 isn't the term used.  3 THE COURT:  Nope.  4 MR. MACAULAY:  But that's in behind below Smithers on this map.  5 THE COURT:  Yes.  It's behind Hudson's Bay —  6 MR. MACAULAY:  — Hudson's Bay —  7 THE COURT:  — Mountain from Smithers.  8 MR. MACAULAY:  And in 1905 Mr. — in this report Mr. Helgeson  9 noticed -- reported on in detail the slide.  The rock  10 slide it was.  And he noted that there had been  11 abandoned fishing camps.  On the last page, now I  12 assume he's talking about the same area, he says in  13 the middle of the last page of his report:  14  15 "The Indians then stopped fishing there, and  16 have since taken their supply of salmon from  17 the Kitselas Canyon on the Skeena."  18  19 But whether those are Tsimshian that he's talking  20 about or they're Gitksan is impossible to tell.  At  21 any rate, anybody -- and remember they were  22 Wet'suwet'en that were claiming -- it's either Wah tah  23 Ke'ght or Wah tah Ke'ghts, John Namox, who's claiming  24 McDowell Lake.  And they used to go in presumably from  25 Moricetown.  And they certainly wouldn't have done  26 that in that area after the rock slide.  About Burnie  27 Lake there is no evidence at all of food fishing in  28 the Burnie Lakes.  29 My lord, those are my submissions concerning the  30 fisheries officers evidence.  And I'll ask Ms. Russell  31 now to --  32 THE COURT:  All right.  33 MR. MACAULAY:  — Deal with another aspect of the claim and the  34 issues before your lordship.  35 THE COURT:  Yes.  Ms. Russell.  36 MS. RUSSELL:  Thank you, my lord.  37 My lord, I have handed up a new section to be  38 added into the Attorney General of Canada's final  39 argument.  I can see them sitting right here.  40 THE COURT:  Oh, all right.  This replaces your present Section  41 VI?  42 MS. RUSSELL:  No, it doesn't replace it, my lord.  It will go in  43 behind the existing material behind Section VI, Roman  44 numeral Section VI.  45 THE COURT:  Thank you.  You go ahead.  I can follow you.  46 MS. RUSSELL:  Thank you, my lord.  You should have tabs VI-A to  47 D. 28794  Submissions by Ms. Russell  1 THE COURT:  Yes, I do.  2 MS. RUSSELL:  Good.  And this is material dealing further with  3 the effect of extinguishment in the claim area.  And  4 at tab VI-A you'll find an introduction to the  5 material which I intend to lead.  6 THE COURT:  You go ahead.  I'm almost there.  7 MS. RUSSELL:  At tab VI-A I would ask you to refer to that  8 addendum.  9 This is an introduction regarding the legislative  10 activity taken from British Columbia's alienations  11 series of maps and supporting documents.  12 I would begin, my lord, by adding one qualifier,  13 and that is that throughout these materials we have  14 referred to the plaintiffs' named territories.  That  15 is, of course, for reference purposes only.  I would  16 not wish it to be taken as any kind of acknowledgement  17 or admission.  18 Under paragraph one I've noted we have not  19 included in the materials federal presence documents  20 relating to airports, Indian Reserves, communication  21 sites, et cetera, because we say they are not at issue  22 in this action.  23 In this material we've not included all purely  24 administrative alienations such as school districts  25 since we say such designations do not extinguish any  26 use and occupation rights.  To meet the test for  27 extinguishment, my lord, we say the test must be use  28 to use.  It also must be actual and not potential  2 9 extinguishment.  30 We have dealt with traplines separately from the  31 bulk of this material by listing non-plaintiff holders  32 of traplines in the claim area.  This defendant  33 submits that where a trapline is held by a  34 non-plaintiff, through legislation, and that's section  35 42 of the Wildlife Act, that trapline holder or his  36 permitted designate has the exclusive right to trap in  37 the area defined by the trapline.  We say, as well,  38 the sale of a trapline by a plaintiff constitutes an  39 abandonment and will be dealt with in our argument on  4 0 abandonment.  41 However, where a trapline in the claim area is  42 acquired by a non-plaintiff, it constitutes a clear  43 extinguishment of any aboriginal right to trap.  This  44 legislative purposes of awarding exclusive trapping  45 rights in a given area under the Wildlife Act cannot  46 live with the exercise of any aboriginal right to  47 trap.  They are clearly and plainly inconsistent with 28795  Submissions by Ms. Russell  1 each other.  2 And, my lord, I will not go through this for you,  3 but for your reference at Tab VI-C following in this  4 material there is an addendum there which sets out  5 traplines registered to non-Indians within the claim  6 area.  And we have listed this by registered holder  7 alphabetically with a reference to the relevant  8 territory affected on the left-hand side under  9 territory.  And then we've done the same index a  10 second time within that tab hoping that this will make  11 it more useful to you.  Have you got it there?  12 There's a second -- it's the same index, my lord, but  13 in that second index we've simply organized the  14 non-plaintiff traplines in geographical order simply  15 attempting to go north to south.  So you should have  16 two indices within that same tab.  17 The column on the right deals with the exhibit  18 from which the trapline number and holder have been  19 derived.  Mr. Jackson has just asked that I clarify  20 that.  21 MR. JACKSON:  I was interested, my lord, in under description  22 where there is a percentage is that percentage of the  23 trapline which is affected by the --  24 MS. RUSSELL:  Thank you, Mr. Jackson.  It is the percentage of  25 the territory approximately which is covered by the  26 trapline listed beside it.  27 THE COURT:  Percentage of the territory within the trapline  28 licence?  29 MS. RUSSELL  3 0 MR. JACKSON  31 MS. RUSSELL  32 MR. JACKSON  Yes, that's right.  Thank you, my lord.  I take it that is your best estimate of the --  It is.  Is that based upon the official count or is it  33 your own assessment?  34 MS. RUSSELL:  My lord, it's based on such an official count at  35 looking at the size of the territory and trying to  36 gauge the amount of territory covered by the trapline.  37 So it is not official.  38 THE COURT:  If I dug out Exhibit 995-41A-182 I could eyeball it.  39 And I might have to look at one of the other maps, I  40 suppose.  41 MS. RUSSELL:  Yes, my lord.  I believe that's correct.  But I  42 think you would be able to find it from that exhibit  43 number.  44 THE COURT:  This is counsel's estimate as —  45 MS. RUSSELL:  Absolutely.  To borrow a term from my colleague,  46 it is our submission.  I'm sorry.  I should have  47 specified that. 28796  Submissions by Ms. Russell  1 THE COURT:  All right.  2 THE COURT:  What does the ATN stand for?  3 MS. RUSSELL:  The ATN is the trapline number.  Assigned trapline  4 number.  5 THE COURT:  Yes.  All right.  Well, now, there's an overlay that  6 shows the traplines, isn't there?  7 MS. RUSSELL:  Yes, there is, my lord.  8 THE COURT:  Superimposed on 9A and 9B?  9 MS. RUSSELL:  Yes, there is.  10 THE COURT:  Or underimposed?  11 MS. RUSSELL:  It's superimposed.  I believe it is an overlay, my  12 lord.  I should clarify, as I said, in my submission  13 this is the non-plaintiffs in the -- in fact that  14 title is incorrect.  