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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-23] British Columbia. Supreme Court Apr 23, 1990

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 24944  Submissions by Mr. Adams  1 Smithers B. C,  2 April 23, 1990.  3 THE REGISTRAR:  In the Supreme Court of British Columbia, this  4 23rd day of April, 1990.  Delgamuukw versus Her  5 Majesty the Queen, at bar  6 THE COURT:  Mr. Adams.  7 MR. WILLMS:  My lord, I have one point that I advised my friend  8 of before this morning and I don't want my friend to  9 say that he is taken by surprise when we advanced this  10 point later, but on Friday my friend said that there  11 were two points that they were going to deal with in  12 reply:  One is where did the Hot-sett people live, did  13 they live at Moricetown and did they live at Hagwilget  14 and when did they live there and he said that would be  15 dealt with in their reply.  He also said there was a  16 great deal of evidence about territoriality in  17 addition to beaver territoriality and that that would  18 be dealt with in reply.  And as I advised my friend  19 before court started this morning, it is our position  20 that that is part of their case, where the Hot-sett  21 people lived is part of the plaintiffs' case, what  22 territoriality they had at the time of contact is part  23 of the plaintiffs' case, and that if my friend has  24 further references to evidence which he says support  25 their assertion that there was something more than  26 beaver territory at that time, he should bring it out  27 as part of his case and he can't save it for reply.  28 So I just wanted my friend to know that, my lord, so  29 that there wouldn't be a surprise when we object to  30 any additional supplement by reply.  31 THE COURT:  All right.  Mr. Adams?  32 MR. ADAMS:  My lord, just to address that point for a moment,  33 first of all the two issues are things that are raised  34 in the defendant province's argument and, therefore,  35 in my submission, will be appropriate subjects of  36 reply.  It's not possible to know in advance  37 everything that may turn out to be an issue as far as  38 the defendant is concerned, and it would take far  39 longer than we have in our main argument to deal with  40 everything that might come up of that character.  I  41 said a little bit about them on the way by on Friday  42 so that they were clearly identified as issues and  43 would not be neglected in my friend's argument, and  44 therefore subject to anything your lordship may rule,  45 I do intend to come around to them again in my written  46 reply.  47 THE COURT:  Well, I don't think I can deal with this now. 24945  Submissions by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. ADAMS  THE  MR.  THE  MR.  THE  MR.  COURT  ADAMS  COURT  ADAMS  COURT  ADAMS  You're both on notice of each other's positions.  I  can say that I propose to be brutal on reply, after  this length of time, I am going to hold you to three  days, I think it's three days, on reply.  And you will  have that much time to use profitably or wastefully,  as you may be advised.  I don't think that I want to offer any advice at  all as to what is your case and what's your friend's  case at this point.  I will deal with that when the  time comes.  My lord, in the written argument on the Gitksan and  Wet'suwet'en societies at contact I had reached page  56, which is the beginning of section B.  I am sorry, you're on page 56?  56.  Is that the front or the back of this book?  It will be the back of that volume, I believe.  Yes.  Thank you.  And what this section of the argument does, in  general, is to contrast the evidence including  evidence that I referred to at length on Friday, with  the opinion evidence rendered for the defendant  Province by Dr. Sheila Robinson.  And in the first  paragraph on page 56 I set out, in very summary form,  the nature of the joined issue before you as to  whatever the shape of these societies was at contact  and where it came from and how long it had been there.  And the suggestion there is that Dr. Robinson's  argument is that Wet'suwet'en social and political  institutions were borrowed from the Gitksan and that  in turn the Gitksan institutions were borrowed from  the coast and the coastal societies developed their  distinctive cultural features as a consequence of the  maritime fur trade.  And what we say in the second  paragraph is that this proposition is controverted by  considerable historical, linguistic and  anthropological evidence and it is that evidence that  I propose to review briefly today.  We say that that evidence supports the plaintiffs'  assertions that concepts of Gitksan and Wet'suwet'en  ownership and jurisdiction pre-date both the assertion  of sovereignty by the Crown and pre-date the European  fur trade.  That brings me to the top of page 57, back to the  documentary historical baseline and you will recall  that this is what we say Professor Ray provided.  And  in his evidence Professor Ray addressed this question 24946  Submissions by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  of methodology and historical reconstruction and  historical reconstruction referring to efforts to  infer what may have been present and for how long a  time and from what causes in the absence of direct  information of the kind that we say in the Brown and  Harmon and other documents.  I say that Dr. Robinson  undertook her opinion and so did the people upon whom  she relies in the ansence of this baseline.  And I  have a quote set out there in the middle of page 57  from Professor Ray's evidence:  "And it was the weight of archival evidence, the  kind of evidence we have given you here, and I  would point out that the ethnographies done in  B.C. have never used the Brown material.  So  they have never established a good base line to  begin their work.  We have now given you one  and that's where it has to start."  And we say, again, in the final paragraph on that  page that there is no adequate substitute for actual  recorded observations and that Professor Ray's  research has made the Hudson's Bay material accessible  and that any theoretical reconstruction has to take  account of and make sense of the information in those  records.  And rather than take account of and make  sense of that information, it's our position that Dr.  Robinson insisted in so many words in the face of  Professor Ray's evidence, the documentary record  remains virtually mute.  And there is a reference set  out there but I want to actually read the somewhat  longer passage from it and it's from volume 290, it's  part of Dr. Robinson's cross-examine.  :  This isn't from the passage on page 58?  :  It's not.  And this is beginning at line 15 of page  21730.  And it's actually line 16, Mr. Grant asked Dr.  Robinson -- quoted from her documents:  "Although a good deal has been written about  'impact of the white man' most of this material  is conjectural.  This is particularly the case  for groups such as the Gitksan and Wet'suwet'en  about whom the early written records are  virtually mute.  And he asked her: 24947  Submissions by Mr. Adams  1 "Q  Do you mine contain that view today?  2 A   Yes, I do."  3  4 And the question was put to her:  5  6 "Q   Brown, Harmon and Ogden are not mute, are they?  7 A  Well I used used the word virtually mute, and I  8 think their contributions are -- although they  9 are the earliest descriptive histories for  10 those areas, their contributions are relatively  11 few and the kinds of data that are present in  12 those early journals are relatively limited so  13 I stand by the word virtually mute or the words  14 virtually mute."  15  16  17 Now, my lord, in my submission that statement  18 simply can't stand in the face, not only of the volume  19 of material that was put in front of you through  20 Professor Ray, but the precise nature of the material  21 that it speaks directly to the economies and  22 societies, to the geography of the area, to the  23 animals that are present, to the topography of the  24 land, all the things we say ought to have been of  25 greatest possible interest to a cultural geographer  26 instead were simply dismissed or ignored.  27 I am at the top of page 58 and speaking more  28 generally about the nature of Dr. Robinson's opinion,  29 and her own introduction to here opinion report,  30 Exhibit 1189-1, says that it is a review and and  31 interpretation of existing information largely  32 contained in secondary sources.  33 And that is contrasted at the bottom of page 58  34 with the approach that Dr. Robinson herself in her  35 doctoral dissertation had advocated, and there is a  36 quotation from that at the top of page 59 where she  37 says this:  38  39 "Coming to grips with what is and what is not  40 contained in the ethnographic and early  41 historical records is a necessary precondition  42 for further general theoretical  43 investigations."  44  45 And it's that coming to grips with what is in the  46 early historical records that, in our submission,  47 Professor Ray did and Dr. Robinson did not. 2494?  Submissions by Mr. Adams  1 Now, there is a further methodological critique in  2 Dr. Robinson's dissertation, and it's to be found at  3 volume 289 at page 21692, and that I also wish to  4 quote from briefly.  And, again, this is in her cross-  5 examination.  And Mr. Grant put to her a quotation  6 that she had included from an unpublished M.A. or PhD  7 thesis, and I am now at line 14 of 21692, and this is  8 Dr. Robinson quoting somebody else and  9 as well see criticizing it.  This person  10 had written:  11  12 "When the documents are silent I have chosen to  13 rely on inference or speculation to provide an  14 anaylsis that is systematic rather than  15 piecemeal.  Taking these liberties is, I  16 believe, scientifically justifiable in that it  17 provides hypotheses that can be tested by  18 future documentary and/or field research."  19  20  21 And then she carried on, and this is the criticism,  22 now at line 25:  23  24 "It is the layers upon layers of similar  25 attitudes which have led to the current  26 situation: there are many contradictory  27 theories about the nature of traditional  28 Northwest Coast Indian cultural organizations  29 and about the impact or early European contact  30 on these which are still unexplained, let alone  31 resolved."  32  33 Going down to line 44, again this is Dr. Robinson  34 being quoted to herself:  35  36 "Piecemeal reconstruction of particular  37 developments is perhaps a tedious route to  38 scholarly enlightenment, but eventually leads  39 to more easily substantiated and probably more  40 appropriate hypotheses."  41  42 And upon obtaining her agreement with that  43 statement at the time of giving her evidence, Mr.  44 Grant went on to ask her:  45  46 "And it's in keeping with the works of scholars  47 who stress that the anaylsis of cultural 24949  Submissions by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  processes is not always amenable to rigid  theoretical treatment because historical  records may yet yield unanticipated yet  illuminating data."  Again again she indicated that she agreed with  that statement, that it was applicable to the study of  the proto-historic, pre-historic and historic periods.  Again, my lord, we say that's precisely where Dr.  Robinson fell off the boat in rendering her opinion  for this case, because she was no longer persuaded  that piecemeal reconstruction of particular  developments was important, the grand theoretical  scheme overtook the facts and proceeded not only in  ignorance of the facts in some cases, but in direct  opposition to them.  Now, one of the critical facts that Dr. Robinson  apparently relied upon in coming to her judgments  about the impact of European influence in general and  the European fur trade in particular, was her note of  the fact that there were European goods coming inland  from the coast in the 1790s.  That's set out in the  second full paragraph on page 59.  And the reference  is given.  Now, in my submission, my lord, she should have  been very interested in the indications in Harmon, in  the period 1810 to 1812, in Brown in 1822, and  McGillivray in 1833, that European goods were  relatively scarce.  And I simply refer back to my  argument from Friday, pages 45 through 49, that deals  with the question of the relative scarcity of European  goods.  :  What pages, please?  :  45 through 49, my lord.  Now, the thrust of Professor Ray's evidence of a  pre-contact, fully articulated feast system with house  territories and family heads, and the reference that's  missing there for the quotation should be pages seven  and eight above.  Dr. Robinson simply --  :  Sorry, seven and eight of the argument?  :  Of the argument, yes, that's correct.  Dr. Robinson dismissed that as a proto-contact  Europeanized social phenomenon, so if the problem from  her point of view with the records wasn't that they  didn't say anything, that is that they were virtually  mute, it didn't matter what they said because that  society had been created in a flash by the fur trade 24950  Submissions by Mr. Adams  1 anyway.  2 And then beginning on page 60, I go to another  3 section that documents to some extent, the selectivity  4 with which Dr. Robinson chose to use or not use data  5 from the immediate area and from the more general  6 north coast and interior region.  And our submissions  7 are set out there, that where it was convenient and  8 fit with her thesis, she used data from wherever she  9 could find it and where it didn't she distinguished it  10 on the basis that it wasn't applicable to that area.  11 And there is an example discussed at the bottom of  12 page 60, going on over to page 61, where it's clear in  13 the highlighted portions that she was being exposed to  14 information, for instance, that quoted from Darling,  15 that there war no evidence that patterns of land use  16 and land ownership were altered by post-contact  17 developments.  And further in the next highlighted  18 passage, there was a remarkable conservativism in  19 maintaining traditional boundaries and concepts of  20 territorial perogatives, despite considerable  21 interference from the Europeans.  There was some  22 discussion about whether she was reporting or adopting  23 those statements and then her own statements quoted,  24 towards the bottom of 61, was that:  25  26 "Highly developed patterns of territorial  27 ownership, as well as the emphasis on riverine  28 resources thus impeded the expansion or  29 extension of agricultural organizations, both  30 pre-historically and in the early historic  31 period."  32  33  34 And then another passage, on to 62 that's  35 highlighted was put to her, this was from her thesis,  36 and this is Dr. Robinson herself writing:  37  38 "Land and waterways containing culturally valued  39 natural resources were owned by house groups  40 and clan divisions.  Procedures for securing  41 rights to these resource areas, as well as for  42 protecting them against trespass were commonly  43 recognized and reinforced in various  44 institutionalized ways.  These concepts of  45 property rights and ownership provided  46 interacting groups with with the basis for  47 dealing peacefully and competitively with the 24951  Submissions by Mr. Adams  1 uneven distribution of natural resources."  2 And then in the next highlighted passage she goes  3 on:  4  5 "Operating in conjunction with these rules or  6 resource ownership to provide social groups  7 with relatively secure access to basic  8 resources were elaborate exchange  9 institutions..."  10  11  12 Now, my lord, the evidence ground to a halt on that  13 point because Dr. Robinson wasn't satisfied that the  14 footnote to that passage referred to anyone in  15 particular, and she expressed at least one possibility  16 that it was confined to the Tlingit and in fact and  17 the references given at the bottom of 62, it was  18 Professor Duff speaking in general about B. C.  19 Indians.  20 And I might say, my lord, it sounds strikingly like  21 the evidence that you heard on Friday coming out of  22 Brown, that passage that Dr. Robinson wrote as part of  23 her dissertation could be applied, with very little  24 change, to the societies you heard about in the early  25 years of the 19th century.  26 But -- and we make this point on page 63, that in  27 this case Dr. Robinson didn't want to apply that  28 general statement to the Gitksan and Wet'suwet'en.  29 And the closest she came, in my submission, to giving  30 a reason for that was simply to assert that their  31 societies weren't that complicated.  32 Now, there is a further example given at the bottom  33 of page 63 and going on to 64, when Dr. Robinson was  34 faced with analyzing the details of the Gitksan and  35 Wet'suwet'en societies in their environment, she  36 preferred to stress general regionality and broader  37 themes.  Then there is a passage set out from her  38 cross-examination.  And what she was asked was:  39  40 "If you have data on the subject community that  41 you are studying, or the society in its  42 relation to the environment, that data you  43 would certainly look to in developing your  44 theory about that society."  45  46 Now that sounds too obvious for words my lord, but  47 the answer is "not necessarily." 24952  Submissions by Mr. Adams  1 That brings me in the next section beginning on  2 page 64, of the particular issue of the impact of the  3 fur trade and that's something covered out of the  4 Hudson's Bay records on Friday and something that I  5 will try to bring a variety of other evidence to bear  6 on today.  7 Now, it was clear that Dr. Robinson was not by any  8 means a specialist on the Gitksan and Wet'suwet'en,  9 not second hand through secondary sources and not by  10 ever having done any field work anywhere with anyone.  11 That put her in the position of having to rely heavily  12 upon the assumptions and conclusions of other  13 scholars.  But even there we say she was highly  14 selective and the centre piece, as far as her reliance  15 upon another scholar, was Kobrinsky, and to a lesser  16 degree, Charles Bishop.  And it was upon Kobrinsky she  17 relied for the proposition set out on page 65, and  18 particularly on the last few lines of the quote where  19 she says:  20  21 "Kobrinsky asserts that precise delineation of  22 territorial boundaries relating to the  23 allocation of rights to fine-fur species was a  24 by-product of the fur trade."  25  26 She went on to testify in chief, and the reference  27 there should be corrected to read page 21643 to 21644,  28 that she relied upon Kobrinsky for the proposition  29 that the territorial concepts, as well as the  30 matrilineal House and clan structure of the  31 Wet'suwet'en and other neighbours were generated by  32 the fur trade and by the peoples desire and  33 opportunity to control access to a market commodity -  34 fine furs.  35 And then there is a reference to Bishop and then  36 going on to page 66, Dr. Robinson did in this  37 instance, refers ot the Hudson's Bay journals, looking  38 there for a connection between the beaver and  39 individual ownership and suggesting, in essence, that  40 it was the value of the beaver for the fur trade that  41 was creating an interest in conserving beaver and  42 therefore creating an interest in territoriality.  43 Professor Ray had already addressed that question that  44 there was a connection evident between conservation  45 between of fur bearers and market value.  Because the  46 indication that Professor Ray found in the record was  47 that the territoriality applied to, for example, 24953  Submissions by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE COURT  MR  THE COURT  MR. ADAMS  marten, might not have been of the same order as that  applied to beaver and he pointed out that marten had a  higher relative value.  So that those things couldn't  sit squarely together.  WILLMS:  Sorry, my lord, if my friend could give me a  reference to where Dr. Ray said there was any  territoriality about marten I would be -- I would  appreciate that.  I don't recall that from any of Dr.  Ray's evidence about marten territoriality.  I wonder if it came from someone else?  WILLMS:  Wherever it came from, I would be delighted to have  the reference.  I don't remember it at all, but there may have been  such a reference.  I will pursue it and supply it if I can, to suit my  friend.  The point, my lord, would stand if there was no  reference whatsoever to marten territoriality it would  be the strongest if there was none, because the fact  would be that you would have territoriality with  respect to one animal and no territoriality with  respect to another, with a higher value.  So it  couldn't very well be its value to the fur trade that  was creating the territoriality.  That's the point  here.  And then on the bottom of page 66, Professor Ray  had taken up another of Dr. Robinson's contentions,  that is, that depletion as a consequence of the fur  trade is somehow instrumental in the creation of these  boundaries. And in the second half of the quote on  page 67, Professor Ray says:  "Now, if you're going to argue depletion and  draw parallels to the eastern fur trade,  depletion usually spreads out from the initial  area of access.  So you would expect the most  depleted area to be the closest to the coast.  It isn't.  So I think that's another problem  with the thesis."  Now I am go on in the middle of page 67 to say that  Professor Ray found in the Hudson's Bay records of the  1820s, two additional reasons for conservation and  territoriality independent of the European fur trade  and the first of those was the relative scarcity of  game in the region, generally; and the second was the 24954  Submissions by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  importance of beaver for feasting.  And in the  highlighted passage at the bottom of page 67, he says:  "Regarding the husbanding of this resource, it  should be pointed out that the main concern of  the Babine and Wet-suwet'en 'nobles' was not in  securing the pelts for exchange.  Beaver  conservation was practised to make sure that  adequate supplies of beaver meat would be  available for feasting.  At least among the  Carrier groups the fur trade merely provided an  additional incentive for conserving this  resource, a resource that was not naturally  abundant when compared to the fur-producing  regions to the eastward.  Without careful  management, depletion through overharvesting  would have taken place."  The implication, my lord, is that the feasting was  going on before the fur trade came and that that was a  reason before the fur trade got there to be operating  territories.  THE COURT:  This is Dr. Ray, is it, giving this evidence at the  bottom of page 67?  MR. ADAMS:  Yes, and I notice now that I get to it that the  volume number is omitted.  It will be in his direct  evidence.  I will find the volume number and put it in  this version of this.  THE COURT:  I don't — it was only last Friday but I don't  recall Dr. Ray having said that or having pointed to  references in the notes to conserving beaver.  Is  there a reference to that in Brown's notes?  MR. ADAMS:  There were references in both Brown and Harmon, yes.  THE COURT:  If they are, that's fine.  I think I remember  references to feasting but don't remember concerns at  that time.  Didn't have an Earth Day then, whether  they were concerned about conservation for feasting.  I don't think they had an Earth Day then.  There is no  evidence about it though so I shouldn't make that  assumption.  MR. ADAMS:  There is a quotation from Brown on page ten of the  argument, where Brown says:  "Certain tracts of country which they claim an  exclusive right to and will not allow any other  person to hunt upon them. This, though an  excellent regulation for preserving the beaver 24955  Submissions by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  is very detrimental to the trade."  But there are further references to the feasting.  THE COURT:  There are references to feasting but you seem to  have added another dimension to the equation.  MR. ADAMS:  Well, the argument, my lord, is that the importance  of the beaver for feasting is another reason that  suggests that conservation would be important when you  have an animal that's important for the purpose of  feasting and you have it relatively scarce in the  area, the suggestion is that that's a substitute for  the suggestion that it's depletion through the fur  trade and the market value of the pelt that is driving  people towards maintaining territories.  And, of  course, the fur trade, the market value of the pelt  was a recent arrival.  Our submission is that the  relative scarcity and the importance for feasting were  not recent arrivals at all, and that speaks to the  antiquity of the territory.  Now, the passage that I just quoted from on the top  of page 68 is with respect to the Carrier in general  and the Wet'suwet'en in particular.  In this written  argument above at pages 19 to 21 there is a discussion  that we went through on Friday about the evidence  bearing on the importance of beaver to the Gitksan.  And I simply say that that would make the same  conversations apply to the Gitksan.  Now one of the passage from Brown which Professor  Ray relied on in this connections is set out and  supplemented at at the bottom of page 68.  And there  he says:  "The country being parcelled amongst certain  families to whom it descends by inheritance,  and the portions of many it may be supposed  being but poorly stocked with Beaver they can  therefore kill but a few - anda number who have  no land stake and are not permitted to hunt  that animal on those belonging to others..."  And in the next highlighted passage:  "Beaver, independent of the benefit they claim  from the skin, they will always endeavour to  kill, it being a favourite article of food and  in places, where large animals cannot be fourn, 24956  Submissions by Mr. Adams  1 are indespensible for the purpose of  2 celebrating their feasts in commemoration of  3 their departed friends."  4  5 Just to pick out one point of that passage, my  6 lord, the first highlighted passagae referred to  7 "certain families" holding parcels of the country, Dr.  8 Robinson had said in her examination in chief -- and  9 the reference is volume 289, 21646 at lines 37 and  10 38 -- that the territories were associated only with  11 individuals.  And I would say that this passage  12 doesn't support that notion.  And further in that  13 connection, Mr. Brown, in Exhibit 964-12 at page six,  14 which is quoted at page ten of the argument, refers to  15 the Wet'suwet'en heads of families and possessors of  16 lands.  We say those two passages bear on the question  17 of whether you're seeing individual ownership or  18 whether you're seeing a house group as the unit of  19 ownership.  20 Now, at the bottom of page 68, Dr. Robinson adopted  21 Kobrinsky's hypothesis that territoriality was  22 engendered by the need to husband beaver for the  23 European fur trade.  But according to Dyen and Aberle,  24 the concentration of abundant resources with clearly  25 defined ownership and exclusive claims, is common to  26 much of the northern Athapaskan region, and was a  27 central feature of proto-Athapaskan culture.  And  28 coming in the third section of this argument to a more  29 detailed discussion of Dyen and Aberle in those  30 questions, beginning at the bottom of page 69, there  31 is a passage set out from Dr. Mills' evidence and she  32 compared a corporate, unilineal descent form of social  33 organization, with its abundant, concentrated salmon  34 resource, to the smaller, less structured bilateral  35 band form of organization.  36 And the suggestion in the defendant province's  37 argument is that this bilateral band society was  38 characteristic of the Wet'suwet'en until the fur trade  39 got there and transformed everything.  40 And Dr. Mills said in the passage set out beginning  41 the bottom of page 69:  42  43 "When you have a population that's larger, you  44 have matrilineality - either patrilineality or  45 matrilineality occurring and when you have  46 smaller populations, people organize themselves  47 as bilateral bands and you tend to have small 24957  Submissions by Mr. Adams  1 populations when people are nomadic hunter-  2 gatherers without a stable resource such as the  3 salmon.  And when you have the salmon the  4 population can be larger and you tend to  5 proximate the kind of social organization that  6 usually typifies an agricultural society."  7  8 Your lordship will recall that the indications are  9 in Brown that he was dealing with sizeable populations  10 among the Gitksan and Wet'suwet'en.  11 THE COURT:  What do you understand as a bilateral band?  12 MR. ADAMS:  Where there is inheritance that's both matrilineal  13 and patrilineal.  You inherit rights on both sides.  14 Then carrying on --  15 THE COURT: You don't suggest this is a — that these are  16 bilateral bands then, the Wet'suwet'en or the Gitksan?  17 MR. ADAMS:  No, they are distinctly not.  They are matrilineal  18 societies and they are to be contrasted with the  19 bilateral bands.  20 THE COURT:  That's pretty general, isn't it?  21 MR. ADAMS:  It comes up and becomes important, my lord, because  22 the foundation of the Kobrinsky style hypothesis is  23 that you have these bands, these bilateral bands,  24 these relatively simple societies, that are sitting  25 there in the interior until the fur trade comes, until  26 the coastal influence comes.  That's raised, as I  27 understand it, to challenge the idea that the  28 societies that have been presented to you through the  29 plaintiffs' evidence, including the evidence from  30 Brown, had been there in that form for a long time.  31 This is dealt with in somewhat more detail in the next  32 few pages.  33 On page 70 is set out the substance of Dr. Mills's  34 critique of Kobrinsky, for choosing as the model of  35 the "quintessential Athapaskan society", the bilateral  36 bands found to the east of the Rockies.  And it's  37 recorded there that Dr. Mills was familiar, through  38 extensive field work, with both the Wet'suwet'en and  39 the beaver on the east side of the Rockies so was in a  40 good position to compare those two societies.  And on  41 the basis of that experience, she came to a conclusion  42 that was similar to that of Dyen and Aberle about the  43 matrilineal nature of the early Babine and  44 Wet'suwet'en.  45 Dr. Mills said that her assessment was influenced  46 by the fact that the Babine-Wet'suwet'en are and were  47 organized in such a way as effectively to control and 2495?  Submissions by Mr. Adams  1 husband an abundant and seasonally concentrated  2 resource, namely the salmon.   She referred to the  3 archealogical records and said that a model of a  4 loosely organized bilateral band is at odds with  5 organizational patterns of other salmon oriented  6 societies in the area.  She noted that these  7 pre-existing conditions were not assessed by  8 Kobrinsky, therefore she was of the opinion he  9 erroneously classified the Babine and Wet'suwet'en as  10 having a bilateral band social organization prior to  11 the fur trade.  Her view of it, and the one the  12 plaintiffs adopt, is set out in the middle of the  13 question on page 71:  14  15 "It seems to me that all the evidence is that  16 these people were matrilineal long before  17 contact.  They had all the earmarks of being  18 matrilineal; they have matrilineal clans in  19 place; they have the salmon resource which is a  20 concomitant of having matrilineal clans.  21  22 Then there is a passage set out from Mr. Brody's  23 evidence, a portion of which I already referred to on  24 Friday, where it was being suggested to him that the  25 Wet'suwet'en had adopted a system of territories in  26 response to the fur trade and he had said, and this is  27 in the quotation at the top of 72:  28  29 "There is nowhere in the anthropological world  30 where there is something like a feast system  31 without territoriality.  So if territory is in  32 place inside the feast system in the early 19th  33 Century, then I imagine it's been in place for  34 a very long time."  35  36  37 And continuing on 72, Mr. Brody compared that  38 situation with the one that was being posited to him  39 that the pursuit of fur for the European trade and the  40 new iron tool technology created subdivision in the  41 hunting territories, that that hypothesis was  42 inapplicable to a wide range of societies across  43 northern Canada with which Mr. Brody was familiar from  44 direct experience.  There is just two passages on page  45 73 that I draw to your lordship's attention.  He said,  46 about a fifth of the way done 73:  47 24959  Submissions by Mr. Adams  1 "There are many cultures in northern Canada  2 where the fur trade does not produce this  3 subdivision, this territoriality, and this  4 leads me to believe that insofar as the fur  5 trade with whites is associated with  6 territoriality, the territoriality is already  7 there and what it may done may have done is  8 intensify it.  But its pre-existence seems the  9 most plausible way of seeing the historical  10 number flow of circumstances."  11  12 That reference, my lord, to intensification,  13 raises a point that I want to stress, and that is the  14 plaintiffs' argument here is not that there is no  15 influence, that nothing happens when the fur trade  16 comes and nothing happens when white people arrive.  17 That is clearly not so.  The question is, what were  18 the basic features of the society in place already and  19 to what extent and in what forms did they persist?  20 And the primary I argument here is that the basic  21 territoriality, feasting, chieftianship, trading  22 activities of the Gitksan and Wet'suwet'en were, on  23 the documentary evidence and the other evidence, in  24 place for a long time before the fur trade arrived  25 and were not in any way created by it.  26 Now, carrying on with the quotation from Mr. Brody  27 towards the bottom of page 73, he says:  28  29 "If you look at the arrival at the fur trade,  30 that is the white fur trade, in societies in  31 northern Canada, you see that they can be there  32 for a long period of time, involve people in  33 trading relations, people using steel traps,  34 exchanging their furs for other goods and then  35 later in the history for money, and yet not  36 develop a preoccupation with territoriality."  37  38  39 And going on to page 74, Professor Ray in turn gave  40 evidence about the question of fur trade  41 territoriality in the eastern sub-arctic.  And what he  42 was doing, and this is set out towards the bottom of  43 74, is stressing that contrary to the global  44 theoretical approach exemplified by Kobrinsky and Dr.  45 Robinson, that it was of vital importance to  46 understand the specific ecological, economic and  47 historical conditions in each region before setting 24960  Submissions by Mr. Adams  1 off to generalize between cultures between points in  2 history and between regions.  And we say, again, and  3 this is set out at the bottom of page 75, that  4 Professor Ray, with his view of the importance of that  5 kind of detailed information, relied heavily on the  6 most precise information he could find, and that was  7 the Brown records.  And, again, these were reports  8 from somebody who had every reason to pay attention to  9 certain features of these societies and these  10 economies and also had reason to pay attention to what  11 animals were there, what plants were there, what the  12 climate was like, what the soil was like, what the  13 topography was like, as well as what the Indian  14 economies and societies were like.  And we say again  15 that a cultural geographer, as Dr. Robinson was  16 described, it's amazing that such a scholar could  17 ignore that material and say that that record is  18 virtually mute, because it only takes flipping through  19 the Brown records and seeing the headings that were  20 being addressed, for instance in the district reports,  21 to see that their whole focus is on the very stuff of  22 the field of cultural geography, it's about the people  23 and it's about the land and it's about the connection  24 between the two.  25 On page 76, we go on to refer to the fact that one  26 of the legs of Dr. Robinson's argument was the  27 ethnohistorian Charles Bishop, and she relied on an  28 article written or published by Bishop in 1983 as  29 corroborative of her position, and it was put to her  30 in her cross-examination that Bishop had, to some  31 extent, modified his views and it came out in her  32 cross-examination that that was unknown to her.  33 And the important aspects in which Bishop had  34 modified his views and accepted a challenge to his own  35 assumptions are set out in the passages quoted from  36 the cross-examination, and this in turn quoting  37 Bishop, where he says:  38  39 "It would seem that the Carrier of the Fraser  40 River possessed a rank system by 1793 and for  41 perhaps for at least a decade before this.  42 While the introduction of the European fur  43 trade augmented coast-interior trade relations,  44 it also seems clear that these relationships  45 were built on prehistoric ones.  46 Thus, it is possible that some Carrier,  47 especially the Babines and Bulkley River 24961  Submissions by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  groups, possessed a well developed rank system  and the potlatch through their association with  the coast, even before the first Europeans  plied the Northwest Coast waters."  THE COURT:  What do you think the reference to 1793 is?  MR. ADAMS:  That's to Alexander Mackenzie's presence, as far as  I understand it, my lord.  THE COURT:  All right.  MR. ADAMS:  And then going on to 77, there is a further passage  from Bishop quoted in Dr. Robinson's cross-  examination.  He had previously assumed that social  ranking among the Carrier was a product of the fur  trade but acknowledged in 1987 the possibility that  ranking was in place in pre-historic times and  ranking, my lord, has implications for the presence of  chieftianship.  And he says in the quotation on 77:  "I have assumed that the pre-historic Carrier  were egalitarian and that ranking emerged as a  result of protohistoric trade dynamics between  coastal and Carrier peoples. However, this is  an issue that must be explored by  archaeologists and possibly by ethnohsitorians  utilizing some very early (and as yet unknown)  records from, say Russian sources.  It must be noted, despite my earlier  position on the egalitarian status of the  Carrier, that evidence from the Bulkley River  and Babine Lake region indicates possible  prehistoric ranking."  My lord, we say that goes to call into question  the supposition that is underneath every one of the  people upon whom Dr. Robinson arrives that this is  exclusively a matter of influence coming from the  coast and especially a matter of influence as a  consequence of the fur trade.  THE COURT:  What evidence do you think he is referring to there  on the Bulkley River and Babine Lake region?  MR. ADAMS:  He is, among other things, referring to some of the  Hudson's Bay materials.  THE COURT: You think he is?  MR. ADAMS:  I know he is.  It's cited in his article.  The  exhibit reference is there, 1191A-46, and I think, my  lord, if you look at his footnote you will see 24962  Submissions by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  COURT  ADAMS  COURT  MR. ADAMS  THE  MR.  THE  MR.  COURT  ADAMS  COURT  ADAMS  THE  MR.  COURT  ADAMS  extensive reference to the Hudson's Bay material.  He hasn't treated it as conclusively as you suggest.  Sorry?  He hasn't treated the Hudson's Bay material as  conclusively as you have suggested.  I think that's fair to say of his 1987 article,  that's so.  Does he say why?  He doesn't.  He covers some of the same ground as  Professor Ray.  All right.  Thank you.  Now I say at bottom of page 77, first of all, it is  clear from Dr. Robinson's cross-examination that she  was unaware of Bishop's 1987 article and all that she  was able to say in her re-examination to deal with it  was that she didn't think it disagreed with her basic  interpretations. And the reference to that is volume  295, page 22262 at lines 32 to 36.  And the reference for her agreement that she didn't  know about the changes in Bishop's views is at volume  294, page 22216, line --  22216?  That is correct, my lord, line 5 to 22218, line 1.  At the bottom of page 77 I go on to say that to a  large extent Dr. Robinson's argument rests on the  words of Kobrinsky and the ethnographers such as  Morice, Jenness, Goldman and Steward, who shared the  assumption that features of the coastal cultures  diffused inland, especially during the fur trade.  And  there is a passage set out in Kobrinsky simply to  indicate where he stands in that scheme of writers.  And in the middle of page 78, Dr. Mills gave  evidence that those writers did subscribe to the  theory of coastal diffusion of culture, but her point  was that today we have more information with which to  assess that theory.  At the bottom of page 78 there is a reference to  Dr. Kari's linguistic evidence that 12 of the 13  Wet'suwet'en House names are Athapaskan in origin and  13 appear to have a Gitksan root.  As for the clan  names, Tsayu clan is an old Athapaskan word beaver,  Gelts'eexyu is Athapaskan,Gidemt'een, laxseelyu and  Laxsamshyu are blends of both Gitksan and Wet'suwet'en  words construction.  And the point there, my lord, is  that the suggestion in Morice and his followers was  that this whole complex, including the words for the  clans, had been borrowed by the Wet'suwet'en from the 24963  Submissions by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  Gitksan.  And we say Dr. Kari's evidence tends to  indicate that that's not how it worked.  Then there is reference, beginning on page 79, to  another of Kobrinsky's points that some of the Bulkley  River Carrier, that is the Wet'suwet'en, were using  titles and crests of Tsimshian derivation without  knowing what he called their origin or real  significance.  In the passage from Dr. Mills'  evidence, set out in the middle of 79, first of all  she said that wasn't entirely true because:  "...the kungax do give some origins of  Wet'suwet'en clans, Houses, chiefly names etc."  But she goes on to suggest that the absence of  an account for a title or a crest might just as well  be evidence of its antiquity as of its recency.  And  that's spoken to in the second quotation on page '79.  Now, the combination, now at the bottom of 79 and  going over to 80, the combination in Kobrinsky about a  recent adoption of coastal ceremonial life by the  Babine and Wet'suwet'en, and the house and clan  structure and land ownership being a response to the  fur trade, are dependent on a further assumption and  that is that prior to the fur trade there was no  significant interaction between the Babine and  Wet'suwet'en, the Gitksan and their coastal  neighbours.  And we simply say that the oral and  documentary, the archeological evidence, the  linguistic evidence clearly indicates that that  assumption is not correct.  :  I am not following you, Mr. Adams, about why  Kobrinsky's theory depends in any way upon the absence  of interaction with the Gitksan.  :  Because the feast being territorial chiefly titles  complex was supposed by him to have been borrowed from  the Gitksan to the Wet'suwet'en and other Carrier.  :  Why couldn't it have been borrowed at an earlier  time?  :  It could have been borrowed at an earlier time,  there could have been borrowing in both directions.  The fact is, if it was borrowed at an earlier time, it  wasn't the fur trade that was driving the borrowing.  There is evidence that I will come to that suggests,  and that is linguistic evidence, that suggests that  the borrowing was much more mixed and in many  different directions than that unilinear hypothesis 24964  Submissions by Mr. Adams  1 that the fur trade stretches inland and then gradually  2 tapers off as you go east.  3 Now, Dr. Mills also gave evidence about Kobrinsky's  4 confusion as to the connection between the Babine and  5 Wet'suwet'en concepts of locality and their concepts  6 of territorial and ceremonial rights expressed in  7 terms of houses and clans.  8 And in the passage set out at the bottom of page  9 80, she was asked to explain what Kobrinsky is talking  10 about when he talks about septs, S-E-P-T-S, and she  11 says in the quotation:  12  13 "Kobrinsky uses that terms which he got from  14 Morice, to refer to divisions of the territory  15 among the Wet'suwet'en, and he thought that  16 these were referring to band level divisions -  17 he, Kobrinsky, not Morice.  Morice didn't make  18 that mistake.  But Kobrinsky  felt that the  19 septs, or these territories, were referring to  20 band level organization."  21  22 And Mr. Rush asked what her view was on that and  23 she said:  24  25 "My view on that is that these territories are  26 the property of the houses.  The Wet'suwet'en  27 make that very clear; there is no reason to  28 presume that any other way - that it worked any  29 other way.  Kobrinsky, I think, arrives at this  30 conclusion because a title for a people in a  31 particular area has this Wet'suwet'en word  32 'wuten', people of this area.  It does not mean  33 that it is not a matriline; it doesn't mean  34 it's not a house group."  35  36 And that's an example, in my submission, my lord,  37 of where somebody in Dr. Mills's position, with a  38 detailed knowledge of the society from direct personal  39 field work, is in a position to make judgments like  40 that of people like Kobrinsky and of people like Dr.  41 Robinson who rely on them and have to rely on them  42 blindly, because they haven't done that work.  43 Now, in conclusion to this section, I say on the  44 bottom of page 81, that Professor Ray's opinion that  45 the the territorial, feasting and trading societies  46 documented by Brown, had been if place for a  47 considerable time and were not the product of the fur 24965  Submissions by Mr. Adams  1 trade, was grounded on his part in a wide knowledge of  2 fur trade in Canada and a close reading of earliest  3 available pertaining directly to the plaintiffs'  4 territories.  And we go on to say that Dr. Robinson,  5 by contrast, stood at the shaky apex of the pyramid of  6 speculative assumptions about both the unidirectional  7 cultural influence in the coastal interior and about  8 the impact of the fur trade on Indian societies in  9 general.  Our submission is that on the grounds of  10 Professor Ray's superior qualifications and experience  11 and the cogency of his opinion based on the best  12 available factual records, Professor Ray's opinion  13 is the one which the court should adopt.  14 And this brings me to the final section of this  15 argument which is attempt to deal in briefest summary  16 with the linguistic evidence which was adduced in the  17 form of extracts from Dyen and Aberle.  