It's not Traplines Registered to  15 Non-Indians Within Claim Area, it is Traplines  16 Registered to Non-Plaintiffs within Claim Area.  17 MR. JACKSON:  One more question.  What does minus one percent  18 refer to in terms of that column?  19 MS. RUSSELL:  My lord, I'm sorry, I don't know.  That may indeed  20 be a typographical error.  I don't know what that is.  21 I will find out and inform my friend.  22 THE COURT:  Well, there is another one at the bottom of page  2 3 two.  2 4 MR. MACAULAY:  And at the top, my lord.  25 THE COURT:  Minus one percent.  I think you have a macro problem  2 6 with your computer.  27 MR. MACAULAY:  It's the ultimate in extinguishment, my lord.  28 MS. RUSSELL:  I'll ascertain that at the break, my lord, and let  2 9 you know how that was judged.  30 I'm carrying on, my lord, back at page two of the  31 introduction, and I'm at paragraph number four.  This  32 is under tab VI-A.  33 THE COURT:  Yes.  34 MS. RUSSELL:  Page two, paragraph 4.  35 We will deal with the four municipalities in the  36 claim area separately.  And I have a short submission  37 at tab VI-D, but I will do that following this  38 material, my lord.  39 My lord, in many cases, it is impossible to state  40 whether a particular legislated use has acted to  41 extinguish an aboriginal right.  The evidence is  42 insufficient.  43 However, where a legislated use is shown to be  44 present in the claim area and could have the potential  45 to extinguish aboriginal rights, a reference to the  46 registrar would be required to deal with each site to  47 determine a factual base from which to decide if the 28797  Submissions by Ms. Russell  1 rights exercised could exist with the legislated  2 activity.  3 THE COURT:  All right.  Well, now, I've got to take you back to  4 paragraph 2 where at the end of that paragraph you say  5 "it must be actual not potential extinguishment."  6 MS. RUSSELL:  Yes, my lord.  7 THE COURT:  What do you mean by that, please?  8 MS. RUSSELL:  My lord, I think it has to be a use to use.  We  9 say, for example, a legislated use such as, oh, where  10 a tree farm licence has been granted perhaps, but  11 never used, never exercised, that until the time that  12 tree farm licence is acted upon there cannot be any  13 extinguishment.  It's, I suppose, like a floating  14 charge; it sits there, but it has not been acted upon.  15 It has not extinguished the two uses as they are not  16 yet in conflict.  17 THE COURT:  So legislation that permitted a tree farm licence in  18 an area, but with no licence yet granted would not in  19 your submission amount to legislation -- to  20 extinguishment?  21 MS. RUSSELL:  No, my lord.  That is our submission.  22 THE COURT:  But if there is a licence issued -- well, not that.  23 If there's a licence issued, but the licensee doesn't  24 do anything pursuant to the licence then still there  25 wouldn't be extinguishment?  26 MS. RUSSELL:  Yes, my lord, I agree.  27 THE COURT:  If the licensee entered into some kind of occupation  28 and management of the area then you say there would be  29 extinguishment if the two couldn't be reconciled?  30 MS. RUSSELL:  Yes, my lord.  31 THE COURT:  With the tide going to the Indians.  32 MS. RUSSELL:  Yes, my lord.  33 Going on at paragraph 7, my lord.  Our listings  34 have been taken from the province's alienation series.  35 We have not tried to list such items as -- there are  36 such things as special use permits, woodlot licenses  37 or timber sale licenses, which were too small to be  38 depicted graphically.  These items are listed in  39 Exhibit 50B of the supporting documentation to the  40 Provincial Forests Map which is Exhibit 50A.  Such  41 alienations do exist in the claim area as has been  42 indicated in Exhibit 50B and would require locating  43 and examining on the ground to ascertain the extent of  44 use and compatibility with any asserted or  45 aboriginal -- any exercised aboriginal rights, I  46 should say, my lord.  47 My lord, the next section in this material is 2879?  Submissions by Ms. Russell  1 simple, and I hope a summary of legislation of some of  2 the legislated uses which have come from the  3 alienations maps.  And I have set out these  4 explanations to, I hope, marry with the following  5 chart.  But I will go through these alienations and  6 their explanation, I hope, very quickly.  7 The timber supply designation which is set out on  8 Exhibit 48A is issued under section 6 of the Forest  9 Act.  This is really a designation only and intended  10 to assist with planning for timber management, timber  11 resource management.  It is in itself, we say, not an  12 extinguishment, it's simply a designation.  13 The next heading is Provincial Forest, and it  14 comes under section 5 of the Forest Act.  And it again  15 is used to establish boundaries of forest lands and to  16 exclude areas not suited for forest uses.  And forest  17 uses include such things as management of fish and  18 wildlife, water, grazing, general environmental  19 control and timber production.  Again, this is a  20 designation, my lord, and is in itself not an  21 extinguishment.  The same is true of public sustained  22 yield units.  23 Tree farm licenses are issued under section 27 of  24 the Forest Act.  This is a tenure of Crown land and  25 sometimes private lands in combination where the  26 licensee may harvest timber in accordance with a  27 management plan approved by the Ministry of Forests.  28 A grant of such a licence may constitute an  29 extinguishment of aboriginal rights to hunt and trap  30 where clear cutting is a term of the management plan.  31 The plaintiffs' evidence is that clear cutting is  32 highly detrimental to trapping.  There are references  33 to the plaintiffs' evidence on clear cutting at page 6  34 of Part VI of our summary of argument.  In addition to  35 those references, my lord, concerning the effect of  36 clear cutting there are additional references in the  37 evidence, and I have set some of those additional  38 references out following in the top of page four and  39 top of page five and through page five.  40 I should add, my lord, that my source for this  41 material on tree farm licenses and other designations  42 is taken from the provincial supporting material as  43 I've indicated under each item.  44 We say, my lord, that a fair summation of the  45 evidence supports a submission that clear cut logging  46 under forest tenures which allow it is a legislated  47 use which is not consistent with trapping and which 28799  Submissions by Ms. Russell  1 may also be inconsistent with hunting, according to  2 the evidence of Alfred Mitchell and of Dr. Hatler.  3 And those references are contained in the ones I set  4 out there.  5 I've also listed forest chart areas as one of the  6 alienations which is listed in the series.  And this  7 again is another designation to indicate forest  8 status.  And it's not, we say, a -- does not have  9 extinguishing characteristics.  10 There are other cutting tenures that we have not  11 listed on the charts provided.  These are:  Timber  12 sale licenses, woodlot licenses, both of which involve  13 the right to harvest timber.  And these tenures may  14 provide for clear cutting, and the comments under our  15 material and tree farm licenses apply.  16 In addition, my lord, we say that difficulty  17 exists with the forest tenures material.  