And we say  18 that out of that evidence there is a further reason to  19 reject the assumptions which are at the heart of the  20 province's argument on the nature of pre-contact  21 Gitksan and Wet'suwet'en societies, that  22 territoriality, matrilineality, feasting and the  23 political authority of hereditary chiefs are recent  24 borrowings from the coast, and also products from the  25 European fur trade, you have heard about the oral  26 histories and anything you have heard about from the  27 Hudson's Bay documents.  28 Now, what Dyen and Aberle did, in very short form,  29 was to take a large linguisticly-related group of  30 societies, that is the Athapaskans, and to assemble a  31 lexicon of their kinship terms.  And when they had  32 constructed the lexicon they asked themselves from  33 what original form of this language would it take the  34 fewest changes in order to produce all the daughter  35 languages that we now see.  And the version from which  36 the fewest changes were required to account for all  37 the existing forms, they called proto-Athapaskan.  38 They said that was the original language of that whole  39 group of people.  And that group of people now exists  40 all the way from Alaska down into the central southern  41 United States.  42 The picture that Dyen and Aberle draw of the  43 movement of these people and this language, and of the  44 complex of institutions that we have been discussing  45 for the last couple of days, territoriality, feasting,  46 matriliniality,, that the origin of that society was  47 in a homeland in Alaska.  The picture Dyen and Aberle 24966  Submissions by Mr. Adams  1 draw is of people moving out of that homeland east and  2 south until the occupied the areas that they occupy  3 today.  And both geographically and linguistically,  4 the Wet'suwet'en were close to that proto-system, the  5 parent system in Alaska.  They were close  6 geographically in the sense that the Bulkley Valley is  7 closer to Alaska than, for instance, the people who  8 made it down into the states.  They were closer  9 linguistically in that their language made fewer of  10 the changes from the proto-system than many other  11 variants.  12 And so there was some reason to believe, in the  13 opinion of Dyen and Aberle, that the shape of the  14 Wet'suwet'en society was nearer the original than, for  15 instance, some of the Carrier people east of the  16 Rockies.  And the further consequence of that would be  17 that rather than those features of the society such as  18 matriliniality, territoriality, feasting,  19 chieftianship, being coastal borrowings, they may well  20 have been features of that original Athapaskan  21 culture.  22 MR. WILLMS:  Could my friend give a page reference for that  23 conclusion of Dyen and Aberle?  I have looked for it,  24 I have searched but I haven't found it in Dyen and  25 Aberle.  26 MR. ADAMS:  My lord, I will have to look for a page reference.  27 I am doing my best to summarize these very complicated  28 concepts, but I think faithfully.  29 I think the place to look for is it in page 86 of  30 my argument.  I will just go there, if I can deal with  31 this now.  The middle of page 86 Dyen and Aberle are  32 quoted as summarizing and then criticizing Morice's  33 reasoning, and they say that his reasoning was that --  34 this is number 2 on page 86:  35  36 "The 'main body' of the Athapaskans, i.e., the  37 more easterly Athapaskans of the north, lacks a  38 series of institutions, which include  39 matrilineality, matrilineal descent groups with  40 totems, rank, ownership of hunting territories  41 by individuals of high rank or by others,  42 potlatching, etc."  43  44 And then over the page, well, actually the very  45 bottom of page 86, Dyen and Aberle, in critiquing that  46 concept say:  47 24967  Submissions by Mr. Adams  1 "The institutions in question are either  2 innovations among the westerly Athapaskans, who  3 borrowed them from the coast, or retentions.  4 And if they are retentions, then the lack of  5 these institutions among the easterly tribes  6 can be regarded as instances of  7 simplification."  8  9  10 That's th passage I rely on for that conception.  11 Now, included in the passage discussing Morice that  12 I just quoted from, my lord, and I am now back on the  13 bottom of page 83, that that proto-typical  14 reconstruction, the use of the kinship terms to try to  15 figure out in what direction the society had moved and  16 what features of the society were original as opposed  17 to acquired or lost, they contrasted with the approach  18 that those, beginning with Morice, had used which they  19 called archetypical reconstruction.  And they  20 criticized it as insupportable.  And the specification  21 of what's meant by archetypical reconstruction is set  22 out at the top of page 84 as being the instance of  23 kinship, drawing inferences about the earlier kinship  24 terms, as manifesting the retention of features lost  25 in other units, that somebody who is taking that  26 approach, drawing the inferences by simply arbitrarily  27 selecting one version of the society, that they are  28 carrying on reconstruction based on an archetype and  29 their criticism of that reconstruction is not the  30 choice of the unit, the lack of a sound basis for  31 deciding which of the traits of the archetype are  32 retentions and which are modifications.  33 And there is a further difficulty, my lord, that's  34 not referred to there in the argument and that is that  35 Dyen and Aberle are also, in effect, criticizing the  36 assumption that you only go in one direction in the  37 development of the society from simple to complex.  38 Their suggestion is that the societal features of the  39 proto-Athapaskan form, that some of those features  40 might have been lost as those people moved into areas  41 where the resources couldn't sustain the kind of  42 society that had been present in their Alaskan  43 homeland.  And so, for instance, there was -- the  44 suggestion that although the Sekani had attempted to  45 adopt feasting, that the area they were based in and  46 the nature of the resources they were using simply  47 couldn't sustain that, they weren't a salmon-based 2496?  Submissions by Mr. Adams  1 economy, they were much closer to the band society  2 that was the basis for Kobrinsky's hypothesis.  3 And, of course, the Wet'suwet'en based on the  4 rivers, based on the salmon, were that sort of society  5 that was capable of retaining those features of the  6 parent society.  7 Now, beginning on the middle of page 84, there is  8 set out an account of Dyen and Aberle's critique of  9 Morice, Jenness, Goldman and Steward, all essential  10 underpinnings for Kobrinsky's hypothesis and Dr.  11 Robinson's opinion.  And there we say none of these  12 writers has stopped to decide the basis upon which he  13 will distinguish which traits of his archetype are  14 ancient and which are modifications.  15 And then beginning at the top of page 85, we say  16 the archetypical reconstruction of old Athapaskan  17 society is for Robinson, Kobrinsky, Morice and  18 Jenness, Goldman and Steward, one based upon bilateral  19 band social organization possessing no clearly defined  20 territoriality, no husbanding of resources, no  21 potlatching or feasts and sparse population density.  22 In a word, a model closely resembling some of the  23 Athapaskan hunting bands east of the Rocky Mountains.  24 Then there is reference to the Alkatcho-Carrier as  25 being the archetype, with the suggestion that that's  26 what these societies looked like originally and it's  27 only as they borrowed from their coastal neighbours  28 and only as they were influenced by the European fur  29 trade this they took on the features of  30 territoriality, feasting, chieftianship, rank and so  31 on.  32 And we have set out in detail on pages 86 and  33 following, the substance of the Dyen and Aberle  34 critique, first of Morice then of Goldman, and in  35 particular Goldman, which is on page 89.  36 And at the bottom of page 87 in the last portion of  37 the quotation, this is from Dyen and Aberle, they  38 acknowledge the fact that the westerly Athapaskans  39 shared these institutions and again they are talking  40 about matrilineality, matrilineal descent groups with  41 totems, rank, ownership of hunting territories by  42 individuals of high rank or by others and potlatching.  43 Then they say:  44  45 "The hypothesis that at least some of these  46 institutions form part of a common cultural  47 substratum shared by the several speech 24969  Submissions by Mr. Adams  1 communities ancestral to the Athapaskans and  2 coastal tribes would account for some of the  3 similarities between Athapaskan and coastal  4 tribes, at least as satisfactorily as the  5 hypothesis of borrowing by each Athapaskan  6 tribe adjacent to the coast."  7  8 And it's in that hyposthesis, my lord, that Dyen  9 and Aberle are challenged as to the string of  10 assumptions beginning with Morice that the borrowing  11 was all from the coast to the interior from the  12 Tsimshian to the Carrier.  13 And at top of page 88, there is a further  14 explanation of what it is that Dyen and Aberle  15 envisioned happening.  It says they postulate a  16 Proto-Athapaskan homeland in Alaska, and suggest that  17 it is logical that the proto-Athapaskans would first  18 occupy the richer areas, with renewable, controllable  19 salmon resources occur before moving further afield to  20 more sparse environments.  21 And it goes on in the quotation:  22  23 "Our discussion of the Alaskan homeland of the  24 PA, proto-Athapaskan, speech community,  25 indicates that there is no reason to regard the  26 easterly Athapaskans of Canada as archetypical,  27 since they live in an environment distinctly  28 inferior to that found in Alaska.  Hence, in  29 spite of the evidence for a specific Carrier  30 borrowings from the Tsimshian, Morice's  31 argument does not make diffusion of  32 matrilineality to the Athapaskans in severalty  33 more likely than retention of matrilineality by  34 the westerly Athapaskans and loss of  35 matrilineality by the easterly tribes."  36  37 And it's that that I am referring to, my lord,  38 when I say that one of the problems with Morice, and  39 those who followed him, was the assumption that you  40 only go in one direction, you only start simple and  41 get complex and that you never go in the other  42 direction.  43 On page 89, the substance of Dyen and Aberle's  44 critique of Goldman is set out, where they say that:  45  46 "Goldman saw Carrier matrilineality as a foreign  47 coastal importation, overlying a bilateral band 24970  Submissions by Mr. Adams  1 organization without cousin marriage, the lack  2 of cross-cousin  marriage being a retention  3 (from an archetype band structure).  The  4 potlatch, crest system, and phratric system  5 adopted by the Upper Carrier from the Tsimshian  6 impinged on the bilaterally organized Alkatcho  7 Carrier, who developed non-unilineal descent  8 groups rather than matrilineal phratries as a  9 result of Upper Carrier influence."  10  11 That's their characterization of Goldman, and they  12 go on to say, towards the bottom of 89:  13  14 "There could be no doubt about Tsimshian  15 influence on Upper Carrier and Bella Coola  16 influence on Alkatcho Carrier. Other points are  17 more controversial than that."  18  19 And they go on to critique the details of  20 Goldman's, the factual basis for Goldman's opinion.  21 And those are set out in -- on page 90, in points one,  22 two and three, where they first say:  23  24 "There is no reason to believe that the westerly  25 Canadian Athapaskans moved to their present  26 location from the east and for the Alaska  27 Athapaskans, there is every reason to believe  28 that they did not."  29  3 0 And point two:  31  32 "The Athapaskan homeland was not like the  33 territory of the tribes listed by Goldman, and  34 there is hence no reason to infer that these  35 groups represent the archetype for Athapaskan."  36  37  38 And then carrying on they say:  39  40  41 "Thus there is reason to reject Goldman's  42 'bilateral band' as the early organizational  43 form for the Carrier as a whole.  There is no  44 evidence for a westerly movement of the  45 Carrier;  the easterly tribes live under  46 conditions that make them a poor model for  47 Proto-Athapaskan organization;  and Goldman's 24971  Submissions by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  'bilateral band' itself does not fit the  organizational forms of a number of easterly  groups."  My lord, I think the bolding there is a gremlin in  the argumentment, I don't believe that emphasis is in  the original.  Going on to page 91 and continuing the Dyen and  Aberle critique of Goldman it is, however, more likely  that the Alkatcho --  :  Where are you now?  :  I am not bolden portion of page 91, my lord:  "It is, however, more likely that the Alkatcho  represent a southward and eastward spread from  Upper Carrier than a south-eastward relic of an  early Carrier migration from the east. Moving  into unfavourable territory, or into new  relationships, or both, they may have lost an  earlier matrilineality.  This seems more likely  than that they entered the area with the  cultural apparatus and social organization of  groups like the Slave."  And there is a reference to a further critique of  Steward on the same basis.  So at the end they are agreeing with Goldman in that  part?  They are agreeing with Goldman that there is coastal  influence on the Alkatcho, yes.  They are disagreeing  with the suggestion that what it is that's being  influenced is some old archetypal form rather than a  simplification of a group that has come down from the  north.  And the point of all this, for our purposes,  my lord, is that we say that simplification, if that's  what happened, had not occurred for the Wet'suwet'en,  that instead of regarding the Wet'suwet'en as parallel  to the Alkatcho, subject to a parallel coastal  influence, there is room to believe that there was  mutual influence over a very long time.  That is, mutual influence both from the eastern  and --  Between coast and interior and interior and coast.  Yes.  Now, Dr. Robinson acknowledged in her cross- 24972  Submissions by Mr. Adams  1 examination that Dyen and Aberle had performed an  2 exhaustive and extensive treatment of their linguistic  3 information, and that reference is at volume 291, page  4 21852.  5 THE COURT:  Where are you now?  6 MR. ADAMS:  I am just at Dr. Mills at the bottom of page 91 of  7 my written argument.  And the argument as written says  8 that Kobrinsky and Robinson have not challenged the  9 reasoning of Dyen and Aberle, and this is  10 amplification of that point.  That is, Dr. Robinson  11 describes their work as exhaustive and extensive  12 treatment of the linguistic information.  And the  13 reference was volume 291, page 21852 at lines 38 to  14 43.  15 THE COURT:  21852.  16 MR. ADAMS:  And Dr. Robinson also in the course of her cross-  17 examination, acknowledged Aberle's reputation as and  18 Athapaskan ethnologist, and that reference is at  19 volume 290, page 32176 at lines 5 to 15.  20 Then carrying on at the bottom of page 91, Dr.  21 Mills in her evidence in chief was asked if she agreed  22 with the Dyen and Aberle assessment of Steward and she  23 added to her agreement that Steward had looked at the  24 marriage system among the eastern Carrier and reports  25 that there was a lack of cross-cousin marriage which  26 she had expected to find, and it's interesting to note  27 that subsequent work with these same group of people  28 seems to have gathered more complete genealogies and  29 done a more systematic assessment, reports that cross  30 cousin marriage does exist, and that was the work of  31 Douglas Hudson.  That was simply a factual attack and  32 the factual underpinnings of Steward's work on page 92  33 in the centre, there is a passage set out from Dr.  34 Daly's re-examination, and he was there addressing the  35 question about this pyramid of people beginning with  36 Morice.  And he was asked this, this is the last pair  37 of questions and answers at the bottom of page 92:  38  39 "What I'm asking you is when you look at all of  4 0 these and when then we have Goldman referring  41 to Morice and all of them interconnected, this  42 list of anthropologists who have this, I think  43 you described this morning as the school of  44 thought, are they all relying on each other,  45 and ultimately on Morice Rees, is that how that  4 6 flows?"  47 24973  Submissions by Mr. Adams  1 And Dr. Daly says:  2  3 "That's the way if looks to me."  4  5  6 Now, the bottom of page 92, again I say that Drs.  7 Robinson, Kobrinsky, Margaret Toby, who was relied on  8 by Dr. Robinson, acknowledged the thoroughness of the  9 study undertaken by Dyen and Aberle.  There is a  10 quotation from Toby indicating that deLaguna had come  11 to similar conclusions, that matrilineality may be  12 very ancient among Athapaskans.  and yet in the  13 subsequent writings of Kobrinsky, Toby and Dr.  14 Robinson's opinion report, that material was not so  15 much dealt with as just ignored.  16 And the terms in which Toby in particular chose to  17 ignore it are set out in the middle of page 93.  18 I say at the bottom of page 93 that Kobrinsky and  19 Toby, and on their authority, Dr. Robinson, have never  20 sought to challenge the work of Dyen and Aberle and I  21 should say, my lord, that it's apparent from reading  22 Dyen and Aberle they performed a 14 year study of this  23 kinship terminology in order to come to their  24 conclusions, that Kobrinsky, Toby and Dr. Robinson  25 simply ignored because it contravened with facts and  26 with rigorous methodology theory, the very deeply  27 entrenched assumptions of a pre-contact Carrier  28 archetype based on an eastern Athapaskan bilateral  29 band model.  They had built into their work the  30 assumption, and it is an assumption, that this  31 bilateral band was subsequently acculturated by the  32 coastal cultures and fur trade influences.  33 THE COURT: Tell me again, what was the conclusion that Dyen and  34 Aberle reached then?  35 MR. ADAMS:  Their picture was of a proto-Athapaskan homeland in  36 Alaska, as early as immediately at the end of the last  37 Ice Age and then at the as the ice melted of those  38 people spreading east and south and of being in  39 possession from their origins in that homeland, of a  40 complex of institutions, including matrilineality.  41 MR. WILLMS:  My lord, I would like — the matriliniality my  42 friend does not need to give me the reference for but  43 the complex of institutions, I have asked for the  44 references and I trust my friends will give me that  45 reference from Dyen and Aberle, because I can't find  46 the complex of institutions records.  47 MR. ADAMS:  I thought I had already done that.  I read to my 24974  Submissions by Mr. Adams  1 friend, out of order in my argument, a passage.  2 MR. WILLMS:  If that's it, I can deal with that.  If that's all,  3 I will deal with that.  4 THE COURT:  Do you think it's safe for me to assume that the  5 proto-Athapaskan homeland described by Dyen and Aberle  6 and Alaska is the same concept as Dr. Kari' s refugia,  7 which she put in the Southern Yukon, are they talking  8 about the same thing or is this a different theory?  9 MR. ADAMS:  It's my understanding that they are talking about  10 the same thing.  The refugia was supposed to be an  11 area that was not affected by glaciation and therefore  12 it was possible for people to continue living through  13 the Ice Age.  14 THE COURT:  Yes.  I am just troubled with the geographic  15 difference between Dyen and Aberle on one hand and  16 Kari on the other.  You think they are talking --  17 MR. ADAMS:  I don't know what happens if you put them side by  18 side.  Probably we could work that out.  19 THE COURT:  I don't know either.  It may be termilogical or  20 semantical and indeed geographical.  21 All right.  22 MR. ADAMS:  Now, on page 94, my lord, and going over to page 95.  23 THE COURT:  And the opposite view is said here to spring from  24 Morice?  25 MR. ADAMS:  Yes, and there are extensive passages from Father  2 6 Morice in evidence.  And it's evident on reading them  27 that they are simply an assertion that the Carrier, in  28 his conception, are such great innovators and have so  29 few ideas of their own, that they must be the ones  30 that did the copying.  That's really the foundation in  31 Morice for this whole pyramid of assumptions.  32 THE COURT:  Did Morice talk about bilateral organization?  33 MR. ADAMS:  I don't think so.  I don't think that at the time  34 Morice was writing that there was any question that  35 the the Wet'suwet'en were, by that time, obviously  36 matrilineal.  37 THE COURT:  I am sorry?  May I have that again, please?  38 MR. ADAMS:  By the time Morice was writing there would have been  39 no question that the Wet'suwet'en, for instance, were  40 matrilineally organized, whether if arose in his  41 consideration and what might have been there earlier,  42 I can't say.  43 THE COURT:  But his view was that the spread was westward  44 instead of southeasterly.  45 MR. ADAMS:  That's correct.  46 THE COURT:  I don't suppose he goes so far as to suggest the  47 origin of this spread? 24975  Submissions by Mr. Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  Well, I think it's clear that he thought it was  coming from the coast.  The spread of the culture was from the coast?  Yes.  Where did he think the people came from?  Did he  postulate the same concept in Alaska or southern  Yukon?  Seems to me that he suggested or someone  suggested that the spread was from the other side of  the Rockies.  Yes.  And that, my lord, is what Dyen and Aberle  were responding to.  But I don't recall specifically  out of Morice whether he expressed an opinion about  where the people were coming from.  But his view was that they became infected with  coastal culture?  Yes.  One gets the impression from reading him of  perhaps 25 years ago there was a notion current that  the Japanese were only imitators, that's all they  could do, and he appears to have had that kind of  picture of the Carrier in general.  On page 94, my lord, we say at the top, most of the  adherents to the Kobrinsky hypothesis accept  unquestioningly the archetypical model,that is the one  begins with a bilateral band that does its borrowing  from the coast, without measuring it against the most  detailed historical, ethnographic, archaeological and  linguistic evidence that is available, and without  questioning its methodological assumptions.  And we  say, my lord, that you have had the benefit of the  evidence in those categories, and the benefit of  hearing scholars who were in a position to do so,  question the methodological assumptions of the  hypothesis.  At the bottom of page 94 there is a passage from  Dr. Daly's evidence, with reference to deLaguna's  assessment of ancient matrilineality in the general  gegion and he says that:  "...she says it's not an either or situation,  that all the people came from the -- all the  occur culture came from the interior, or the  culture came from the coast.  There was a  movement from the interior toward the coast;  there were more than one movement from the  coast to the interior, and these can be  inferred from the oral traditions." 24976  Submissions by Mr. Adams  1 And then your lordship asked him a question, "I  2 suppose you add also the time depth to that when you  3 say what -- the movements didn't all happen at the  4 same time yet there was some cross-culturalization  5 going on at all times?'  And Dr. Daly said, "Yes, it's  6 an unusual situation and looking at it globally in the  7 sense that it's part of theworld which hasn't suffered  8 from empire-building and wars and armies for a long  9 period of time, so the time depth could be staggering,  10 and we need a lot more data to have a definitive  11 answer on this question."  12 Now, in conclusion to this section of the argument,  13 my lord, the plaintiffs split that the court should  14 adopt the fruit of Dyen and Aberle's prototypical  15 method of  reconstruction, in preference to the  16 logically indefensible archetypical method. And we  17 submit that what Dyen and Aberle tell us is that  18 matrilineality, territoriality, feasting and  19 chieftianship have likely been present among the  20 Athapaskan, including the Wet'suwet'en, for a very  21 long time.  22 Now combining those streams of evidence, that is  23 the documentary evidence from the Hudson's Bay records  24 and the linguistic evidence and the anthropological  25 evidence that I have briefly outlined, the plaintiffs  26 submit that the picture of the Gitksan and  27 Wet'suwet'en organized society at contact as having  28 long established systems of territorial ownership and  29 political authority, that is, ownerwhip and  30 jurisdiction, best accords with the available  31 documentary, linguistic and anthropological evidence,  32 and with the most methodologically sound approaches to  33 assembling and understanding that evidence.  34 Those are my submissions, my lord.  35 THE COURT:  Thank you, Mr. Adams.   We will take the morning  36 adjournment now.  Thank you.  37 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  38  39 I hereby certify the foregoing to be a true  40 and accurate transcript of the proceedings  41 herein to the best of my skill and ability.  42  43  44  45 Wilf Roy  46 Official Reporter  47 24977  Submissions by Mr. Jackson  1  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Could I mention a matter of scheduling, which will  4 put us in a position of knowing what to expect.  I  5 think counsel have seen the generous invitation of the  6 Bulkley Valley Bar.  I don't know if counsel have a  7 view on that matter, but it seems to me that it should  8 probably be accepted graciously.  As it's for  9 Wednesday night, I wonder if it would be convenient if  10 we were to suggest that we have an evening sitting  11 tomorrow night instead of tonight, and on Thursday  12 night.  Is that satisfactory to counsel?  13 MS. MANDELL:  Yes, it's convenient.  14 THE COURT:  All right.  We will sit, then, if convenient, 'til  15 5:00 to 5:30 or so the other nights.  All right.  16 Thank you.  Ms. Mandell.  17 MS. MANDELL:  Thank you.  I am just going to introduce the next  18 section.  We are going to address you on the issue of  19 ownership, and you have before you volume 5, which is  20 the material which will be referred to.  The  21 plaintiffs propose three speakers.  Mr. Jackson will  22 begin by introducing the legal framework for the  23 plaintiff ownership.  I'll be dealing next with the  24 house, the unit, the land holding unit.  Mr. Grant  25 will deal with the boundaries and the significance and  26 importance of clearly defined boundaries to the issue  27 of ownership, and then following I'll resume with the  28 further incidents of ownership which we will be urging  29 upon Your Lordship the rules regarding the succession  30 of territory, the rules regarding the transfer of  31 territories and peace settlements, and the granting of  32 access rights, and finally the validation of the title  33 in the feast.  And that's the order that the materials  34 progress through.  So with Your Lordship's concurrence  35 I'll introduce Mr. Jackson to begin the first piece.  36 THE COURT:  Yes, thank you.  37 MR. JACKSON:  My lord, you will see on page 1, the first section  38 is given a rather provocative heading.  "The 'radical'  39 nature of the claims of the Gitksan and Wet'suwet'en  40 to ownership and jurisdiction".  And you will see, my  41 lord, that in using the term "radical", we are not  42 using it in its popular meaning of extreme, but rather  43 in terms of its dictionary definition.  And I take  44 this from the Concise Oxford Dictionary, my lord, a  45 much battered Concise Oxford Dictionary, which defines  46 the word as:  47 2497?  Submissions by Mr. Jackson  1 "Naturally inherent, essential, fundamental,  2 affecting the foundation of, going to the  3 root."  4  5 And in my discussion of the St. Catherine's  6 Milling case I sought to point out how the Privy  7 Council in describing the Crown's underlying title as  8 a radical title did so in this context.  That it is a  9 root of title to which grantees, such as, for example  10 a person who holds an estate in fee simple, it is the  11 root to which they must trace the source of their  12 title, presumed Crown ground.  13 As we have endeavored to point out through the  14 review of the case law, the plaintiffs' aboriginal  15 rights are not granted rights.  They are pre-existing  16 as the Supreme Court of Canada has clearly affirmed in  17 Guerin, and therefore characterizing the plaintiffs'  18 claim as a radical reflects the inherent pre-existing  19 nature of their rights.  20 We say, my lord, that the characterization of the  21 plaintiffs' rights as rights to ownership and  22 jurisdiction is radical in the furtherance that it  23 reflects fundamental principles governing the  24 relationship between aboriginal peoples and the Crown.  25 And it is our submission that these fundamental  26 principles embodying the recognition of the inherent  27 pre-existing ownership and jurisdiction of Indian  28 Nations took root, not simply as a matter of  29 diplomatic and political protocol, but as part of the  30 common law, and with their codification in the Royal  31 Proclamation, as principals of constitutional  32 significance governing relationships between  33 aboriginal peoples and the Crown in British North  34 American colonies.  35 We have carefully traced in the previous  36 submissions we have made to your lordship how over the  37 course of some four centuries the history of treaty  38 making evolved, and we have demonstrated that the  39 rights of ownership and jurisdiction have been the  40 subject of consensual negotiation from 1629 in the  41 form of deeds signed on the Eastern Seaboard up until  42 1989, my lord, and with the recent signing of the  43 Yukon comprehensive land claims agreement, that should  44 be 1990, in the form of modern land claims agreements.  45 THE COURT:  Mr. Jackson, before you get into your argument any  46 further, I don't know if you were here the other  47 night, and no doubt you have heard the question I 24979  Submissions by Mr. Jackson  1 raised with Mr. Grant, I think it was --  2 MR. JACKSON:  Yes, my lord.  3 THE COURT:  -- that some time I would like to have some clear  4 understanding of just what it is that it is alleged or  5 what different kinds or species of ownership, if there  6 are different ones you are alleging, and I take it  7 that some time in the course of discussion in this  8 volume that will be made --  9 MR. JACKSON:  Very shortly, my lord.  I have in the next couple  10 of pages specifically addressed the questions you  11 raise with Mr. Grant.  12 THE COURT:  Yes.  Thank you.  13 MR. JACKSON:  We say, my lord, that the integral relationship  14 between the rights of ownership and jurisdiction  15 received its clearest judicial affirmation in the case  16 of Worcester v. Georgia, a case which we say is the  17 centerpiece of the common law of aboriginal rights.  18 Last week, the week before, I described how American  19 courts since the Marshall era have typically dealt  20 with the concepts of ownership and jurisdiction as  21 discreet elements of aboriginal rights, and I also  22 discussed how the Canadian courts have almost  23 exclusively focused only on the proprietary aspects of  24 aboriginal title rather than exploring its  25 jurisdictional component.  The plaintiffs in their  26 Statement of Claim assert their aboriginal rights in  27 their inherent, fundamental and integrated character.  28 And, my lord, at page three and four I have under  29 the heading of "The Integrated Nature of Ownership and  30 Jurisdiction", a matter upon which Ms. Mandell will  31 address you at some length of course in her  32 submissions over the next several days.  I have set  33 out some of the paragraphs of the Statement of Claim  34 to highlight the way in which ownership and  35 jurisdiction are co-joined in the claims asserted by  36 the plaintiffs, and at page four, again by way of an  37 initial exploration of the way in which ownership and  38 jurisdiction is integrated in the plaintiffs' systems,  39 I have referred your lordship to three pieces of  40 evidence.  The first piece of evidence was that of Mr.  41 James Morrison in his examination in chief by Mr.  42 Rush, and Mr. Rush asked him:  43  44 "Q   Now, is there a Gitksan word for own, the  45 English word own?"  46  47 And Mr. Morrison's answer was: 24980  Submissions by Mr. Jackson  1  2 "A   Xalgyax Lax Yip.  3 Q   What does that mean?  Isn't that how you would  4 translate that?  5 A   That means the jurisdiction of a land and the  6 authority of that land.  7 Q   And how would you use that phrase from a  8 conversation if you were referring to, let's  9 say, Waiget's territory, how would you use the  10 word?  11 A   Lax yips Waiget.  12 Q   Lax yips Waiget, what do you mean?  13 A   The Waiget territory that belongs to Waiget's  14 jurisdiction."  15  16 And on page 5, my lord, during the  17 cross-examination of Mr. Art Mathews, Tenimgyet by Mr.  18 Plant, there was an elaboration on the relationship  19 between ownership and chiefly authority.  20  21 Q   And you used a phrase Ama gyaa'hi...Did you  22 recognize the phrase from my pronunciation?  23 A   Yes.  24 Q   And I believe you told us that the phrase means  25 'taking care'?  26 A   Looking after, showing ownership, and a -- what  27 I was trying to say there is, yes, look after  28 in the ownership way.  Don't let anybody get on  29 it or destroy it you might say.  30 Q   Is it the same thing as owning in Gitksan?  31 A   Yes."  32  33 And the last piece of evidence, my lord, in this,  34 as it were, introduction into the concepts, the  35 interrelationship between ownership and jurisdiction,  36 Alfred Joseph, Gisdaywa, during his cross-examination  37 by Mr. Goldie explained his responsibility and  38 authority as the head chief in relation to his house  39 territories.  40  41 "Q   And in that sense, then, ownership is the same  42 as being a caretaker, or a caretaker is  43 ownership?  44 A  When I say caretaker, I'm there as Gisdaywa in  45 my lifetime, and that means I will take care of  46 it while I'm Gisdaywa.  47 Q   Yes. 24981  Submissions by Mr. Jackson  1 A   So another Gisdaywa comes along, we'll do the  2 same thing.  3 Q   And as Gisdaywa --  4 A   Yes.  5 Q   -- you own the territory?  6 A   Yes."  7  8 And we say, my lord, from the above statements,  9 Your Lordship has that introduction, as it were, to  10 the way in which the concepts of ownership and  11 jurisdiction are brought together and integrated in  12 the context of the plaintiffs' system.  13 While we say that these are integrated concepts,  14 in order to assist Your Lordship and to introduce some  15 conceptual clarity into the analysis of the asserted  16 rights of the plaintiffs, we will in fact deal with  17 ownership separately from jurisdiction.  All along,  18 however, make the point, my lord, that they come  19 together in ways which sometimes defy unravel.  20 As to the plaintiffs' right then to ownership, as  21 distinct from their claim to jurisdiction, we have in  22 our previous analysis of the jurisprudence, both the  23 British, the American, Canadian and the Commonwealth  24 jurisprudence seen how the courts have struggled to  25 provide a language with which to describe Crown title  26 and aboriginal title and their relationship one to the  27 other.  28 And at page seven, my lord, I have set out a  29 catelogue, as it were, a lexicon of some of the ways  30 in which the courts have sought to describe the nature  31 of the Crown's title.  And I am not going to go over  32 them again, My Lord.  They are all ones I have  33 referred to in the particular context of the cases in  34 which they arise, and I have -- the one thing I would  35 just alert Your Lordship to, and I can do this by  36 reference to the very first one, the reference from  37 Chief Justice Marshall's judgment in Johnson and  38 Mcintosh, where he referred to the Crown's title as  39 the sole right of acquiring the soil from the natives.  40 And Your Lordship will see that reference to volume  41 three, plaintiffs' argument, all these references will  42 be volume three of the plaintiffs' argument, and I  43 have not given you the tabs again.  You will find --  44 THE COURT: I can find them.  Looking at Mr. Justice Strong's  45 compendium in St. Catherine's, "a substantial  46 paramount estate, underlying the Indian title ... A  47 present proprietary estate in the land."  What do you 24982  Submissions by Mr. Jackson  1 say that "present proprietary estate" states or  2 modifies?  The paramount estate which underlies the  3 Indian title or the Indian --  4 MR. JACKSON:  I understand that, my lord, to the Crown's title.  5 THE COURT:  This is Crown's —  6 MR. JACKSON:  That's right.  And that is Lord Watson, my lord,  7 from the Privy Council judgment.  8 THE COURT:  So he is saying the Crown has a present proprietary  9 estate in the land?  10 MR. JACKSON:  Yes.  11 THE COURT:  He describes Indian title in a different way?  12 MR. JACKSON:  Yes, he does.  13 THE COURT:  Yes, all right.  I'll find it.  14 MR. JACKSON:  And on page eight I have set out, as it were, the  15 counterpart.  16 THE COURT:  All right.  Yes.  17 MR. JACKSON:  To the descriptions of the Crown's title and the  18 way in which the courts in the cases have described  19 the aboriginal title.  And, my lord, in addressing Mr.  20 Grant in raising those questions you did the other  21 night, you referred to, I think, the fuzziness of some  22 of the ways in which the courts have described it.  23 What I have done here is to give Your Lordship exactly  24 the problem which the courts have identified, in  25 trying to come up with a language which somehow  26 captures the relationship, and whether it's properly  27 described as fuzziness.  And I think some of them  28 probably deserve that kind of appellation.  What  29 really lies at the heart of this inquiry is some of  30 the difficulties the courts have encountered in  31 providing a language which derives from common law  32 concepts.  33 And at page nine, my lord, having given Your  34 Lordship those lists, and I am not suggesting they are  35 an exhaustive list, they are meant to highlight just  36 some of the ways in which the courts have struggled  37 with this endeavour.  I also refer Your Lordship to  38 the passages which we have previously set out in our  39 argument from the Privy Council judgments in Amodu  40 Tijani and Re Southern Rhodesia and the passage from  41 Chief Justice Dickson's judgment in Guerin, where the  42 courts have acknowledged that the problems of defining  43 aboriginal title as a proprietary interest arises from  44 trying to fit aboriginal title into English property  45 law terminology.  The courts, I am referring here to  46 Amodu Tijani, have cautioned against the tendency,  47 operating at times unconsciously, to render that title 24983  Submissions by Mr. Jackson  1 conceptually in terms which are appropriate only to  2 systems which have grown up under English law.  3 And I refer Your Lordship also on page nine to the  4 passage from the Privy Council judgment in Re  5 Southern Rhodesia where the Privy Council said:  6  7 "There are indigenous peoples when whose legal  8 conceptions, though differently developed, are  9 hardly less precise than our own.  When once  10 they have been studied and understood they are  11 no less enforcable than rights arising under  12 English law."  13  14 THE COURT:  But at least you could say this much, that all the  15 definitions have treated the Crown's interest as a  16 title and the Indians' interest as a right.  17 MR. JACKSON:  Well, my lord, if you look at some of the  18 references, you will see that some of the cases refer  19 to the Indians' right as a title as well.  And --  2 0 THE COURT:  Show me one.  21 MR. JACKSON:  I am trying to see.  22 THE COURT:  I'm sure you can.  23 MR. JACKSON:  In Johnson and Mcintosh, my lord, and in Symonds  24 there are references to Indian title.  I can give you  25 those references.  I wasn't trying to highlight the  26 exact comparisons between title and title.  It is a  27 point I don't make, my lord, and I can give you some  28 further references.  29 Mr. Justice Strong talks about an usufructary  30 title in St. Catherine's Milling.  But I can — if  31 that would help your lordship, my lord, because it is  32 our submission that that is not a point of difference  33 that the characterization by the courts is of the  34 Crown's interest as a title and of the Indian interest  35 as a right.  We say that that is not an appropriate  36 juxtaposition, and I can provide your lordship with  37 some further references which I think will make that  38 point clearer.  39 THE COURT:  All right.  40 MR. JACKSON:  Also, my lord, in Amodu Tijani in relation to this  41 question of understanding the rights of indigenous  42 peoples, the Court said that what is necessary in such  43 an endeavour to understand the rights of indigenous  44 peoples is the study of the history of the particular  45 community and its usages in each case.  And this is a  46 point I made before abstract principles fashioned a  47 priori -- top of page ten -- are of but little 24984  Submissions by Mr. Jackson  1 assistance, and are often as often as not misleading.  2 My lord, I would address the points you raised  3 with Mr. Grant.  Your Lordship enquired whether the  4 plaintiffs' claim to ownership is something different  5 from aboriginal rights, or whether it is another way  6 of describing aboriginal rights.  And as part of the  7 same interrogatory, Your Lordship enquired whether the  8 plaintiffs are saying that they have proprietary  9 interests equivalent to fee simple.  And, my lord, I  10 have tried to address those questions on page 10 and  11 11 and set out a number of propositions which can be  12 summarized in this way.  And each of these  13 propositions contains a larger statement, but I have  14 tried to simplify to reduce to its bare bones what our  15 position is.  We say, my lord, first of all, that the  16 ownership of the territories is split.  The Crown in  17 Right of the Province has the underlying title.  We  18 say the plaintiffs have an aboriginal title.  And we  19 say that both the Crown and the aboriginal titles are  20 co-existing forms of ownership.  21 The second proposition we make is that the  22 plaintiffs' aboriginal title is a sui generis common  23 law proprietary interest distinct from an estate in  24 fee simple.  The plaintiffs do not claim an estate in  25 fee simple.  26 My lord, if I may just pause there for a moment.  27 The principle reason why the plaintiffs do not claim  28 an estate in fee simple is that an estate in fee  29 simple is a right which derives from a Crown grant or  30 as a legal fix is presumed to arise from a Crown  31 grant.  And the plaintiffs' rights are not, derivative  32 from a Crown grant, they are pre-existing.  33 And there is a further reason, my lord, which will  34 become clear when we get to the last proposition why  35 the plaintiffs do not claim a fee simple estate.  But  36 that's the principle one, and it relates to the very  37 different roots, as it were, of Crown title and  38 aboriginal title.  39 The third proposition, my lord, is that the  40 plaintiffs' interest is based on their possession  41 pre-existing the assertion of Crown sovereignty.  And,  42 my lord, I just may, as I said, this is meant to be a  43 fairly reduced proposition.  Your Lordship will  44 remember when I was dealing with the Baker Lake  45 propositions, I introduced a caveat to that  46 proposition that where -- if Your Lordship at the end  47 of the day is of the opinion that some territories are 24985  Submissions by Mr. Jackson  1 not proven to your lordship's satisfaction, to have  2 been based upon pre-existing possession prior to the  3 assertion of sovereignty, we say that if those  4 territories have been held by the plaintiffs for a  5 long time, and were acquired from other aboriginal  6 people, the Tahltan or the Nishga or whatever, that  7 may ground a right based upon aboriginal title.  But  8 broadly speaking, the plaintiffs assert rights which  9 are based upon pre-existing possession.  I just wanted  10 to, rather than clutter up the proposition with that  11 caveat --  12 MR. WILLMS:  Except to this extent, my lord.  The proposition  13 was advanced when my friends amended with respect to  14 two specific instances.  I take it that's what my  15 friend's referred to, and not any broad brush analysis  16 that is being introduced.  17 MR. JACKSON:  This is limited to particular territories.  18 THE COURT:  Yes, thank you.  19 MR. JACKSON:  The fourth proposition is that the plaintiffs'  20 interest extends to the full exclusive enjoyment of  21 the territory and all its resources.  22 And the fifth proposition, my lord, which is very  23 much the proposition of Amodu Tijani in Re Southern  24 Rhodesia, is that the precise legal character of the  25 plaintiffs' interest is determined by an analysis of  26 the laws and usages of the plaintiffs in the context  27 of their organized society.  And, my lord, it is  28 principally to that fifth proposition that much of the  29 submissions of my friend Ms. Mandell and Mr. Grant  30 will be addressed.  31 And we say as a sixth proposition that the  32 plaintiffs' interest, so analyzed, has the essential  33 hallmarks of ownership and not merely use and  34 occupancy.  35 THE COURT: But subject to —  36 MR. JACKSON:  The underlying title of the Crown.  37 THE COURT:  And the right of the Crown exclusively to acquire  38 title?  39 MR. JACKSON:  Yes, my lord.  And that is a proposition which is  40 number eight, which I will come to.  41 THE COURT:  Yes, all right.  42 MR. JACKSON:  The seventh proposition, my lord, is that because  43 the plaintiffs' interest has the essential hallmarks  44 of ownership and not use and occupancy, the  45 plaintiffs' interest in their territory, their  46 aboriginal title is legally characterized as  47 ownership.  And that is why, my lord, in the Statement 24986  Submissions by Mr. Jackson  1 of Claim it is a claim to ownership and not a claim to  2 use and occupancy.  3 And the final proposition, my lord, which is the  4 one which you've just identified, is that the  5 plaintiffs' aboriginal title characterized, we say, as  6 their ownership, is inalienable except to the Crown.  7 Another way of saying that is the way your lordship  8 stated it, is that the Crown has the exclusive right  9 to acquire the rights of the plaintiffs.  10 THE COURT: And would that extend to a prohibition against any  11 form of alienation by way of lease or mortgage or any  12 other English law device for the permanent or  13 temporary transfer of legal estates?  