We have  18 little evidence of the actual on-the-ground locations,  19 territory by territory, of logging activity.  Again, a  20 reference may be necessary to consider for each  21 territory where aboriginal rights have come into  22 conflict with the legislated use to determine if  23 extinguishment has taken place.  24 Forestry recreation sites are set out on the map  25 which is Exhibit 44A and the supporting documentation  26 is contained in Exhibit 44B.  These are dealt with in  27 section 104 of the Forest Act.  28 Section 105 of the act says that such a site shall  29 not be used for a purpose which is incompatible with  30 recreation.  And, again, my lord, this is really a  31 question of fact.  Certainly I don't believe that  32 berry picking, and we submit, is not incompatible with  33 recreation.  Hunting and trapping could be  34 incompatible with recreation, but if the rights can  35 co-exist then we say there is no extinguishment  36 through its use.  Each site and its use will require  37 examination.  38 The next topic is grazing permits.  And grazing  39 permits are mapped on Exhibit 54A and the supporting  40 documentation is in Exhibit 54B.  These are issued  41 pursuant to the Range Act and administered by the  42 Ministry of Forests.  43 A grazing lease is -- the grazing permits exist  44 mainly in the southern areas of the claim area.  45 Grazing licenses are not shown separately but under  46 the Range Act provide for longer tenures than do  47 grazing permits. 500  Submissions by Ms. Russell  1 These may not be inconsistent with aboriginal  2 rights to hunt or trap if such hunting or trapping  3 takes place at a time when cattle are not present.  4 The Wildlife Act prohibits hunting on Crown land  5 subject to a grazing lease while the land is occupied  6 by livestock.  This provision would act to diminish an  7 aboriginal right to hunt but not necessarily to  8 extinguish it.  9 Under section 5 of the Range Act it is clear that  10 grazing permits are to be part of a multiple use plan  11 for the area in which the licence or permit is issued.  12 Again, berry picking may not be affected unless by  13 the Trespass Act, section 4, which deals with the  14 enclosed lands.  15 Provincial highways.  Well, my lord, I say that on  16 lands actually dedicated to public roads and highways  17 no aboriginal rights can be exercised.  The same is  18 true for forest service roads.  On those lands  19 themselves no aboriginal rights could be exercised.  20 Section 11 at the top of page nine are the areas  21 designated for use, recreation and I should say  22 enjoyment, not employment.  23 THE COURT:  Where are you?  24 MS. RUSSELL:  Page nine, item 11.  25 THE COURT:  Oh, yes.  26 MS. RUSSELL:  Areas designated for the use, recreation and  27 enjoyment of the public.  I think our staff must enjoy  2 8 employment.  2 9    THE COURT:  Yes.  30 MS. RUSSELL:  These are contained in Exhibits 36A and 36B.  And  31 these are simply areas set aside for recreational  32 purposes such as picnicking and camping.  33 And, again, we have no evidence of actual  34 competing or conflicting uses.  35 Again, we submit that recreational uses may be  36 inconsistent with hunting and trapping but again not  37 with berry picking.  38 Licenses of occupation are licenses granted  39 pursuant to the Land Act on terms set out within the  40 licence.  41 A holder of a licence of occupation under section  42 60 of the Land Act has the remedy of trespass  43 available against an unauthorized entry, so would be  44 able to prohibit the exercise of aboriginal rights on  45 the property covered by the terms of the licence to  46 the extent of the trespass to the interest held.  This  47 right is also available to a holder of a right-of-way. iOl  Submissions by Ms. Russell  1 The terms of each licence of occupation would  2 require scrutiny to ascertain whether aboriginal  3 rights could co-exist.  4 Rights-of-way, my lord, are dealt with in the  5 Land Title Act.  And, again, each right-of-way would  6 require examination to ascertain the extent of use  7 which each entails and its consistency with the  8 exercise of aboriginal rights.  9 Guide outfitter territories you've heard a great  10 deal of evidence about.  The right to issue guide  11 outfitter licenses is set out in section 52 of the  12 Wildlife Act.  13 This legislation confers exclusive right to guide  14 for specified game species in a specific area for a  15 defined period of time and the right to guide in that  16 area as well.  17 We say, my lord, that such a use is inconsistent  18 with an exclusive aboriginal right to hunt and, if so  19 claimed, would extinguish it.  20 THE COURT:  Why is that inconsistent?  21 MS. RUSSELL:  It's the exclusivity, the nature of exclusivity of  22 that right which would be extinguished by the guide  23 outfitter right simply because the guide outfitter has  24 the clearly legislated right to be in the territory.  25 THE COURT:  So it's the exclusivity of the claimed aboriginal  26 right that --  27 MS. RUSSELL:  Yes, my lord.  28 THE COURT:  That cancels it out rather than any exclusivity of  29 the guide outfitter licence?  30 MS. RUSSELL:  Yes, my lord, that's correct.  And you'll see, my  31 lord, we say that berry picking, trapping and fishing  32 could certainly co-exist with the issuance of a guide  33 outfitter certificate.  Hunting could as well as long  34 as it's not claimed to be an exclusive right.  35 THE COURT:  Well, you say — I think Ms. Koenigsberg did say it  36 was claimed to be exclusive in the pleadings.  37 MS. RUSSELL:  I think that's correct, my lord, in the pleadings  38 it is claimed to be exclusive.  39 THE COURT:  Well, I guess the plaintiffs' evidence says it's  40 exclusive too.  41 MS. RUSSELL:  I think they have tried to assert that, my lord,  42 you're correct.  43 THE COURT:  Yet there is evidence that says these hunting rights  44 are not exclusive.  Stanley Williams I think said it  45 wasn't exclusive.  But that would go to the question  46 of whether it was a right at all then.  47 MS. RUSSELL:  Yes, that's true, it would. 502  Submissions by Ms. Russell  1 MR. MACAULAY:  Both Indian agents gave that evidence, my lord,  2 that it was non-exclusive.  That Indians and  3 non-Indians alike hunted.  4 THE COURT:  Yes.  5 MS. RUSSELL:  Provincial parks —  6 THE COURT:  Aren't you then saying that the claim to sovereignty  7 itself has wiped out the exclusive nature of the  8 aboriginal rights?  If Governor Douglas had -- if you  9 can take him as the law at the time.  I don't remember  10 now if he was governor then or not.  I think he was.  11 And if he was governor and his word is law at that  12 time, if he said anybody in British Columbia can,  13 Indian and European alike, can hunt on the waste lands  14 of the colony then your argument would wipe out the  15 aboriginal right to hunt, would it not?  16 MS. RUSSELL:  Yes, it would, my lord.  As an aboriginal right,  17 as a separately claimed aboriginal right, that is  18 correct.  Those rights are enjoyed by every citizen in  19 British Columbia.  I believe the only qualification in  20 favour of the Indians at this time is that they hunt  21 without hunting permits.  And I say that tentatively,  22 but I believe that to be the case.  23 THE COURT:  Yes.  All right.  