14 MR. JACKSON:  Yes, my lord, it would, save and except to this  15 caveat.  As your lordship will hear, and as your  16 lordship has heard much evidence of, within the  17 internal system of the Gitksan and Wet'suwet'en there  18 are transfers, alienations, grants of access rights.  19 Those, we say, are part of the internal system.  When  20 I say that the interest of the plaintiffs is  21 inalienable except to the Crown, what we are referring  22 to there is the granting of rights external to the  23 system.  And those would be grants which would  24 encompass outright alienation, but they would also  25 encompass leases and other grants of like kind.  26 THE COURT:  Would preclude out external leasing and mortgaging?  2 7 MR. JACKSON:  Yes, my lord.  2 8 THE COURT:  Yes.  29 MR. JACKSON:  The relationship, my lord, between what the  30 plaintiffs then have, by virtue of this cluster of  31 rights, what the province has by virtue of its  32 underlying title, and what the federal government has  33 by virtue of having as a result of Section 91(24), the  34 exclusive right to extinguish or acquire the Indian  35 interest, how those three relate together is a matter  36 we will be coming back to, my lord, before we sit  37 down.  A prospect I would say we are always looking  38 forward to with much pleasure.  39 THE COURT:  I am very optomistic it will happen someday.  40 MR. JACKSON:  My lord, in the six of the propositions I have set  41 out, your lordship will see that we have said that the  42 plaintiffs' interest so analyzed has the essential  43 hallmarks of ownership, and not merely use and  44 occupancy.  And what I have endeavoured to do in  45 Section D is to explore what we mean by ownership.  46 And as your lordship will have discovered in looking  47 at the cases, this is where a lot of the fuzziness has 24987  Submissions by Mr. Jackson  1 come in, the ambiguity, the lack of conceptual and  2 analytic clarity which one might hope for in dealing  3 with such a fundamental concept as ownership.  What we  4 have tried to do is to provide for your lordship some  5 handles, some conceptual handles for the concept of  6 ownership.  7 And proceeding upon the lines of inquiry, which  8 the Privy Council has set out, which is that in trying  9 to provide a proper legal characterization of  10 aboriginal title, indigenous rights, however you want  11 to refer to them, it's important that we don't simply  12 start with our concepts and try, as it were, to fit  13 them or shoe them into those, that we should try and  14 look at this in a rather broader fashion.  15 And what we have tried to do in this section, my  16 lord, is to combine some common law concepts of  17 ownership, and also to provide a broader definition.  18 And Dr. Daly in his report in section 3, which  19 explores the whole issue of ownership, sought to come  20 up with a cross-cultural definition, a definition of  21 ownership which would link, as it were, the common  22 law, civil law, other systems other than those that  23 have grown up within the common law tradition.  24 MR. WILLMS:  My lord, I objected to that, and the explanation  25 that allowed that evidence to go in was not what Mr.  2 6 Jackson now advances.  I don't have the volume right  27 now, but I said he can't give that evidence.  And Mr.  28 Grant, I think, characterized the evidence in a  29 different way, and then it was allowed to be given.  30 But it was not on the basis that it was a  31 cross-cultural legal comparison.  32 MR. JACKSON:  It's a cross-cultural comparison, not a  33 cross-cultural -- Dr. Daly is not in a position to do  34 a cross-cultural legal comparison.  This was a  35 cross-cultural comparison.  I am suggesting, my lord,  36 that it may guide your lordship in trying to identify  37 what are the hallmarks of ownership.  This is not  38 profit, nor was the evidence given at the time as a  39 legal opinion that quite obviously being beyond Dr.  40 Daly's competence as an anthropologist.  It was meant  41 to bring together some shared features of systems of  42 ownership within state society and non-state society,  43 within kinship society, and for that limited purpose,  44 my lord, I submit it's perfectly proper for your  45 lordship to look at it.  46 THE COURT: I am not going to stop you, Mr. Jackson.  I have some  47 misgivings that on one view he's purporting to tell me 249?  Submissions by Mr. Jackson  1 how I inquire into a legal question, but on your  2 assurance that it isn't intended for that purpose,  3 that is not expressly stated to be for that purpose, I  4 will allow you to proceed with it on a limited basis,  5 and that need not at this moment be precisely defined.  6 MR. JACKSON:  Yes, my lord.  The bottom of page 11, my lord, Dr.  7 Daly expressed this opinion:  8  9 "The diversity of relationships expressed by  10 means of property ownership makes it extremely  11 difficult to find a satisfactory,  12 cross-cultural definition of ownership - within  13 the realm of state societies, let alone in  14 societies where there are no state  15 institutions."  16  17 And Dr. Daly went to that knowledge, the  18 Encyclopedia Britannica where it explains property  19 as --  20 THE COURT:  You don't need to read that.  I surely have to go  21 beyond Encyclopedia Britannica.  I wish I could settle  22 it on that basis, but I can't.  I don't want to be  23 troubled by things I can't make use of.  24 MR. JACKSON:  Dr. Daly suggested the following common elements  25 of a system of ownership:  26  27 "A broad explanation of ownership in any culture  28 would include the following aspects.  First,  29 ownership implies the concept of exclusive  30 possession.  Implicit in this aspect is the  31 delineation of boundaries; that is, social  32 recognition of the physical limits of the  33 property over which ownership is claimed.  34 While exclusive possession is a dominant  35 feature of ownership it does not preclude the  36 existence of defined areas over which there are  37 common or joint use rights.  Second, ownership  38 entails rules to govern the conveyance of  39 rights from person to person, and generation to  40 generation.  In some societies the conveyance  41 of land is limited to inheritance; in others,  42 it can be bought, sold, traded or auctioned.  43 Third, ownership entails property management;  44 and fourth, it involves the owner in  45 obligations to whichever society recognizes and  46 validates his or her proprietorship.  These  47 obligations may involve the giving of gifts and 24989  Submissions by Mr. Jackson  1 hospitality, or the payment of taxes.  2 Ownership implies the rights to manage and  3 direct activities concerning of the property in  4 question, be they production activities,  5 marketing or property maintenance.  Depending  6 upon the actual society, this may involve the  7 maintenance of the best possible annual  8 harvests from the land over the generations,  9 and/or the security and defence of the  10 property.  In some societies this defence means  11 direct action, where policing is carried out by  12 the owning person or persons, and where  13 trespassers and other transgressors are dealt  14 with according to customary law.  15  16 And over on page 13.  17  18 "Other societies administer an indirect defence  19 of property rights in which the defence of  20 property is usually conducted by institutions  21 of a hierarchical nature, including a police  22 force and an army.  In both types of society in  23 different ways, property-holders must make  24 payments to the society for the right to have  25 their ownership claims validated and  26 recognized.  In Canadian society these payments  27 take the form of taxes.  In non-state  28 societies, such as those of the Gitksan and  29 Wet'suwet'en, they are paid through the owning  30 groups obligations to the feast systems."  31  32 And then the very last sentence of that quote, my  33 lord.  34  35 "The public and ceremonial announcement changes  36 and reaffirmations of matters pertaining to  37 properties is common in societies without a  38 written culture."  39  40 So that's, my lord, Dr. Daly's contribution, as it  41 were, to a cross-cultural understanding.  At the  42 bottom of page 13, my lord, I have set out again the  43 indicia of ownership identified by Mr. Justice Gould  44 in the Calder case, where your lordship will recall in  45 an exchange with Professor Wilson Duff as to whether  46 the Nishga's land tenure system was appropriate  47 referred to as ownership.  Mr. Justice Gould 24990  Submissions by Mr. Jackson  1 identified what he regarded as being in the common law  2 system, the hallmarks of ownership.  And I've -- I  3 have given your lordship the prior reference to that,  4 but I have set out the five criteria, specifically  5 delineation of the lands, exclusive possession, the  6 right of alienation, the right to destroy at your  7 whim, and five, the exclusive possession should be of  8 indeterminable time; that is, that it can be passed  9 onto ones heirs.  10 THE COURT:  You don't allege those as being an accurate  11 restatement of an aboriginal interest, do you?  12 MR. JACKSON:  My lord, we say that all but number four is an  13 acceptable definition of ownership in the common law.  14 THE COURT:  Well, item 2, exclusive possession, would exclude  15 what we have been -- Calder type aboriginal rights --  16 MR. JACKSON:  No, my lord, because in Baker Lake, one of the  17 tests of aboriginal title identified by Mr. Justice  18 Mahoney is exclusive possession.  That is one of the  19 hallmarks of common law aboriginal title.  20 THE COURT:  But you think that can stand alongside Calder type  21 aboriginal rights, which is one of your alternative  22 claims, or may be one of your --  23 MR. JACKSON:  My understanding is the Calder type relief is  24 based upon exclusive possession.  25 THE COURT:  Well, it's based upon it, but again we are down to  26 some very precise concepts here.  Are these being  27 identified as the basis for title, or are they being  28 identified as the characteristics of this interest?  I  29 thought these were the characteristics of the  30 interest.  31 MR. JACKSON:  These -- are you talking about the characteristics  32 on page 13?  33 THE COURT:  Yes.  Mr. Justice Gould, the gang of five.  34 MR. JACKSON:  What I understood what Mr. Justice Gould was  35 trying to do in response to Wilson Duff's evidence,  36 which was that the Nishga had defined -- well defined  37 concepts of ownership.  I believe that was how Wilson  38 Duff gave evidence.  That triggered a response by Mr.  39 Justice Gould -- when you say they have well defined  40 concepts of ownership, what do you mean, and what Mr.  41 Justice Gould said was what he understood by a well  42 defined concept of ownership.  And so it was part of  43 that kind of inquiry that Mr. Justice Gould sought to  44 identify, and to be fair to His Lordship, he did so,  45 as it were, from the bench.  But subject, again, to  46 number four, we say that that is a useful working  47 definition of ownership, and what we are saying, my 24991  Submissions by Mr. Jackson  1 lord --  2 THE COURT: I'm sorry, a useful working definition of what kind  3 of ownership?  4 MR. JACKSON:  Common law ownership.  Ownership as it exists at  5 common law.  6 THE COURT:  And could you contend that these are the  7 characteristics of the type of interest the plaintiffs  8 seek in this action?  9 MR. JACKSON:  My lord, we say that the plaintiffs' interest  10 properly analyzed fits into that -- has those  11 qualities.  And thus explains, my lord, why in  12 asserting their aboriginal title the plaintiffs do not  13 assert a right to the use and occupation of the land.  14 They say that once you analyze the nature of the  15 regime of the Gitksan and Wet'suwet'en, one comes  16 inexorably to the conclusion that what this is not is  17 a system of use and occupancy.  It is a system which  18 has all the hallmarks of what we regard in the common  19 law as ownership.  20 THE COURT:  I have no trouble with your proposition, Mr.  21 Jackson, except for the fact that at some stage of  22 this trial Mr. Rush did advance an alternative claim,  23 and I'm -- I've never been certain to the extent to  24 which that's being advanced, and I'm looking forward  25 to a clear statement at some time, and this -- maybe  26 this isn't the time, but I would find -- I would find  27 item two of that working definition to be a difficult  28 one to reconcile with the Calder type interest that I  29 understood Mr. Justice Hall had found in his judgment.  30 I did not understand Mr. Justice Hall to include  31 exclusivity.  Now, I haven't read it from that  32 particular perspective for some time.  I'll certainly  33 have to read it again.  I want you to understand that  34 this is another loose end that is causing me some  35 difficulty.  36 MR. JACKSON:  My lord, the exclusivity of possession concept, I  37 don't think Mr. Justice Hall did use that phrase in  38 that sense.  He did cite from the Sante Fe case, and  39 your lordship will recall that Mr. Justice Mahoney, in  40 identifying what he thought were the elements of  41 proof, also identified the concept of exclusive  42 possession as being one of the elements.  The problem  43 may be, my lord, in terms of the definition of  44 exclusive possession.  Your lordship will recall --  45 THE COURT:  It's more than that, because exclusive possession  46 seems to me to be the requirement of the interest you  47 seek, but the interest that results from that 24992  Submissions by Mr. Jackson  1 exclusive possession may not itself give rise under  2 Calder to exclusive possessions as an aboriginal  3 right.  4 MR. JACKSON:  I don't think that issue was addressed in court,  5 my lord, because the Court was not called upon, and it  6 carefully refrained from articulating exactly what the  7 precise nature of the right was.  8 THE COURT:  Yes, but you are not being as kind to me -- you are  9 asking me to make that determination.  Therefore I  10 have to make sure that these concepts are unfuzzified.  11 MR. JACKSON:  My lord, it is our position that the right in  12 order to be established as a common law right, has to  13 meet the test of exclusive possession, defined as the  14 way the cases have defined it, and that it gives rise  15 to an interest in the land which we say is defined as  16 ownership, which carries with it the exclusive  17 possession of that territory.  So essentially you come  18 in with exclusivity and out with exclusivity.  19 THE COURT:  Until somebody says something different, I have to  20 take that as you have just described it, to be an  21 abandonment of the claim for Calder type remedies.  I  22 don't want to hold you to that, but that's the way I  23 would categorize your submission, and I am not -- this  24 isn't checkers, where you have made your move and you  25 are irrevocably committed to it, but it seems to me  26 that there is a conceptual problem there that troubles  27 me greatly, and I want to make sure that I understand  28 precisely what it is you're saying.  If I have  29 misstated, or if you have an answer to what I have  30 just said now or at some time, I must have your  31 assistance.  32 MR. JACKSON:  Well, I would welcome the opportunity to return to  33 that question, because obviously is an extremely  34 important one --  35 THE COURT:  Yes, it is indeed.  36 MR. JACKSON:  — for the plaintiffs and for your lordship.  37 THE COURT:  Yes, thank you.  38 MR. JACKSON:  My lord, in terms of giving another definitional  39 content to the ownership which the plaintiffs assert  40 in the Statement of Claim, I have referred your  41 lordship at page 14 to the Pueblo of San Ildefonso  42 case, a case which I talked to your lordship about  43 last week.  And again the hallmark of ownership  44 addressed in this case is precisely the one your  45 lordship has just identified, where the Court said:  46  47 "Implicit in the concept of ownership is the 24993  Submissions by Mr. Jackson  1 right to exclude others."  2  3 That's what it meant by exclusive possession.  4  5 "Generally speaking, a true owner of land  6 exercises full dominion and control over it; a  7 true owner possesses the right to expel  8 intruders."  9  10 And, my lord, that is an element which we say  11 characterizes the nature of the plaintiffs' system,  12 and it's a matter upon which Ms. Mandell will address  13 you immediately.  And what we say is that subject to  14 the qualification we have previously made in relation  15 to the fourth element of Mr. Justice Gould's  16 definition about the right to destroy property at your  17 whim, we say that the relationship of the plaintiffs  18 to their territories contains all of the elements of  19 the cross-cultural definition put forward by Dr. Daly,  20 the definition put forward by Mr. Justice Gould and  21 the definition of the U.S. Court of Claims.  22 My lord, at pages 14 to 20 we have set out what is  23 referred to as an overview of the Gitksan and  24 Wet'suwet'en systems of property ownership, and we say  25 that in so doing, for the first time in any Canadian  26 case this court will have the basis upon which to draw  27 conclusions as to the sui generis nature of  28 plaintiffs' aboriginal rights anchored in hard factual  29 bedrock and not abstract principles.  And I have set  30 out, my lord, the six propositions.  31 The first one being the ownership of the territory  32 is in the house.  That's at page 15.  The house  33 territories have defined boundaries.  Thirdly, the  34 house ownership is underpinned bylaws of trespass.  35 Fourth, that house property is the subject of  36 succession and alienation.  Fifth, that ownership  37 includes the right to grant access to the territories.  38 And sixth and finally the recording, registering and  39 legitimizing the transfer of and succession to rights  40 of ownership is maintained through the feasts, oral  41 histories, crests and poles.  42 And, my lord, at that point Ms. Mandell will go  43 through the details of the essential elements of the  44 plaintiffs' system of ownership.  4 5    THE COURT:  Thank you.  46 MS. MANDELL: My lord, I think before lunch we can cover the  47 first essential feature of the plaintiffs' system of 24994  Submisions by Ms. Mandell  1 ownership, and that's a description of the owning  2 group, the land owning group which we say is the  3 house.  And I want to first draw to Your Lordship's  4 attention something which I think is going to purvey  5 the entire concepts of ownership and the definition of  6 it, and that's the fact that the people are -- the  7 plaintiffs, when they talk about their territories in  8 owning, they always begin with the concept of  9 belonging to the land.  And this was expressed by Dan  10 Michell where he explained that the land belongs to  11 the people, and also the people belong to the land,  12 and he said it in this quote:  13  14 "they live on those lands.  Like I explained  15 before, they are part of that land...they  16 belong to it and they return back there."  17  18 And this concept of belonging to the land is  19 something which your lordship will appreciate is  20 the -- as the argument moves along -- is the  21 foundation from the people's point of view of the  22 intensity by which they claim ownership to the  23 territories which are before your lordship.  24 Now, there is a fairly complicated owning  25 arrangement, and I have set it out in summary form on  26 page 21, that the house territory and fishing sites  27 are owned by the house.  The hereditary chief  28 represents the house's right of ownership as steward  29 of the land, on behalf of the house members.  The  30 chief has the responsibilities to direct and safeguard  31 the house's production components:  The fruits of  32 land, labour, knowledge and skills necessary to  33 produce an appropriate standard of living.  In each  34 generation the task of renewing house authority over  35 property goes with the chiefly name.  36 And Joan Ryan, I think, properly and in a fairly  37 good way explained this concept of steward over the  38 lands.  I wonder if I could ask your lordship first  39 before I move into the quote to have a look at Exhibit  40 34.  I have asked that it be placed before you.  It's  41 a picture.  42 THE COURT:  Now which picture?  43 MS. MANDELL:  I believe that it's self marked as Exhibit 34.  44 It's a picture of Mrs. Ryan about to take her chiefly  4 5 name.  4 6    THE COURT:  Yes.  Yes, I have it thank you.  47    MS. MANDELL:  You will recall the evidence of Mary Johnson 24995  Submisions by Ms. Mandell  1 referred to by Mr. Grant when he was referring to dax  2 gyet about the phrase being, "if I could spend one  3 night with the power of my grandmother."  And the  4 reason I wanted to draw to Your Lordship's attention  5 the picture, is that it reflects the expectant and  6 also the odious task which Mrs. -- which Hanamuxw is  7 about to assume in taking the name.  And I thought  8 that the look on her face and the way that she was  9 walking in the hall really brought to bear that moment  10 for her as she's about to assume the role of steward  11 as she describes it.  12 THE COURT:  Did you have that as Exhibit 34?  My copy is not so  13 marked.  Let's look at the original.  The whole volume  14 is Exhibit 34.  And this is item 2 of Exhibit 34.  15 MS. MANDELL:  Thank you.  We'll bring ourselves into line with  16 you.  17 THE COURT:  That's Exhibit 34.  Thank you.  18 MS. MANDELL:  Mrs. Ryan was asked in her examination to explain  19 what she was taking on when she took on the name, and  20 there is a Gitksan sentence which was repeated, when  21 she was passed the name Hanamuxw, and she was asked to  22 translate what that sentence meant.  And I am reading  23 from the last part of the quote beginning roughly --  24 she goes -- at the bottom of page 21:  25  26 "Roughly the translation would be that you are  27 the one that has been selected to take the land  28 that was your inheritance, to hold it, and to  29 take care of it ..."  30  31 And I wanted to pause here and emphasize that when  32 Mr. Jackson said that Mr. Justice Gould's definition  33 of ownership didn't include the right to destroy the  34 lands, that's what she is explaining here, that her  35 role as steward is to take care of the land.  And then  36 she says --  37 THE COURT: Of course I have trouble with that concept too,  38 because I don't know what that means either.  39 MS. MANDELL:  I hope that by the time we finish you will.  40 THE COURT:  I don't know, for example, does it mean can you log,  41 can you mine, can you do those things?  42 MS. MANDELL:  Well, I think that the —  43 THE COURT:  You come to it when it's convenient.  44 MS. MANDELL:  All right.  At the top of page 22 she goes on to  45 say.  46  47 "That means the lands that your forefathers had, 24996  Submisions by Ms. Mandell  1 that includes the regalia, that includes the  2 adaawk, that includes the pole, that includes  3 the resources on the land, that includes the  4 name Hanamuxw, and the right to use that name  5 within the Gitksan territory.  That means the  6 right to use the authority of the chief.  That  7 includes providing leadership for the people,  8 the Gisk'aast as well as the other clans in  9 Gitsegukla.  It means preserving the history of  10 the house.  It means taking care of the  11 present, and always with the idea that you link  12 it with the future ..."  13  14 And I wanted to emphasize that here what she is  15 talking about is that as a steward she is being passed  16 the ownership of the house in the sense that she is  17 the holder of and the person responsible to hold the  18 dax gyet of the house as its been passed to her in the  19 form of the adaawk and the poles and the name, and  20 that she's parts of a chain of history.  She doesn't  21 just get property which she can take to herself and  22 use for herself, but that she's part of a chain of  23 history which she walks into, being the next in line  24 to carry the history, which includes the history of  25 the house on the land and protecting the territory as  26 she says always with the idea that you link it with  27 the future.  She is not an individual in this.  She is  28 one in a chain.  And then she says lastly:  29  30 "I was directly translating our words into  31 English which at best of times is difficult to  32 do.  To me it means that the property is not  33 given to you directly.  In other words, it's  34 not your personal property, but rather you are  35 designated as the person to manage that  36 property not just for yourself but for all of  37 the members of your house."  38  39 And I might here remind your lordship that in the  40 Pasco case the Court of Appeal there said that the  41 aboriginal right which they were contending with was a  42 right which was not individual but communal in nature.  43 And I think that what here Hanamuxw is describing is  44 the very way in which that communal quality of the  45 right functions with her as steward and with the house  46 as owners.  And the quotes which I then introduced you  47 to from Martha Brown and Art Mathews senior and Mrs. 24997  Submisions by Ms. Mandell  1 Ryan and Alfred Joseph following all explain that it's  2 really the fact that all members of the house are  3 co-owners.  And I think that's the best legal analogy  4 that I can draw.  Martha Brown says, when asked who  5 was the owner, she says:  6  7 "All the members of the house."  8  9 Art Mathews Senior says:  10  11 "The whole house and all of its members."  12  13 Joan Ryan says:  14  15 "All of our members of the house."  16  17 And I am going to return to that concept in a  18 minute.  Alfred Joseph says:  19  20 "Me and my house members.  It's all of our  21 family, all of the members of the house."  22  23 And I think this concept of co-owner is the best  24 way to describe the interest of the house members  25 collectively in the house territory.  26 THE COURT:  Who used the term "co-owners"?  27 MS. MANDELL:  I do.  2 8    THE COURT:  You do?  29 MS. MANDELL:  Yes.  If I could return you to page 23.  There is  30 a concept here which I would like to introduce you to  31 at this stage.  That's reflected in the evidence of  32 Joan Ryan.  33 THE COURT:  Yes.  34 MS. MANDELL:  She says the authority of the — I'll read the  35 quote:  36  37 "All of our members -- all the members of the  38 house have the right to use the territory  39 whenever they need resources from the  40 territory.  And if they need to go to the  41 territory they probably would pay a courtesy  42 call to Hanamuxw to ask for permission to go to  43 the territory.  And usually that's just a  44 routine matter.  The answer to that question is  45 always yes."  46  47 And what we are seeing here spelled out is 2499?  Submisions by Ms. Mandell  1 something which is going to be quite important for  2 your lordship's understanding on the question of  3 jurisdiction.  And that is that there is a balance  4 which is continuously maintained between the chief on  5 one hand and the house, and this we'll argue later  6 extends as well to the balance between houses in the  7 harvesting and in the management of the territory,  8 where the chief needs the support of the house members  9 in order to fulfill the chief's obligation at the  10 feast, and at the same time the chief has a  11 responsibility to provide for the members of the house  12 and to receive their support in return.  And so the  13 authority of the chief to grant finally the ultimate  14 say is as to who uses and on what terms the territory  15 is accessed, is -- and the ownership of the house is  16 counterbalanced by the fact, as Hanamuxw says, the  17 answer to the question is always yes, they both meet  18 each other, and that's the general framework within  19 the -- within which the steward of the land, the chief  20 and the house members as owners function within this  21 unit.  22 And if I could turn you to page 24.  The last  23 concept which I think is important in understanding  24 the house was articulated again by Dan Michell, and I  25 was describing the Namox territory, and he said:  26  27 "When I was born as a Tsayu a member of the  28 Tsayu clan...1 had that right when I got born  29 into that clan...this includes the right to the  30 fishing grounds of the House of Namox.  This  31 right belongs to the other members of the House  32 of Namox."  33  34 And he's expressing what I began the discussion  35 with, and that is the feeling of belonging, and also  36 the fact that the ownership to the land is seen as a  37 birthright.  38 THE COURT:  Was he a member of the House of Namox?  39 MS. MANDELL:  Yes.  4 0    THE COURT:  Yes.  41 MS. MANDELL:  And I wanted to stress the fact that people — the  42 house members have a right to the territory from their  43 point of view and according to the system as a  44 birthright.  45 THE COURT:  But there is a potential conflict there between what  46 he says there and what Joan Ryan says.  She says the  47 answer to the question is always yes, but you need my 24999  Submisions by Ms. Mandell  1 permission.  2 MS. MANDELL: Yes.  3 THE COURT:  There is a dichotomy there, is there not?  4 MS. MANDELL:  Well, I think that the — if you call it a  5 dichotomy, I think that the answer to it is explained  6 in the definitions of ownership, which Mr. Jackson  7 referred to you earlier, and that is that there is a  8 concept -- the ownership and jurisdiction are quite  9 connected, and there is a responsibility in the house  10 chief to manage the territory.  There is the right in  11 the house members to the territory, and the balances  12 maintain because of the rights and responsibilities  13 each to each other.  It's not as we have it, my lord,  14 and maybe the explanation is with reference to our own  15 system, where when -- I don't own communally, I own  16 individually the territory which I hold, and I as  17 owner am not having to ask anybody else, or I don't  18 have to behave communally in the rights that I  19 exercise to my land.  But the house unit is a unit  20 that does function communally, and the arrangement  21 that has been described in the evidence and which we  22 say is the essential land holding arrangement, is that  23 the chief is steward and has finally the authority  24 with respect to the caretaking of the territories, the  25 house members have the rights, the rights to the  26 territory and to use it, and it's in the relationship  27 between the house member and the chief that those  28 rights will be articulated on the ground.  29 THE COURT:  Is there a problem in the pleadings on this?  30 MS. MANDELL: I don't think so.  31 THE COURT:  In the style of cause?  I have got my hand on it --  32 MS. MANDELL: We say that the ownership is in the house.  We  33 plead that the plaintiffs as representative chiefs of  34 the house represent themselves and the other members  35 of the house.  36 THE COURT:  You say that the plaintiff — I am looking at  37 paragraph 1:  38  39 "Delgamuukw is the hereditary chief of the House  40 of Delgamuukw and is bringing this action on  41 behalf of himself and the members of the houses  42 of Delgamuukw and not ..."  43  44 That seems to me to be technically and  45 legalistically different from the assertions of the  46 chiefs that they own the land.  47 MS. MANDELL: As I state on page 21, and I ask your lordship to 25000  Submisions by Ms. Mandell  1 return to it, that the chiefs represent the houses  2 rights of ownership as steward of the land, and the  3 chiefs themselves don't possess title to the land in  4 an individual capacity.  And I think that the marriage  5 of the hereditary chief in the pleadings as  6 representing the house and the factual marriage in how  7 the people own the land, that is the hereditary chief,  8 represents the house's rights of ownership as steward  9 is very close --  10 THE COURT:  Well, as I have said many times, this case isn't  11 going to be decided on joinder of parties.  I am  12 struggling with these concepts -- it seems to me that  13 what you're saying now is that there is a form of a  14 convention imposed upon the ownership in the chiefs,  15 or at trusteeship.  16 MS. MANDELL: The analogies are there, but it's not a pure  17 trusteeship as we know it.  I mean, if you're going to  18 walk into that line, I probably caution you to say  19 it's something akin to a trusteeship.  It's sui  20 generis, and that nature of it will be described as we  21 progress.  22 THE COURT:  Yes.  All right.  23 MS. MANDELL: Perhaps this is an appropriate time to break.  24 THE COURT:  Yes, all right.  Thank you.  25 THE REGISTRAR:  Order in court.  Court stands adjourned until  26 2:00 o'clock.  27  2 8 (PROCEEDINGS ADJOURNED FOR LUNCHEON RECESS)  29  30 I HEREBY CERTIFY THE FOREGOING TO BE  31 A TRUE AND ACCURATE TRANSCRIPT OF THE  32 PROCEEDINGS HEREIN TO THE BEST OF MY  33 SKILL AND ABILITY.  34  35    3 6 LORI OXLEY  37 OFFICIAL REPORTER  38 UNITED REPORTING SERVICE LTD.  39  40  41  42  43  44  45  46  47 25001  Submissions by Mr. Grant  1 (PROCEEDINGS RECONVENED AT 2:00 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MR. GRANT:  Yes, my lord.  I am going to do this next part of  6 the argument and then Ms. Mandell will do the balance  7 of it.  8 THE COURT:  You are on page 24.  9 MR. GRANT:  Yes, my lord.  This is the concept that the House  10 territories have defined boundaries.  11 I wish to emphasize here, my lord, that this  12 aspect of ownership is part of the proof of possession  13 of the territories.  Firstly -- the first proposition  14 I wish to explain is the significance of the place  15 names, that the plaintiffs' ownership of these  16 territories is embedded in the histories on the land  17 and is reflected and confirmed by the place names,  18 adaawk, kungax, crests and songs.  As Mrs. McKenzie  19 said:  20  21 Gitksan houses have territories; the territory  22 is an important part of the Chief's House in  23 that it holds the adaawk, it holds the songs,  24 and the names and the territories.  25  26 My lord, I submit that the number and meaning of  27 place names -- and there is well over 2,000 place  28 names in Gitksan and Wet'suwet'en that have been  29 tendered through evidence through the territorial  30 affidavits -- is convincing evidence of the  31 territorial significance of the specific names.  32 Thomas Wright was asked when he was cross-examined by  33 0'Byrne for the province if there was any way that  34 non-Gitksan people could tell that it was Gitksan  35 land, and I believe that Guuhadak, the late Guuhadak,  36 Thomas Wright, really answered this issue.  He said:  37  38 Yes, they did.  They, [referring to his  39 forefathers] used the names of the waters, the  40 creeks and the mountains.  They used those to  41 mark their land they named them.  42  43 In other words, my lord, the naming of the  44 territory is the evidence of the possession.  45 With respect to the Wet'suwet'en, Gisdaywa, Alfred  46 Joseph, described geographic place names of long  47 antiquity.  When he was asked about the boundaries he 25002  Submissions by Mr. Grant  1 said:  2 A  You look for a ridge or a small hill and  3 those features is [a] small hill or  4 mountain is Kess.  5 Q  What other things do you look for?  6 A  Creek, river, sometimes a trail.  7 Q  Are there other features on the territory  8 in addition to those that you might  9 identify?  10 A  Range of mountains...  11  12 Of course here he is talking about the boundaries of  13 the territory.  14  15 Q  And the features that you've described as  16 existing geographic points on a territory  17 to help you determine where boundaries  18 are, are those features that Wet'suwet'en  19 people look to in order to identify a  20 boundary?  21 A  Yes.  22  23 And later on, just near the bottom of that quote,  24 he was asked about words of antiquity, and he -- to  25 give an example of such a word, and he said:  26  27 A All the features like mountains are old  2 8 words, lakes, rivers and any camps and  29 villages where people live.  30 Q  And do these words appear to your  31 knowledge in any particular place?  Do  32 they appear in at moments where you would  33 recognize them to be old?  34 A  They appear in songs; they appear in any  35 stories that people tell; and they appear  36 in place, kungax.  37  38 And my lord, it's my submission -- it's the  39 plaintiffs' submission that the possession of the  40 territories established through the naming and the  41 place names of the territory, what Mr. Joseph is there  42 referring to was clearly reflected by the Wet'suwet'en  43 chief Kweese when she gave the kungax of the Kweese  44 raid and described her trip through the Burnie Lake  45 territories and the places that they travelled through  46 on their way to that raid.  47 Now, my lord, as Mr. Adams referred to on Friday, 25003  Submissions by Mr. Grant  1 when the first white man arrived in the territory  2 there were no signs pointing out the creeks, rivers  3 and mountains with names on them in Gitksan and  4 Wet'suwet'en.  However, my lord, as as example by  5 Exhibit 964-14, the 1826 Brown report and others of  6 the historical documents, these people, these white  7 men were guided down the water routes and trails known  8 and used by Gitksan and Wet'suwet'en people.  They  9 used the bridges and the trails of the Gitksan and  10 Wet'suwet'en people.  And that's demonstrated by Mr.  11 Chismore, for example, who crossed the bridge and  12 described the bridge that I referred you to last week.  13 Now my lord, the provincial defendant, the  14 government, has been well informed of the existence of  15 Gitksan and Wet'suwet'en place names.  In fact, my  16 lord, the government maps themselves are replete with  17 reference to original Indian place names in the  18 territory, names you've heard of and you see on the  19 government maps:  Netalzul Mountain, Nadina Mountain,  20 Nanika Mountain, Kitsuns Creek, Kitseguecla River,  21 Skawill Creek, Susqua River, Damdochax Lake, all of  22 those names I've listed there.  My lord, these place  23 names on government maps are all derived from Gitksan  24 and Wet'suwet'en names from geographic points on the  25 territory.  There is little doubt, my lord, and I  26 would submit that it would be preposterous to suggest  27 that the early non-Gitksan and non-Wet'suwet'en were  28 introduced to these locations in any other way than  29 through their Indian names.  30 The Gitksan and Wet'suwet'en chiefs demonstrate  31 their ownership through naming places on their  32 territories.  And I submit that the wealth of this  33 knowledge is demonstrated in the territorial  34 affidavits and the oral evidence.  35 Now, my lord, I put -- I believe it's Exhibit  36 670, on the back of the other exhibit, and that is the  37 map of the viewing, much of which you heard evidence  38 about.  And I submit, my lord, that you had the  39 opportunity in that viewing of evaluating firsthand  40 the knowledge of the Gitksan and Wet'suwet'en of the  41 territories.  For example, David Blackwater not only  42 showed your lordship where his brothers were buried at  43 Damdochax Lake, but he pointed out the names of  44 creeks, lakes, mountain peaks and boundaries between  45 different chiefs' territories.  All of which was also  46 proved in evidence through territorial affidavits and  47 cross-examinations. 25004  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  Neil Sterritt, while on the view, described the  David Gunanoot -- where David Gunanoot showed him  Treaty Creek, the boundary between the Gitksan and the  Tahltan on the Skikimlaxha territory up in the far  northwest.  This, of course, was also described in  evidence by Jessie Sterritt and David Gunanoot.  But  you saw the outline of the house to which David  Gunanoot and Jessie Sterritt referred, in which the  treaty was made, visible on the ground.  In this, your  lordship was witness to a graphic demonstration of the  strenth of the oral history: the connection of the  external boundary between the Gitksan and the Tahltan,  the long house where the treaty was made and the name  of the creek which actually is on the government maps  as Treaty Creek.  WILLMS:  My lord, I just want to remind my friend that the  view wasn't evidence.  I'm sure he knows that but that  was agreed beforehand.  COURT:  You want me to disabuse my mind?  WILLMS:  Not of what you saw, my lord, of course not.  But  of course there were some statements and they are  quoted in here of witnesses that weren't  cross-examined, never bothered to come to court, and  it's not evidence.  My friend knows that he shouldn't  be referring to this.  Well, my lord, in the Baker Lake case, Justice  Mahoney took judicial notice of what he observed  within the community, that he spent some considerable  time in Baker Lake.  The evidence of what people said  to you on the viewing is not evidence.  What I've  referred you to is what -- that this has been proved  independently of that.  These points have been proved  by other people independently of that.  But certainly  as your lordship alluded, the viewing was not  suggested that you --  I don't remember if there was evidence about the  long house where the treaty was signed.  I know I was  shown Treaty Creek and told that's what its name was  and I accept that and I don't think your friend would  object to that.  Well, in Jessie Sterritt and David -- I believe one  or both of them refer to the -- and I will put the  reference in or --  I think you can move on.  I think there is a point  in Mr. Willms' objection and I'm sure we both have it  in mind.  Okay.  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT 25005  Submissions by Mr. Grant  1 You travelled through the Wet'suwet'en territory  2 and viewed the footprints at Goosly Lake.  And of  3 course the significance of those footprints was passed  4 on through the oral history and has been explained in  5 the court by Gisdaywa, Alfred Joseph, and Alfred  6 Mitchell.  How Namox's ancestors stood in the  7 footprints in springtime and by the rays of the sun  8 shining through a ridge of the mountain the people  9 knew the time to come to Moricetown to fish.  10 And of course, the footprints have been described  11 as "being there for thousands of years" by Emma  12 Michell.  And you may recall, and there is photographs  13 of them, Exhibit 206 and 207, they were not in rock  14 but in soft ground.  There was grass growing all  15 around but no grass in the footprints themselves, and  16 that's obvious in the photographs as well.  17 I submit, my lord, that the evidence of the  18 footprints are understood as a unique geographical  19 feature having arisen out of the practice of the  20 people that lived on that territory to identify the  21 seasonal movement by the angle of the sun.  And this  22 is a symbol -- this particular feature has become a  23 symbol of the territory of Namox.  24 You were also exposed to knowledge among the  25 southern -- among the Wet'suwet'en chiefs of the  26 southern boundaries of the Wet'suwet'en territory, and  27 we stopped at Skins Lake Spillway and Gisdaywa  28 explained the southern boundary at the height of land  29 on the south shore of Ootsa Lake, which also was, of  30 course, given in evidence.  And the boundary where the  31 Wet'suwet'en Diizenii went to develop their spiritual  32 strength was pointed out.  33 Of course you heard the evidence of Knedebeas,  34 Sarah Layton, and you also saw Pack Lake which was the  35 place where the Unoostet'en held their feast, and that  36 was described by Knedebeas in evidence.  37 And then, of course, you finally saw Morice Lake  38 where there was a crest history of the grizzly bear  39 recounted by Johnny David.  40 Now, my lord, you've already heard the evidence  41 of the adaawk and the ancient history and the time  42 depth of both the Gitksan and the Wet'suwet'en.  43 The adaawk which have been described in evidence  44 by Gitksan chiefs exemplifies how place names and  45 locations on the territory are rooted in the ancient  46 or more recent histories predating the arrival of the  47 non-Gitksan.  And my lord, the detailed description 25006  Submissions by Mr. Grant  1 through the telling of the adaawk and the repetition  2 of these places, as well as showing these places to  3 prospective chiefs, is a method of teaching the  4 territories and the boundaries of the territories to  5 succeeding generations.  And the adaawk connects the  6 territories to the ancient ownership of a House and is  7 a foundation for the declaration of ownership.  And my  8 lord, I don't want to overstate this.  You were not  9 exposed to the adaawk of each and every House relating  10 to the history.  In fact, it was made clear by the  11 plaintiffs and, to a degree by your lordship, and even  12 in cross-examination by the defendants, that it was  13 not necessary or was not essential that each Gitksan  14 or Wet'suwet'en plaintiff refer to the adaawk or the  15 kungax referring to their territory.  16 As I indicated at the beginning of Mr. Matthews'  17 evidence, I've quoted on page 31 that this witness'  18 evidence at the last part of that quote:  19  20 ...in some ways will be a paradigm of how the  21 Gitksan houses, and in particular the western  22 Gitksan houses relate to their territory and  23 the historical ties to the territory.  24  25 Mr. Matthews' evidence was introduced to  26 demonstrate a model of how the adaawk connected to the  27 territory.  And of course, as you may recall, Mr.  28 Matthews related at considerable length, four adaawk  29 relating to his House and to his territory.  I've  30 listed the four adaawk on the next page.  31 Before commencing the adaawk, Art Matthews Jr.  32 explained the understanding that came from the  33 retelling of it.  He says:  34  35 Okay, I'll say.  Yuuhlxamtxw is wisdom, to give  36 me wisdom, the understanding, the various  37 spirituality of our land.  Gan didils is the  38 way of life, how to react, how not to react.  39 In other words, it's a doctrine of one's  40 adaawk, it's a realism, it's philosophy, and  41 it's epics, both life and death.  42  43 And he explained about the connection between the  44 adaawk and the territory.  And he said in answer to  45 the second question:  46  47 Q  Is that right?  Is that part of the 25007  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  adaawk talked about in the feast hall?  That's the part about the territory  A  He said:  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Yes.  Like, for instance, in our  starvation adaawk, it describes in great  detail our territory, camp sites, bear  dens, where food is available.  Now, my lord, I may pause there because you may  recall that Mr. Matthews described how he was trained  in the adaawk from a young age, but this is where the  key to possession comes in.  Mr. Matthews was taken by  his grandfathers to the Cedar River territory, and  they showed him where those places were, and it was at  that juncture where his teaching of the oral history,  combined with his presence on the land, came together;  that his possession, as the future Tenimgyet of that  territory, was established.  