Thank you.  24 MR. JACKSON:  My lord, in relation to the plaintiffs' evidence,  25 just for clarification, as my understanding of our  26 submissions in relation to the exclusivity, in talking  27 about exclusivity in relation to hunting, or to any  28 other incidence of aboriginal rights, we are talking  29 about exclusivity vis-a-vis other aboriginal peoples.  30 THE COURT:  Well, I'm not sure.  I suppose there's a merger that  31 comes to you, because you're also saying ownership.  32 If you say ownership that's exclusive as against  33 everyone.  34 MR. JACKSON:  Yes, my lord.  In claiming ownership we have said  35 that the pre-contact nature of the rights bespeak an  36 exclusivity vis-a-vis other aboriginal people.  37 THE COURT:  Yes.  All right.  38 MS. RUSSELL:  We would say, my lord, of course the evidence  39 indicates other aboriginal people hunt in the claim  40 area as well.  The evidence supports that.  41 THE COURT:  I have a problem there, because I don't know whether  42 a claim to exclusivity that isn't always honoured is  43 any less a claim to an aboriginal right.  The fact  44 somebody breaches it surely doesn't extinguish what is  45 claimed as an exclusive right.  46 MS. RUSSELL:  Okay.  I have to think about that, my lord.  I  47 would bring your attention, my lord, that the Burns 503  Submissions by Ms. Russell  1 Lake people and the Sekanis hunt in the claim area as  2 well.  3 THE COURT:  Okay.  Thank you.  4 MS. RUSSELL:  Moving along to provincial parks.  5 Provincial parks are dedicated to the preservation  6 of their natural environments for inspiration, use and  7 enjoyment of the public.  That's set out in the  8 beginning of the Park Act, my lord.  I believe it's  9 about section 3.  10 We say there, an analysis would be required to  11 ascertain if the assertion or the exercise of any  12 aboriginal right would be inconsistent with this  13 legislative purpose.  Again, berry picking can  14 co-exist, while hunting, trapping and fishing in a  15 provincial park may be prohibited by regulation as  16 provided in section 33 of the Park Act.  17 This regulation set out in section 33 of the Park  18 Act can also apply to recreation sites.  19 And, again, we simply do not have the evidence of  20 specific regulations governing each park in the claim  21 area, nor do we have evidence of conflict with park  22 use.  23 Survey district lots.  This provision in the Land  24 Act, section 64, provides for unregistered Crown lands  25 to be surveyed into district lots.  26 It's a survey designation to indicate land has  27 become part of the land registry system, usually for  28 purposes of alienation.  29 And, again, in and of itself, the designation does  30 not extinguish.  Where the lots are alienated then  31 those alienations extinguish, among other things  32 unauthorized entry.  33 Hunting is prohibited on cultivated land without  34 authorization.  35 The Trespass Act prohibits unauthorized entry to  36 enclosed land.  37 Where private land is held within a municipality  38 the municipality has power to make bylaws restricting  39 use of firearms which would restrict the ability to  4 0 hunt.  41 The granting of title in fee-simple conveys with  42 it a common law right to quiet enjoyment of the  43 benefit of that title.  This overriding private  44 property right, recognized in law, supersedes  45 aboriginal rights.  46 The grant of previously unalienated lands in  47 fee-simple post-1982 will be dealt with in our 28804  Submissions by Ms. Russell  1 argument on section 35 of the Constitution Act.  2 Mineral, placer and coal tenures.  Again, each  3 tenure is going to have to be considered individually  4 to ascertain if it is being exercised, if the exercise  5 of the legislated use interferes with aboriginal  6 rights, and the extent to which the opposing uses can  7 co-exist.  8 The simple presence of the mineral tenure  9 indicated on a map, we say, does not demonstrate  10 sufficiently whether such tenure acts to extinguish  11 such aboriginal rights.  12 We do have evidence, my lord, in the case of the  13 existence in Equity Silver.  And certainly on the site  14 of Equity Silver Mine and its surrounding settling  15 ponds, et cetera, I think it's safe to say that that  16 tenure would have acted to extinguish aboriginal  17 rights in the immediate area of the mine.  18 THE COURT:  You mean they can't trap on the tailing pond?  19 MS. RUSSELL:  Nor can they catch fish in the tailing pond, my  20 lord.  21 Water licenses are issued under the Water Act.  22 And, we say, they could the effect of extinguishing a  23 right to fish or to trap if the water diversion were  24 substantial.  However, here we simply do not have  25 sufficient evidence to assert a wholesale  26 extinguishment through the issuance of water licenses.  27 The final alienation I'll deal with is historic  28 sites and the telegraph trail.  And this is set out in  29 Exhibit 49.  The existence and designation of a  30 historical site can, we say, co-exist with aboriginal  31 rights unless the site so affects habitat as to  32 preclude aboriginal use.  33 There is no evidence concerning historical sites  34 and use or interference with the exercise of  35 aboriginal rights.  36 Now, my lord, I hope that will serve as an  37 introduction to the next set of material which I have,  38 and I would like to take a moment just to explain it  39 to you.  40 MR. JACKSON:  Before Ms. Russell does that, could she be so kind  41 to explain on page 12 she read to your lordship that  42 in relation to surveying lots that the granting of  43 title in fee-simple, "This overriding private property  44 right, recognized in law, supersedes aboriginal  45 rights".  That word has appeared in a number of  4 6 federal government documents.  Am I right in  47 concluding that it is in fact interchangeable for 505  Submissions   by Ms.   Russell  1 extinguishes?  2 MS. RUSSELL:  Yes, certainly.  I'm simply trying to vary my  3 vocabulary, Mr. Jackson.  Thank you.  4 THE COURT:  Are you talking now about VI-B?  5 MS. RUSSELL:  I'm talking about VI-B, yes, my lord.  Thank you.  6 My lord, this next long section, and I promise not  7 to read it to you, is our attempt to take the  8 alienation series and to set them out by territory in  9 a series of lists.  The first index that you see  10 before you, my lord, is called a Map/Chart Index, and  11 in this index you will see on the left-hand side the  12 name of the plaintiff.  The first one listed there,  13 it's listed in alphabetical order, is Amagyet/Wii  14 Eelast.  15 THE COURT:  Is that a chief's name or is that territory or both?  16 MS. RUSSELL:  I'll get to that.  That is a plaintiffs' name,  17 chief's name Amagyet/Wii Eelast.  Under that you will  18 see 24(a) L-A-X H-L-A G-A-N-T.  Lax Hla Gant.  And  19 then over to the right you'll see page 62.  This is  20 the name of the territory, my lord, Lax Hla Gant  21 claimed by the plaintiff Amagyet/Wii Eelast.  Over on  22 the right-hand side of the page you'll see a page  23 number.  If you turn into the body of this material  24 you will see we have listed -- we have -- on the  25 bottom left-hand side of this material we have set out  2 6 page numbers.  I have no idea why they didn't hit the  27 right-hand side of the page, but they're down at the  28 bottom left-hand side you see a page number.  If you  29 turn to page 62 you will see 24(a).  Amagyet/Wii  30 Eelast - Lax Hla Gant, which is the name of the  31 territory.  