Now, the Biis Hoon adaawk was described in detail  to show connection between training, spirituality and  the special relationships of his House with the  grizzly bear, and he described that to you, how you  can learn special methods of hunting and feast  practise.  But the adaawk of 'Wii Hloots also  specifically dealt with the two territories of  Tenimgyet.  Now, I've asked Madam Registrar to pull Exhibit  349 before your lordship.  And I make this point --  What is 349, please?  It is the sketch map and it is a tab -- I believe it  may be a tab in the binder of the Art Matthews binder.  Yes, 349, I have it.  Thank you.  A small red sketch map, my lord.  Yes.  Thank you.  I'm not going to -- I put in the evidence, I'm not  going to read it all, but of course I will just refer  you to how it flows with Exhibit 349.  He says at page 33 of my argument, he talks about  the travels of 'Wii Hloots and how it demonstrates the  important locations of the Cedar River territory and,  in particular, the locations on the western boundary.  Now, he said half-way down:  'Wii hloots' and his brother originated, like I  said before, from Tsihl Gwellii --  And of course that's that western territory which is 2500?  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  at the western-most notch there, half-way on the  southern part of the Gitksan territory, if I may say.  THE COURT:  Yes.  MR. GRANT:  And he said:  'Wii hloots' and his brother originated, like I  said before, from Tsihl Gwellii, from Git lax  an dek', and from time to time, like, they had  remembered the vast amount of many caribou that  came through Tsihl Gwellii are.  At the time  there was hardly any meat available, only fish  available.  He had a great big fish trap.  We  call T'in.  Now, what he is talking about here and it is  shown on the trails is this feature of going from the  Cedar River territory up here, and how they travel up  through and into this territory.  And of course the  T'in is on this Tenimgyet territory.  That's there, my  lord.  And the caribou, the caribou was on the territory  of Cedar River, and of course Mr. Matthews described  how they trapped and snared caribou on that territory,  and it's part of the adaawk.  So he says at the bottom:  So they set off from An gol hon past Xsi gwin  ixstaat.  And if you look at Exhibit 349, you can see the trail  going from An gol hon to Xsu Gwihikstaat.  And then he  says :  They took the trail from Tsim ts'itixs.  And you can go -- you go beyond to Tsim ts'itixs and  you follow along there and that's across from -- you  can see it's up behind Cedarvale and they cut up  Insect Creek.  And there seems to be some confusion that they  went up Insect Creek to go into their territory.  Insect Creek, it's at the headwaters.  And then he talks about the:  ...specified place where they get [the] caribou  here where they used to snare them and trap  them, and the place in the Tsihl Gweelii 25009  Submissions by Mr. Grant  1 territory where they go for this caribou is  2 called Ts'imaakhl gan k'ok'.  3  4 And that's farther up and into that range past -- I  5 believe it was past Gisak Loot there.  6 Now that, my lord, also demonstrates that at the  7 time of the adaawk that he is talking about, is an  8 earlier time, probably pre-contact.  Certainly an  9 earlier time when the caribou were much more prevalent  10 in that part of the territory.  11 Now, I would like to -- I've described and  12 transcribed most of the adaawk in both volumes,  13 because he continues from one day to the next on page  14 35.  On page 35 there is a reference that 'Wii Hloots  15 was killed by his brother, Gaalaa'uu, and he tried to  16 hide him.  The top of page 36, he describes  -- they  17 went up there to get caribou, then 'Wii Hloots was  18 killed by his brother Gaalaa'uu.  19 He says on the top of page 36:  20  21 And like I said yesterday, cremated his brother  22 at that swamp just above Sand Lake.  23  24 Now, Sand Lake is labelled on the map as Dam Git  25 Axsol.  It's that black lake right inside.  And then  2 6 he went home.  27 And then he goes to the -- on page 36 of my  28 argument, the transcription describes how he goes back  29 to An gol hon and he can't get any fish because there  30 was a famine, so he went to Xsu Gwihikstaat -- I'm  31 three-quarters of the way down page 36, and you can  32 follow that on the map 349, my lord -- where his  33 brother's house was -- and that's Tenimgyet.  Because  34 'Wii Hloots at that time lived at An gol hon and  35 Tenimgyet lived at Xsu Gwihikstaat, both in the Wilson  36 Creek territory.  37 Now then, Mr. Matthews described something that  38 my colleague, Ms. Mandell, shall refer to, about the  39 use of Wilson Creek as a defence, and he gives that  40 evidence, the prime location of the fishing site.  41 Now, going up you see then on page 37 he  42 describes Gaalaa'uu's -- Gaalaa'uu's trip back to  43 Tsihl Gwellii to try to get food.  And he says:  44  45 He took this route, went up around the height  46 of land, and the first -- there is two or  47 three, came to the height of the land here, the 25010  Submissions by Mr. Grant  first lump of the height of land, and came to a  creek we call Xsi gwin biyoosxw.  That, my lord, the evidence is, is Insect Creek.  And  that's the route that you see the trail going up again  along Insect Creek.  Now then he said:  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  Because he knew, and this is traditional and  these bear dens still exist on the territory  today.  The first on our territory he knew  there was a bear den at a place we call Xsi gan  ts'elhlxwit.  Now, An Sagan Tsaltwit is marked on the map just  inside -- I believe it's around -- it's in the area of  the "L" on Exhibit 349, because it's the one before  the one at Gisak Loot.  And Art Matthews describes --  that's the first camp.  Art Matthews Jr. himself has  followed the footsteps of Gaalaa'uu on this trip.  He  has gone through these trail as has his father.  And  that, my lord, is exemplary of the possession that we  were talking of.  And then he -- of course there was no bear, so on  page 38, Gaalaa'uu continues on to the bear den at  Gisak Loot, which Art Matthews describes:  ...there is a marker today indicated they mix  their own paint in red mes we call it.  Mes.  And that's marked.  I believe your lordship can  follow it along the trail.  :  Yes, it's there, yes.  I think I walked this trail  before.  Several times.  :  Okay.  Well, one of the things I want to say,  because there is some confusion, is that it's clear  from Art Matthews Jr. that his territory begins when  you go over the height of land.  And if you flip up  the -- if you flip up the overlay, you can see that  Insect Creek does come up over to around where the "L"  is --I have the "L" on the underlay, and that's where  the change is in the height of land and that's where  the Tsihl Gwellii territory starts.  There was some  confusion or suggestion that Tenimgyet's territory  went further down Insect Creek.  It's a trail that's  shared with a number of Houses.  Then, of course, they go to wilp dagan, and that's 25011  Submissions by Mr. Grant  1 shown on the map.  I've reiterated Art Matthews'  2 evidence on page 38, and they go to Luu Lax Saaxsit.  3 Now what you see here, my lord, of course, is the  4 description in this adaawk going throughout -- not  5 just to one part of the territory, but throughout the  6 territory.  7 And then, of course, they come to a place called  8 Yagaxa Loobit which is also marked, and those camps  9 are all marked on the sketch map.  10 And finally, of course, his grandmother (sic) died  11 and he went up to Sand Lake, Lax Lilbax -- I'm sorry,  12 he went to the island, la Lilbax, and then he went up  13 to Haahl Daakhl which is the northern -- the  14 northwesternmost portion of that territory -- and he  15 found the bear in the den, he caught the bear and  16 hurried back to Yagaxa Loobit which is where he left  17 his mother and she had already died.  18 Now, that -- what that adaawk describes is a  19 route throughout the territory and it describes the  20 boundaries of the territory.  When you see that, my  21 lord, and understanding the training I talked to you  22 about last week, the description, the reference to  23 this adaawk and the place names of this adaawk in the  24 feast, is the establishment of the territory as  25 belonging to Tenimgyet.  26 Now then, I refer you in my argument, commencing  27 on page 40, to the latter part of the Biis Hoon  28 adaawk.  And I just -- I won't go through that, my  29 lord, because it's all there.  I won't go through it  30 in the same way.  But if you remember what happened  31 was, there was -- up in this area here, just down  32 there on the westernmost boundary where Biis Hoon had  33 her village, and her brothers, her relations, came  34 down there, and the adaawk describes this boundary  35 going along that western boundary as they travelled  36 down.  And Mr. Matthews described that in his evidence  37 in the same way as I just described the 'Wii Hloots  38 adaawk.  And of course he described that Gaalaa'uu is  39 a name in the House but it is not used because of the  40 shame of this particular adaawk, and that's why it's  41 referred to as 'Wii Hloots' adaawk, because 'Wii  42 Hloots was the House chief who has been wronged.  43 I would like to refer you to page 42.  This is  44 where he is talking about the village of Biis Hoon and  45 this is when these totem images moved and the people  46 left the area.  47 And he confirmed that that is: 25012  Submissions by Mr. Grant  1 ...right on the boundary where Tsihl Gwellii  2 comes into the boundary -- comes into the  3 places at the boundary.  4  5 In other words, that's right on that western boundary.  6 Now, the photos -- and I refer you to Exhibit  7 351 -- the photos on Exhibit 351 show the territory  8 and a number of the fishing sites.  351 is the black  9 binder in which the map is in.  It's two tabs further  10 along, my lord.  11 THE COURT:  Thank you.  12 MR. GRANT:  And photos eight -- some of these photos are good  13 and some of them aren't so good.  But photos eight,  14 nine and ten actually are numbered.  Number eight has  15 the fishing site, that's on the second page in.  And  16 you can see the -- drawn on photo nine and photo  17 ten -- this is across the river from the highway  18 side -- you can see the drawing going up the mountain,  19 and on ten there is an arrow of the route.  2 0 THE COURT:  Yes.  21 MR. GRANT:  An arrow which shows the route goes up through Tsim  22 Tsiix up to the Tsihl Gwellii territory which is --  23 you can see the tops of the mountains, and you go over  24 there, through that pass, and you are into the Tsihl  25 Gwellii, the Cedar River territory.  26 And just keeping that for a moment, my lord, the  27 photographs at 17 and 19 show -- and they marked again  28 the tip of Lo'oba Sagan Tseltxwit which is the first  29 of the bear dens, that's where they would go through  30 there, and you can just see the mountain in the  31 background which is the beginning of the Cedar River  32 territory of Tenimgyet.  They were marked with an  33 arrow.  34 THE COURT:  Yes.  Just in that saddle between those two ridges.  35 MR. GRANT:  That's right.  There is two ridges and then there is  36 a small mountain that comes in between them.  Well,  37 it's not small, but you can see it behind them.  38 THE COURT:  Yes.  That's where an unidentified counsel asked the  39 witness if he could see that peak peeking behind two  40 other peaks.  41 MR. GRANT:  That's right.  On key points your memory is much  42 better than mine, my lord.  I appreciate it.  43 Now, after the telling of the detailed adaawk, as  44 referred to by Art Matthews, I submit, my lord -- and  45 I am on page 43 of my argument -- that it is clear why  46 the chiefs can refer to territories by reference to  47 one or two key place names.  As Mr. Matthews described 25013  Submissions by Mr. Grant  1 it, this means of referencing the territories in the  2 feast hall is a code known to the knowledgeable  3 chiefs.  And there is no doubt that if another chief  4 had claim to Tenimgyet territory, he would certainly  5 know when that mountain was being referred to, Lo'oba  6 Sagan Tseltxwit, he would certainly know that he  7 better stand up and say something or else his  8 purported right would be ignored.  And that's -- we've  9 heard evidence of that which we will refer to later in  10 the situation of some fishing sites.  11 Now, Gyolugyet, Mary McKenzie in referring to the  12 Tsuuwigus adaawk and the migration of her house from  13 Gitangasx to Old Kuldo explained that Kuldo means "out  14 in the wilderness".  She also explained how the  15 description of the House adaawk connects to the  16 ancient migration of the ancestors of Gyolugyet.  In  17 that case, Mrs. McKenzie, as you recall, had not been  18 on her territory but she knew who was on her  19 territory, and those who were from other Houses who  20 were her neighbours kept in close contact, including  21 the late Albert Tait, the late Delgamuukw.  22 A more clear -- a more concise example is Mrs.  23 Johnson's example of Miinhl Antselda, the name given  24 to a small mountain on her territory.  There is a  25 lookout on the top of the mountain.  This is the  26 mountain that is visible from Hazelton.  There is a  27 trail that goes around it and the stones were very  28 thin on that side of the mountain.  She referred to  29 them as saadlda'm loo'op.  They were smooth stones.  30 In this case, the mountain is named after those stones  31 that are found on the side of the mountain.  32 There was another site she referred to as An Guux  33 Di Git wank which means "whistle on the top of the  34 hill", and she explained in cross-examination that  35 from -- by Mr. Goldie, that the people from Kisgagas  36 would stop on the top of the hill and whistle to let  37 the folks know they were coming by.  The people at the  38 Antgulilbix smokehouse would call them down and feed  39 them.  40 Similarily, on the territory much farther away in  41 the north of Antgulilbix -- the northern territory of  42 Antgulilbix, there is a ridge called Xsagangaxda.  The  43 ridge itself is known as Xsagangaxda, but it's where  44 the murder of a former Yal took place.  This is, of  45 course, the Yal in her House as opposed to the Yal  46 from Kitwanga.  As she stated in her evidence, the  47 place below the ridge is called Xsaxwhl Xsagangaxda 25014  Submissions by Mr. Grant  1 because that is where the murder actually took place.  2 Now, Mrs. Ryan -- and many of these are described  3 in her evidence -- described many, many fishing sites  4 and their names.  For example, I'll just refer you to  5 some because they point out the different ways in  6 which the naming occurs.  7 Wilsa K'awts, number three, "when they pick the  8 wild roots there".  9 Ant kii 'min, "a place where a jealous wife kept  10 watch on her husband".  And that's in the exhibit of  11 listing.  12 Number eight, Win golhl hon, means "a place where  13 [the] fish stop to rest".  And I believe that Stanley  14 Williams or Art Matthews Jr. described why that was  15 called that and referred to that adaawk.  16 Gwin hat', "a place of martens".  I focus on that.  17 In the Gitksan language, marten is referred to by a  18 name that is not at all connected to French or English  19 or Russian, and marten is a significant resource of  20 theirs on their own.  21 Eleven, Git an yuusxw, "a place of the fish  22 trap".  23 And twelve, Gwin gas k'ots jaxt, means "a swift  24 part of the river where canoeists would have to row  25 very hard [or] they would become exhausted".  "So that  26 they would become exhausted".  27 Number 18 from Mr. Sterritt's evidence, Gaakhl  28 galli dak is "the wings of the blue jay".  29 And number 19, Miinhl lax mihl, is "the foot of  30 the burn".  And of course here they are referring to  31 the burning, the controlled burning for berries.  32 Among the Wet'suwet'en we have seen examples such  33 as the boundary between Namox and Kannots' territory,  34 Neen Lii.  And you've seen a photograph of that  35 particular site.  36 Le'na Diil, (boundary crossing with the Chilcotin)  37 which is -- this is "the people cross on the way to  38 get the rock".  39 I am on page 48, number 22, my lord.  And Alfred  40 Mitchell gave evidence of the site Beg'ut wedziih  41 celts'ay, "just below the peak there is a meadow.  42 This is where the caribou would have their young and  43 that is how the place got its [name]".  That's a  44 typographical error, my lord.  45 And Cass'an, "the highest point in the middle of  46 the sky line" was another Wet'suwet'en term.  47 Now, my lord, these 23 names I've listed here, 25015  Submissions by Mr. Grant  1 over and above what I've referred to on Tenimgyet's  2 territory, are just a few examples of the site and  3 place names throughout the territories.  Now, many of  4 these names are depicted and labelled in the photo-  5 albums.  These are Mr. Sterritt's albums, Exhibits  6 377, 654, 655, 656 and 487.  7 Exhibit 703 is Mr. Sterritt's cross reference and  8 he relates many of the place names in the photo-album  9 to territorial affidavits.  For example, he refers to  10 a blaze that Robert Jackson Sr. referred to on the  11 Miluulak territory called Djil djila, Drift Lake, and  12 that's shown in volume 3, page 9 of Exhibit 655.  13 Now, my lord, a review of Exhibit 703, the index  14 of Mr. Sterritt cross referencing and the photo-album,  15 indicates the hundreds of other geographical features  16 with place names referred to in territorial affidavits  17 which are pictured as they are on the ground.  And of  18 course he reviewed one of these albums as a sample  19 during the course of his evidence.  And this is --  20 you, yourself, observed how the chiefs were  21 knowledgeable about place names on the territory  22 during your viewing and the constant referencing to  23 places.  24 These names, my lord, mark and describe  25 activities, events, or physical features on the  26 ground.  They often describe a physical feature  27 through an analogy to a humorous device.  For example,  28 An kii iss: the water shooting from the ground like a  29 man urinating, because there was a spring there that  30 looked like that.  In some cases they describe a  31 geographical feature in the context of part of the  32 Wiigyet stories.  Now I say "Wiigyet stories".  That's  33 the andi mahl'asxw not the adaawk -- not to be  34 confused with the Wiigyet adaawk.  They may describe a  35 place which has prominence for the fishery because of  36 the conduct of the fish at that place; the Win golhl  37 hon, where the fish rest.  And of course a number of  38 places refer to the experience of people when the  39 river was used for travel by the Gitksan or the  4 0 Wet'suwet'en.  41 Now, an interesting example of connection between  42 names and territories is demonstrated by the name in  43 Antgulilbix' House, Gyadim lax Ts'inaast.  This is, of  44 course, the name of the clearing on the mountain on  45 her territory where this man lived.  And his mask in  46 the feast hall was considered quite funny as she  47 described. 25016  Submissions by Mr. Grant  1 The place where he lived was Na laxtsinaasit and  2 he was named after the place where he lived.  And I  3 put in the reference from Mary Johnson how vicious  4 this fellow was, and he would come into the feast hall  5 with a:  6  7 ...blanket with human bones, [and] he [would]  8 sharpen them and...they [would] stick out on  9 both sides.  So two chiefs, parted a space for  10 him to sit and these bones poked those chiefs,  11 but they didn't move [because] they were scared  12 of him.  13  14 Now this -- that certainly is -- appears to be a  15 nax nox name in part of a performance.  But in any  16 event, the name of the man, that name is directly tied  17 to the geographic place of where he lived, and that  18 name has been been carried on through the mask, the  19 crest and that adaawk.  So when the name of this  20 person is mentioned, it not only gives reference to  21 the adaawk and crest, but also literally to the  22 territory and the location where he lived.  23 Among the Wet'suwet'en, my lord, with respect to  24 the kungax, I already referred you to Mrs. Alfred's  25 description of the history of the girl who became the  26 frog, in my earlier part of the argument.  In this  27 context, my lord, what is significant is that Mrs.  28 Alfred described precisely the place where that  29 happened as Tse K'al K'e yex.  A place -- which is  30 translated -- which is near the "house on the flat  31 rock", the name, Hagwilnegh's House -- Wah Tah  32 K'eght's House, sorry, and it's near where  33 Hagwilnegh's House was in Moricetown.  34 Now, Madeline Alfred, Mrs. Alfred, went on to  35 explain that this was a true history, a G'idee Dee'.  36 Elsewhere in her evidence, Mrs. Alfred referred  37 to the song with respect to a place known as Tah Lus.  38 She described that Nuu 'tseni stole the rare snare  39 spot and she describes where Nuu 'tseni was killed.  40 What's dramatic about Mrs. Alfred's description  41 is after connecting the history of what happened to  42 the song, she describes where it occurred as  43 Tac'es'kwe on the territory of Wah Tah K'eght.  The  44 geographic place name on the territory is therefore  45 connected directly to a conflict with the Nu'tseni.  A  46 defence of the territory, I may add, to which Ms.  47 Mandell will refer you to further, and it's 25017  Submissions by Mr. Grant  1 demonstrated and exemplified through the song.  And I  2 submit, my lord, that this is a further example of the  3 relationship of the territory to a history in relation  4 to the time depth on the territory.  5 You've heard extensive evidence from the Gitksan  6 and Wet'suwet'en chiefs about the importance of adaawk  7 and the kungax to affirm ownership and authority of  8 chiefs over the territory.  When you examine the  9 territorial affidavits, my lord, or consider them and  10 the cross-examination on those affidavits and then the  11 evidence of "specialists" on the territory -- and I  12 say there are specialists, just as in our society, on  13 the territories, such people as Stanley Williams,  14 James Morrison, Pete Muldoe, Alfred Mitchell, Alfred  15 Joseph and Dan Michell.  Their intimate knowledge with  16 the place names, the meaning of those place names and  17 the chief who has authority over the specific  18 territories demonstrates the necessary linkage between  19 knowledge of the territory by name and ownership of  20 the territory.  In this way, my lord, ownership of the  21 territory by the House is proven in the Gitksan and  22 Wet'suwet'en systems, and I say it's the proof  23 necessary -- it's the satisfactory proof in the -- in  24 this court.  25 THE COURT:  Well, at some point I have to have straightened out  26 for me the question of what can be proven by  27 declarations of deceased persons.  Many of these  28 references that you've given me have been statements  29 by living persons and many are not statements of  30 reputation.  And I am not sure how you see me dealing  31 with that issue, but I need your help on that at some  32 point.  33 MR. GRANT:  Well, I would submit, my lord, that the statements  34 of the descriptions of the territories by -- through  35 the adaawk and the kungax and the announcement of the  36 territories in the feast is -- does go to reputation.  37 And I just would leave it --  38 THE COURT:  Well, my problem is to know which ones do and which  39 ones don't.  