32 We have put the territories in the order set out  33 here, my lord, because this is the order in which they  34 have been dealt with by the plaintiffs in Volume VI of  35 their final argument.  And if you turn one, two,  36 three, four, five, six -- following page 6 of the  37 index you will see a list of houses and territories.  38 This is simply the list taken from Volume VI of the  39 plaintiffs' argument, and in the order which the  40 plaintiffs have set the plaintiff's name and the  41 territory dealt with in argument out in that volume of  42 their argument.  We have followed that format so that  43 when you are writing your decision, my lord, you will  44 have both sets of material following the same format.  45 When Mr. Wolf presents his argument on abandonment  46 tomorrow he will also follow this same order dealing  47 first with the territory of Gitludahl at Naadax De'et, 506  Submissions by Ms. Russell  1 Twin Lakes, second with Delgam Uukw with the territory  2 at Xsu Willie Wakw, Ironsides Creek, Gwinageese and  3 Sax Ge'en, et cetera as set out down that page.  4 THE COURT:  So there are 60 plaintiffs.  5 MS. RUSSELL:  And a whole bunch of territories.  6 THE COURT:  Yes.  All right.  7 MS. RUSSELL:  And, my lord, as I promised I won't read this to  8 you.  9 THE COURT:  Yes.  10 MS. RUSSELL:  But I will take you just to the first page —  11 they're daring me to read it to you.  12 The first page, my lord, which says "Gitludahl -  13 Naa Dax De'et or Twin Lakes Territory".  This is page  14 one of the body of material.  And you'll see, my lord,  15 we set out there the judge's series tab number, the  16 overlay exhibit number, which is 1247(8) for the first  17 alienation, and the map -- the six by three map  18 exhibit number which is 50A for the first category  19 there.  So that for provincial forests you can look at  20 tab 8 of your judge's series.  If you wish to check  21 both sets of maps you can look at 1247(8), which is  22 the overlay exhibit number, and you can look at the  23 big base map, six by three map at Exhibit 50A.  The  24 category of alienation is provincial forests.  And  25 under comments, my lord, these are subjective  26 submissions on what these alienations mean or titled  27 or in this case 40 percent excluded means 40 percent  28 of the territory is not included in the Skeena  29 Provincial Forest.  30 THE COURT:  Gitludahl is not the one, because that's the order  31 the plaintiffs dealt with it?  32 MS. RUSSELL:  Yes, my lord.  33 THE COURT:  But Amagyet which is first in alphabetical is at  34 page 62 because that's the way the alphabetical list  35 co-ordinates it.  36 MS. RUSSELL:  That's correct, my lord.  37 THE COURT:  But I take it that on the alphabetical list when I  38 get to Delgam Uukw I'll have page one?  39 MS. RUSSELL:  No, you'll get Gitludahl.  Gitludahl is page one.  4 0 You see down the index.  41 THE COURT:  Yes.  Thank you.  So the two indexes refer to the  42 same body of material?  43 MS. RUSSELL:  Yes, they do, my lord.  44 THE COURT:  All right.  45 MS. RUSSELL:  And I hope you that will find this helpful.  You  46 will note as you flip through it that some areas, of  47 course, have very few alienations and some have 507  Submissions by Ms. Russell  1 dozens.  Not dozens, a dozen.  2 THE COURT:  Well, looking at 2(a), page two, Delgam Uukw — oh,  3 I see.  Yes.  The two pages there are all -- are  4 all -- the first page is the Ironsides Creek.  The  5 second one is Kwinageese?  6 MS. RUSSELL:  Yes, my lord.  7 THE COURT:  And the third one is Tenas Mountain?  8 MS. RUSSELL:  Tenas Mountain.  Yes, my lord.  9 THE COURT:  All right.  10 MS. RUSSELL:  My lord, would this be a convenient time to take  11 the break?  12 THE COURT:  Yes.  All right.  13 MS. RUSSELL:  Thank you.  14 THE REGISTRAR:  Order in court.  Court stands adjourned for a  15 short recess.  16  17 (PROCEEDINGS ADJOURNED)  18  19 I hereby certify the foregoing to  20 be a true and accurate transcript  21 of the proceedings transcribed to  22 the best of my skill and ability.  23  24  25  26  27  28 Peri McHale,  29 Official Reporter,  30 UNITED REPORTING SERVICE LTD.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28808  Submissions by Ms. Russell  1 (PROCEEDINGS RESUMED AT 3:20)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Thank you.  Miss Russell.  5 MS. RUSSELL:  My Lord, I had a couple of items I wished to  6 mention.  First of all, the figures that show as minus  7 one percent.  8 THE COURT:  Oh, yes.  9 MS. RUSSELL:  I believe mean less than one percent.  In other  10 words, the trapline or the grazing permit or whatever  11 the alienation shown is -- just touches the territory.  12 THE COURT:  Where was that again?  13 MS. RUSSELL:  It's in a number of places, my lord.  You'll find  14 it -- I'm way over on page 70, but you'll find it in a  15 number of different places.  16 THE COURT:  You're on page 70?  17 MS. RUSSELL:  On page 70 there's a minus one percent.  18 THE COURT:  Oh, yes, all right.  19 MS. RUSSELL:  Grazing permits minus one percent.  20 THE COURT:  Yes, all right, thank you.  21 MS. RUSSELL:  I also wish to mention, my lord, that as far as  22 railways go, we have not listed railways, but the  23 right-of-way -- the railway itself is not an issue,  24 but the right-of-way is a Provincial Crown grant, and  25 I think is under rights-of-way.  I'm informed that by  26 my colleague, Mr. Wolf.  2 7 THE COURT:  Yes.  28 MS. RUSSELL:  I also wish to mention that this format, in the  29 way that we have set this up and the order that we  30 have set it up, is the format which Mr. Wolf will use  31 tommorrow, I did mention that, but he will be dealing  32 with the Plaintiffs' evidence on use and occupancy,  33 and we are hopeful, my lord, that this will allow you  34 to take the Plaintiffs' argument and to then have  35 evidence of extinguishment by alienation to follow  36 through on -- with these charts and to follow through  37 as well with the use and occupancy evidence which Mr.  38 Wolf will present in the same format in the same  39 order.  40 My lord, at tab VI(D) I have a short submission on  41 municipalities in the claim area.  42 The following incorporated municipalities are  43 found in the claim area.  The very small central  44 territory of Nikateen, the name of the territory is  45 Tarn Gan Gyuuxs, and this territory touches on part of  46 the district of New Hazleton.  The rest of the  47 district of New Hazleton falls within the territory of 509  Submissions by Ms. Russell  1 Spookw, and that territory is Stekyawdenhl territory.  2 It's also known as Roche de Boule.  3 The town --  4 THE COURT:  Where do I find a map of -- the most convenient  5 place to find a map of the territory of Nikateen?  6 MS. RUSSELL:  That would show up on —  7 THE COURT:  If I go to 9A?  8 MS. RUSSELL:  Yes.  If you looked at 9A you will find that.  9 THE COURT:  But 9A wouldn't show the incorporated municipality  10 of New Hazelton, would it?  11 MS. RUSSELL:  No, my lord, you would also need the overlay which  12 shows the municipalities.  sorry, I don't have that.  13 THE COURT:  There's no overlay for municipalities.  14 MS. RUSSELL:  Yes, there is, my lord.  I have it at the end of  15 the submissions Exhibit 41A and 41B.  I believe 41A is  16 the map of the municipalities.  I will get the  17 reference number for the appropriate overlay, I  18 apologize for not including that.  19 THE COURT:  Yes, all right.  And 41A and B are maps of the  20 municipalities, are they?  21 MS. RUSSELL:  The map is 41A, I believe, my lord.  41B is the  22 supporting documentation regarding the municipalities.  23 THE COURT:  All right.  24 MS. RUSSELL:  The town of Smithers is entirely within the area  25 claimed by Woos.  The village of Telkwa is also within  26 the Woos territory.  Houston is within the southern  27 territory of Wah Tah Kwets, and it also touches on the  28 claimed territory of Madeek, which lies almost  29 directly west of that southern Wah Tah Kwets  30 territory.  31 The southeastern territory of Hagwilnegh, the  32 Tseel K'ez, contains the village of Burns Lake.  Of  33 course, the Municipal Act is the relative statute  34 here, my lord.  35 On page 2:  Within the claim area, of the bundle  36 of use and occupation rights exercised by the  37 Plaintiffs, certainly hunting would be contrary to the  38 purpose of the Municipal Act, i.e. to provide for  39 orderly administration of a settled area, and allowing  40 hunting within the municipal boundaries would prevent  41 the realization of that legislative purpose.  The  42 Municipal Act provides in Section 933 (1A) that the  43 Municipality may also by bylaw regulate or prohibit  44 the discharging of firearms.  That would seem amicable  45 with hunting.  46 If trapping is asserted as an aboriginal right,  47 the same analysis would follow as with hunting.  The 510  Submissions by Ms. Russell  1 use of traps within the boundaries of a settled area  2 would be dangerous to the inhabitants.  3 Fishing would be unaffected by the Municipal Act  4 since such an activity could be carried on on public  5 property inside municipal boundaries without  6 interfering with the legislative regime outlined in  7 the Act.  8 Berry picking, too, would be permissible,  9 although, as with fishing, it could not be exclusive  10 in nature.  11 Within the municipal boundaries of the area of the  12 district of Houston, the district of New Hazelton, the  13 town of Smithers, and village of Hazelton, and the  14 villages of Burns Lake and Telkwa, the aboriginal  15 right to hunt and trap has been extinguished.  The  16 rights to fish and to pick berries may not continue on  17 private property within a municipality.  As we say,  18 they may continue on public property.  19 I've also set out for your convenience, my lord,  20 other settled areas and their corresponding  21 Plaintiffs' claimed territory along side that.  We  22 find that on page 3.  23 THE COURT:  You haven't got places like South Hazelton here.  24 MS. RUSSELL:  I don't have —  2 5 THE COURT:  And Carnaby.  26 MS. RUSSELL:  I believe those are -- oh, Carnaby I did miss.  27 I'm sorry, I just threw those in in the last moment to  28 try to list the other settled areas.  I could  29 certainly add Carnaby.  30 THE COURT:  I should add Carnaby?  31 MS. RUSSELL:  Yes, do, please.  32 THE COURT:  And what about South Hazelton?  33 MS. RUSSELL:  And South Hazelton.  I assumed South Hazelton was  34 included within the district of Hazelton.  35 THE COURT:  Oh, it might, yes.  36 MS. RUSSELL:  My friend, Mr. Plant, informs me that is correct.  37 THE COURT:  All right.  38 MS. RUSSELL:  But I will get the reference for Carnaby tomorrow.  39 THE COURT:  It may not be an incorporated area.  40 MS. RUSSELL:  No, none of these areas is an incorporated area.  41 THE COURT:  Just settled areas.  42 MS. RUSSELL:  Just settled areas.  That's why I called them  43 that.  44 THE COURT:  Is the sawmill at Houston within the village of  45 Houston?  I suppose it is.  46 MS. RUSSELL:  Houston is an incorporated area, of course, the  47 district of Houston, and as I understand it from ill  Submissions by Ms. Russell  1 reading the supporting documentation, it was largely  2 incorporated because of the sawmill.  3 THE COURT:  What about all the sawmills at Burns Lake?  4 MS. RUSSELL:  I don't know the answer to that, my lord.  5 THE COURT:  Mm-hmm.  6 MS. RUSSELL:  I'll find that out for you too.  7 THE COURT:  All right.  I suppose the Fulton River —  8 MS. RUSSELL:  Pardon me?  9 THE COURT:  I suppose the Fulton Fishery is on the — no, that's  10 outside.  11 MS. RUSSELL:  That's good, because I didn't know the answer.  12 THE COURT:  No.  It's outside the area.  All right, thank you.  13 MS. RUSSELL:  And the airport, of course, my lord, my colleague  14 asked me to mention, is not included.  It is there, of  15 course, and it is on someone's territory, I suppose  16 probably Woos, but we say it is not in issue.  17 THE COURT:  Yes.  18 MS. RUSSELL:  The last item to which I wish to refer my lord is  19 at tab VII of our summary of argument.  And these are,  20 in a narrative form, the evidence of alienations,  21 which you will find also in the chart.  22 We begin with the territory of Delgamuukw, and  23 there are three territories -- three of Delgamuukw  24 territories described in evidence.  They are, as you  25 know, Kwinageese, the Ironsides Creek territory, and  26 the Tenas Mountain territory.  27 THE COURT:  What's the difference between this and the chart  28 that you referred to?  29 MS. RUSSELL:  There is no difference, my lord.  This is simply a  30 narrative form.  31 THE COURT:  All right.  32 MS. RUSSELL:  And I've attempted to set it out and reference it  33 in many cases to the evidence of witnesses.  34 THE COURT:  The chart, as you call it, is 7B, is it?  35 MS. RUSSELL:  It's 6B, my lord.  36 THE COURT:  I'm sorry, 6, yes.  Thank you.  37 MS. RUSSELL:  In Kwinageese the only significant alienation  38 appears to be a guide outfitter certificate issued to  3 9 a Mr. McGowan.  40 The Ironsides Creek territory has been logged  41 extensively, according to Mr. Muldoe, and there are  42 approximately eight registered traplines which cover  43 parts of this territory.  Of the eight, only one is  44 registered to a member of the House of Delgamuukw.  45 Additional logging has taken place in the Ironsides  46 Creek territory around Mitten Lake and on the west  47 side of the Kispiox River.  Jeff Harris stated in a 512  Submissions by Ms. Russell  1 1987 letter to Rae Mclntyre that one reason he had to  2 stop trapping his trapline recently was because of  3 excessive logging.  Mr. Muldoe also admitted that  4 there are many farms in the valley in this area and  5 that there is a recreation site at Mitten Lake.  6 A number of alienations have been made within the  7 Ironsides Creek territory, since it lies within the  8 Kispiox Valley and is not particularly remote.  Some  9 of the land along the Kispiox River is privately owned  10 and there is a highway along the river known as the  11 Kispiox Road.  A forest service road follows the route  12 of the old telegraph line as far as Deep Canoe Creek.  13 The Yukon Telegraph Trail is an historic site.  14 There are three recreation sites:  One at  15 Elizabeth Lake and two on the Kispiox River on the  16 southern border of the territory.  17 There is a guide-outfitter certificate issued  18 which affects the Ironsides Creek area, to Dr. Igor  19 Steciw.  Given the large amount of logging in this  20 territory, it is safe to assume that there are many  21 logging roads constructed off the main Kispiox  22 Highway.  23 Tenas Mountain.  Mr. Muldoe testified that there  24 are farms in the area.  25 Much of this territory is taken up by Indian  26 Reserves, but there is heavy use of the territory by  27 both Indians and non-Indians.  The main Kispiox Road  28 up the valley travels along the left bank of the  29 Kispiox River through this territory.  Exhibit 43A,  30 the map of the provincial highways, depicts a number  31 of other roads in the area.  Most of the territory not  32 covered by Indian Reserves is divided into district  33 lots, many of which are privately owned.  There is a  34 forest recreation site on the lower Kispiox River,  35 which comprises nine acres.  Dr. Igor Steciw holds the  36 guide-outfitter rights to the area and there is a  37 forest service road leading to a fire lookout on Tenas  38 Mountain.  39 THE COURT:  Well, now some of those farmers in that area, does  40 the Love(?) family live there?  I think they do.  41 MS. RUSSELL:  I'm sorry, I don't know.  42 THE COURT:  Would that be that you referred to —  43 MS. RUSSELL:  The district lots.  44 THE COURT:  Yes.  Would it show whether they've been alienated  45 or not?  46 MS. RUSSELL:  I don't believe so, my lord.  47 THE COURT:  That's Exhibit 39A.  You say survey district lots, 513  Submissions by Ms. Russell  1 that wouldn't show.  2 MS. RUSSELL:  It doesn't indicate actually alienation of each  3 district lot.  And I'm afraid that's another of those  4 situations where there would probably have to be some  5 sort of reference.  6 THE COURT:  All right.  7 MS. RUSSELL:  The next house is Luutkudziiwus, and he claims two  8 territories:  The Madii Lii, Suskwa River territory,  9 and the Xsigwinha'uums, Hazelton Creek territory.  10 About the Suskwa River territory, Walter Wilson  11 testified that there is a forest service road up  12 Natlan Creek to "near the ridge".  His evidence  13 indicated as well that there has been logging in the  14 general area of the Luutkudziiwus territory, but there  15 is no direct evidence of logging on the land claimed  16 by Luutkudziiwus.  17 The evidence in the provincial alienation series  18 of maps indicates that "Nine Mile Road" crosses part  19 of this territory.  There are a small number of lots  20 along the Suskwa River across from the mouth of Harold  21 Price Creek.  Dr. Igor Steciw has guide-outfitter  22 rights to this area.  There are forest service roads  23 in the area of the Suskwa River.  24 The second territory is the Hazelton Creek  25 territory.  Due to its proximity to Hazelton and the  26 Skeena River, the Hazelton Creek territory has  27 sustained a moderate to a high level of development.  28 The eastern third of the territory is surveyed into  29 district lots.  Logging has occurred on this territory  30 and there is no evidence of consent to this by  31 Luutkudziiwus.  Neil J. Sterritt gave evidence about  32 his grandfather's cedar pole operation in the area.  33 Mary Moore testified that Thomas Brown was on the land  34 making poles.  There are numerous roads in the  35 southern and eastern portions of the territory,  36 including Highway 37 on the right bank of the Skeena  37 River.  The alienations maps indicate, among others,  38 the following instances of extinguishment:  There are  39 two recreation sites, one on the bank of the Skeena  40 and one at Keynton Lake.  There are also two  41 rights-of-way granted.  District lots cover about  42 one-third of the territory.  Dr. Igor Steciw has  43 guide-outfitter rights to the area.  And there is a  44 mineral tenure which has been granted in a small area  45 along the bank of the Skeena.  46 Moving on to the House of Wii Gaak.  Wii Gaak  47 claims two territories:  The An Gil Galanos and Xsu 28814  Submissions by Ms. Russell  1 Wii Ax, or the Mosque Mountain/Sustut River territory,  2 and Xsi Min Anhl Gii, the Barker Creek territory.  3 THE COURT:  You're just sampling some of these here, are you?  4 MS. RUSSELL:  Yes, my lord, I am.  Mr. Wolf's evidence tomorrow  5 will be much more detailed but will set out the  6 evidence of abandonment from the evidence in this kind  7 of format.  8 The major alienation in the Mosque Mountain/Sustut  9 River territory is the right-of-way of the British  10 Columbia Railway, which goes along the north bank of  11 the Sustut River and the left bank of the Skeena  12 River.  James Morrison testified that the rail line  13 goes as far as the Mosque River.  Neil B. Sterritt was  14 also aware that the B.C. Railway travelled through the  15 Xsu Wii Ax area.  Mr. Sterritt testified to the  16 existence of a fishing lodge on the Sustut River and  17 of a cabin in the Birdflat Creek area.  Thomas Wright  18 testified that he travelled with whites who were  19 prospecting in this territory.  Provincial map 14  20 shows that there are four significant blocks of land  21 in the Motase Lake/Squingula River area subject to  22 some form of mineral tenure.  23 Dr. Steciw's guide-outfitting territory includes  24 the north-eastern and northern section of the Xsu Wii  25 Ax area.  He reacquired rights to this territory in  26 1977.  27 Dr. Steciw testified that Reg Collingwood, another  28 guide-outfitter, has a camp at Sicintine Lake.  Dr.  29 Steciw has also seen another of Collingwood's cabins  30 at Motase Lake.  31 There are a number of other alienations indicated  32 on the maps.  There is a license of occupation at  33 Motase lake.  D. Robertson, in addition to Dr. Steciw  34 and Reg Collingwood, has a guide-outfitter certificate  35 for part of this area.  36 The next one is the Barker Creek territory.  Dr.  37 Steciw's guide-outfitter area includes the Barker  38 Creek area.  The certificate which was marked as  39 Exhibit 1082 gives Dr. Steciw the exclusive right to  40 guide in the named area.  He acquired this area in  41 1977 and began flying hunters into the area  42 immediately.  He used the Chipmunk Creek landing strip  43 to gain access to this remote area, which has no roads  44 into it.  In 1978, he flew in and prepared a camp at  45 the mouth of Foster Creek.  That same year, Dr. Steciw  46 said he built trails up Foster Creek and, in addition,  47 built a small "fly camp" at the headwaters of Foster 515  Submissions by Ms. Russell  1 Creek.  In the spring of 1978, he flew in clients and  2 hunted along the shores of the Skeena River between  3 Foster and Chipmunk Creeks.  In the spring of 1979, he  4 guided hunters into the Chipmunk Creek area and in the  5 spring of 1980 he guided bear hunters along the same  6 area he had guided on in 1978.  In 1984, he conducted  7 a spring bear hunt on Foster Creek.  He also said that  8 he flew up Barker and Cutfoot Creeks many times.  At  9 no time was he told that he needed the permission of  10 Neil B. Sterritt to use this area.  11 The next house is Smogelgem, and, of course, it is  12 a Wet'suwet'en house.  13 There are five territories claimed by the House of  14 Smogelgem.  They are Harold Price Creek, the Perow  15 territory, Parrott Creek, McQuarrie Lake, and Clore  16 Creek.  17 In the Harold Price Creek area, the only use  18 listed on the provincial alienations maps is shown on  19 map 13 and indicates that a G.M. McTague holds the  20 guide-outfitter certificate for the area comprised of  21 the Harold Price Creek territory.  22 In the Perow territory, as you would guess, my  23 lord, there is substantial alienation that has taken  24 place.  There is a grazing permit issued for the  25 south-west corner and guide-outfitter certificates  26 issued to Barnet and Fontaine.  These divide the  27 territory.  There are two highways close to the  28 southern border, a number of district lots and a  29 license of occupation in the south-east corner of the  30 territory.  In addition, there is a petroleum and  31 natural gas permit issued for the north-west corner  32 and another issued for the eastern portion of the  33 territory.  A small area of the south-west corner is  34 subject to a minerals tenure.  Finally, there is a  35 registered trapline held by two non-Indians -- two  36 non-plaintiffs that should read, my lord -- that  37 covers approximately 20 percent of the territory.  The  38 holders' names are Gerald and Glen Ewald.  39 The next territory is the Parrott Creek territory.  40 The alienations evidence for this territory indicates  41 that grazing permits cover a large area along Parrott  42 Creek and part of the south-east portion.  A  43 guide-outfitter certificate is held by H.S. Cowan.  44 There are two highways indicated, both on the north  45 shore of Francois Lake.  District lots and a  46 recreational site are located on the north shore of  47 Francois lake.  Also, there are three licences of 516  Submissions by Ms. Russell  1 occupation along the north shore of Francois Lake.  A  2 minerals permit has been granted for a small area in  3 the west-central portion of the territory.  This area  4 is entirely taken up by traplines owned by  5 non-plaintiffs.  The holder names are Westgard, Cowan,  6 Husband, and the following three overlap the territory  7 somewhat:  Mentzner, Harrison, and Henson and Fuller.  8 A review of the McQuarrie Lake territory indicates  9 that substantial portions through the middle of the  10 territory have been alienated.  Approximately 40  11 percent of the central area is taken up in district  12 lots.  Most of the western half of the territory is  13 taken up with grazing permits and there is, as well, a  14 small one located in the central area.  Two  15 guide-outfitters, Barnet and Mclntyre, have rights  16 which comprise the entire area.  There are five  17 highways indicated.  There are six recreational sites,  18 one license of occupation and seven rights-of-way.  A  19 large area in the east central portion of the  20 territory is covered by a minerals claim.  H.W. Kerr  21 and Terry Olson are non-plaintiffs who hold a  22 registered trapline which overlaps part of the  23 territory.  24 Clore Creek is the next territory, my lord.  This  25 is a very isolated territory on the western boundary,  26 as you will recall, my lord.  The area is divided  27 between two guide-outfitter certificates held by  28 McGowan and D.W. Mclntyre.  However, the territory is  29 completely subsumed by a non-plaintiff trapline, the  30 rights to which Mr. Charles Skinner holds.  He  31 acquired the trapline by sale from Rose Brown, the  32 Indian holder of rights, in 1945.  33 The next house, my lord, is Goohlaht.  Goohlaht  34 has claimed six territories and they're listed below:  35 Uncha Lake, Whitesail Lake, Andrews Bay, Tahtsa Lake,  36 Nanika Lake, and Blunt Creek.  37 The Uncha Lake territory reveals a large number of  38 uses and alienations inconsistent with the continued  39 assertion of an aboriginal right.  There are 20  40 recreational sites indicated in the alienations maps.  41 There are six licenses of occupation and one  42 right-of-way.  Ninety percent of the territory around  43 Uncha Lake is divided into district lots.  Again, this  44 is our assessment.  There are four highways in the  45 area.  Three guide-outfitter certificates intersect  46 the Uncha Lake territory.  There are several grazing  47 permits issued.  The Federal Government has 517  Submissions by Ms. Russell  1 Departments of Fisheries and Transport wharves on  2 Francois Lake.  Since this is a large territory, there  3 are 17 traplines registered.  Of those 17 traplines,  4 only four appear to be held by Native trappers.  These  5 Native traplines cover approximately five percent of  6 the Uncha Lake territory.  7 Whitesail Lake.  Thomas K. Morris gave evidence  8 about this territory.  The alienations indicated on  9 the map series are as follows:  There are two licenses  10 of occupation, some district lots indicated in the  11 north-east portion of the territory on the lake, a  12 guide-outfitter license issued to H.B. Van Horlick,  13 and five traplines indicated, only one appears to be  14 held by a Native person.  15 Mr. Morris indicated at page 13 of Exhibit 671A  16 that the last remaining trapline, Native trapline, had  17 been sold in 1987 by his nephews to a non-Indian  18 person.  19 The next territory is the Andrews Bay territory.  20 The alienations map which covers the territory to  21 which Mrs. Irene Daum gave testimony, indicates the  22 following uses and alienations which would be  23 inconsistent with the exercise of aboriginal rights.  24 There are three recreation sites listed on map 3 in  25 the alienations series, with one license of occupation  26 shown.  There are a few district lots indicated in the  27 south-east corner of the territory on Ootsa Lake.  Two  28 guide-outfitter certificates have been issued for the  29 territory and are held by J.R. Goudreau and S.  30 Blackwell.  There are seven traplines which cover the  31 claim area, of which three are held by non-plaintiffs.  32 Tahtsa Lake.  The alienations evidence on the  33 territory testified to by Elizabeth Jack is as  34 follows:  There is one license of occupation located  35 on the territory and four small district lots.  36 Guide-outfitter licenses to this area are held by S.  37 Blackwell and H.B. Van Horlick.  Approximately 30  38 percent of the area is covered by mineral permits.  39 There are four traplines listed as on the area, three  40 of which appear to be held by non-plaintiffs.  41 Nanika Lake is the next territory, my lord.  Jimmy  42 and Stanley Morris provided evidence about this area.  43 The alienations indicated on the map series show a  44 guide-outfitter certificate held by Barbara Peden and  45 a minerals permit which covers approximately 15  46 percent of the territory.  Of the four traplines held  47 in the territory, one is held by a non-Native by the 51?  Submissions by Ms. Russell  1 name of Harvey Scott.  2 THE COURT:  Does that mean non-plaintiff?  3 MS. RUSSELL:  Non-plaintiff, sorry.  4 Blunt Creek.  The alienations maps for this area  5 indicate the presence of a small number of district  6 lots, a highway, and a guide-outfitter certificate  7 held by G.M. McTague.  Clear-cut logging took place in  8 the 1960's along the western and southern parts of the  9 territory.  This is from the evidence of Alfred  10 Mitchell.  Logging continues in the area.  11 That concludes my submissions, my lord.  12 THE COURT:  All right, thank you.  What time do you want to  13 start tomorrow?  14 MS. RUSSELL:  At ten o'clock tomorrow, my lord, please.  15 THE COURT:  All right.  And you know we have to adjourn for the  16 day at 12:30.  17 MS. RUSSELL:  Yes, I do, my lord.  18 THE COURT:  All right, thank you.  19 THE REGISTRAR:  Order in court.  Court stands adjourned until  20 ten o'clock tommorrow morning.  21  22 (PROCEEDINGS ADJOURNED)  23  24 I hereby certify the foregoing to be  25 a true and accurate transcript of the  26 proceedings herein transcribed to the  27 best of my skill and ability  28  29  30  31  32 Graham D. Parker  33 Official Reporter  34 United Reporting Service Ltd.  35  36  37  38  39  40  41  42  43  44  45  46  47

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