That's the difficulty I'm having.  4 0    MR. GRANT:  Yes.  41 THE COURT:  And I've dread this particular part of the case  42 because it seems to me to be a -- if I can put it  43 ineloquently -- it's a dog's banquet.  There is so  44 much of it and I am not sure what counsel say I should  45 do about that.  46 MR. GRANT:  We are going to deal with it more in detail later, I  47 just wish to -- 2501?  Submissions by Mr. Grant  1 THE COURT:  Right.  Thank you.  2 MR. GRANT:  I just wish to set out our position.  3 The boundaries of the territories, my lord, are  4 defined by reference to named geographical, physical  5 and historical features.  6 You have heard on many occasions in evidence "they  7 know the boundary and they never go over it".  The  8 chiefs state this because they know the clearly  9 defined boundaries as these have been passed on from  10 generation to generation.  11 The geographic features and place names are the  12 markers which the Gitksan and Wet'suwet'en people look  13 to in order to identify the boundaries.  And Mr.  14 Joseph described this in his evidence regarding the  15 Wet'suwet'en, saying that many -- most of the  16 geographic features of Wet'suwet'en names are of great  17 antiquity.  18 And then Madeline Alfred reiterated that where  19 she stated:  20  21 A long time ago our ancestors had place names,  22 mountains, creeks, which they used for boundary  23 lines.  There was no such thing as lines.  They  24 used these place names for boundary lines.  25  26 And this is the boundary around, not a  27 boundary -- a line like a single trapline, I believe,  28 is what she was referring to.  29 The Wet'suwet'en language offers evidence of the  30 existence of boundaries for each territory identified  31 by physical features on the territory.  The boundaries  32 "in the Indian way" is called N'Tsexw Nu Yin'aniila,  33 which is the Wet'suwet'en word for boundary as Mr.  34 Mitchell explained.  35 There was evidence of the words for river or  36 major river.  Wedzen Kwe, of course, the specific  37 river.  Other boundary words are "Ben" which means  38 lake and "Ta'taas Tie" which means a range of  39 mountains.  And I think Mr. Joseph gave Neelgii as an  4 0 example of a mountain range.  41 One of the important examples is the use of the  42 term for the foot of the mountain as "Dzel C'een",  43 which is a boundary point marker in certain  44 circumstances.  And I've already referred you to Neen  45 Lii.  46 Corner carvings and blazes are sometimes used as  47 identity points.  And the Wet'suwet'en have a word for 25019  Submissions by Mr. Grant  1 that: "Hagel Ts'el".  2 My lord, you have heard evidence of the  3 Wet'suwet'en words for directions.  These indicate, we  4 submit, the necessity of knowing the location with  5 some accuracy.  The Wet'suwet'en refer to the people  6 towards Burns Lake as "Nuu'", the Nuu'tseni.  If they  7 are talking about people towards Terrace -- and that  8 should be "or Prince Rupert" not "Prince George", of  9 course -- the west, they say "Nde'" which means "down  10 river".  They refer to the southerly direction as "Naa  11 Sts'ai" and the Wesuwet'en words for headwaters is  12 "Niss".  The word for heading south and straight ahead  13 is "Lk'onya"'.  14  15 If you're on the territory to look for the  16 boundaries you look for a ridge, a small hill,  17 mountains, creeks, rivers, trails, a range of  18 mountains.  19  20 And this, of course, is what Mr. Joseph said with  21 respect to the Wet'suwet'en.  22 Fred Johnson testified that the boundaries are  23 known by the chiefs.  24  25 Other people know where they have to come to.  26 Where they meet.  Every year they do.  Other  27 places of the west and farther west, they know.  28  29 And he was referring to the down river territories of  30 the Gitksan, of course.  31 When asked whether or not the people from Sarah  32 Layton's territory would have a right to come up to  33 Peter Alec Creek in Gisdaywa's territory, Alfred  34 Joseph answered:  35  36 No.  They would stay on the other side of the  37 ridge above the creek.  38  39 He also testified that:  40  41 Where a river is a boundary between two  42 Wet'suwet'en House territories it's the Chief  43 that owns the territory next to the River.  The  44 Chief is entitled to go into the river to catch  45 fish or pursue animals to the middle and he  46 can't cross over to the other side.  He can  47 pursue beaver, muskrat, otter, mink and the 25020  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  House claims the riverbed, water and fish.  With respect to the Gitksan, my lord, the word  for boundary is "An Lay Tix" which means "marker".  Mrs. Ryan described that:  Every Chief, they know the boundary and they  never go over it.  They follow the An Lay Tixz.  That's the line  Stanley Williams testified to other Gitksan words  used to describe a mountain such as Gidii Gwaihl --  THE COURT:  "Boundary", sorry.  MR. GRANT:  "Boundary", I'm sorry.  Such as Gidii Gwaihl Yip.  And Gidii Gwaihl Yip means "as far as the territory  goes".  And he talks about the other terms meaning  "blazing a trail, or [marker]" -- that should be  marker, my lord -- "that's what it means."  Hli Daaxhl  Lax Yip means "the edges of the territory".  And I  refer you to James Morrison's evidence, how he  referred to lax yip:  The Gitksan word "lax yips" means you don't  trespass onto the boundary.  And there is a  word for boundary in Gitksan which is "An Lii  Diks".  This means "that land mark where the  post on the corner of the boundary" also known  as "a creek" or "a mountain that's never  moved", or the "creek that they use that's not  dry, it's always runs, a creek all the time."  So that's the reason why they use this  boundary.  They call it "An Lii Diks".  It does  not move.  They don't use anything that moves  because the boundaries start to be divided in  those days.  It's still the same today.  They  never change.  No one can change that.  Now as I refer to and Ms. Ryan referred to, if a  boundary is a creek, the Gitksan have laws defining  the exact placement of the boundary.  The chief owns  to the middle of the creek on one side and the other  chiefs owns to the middle of the creek on the other  side.  Art Matthews gave evidence that a chief owns a  fishing site, owns it to the middle of the river.  And  this will be significant later when I deal with  ownership and jurisdiction of the fishery, my lord, in 25021  Submissions by Mr. Grant  1 the Gitksan and Wet'suwet'en context.  He says -- he  2 was asked:  3  4 Q  Who under Gitksan --  5  6 "Law" that should be, my lord.  7  8 -- owns the middle of the river between  9 the fishing sites on the right bank and  10 the left bank?  11 A We say that we own the whole where it  12 goes across it covers the middle, there  13 is no opening there, it goes across just  14 to the bank at the other side and back on  15 the other side.  16  17 He explained this further in answer to questions from  18 the court:  19  20 Q  Well, then you are saying this applies to  21 the Skeena, but not to other rivers?  22 A  Yeah, where any kind of river, ... if you  23 have fishing sites on both sides,  24 naturally you own right across.  But when  25 you just claim one side just that bank  26 side.  27 Q  Well, in that case where you only claim  28 one side, and another side, and another  29 House claims the other side, ... what  30 Gitksan chief or chiefs claim the middle?  31 A Well, I would claim the middle of it on  32 my bank and this guy would claim the bank  33 on the half of the river on that side.  34 Q  So the river would be divided?  35 A  Yes.  36 THE COURT:  So there's a difference between  37 river as a boundary and a river as a  38 fishing site?  39 A  Yes.  40 THE COURT:  All right ... in other words, if  41 a river is a boundary between two Houses  42 then the real boundary is in the middle  43 of the river?  44 A  If they were opposite banks from each,  45 yes.  46  47 Now, Art Matthews described that where fishing 25022  Submissions by Mr. Grant  1 sites along one portion of the river are owned by  2 Tenimgyet, but the territory behind them is owned by  3 Gwis gyen, the Gwis gyen territory starts from the  4 river bank and not from the middle of the river.  5 James Morrison dealt with another boundary  6 question with respect to a trail between Wii  7 Minoosik's and Waiget's -- that's the Waiget and  8 Wiigyet, of course, together -- territory.  The  9 boundary is a good goat hunting area.  This is up in  10 the Kisgagas territory.  The Houses on either side of  11 the trail manage the harvest.  And they said:  12  13 (The boundary) it's in between these two  14 mountains here ...  15 A  That's how it became in two areas there,  16 they hunt and on each side of the  17 mountain.  You travel up to the creek  18 where the trail is and you look on both  19 sides of the mountain and either side of  20 the mountain where you saw goat so you  21 have two people there which is the  22 authority in each territory, so...  23 Q  The Gwin Dak Mountain seems to be located  24 about in the middle of Wii Minoosik's  25 territory?  26 A  Yes.  27  28 But he is referring to the trail going up to the  29 mountain as being on the border.  30 Martha Brown finally testified that the law is  31 that the boundary must be respected and she said the  32 hunter must restrict his harvesting to his side of the  33 line.  34  35 It's the Indian law.  For instance, it's the  36 Indian or Gitksan or Indian law that we do have  37 a line or boundary that whoever owns on one  38 side can take from that side but they cannot  39 cross the line and take from the other side  40 otherwise they take it away and in turn the  41 other side cannot enter into our boundary.  42  43 Now, my lord, I have a few points in conclusion  44 on what this leads to.  45 Firstly, my lord, I ask you to find that the  46 Gitksan and Wet'suwet'en have a concept of boundaries.  47 Secondly, that they have used this concept of 25023  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  MR. GRANT  THE COURT  MR.  THE  GRANT  boundaries since before contact.  And I rely not only  on what I have said to you but on what Mr. Adams has  said as well.  Thirdly, they have place names of their territory  which are founded in their adaawk and their kungax.  Found in or founded in?  Founded, based in.  Based in may be better, my lord.  All right.  Fourthly, they have knowledge of the territory and  they confirm the territory through those place names.  And I emphasize the example of how Art Matthews Jr.  described his training in two steps of the adaawk and  then being taken on the territory.  And finally, they have possession over the  territory through the knowledge of the place names,  and their going on the territory with respect to those  place names, and through the confirmation of the  territory in the feast.  My lord, Ms. Mandell is going to go to the next  area.  We should take --  All right.  Do you want to take the adjournment  first?  Yes.  REGISTRAR:  Order in court.  Court stands adjourned.  (PROCEEDINGS ADJOURNED AT 2:55 P.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability.  Toni Kerekes, O.R.  United Reporting Service Ltd. 25024  Submissions by Ms. Mandell  1  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Ms. Mandell.  4 MS. MANDELL:  Thank you.  You are on page 60?  5 MS. MANDELL:  Yes.  6 THE COURT:  Thank you.  7 MS. MANDELL:  My lord, you will recall this morning when Mr.  8 Jackson was providing definitions or criteria of  9 ownership, that both Dr. Daly and His Honour Judge  10 Gould spoke about a criteria of ownership which  11 implies the concept of exclusive possession, and  12 implicit in this is the delineation of boundaries.  13 The San Ildefonso case also stated that implicit in  14 the concept of ownership is the right to exclude  15 others.  And its the plaintiffs' submission that in  16 looking at the way in which the laws of trespass are  17 both present and also enforced within the system, the  18 trespass laws demonstrate how important the people  19 consider their boundaries, and also there is a very  20 sophisticated concept of trespass which we say is  21 reflective of the importance of the boundaries, which  22 is well-developed in the system of trespass.  And I'll  23 be addressing that system.  24 And before I do that, though, I wanted to recall  25 for your lordship the paraphrase of Solomon Marsden's  26 quote, which was referred to by Mr. Grant last week on  27 crests, where he was saying that the importance of  28 crests to the house is, among other things, that it  29 was a real struggle to acquire them.  And we say that  30 it's also a struggle to protect the territories which  31 the crests are reflective of the ownership for, and  32 it's within that context that the laws of trespass are  33 understood.  34 I begin the discussion with a portion of the  35 testimony of Alfred Joseph, where he through the  36 language demonstrates the very many concepts for  37 trespass within the system.  And if I could ask your  38 lordship to turn to page 61, I am just going to run  39 through some of the various Wet'suwet'en words for  40 trespass.  I am reading from the middle of the page.  41 One concept of trespass is one used another chief's  42 territory without his knowledge, and there is a word  43 meaning crossing on somebody's boundary, and there is  44 another word, stepping on someone else's land, and  45 profiting from someone else's land, trapping out of  46 your jurisdiction.  Stealing off the land, using it,  47 the territory, without anyone's knowledge.  Hunting or 25025  Submissions by Ms. Mandell  1 trapping on someone's territory without their  2 knowledge and telling anyone.  Sneaking on the  3 territory and using the land without permission.  And  4 it's within those very many words that in some ways  5 the various degrees of mens rea, if you will, with  6 respect to trespass have been spelled out.  7 The significance of the boundaries and the  8 trespass laws was visible at the time of contact, and  9 was the subject of comment by the first white traders  10 in the region.  And I've cited below the passage of  11 Daniel Harmon in 1812.  12  13 "The people of every village have a certain  14 extent of country, which they consider their  15 own, and in which they may hunt and fish; but  16 they may not transcend these bounds, without  17 purchasing the privilege of those who claim the  18 land.  Mountains and rivers serve them as  19 boundaries, and they are not often broken  2 0 over."  21  22 Now, the people speak about trespass as a law, and  23 when we deal with jurisdiction in greater depth, the  24 concept of the laws is more fully explained, but at  25 least in this context may we say that when there is a  26 law referred to, we say that it's a general  27 understanding and system which permeates through the  28 houses, through the houses acting together and at the  29 feast, and when there is that global permeation of  30 this tenant or belief system and structure, then it's  31 referred to as a law.  And Mrs. MacKenzie testified:  32  33 "It's Gitksan law that no one goes on anyone's  34 territory without getting permission from the  35 head chief of the house of the territory, even  36 if it's your husband, your wife or your  37 children."  38  39 And I am going to refer you to the way that Emma  40 Michell spoke about it.  She says:  41  42 "The boundaries are just like a fence around it  43 (the territory) they watched it and looked  44 after it all the time.  Made sure nobody came  45 within the boundaries."  46  47 And Dr. Mills was of the view with respect to the 25026  Submissions by Ms. Mandell  1 Wet'suwet'en:  2  3 "One of the firmest laws in the Wet'suwet'en  4 system is that you do not go on someone's  5 territory where you do not belong without  6 asking permission."  7  8 And I've cited the Right of Innocent passage  9 section, which goes to page 67, as an example of the  10 nuance in the law, and this was pretty much the same  11 for both the Gitksan and the Wet'suwet'en, and was  12 stated for the Wet'suwet'en by Alfred Joseph.  And  13 I'll take you to the quote at the bottom of page 64.  14 The general exception to trespass was that:  15  16 "People who came up from the south would travel  17 through Gisdayway's territory.  And as long as  18 it's a road and they are not trapping, taking  19 beaver, they are quite free to move.  Hunting  20 is allowed if you take what you need as you  21 were travelling through the area."  22  23 And then he said:  24  25 "But you are not entitled to trap."  26  27  28 THE COURT:  Doesn't that suggest that perhaps this is a — this  29 part of the law is of recent vintage?  If you could  30 cross the territory and hunt on it while crossing it,  31 does the suggestion that you are not entitled to trap  32 on it not suggest that this is something that would  33 arise when there was a fur trade?  34 MS. MANDELL:  Well, if I could address it in two parts.  First  35 of all the evidence that Mr. Grant referred you to on  36 organized society demonstrates that there were trails  37 that were very long-standing which existed before  38 contact, and the reference to being able to travel  39 through somebody's territory and hunt through the  40 trails doesn't suggest contact or fur trade in that  41 sense.  And I also say that the evidence which I will  42 refer you to later also suggests that there was  43 trapping pre-contact.  44 Alfred Mitchell, for example, makes reference to  45 the deadfalls which he encountered on the territory of  46 Namox, which were still there, and which didn't  47 necessarily relate to -- in fact the evidence within 25027  Submissions by Ms. Mandell  1 which it was stated suggests that the trapping took  2 place too before contact.  So I wouldn't leap to the  3 conclusion that we are talking about a contact  4 phenomena.  In fact we would argue to the contrary.  5 THE COURT: Well, I can see the possibility that pre-contact  6 trapping could well be different from sustenance  7 hunting while crossing through a territory.  I suppose  8 that's really what you're saying?  9 MS. MANDELL:  Yes, that's right.  10 THE COURT:  When you say, though, that where he had his traps, I  11 suppose this is just a -- the risk that one runs of  12 the well-known legal sport of jumping to conclusions,  13 but that sounds to me like a commercial operation.  14 You say it doesn't have to mean that, just mean  15 ordinary pre-contact trapping?  16 MS. MANDELL:  That's right.  I think that we are all going by  17 what was said and told.  But I think that the evidence  18 of Alfred Mitchell was fairly clear about the fact  19 that in his father and his grandfather's time, and  20 certainly before the concept of trapping in the  21 commercial sense, the people would go to the territory  22 and they would camp there, make lean-tos for the place  23 which they would see as their locality, still do, and  24 trap within a region, and the rotating of the trap  25 lines and the trapping through deadfall traps and so  26 forth doesn't create an inference that there was some  27 magic about contact to this activity.  2 8    THE COURT:  All right.  Thank you.  29 MS. MANDELL:  The same laws so for the Gitksan.  And Solomon  30 Marsden added a nuance which is worthy of note.  He  31 says at the bottom of page 65 -- he was asked about  32 the Gitksan law with respect to crossing over the  33 territory of another chief.  34  35 "This is what happens when ... one of the family  36 that owns one of the Wil'nat'ahl, that owns the  37 territory up further than this territory here,  38 then what happens, they they walk on the  39 territory with that other chiefs to get to  40 their territory.  And what happens is they  41 don't -- they just go on that trail.  They  42 don't go out of the trail and start hunting on  43 that territory.  They just keep walking until  44 they get to their own territory."  45  46 And he explained that if there is an animal on the  47 trail, a person is allowed to shoot that animal but 2502?  Submissions by Ms. Mandell  1 cannot go into and hunt on the territory.  And I think  2 that -- I think it's generally the same principle,  3 that they can certainly pass through, and in the  4 Gitksan example there was the accompaniment of the  5 chief.  6 Now, Alfred Joseph makes the point that often the  7 whereabouts of each other would be fairly well-known,  8 and it would explain how Solomon Marsden makes  9 reference to a chief who would actually accompany with  10 him.  11 Now, the next section that I would like to deal  12 with is the question of -- what I am going to call  13 roughly speaking sanctions.  It's really the  14 implementation of the law and how the society contends  15 with breaches.  And if I could depart here and refer  16 to what I understand the argument of the provincial  17 defendant.  18 In this respect they say that there is little  19 evidence of practises which regulate two groups, and  20 within the community the practices are regularly  21 followed.  And they say that the laws are vague and  22 broken with impunity.  And that's how I understand  23 their position.  24 It's our position, and I think it can be  25 illustrated with respect to trespass, that both the  26 implementation and the breaches of law follow a set of  27 principles, and the implementation will vary, but the  28 principles remain constant.  29 And if I could now state that with respect to the  30 law of trespass, there is four principles which appear  31 to be active throughout all of the evidence.  One is  32 that the -- there will be notice of the law, and when  33 I say notice, I'm now referring to the fact that the  34 law must be well promulgated, and we are dealing here  35 in a kinship society, and so the law has to permeate  36 into the house level, because it's at the house level  37 that the law is enforced and taught.  So the first  38 principle is that there be notice of the law.  39 The second, with respect to trespasses, that there  40 be some warning, if there is going to be some  41 accusation that the law is being broken.  And at this  42 stage I say that there is often time a debate over the  43 rights.  And this happens at the warning stage, where  44 if somebody feels that they have rights to the land,  45 and the owner feels that there is a trespass, that  46 it's during a warning stage that that debate would be  47 capable of being aired. 25029  Submissions by Ms. Mandell  1 And the third principle is that where the trespass  2 continues there will be some redress.  And there is a  3 variety of places and ways in which the law can be  4 redressed.  And I'll deal with some of them that  5 appear in the evidence.  6 And finally there is a balancing of the peace, and  7 this balancing and counterbalancing of the peace is a  8 feature of kinship societies, especially where it's  9 necessary for there to be a mechanism for the peace to  10 be restored.  And I'll illustrate that again with  11 respect to the trespass laws.  12 THE COURT:  Well, surely you have left out the dramatic one that  13 the witness has said you could kill the trespasser.  14 Where do you fit that into your four principles?  15 MS. MANDELL:  Well, first of all I will be dealing with that in  16 turn.  It's a fairly dramatic example of both the  17 third and the fourth -- the second, third and fourth  18 point.  19 THE COURT:  It is to the trespasser anyway.  20 MS. MANDELL:  I'll get to it.  21 First on the question of notice.  We had some  22 evidence which I think is helpful to understand the  23 question of notice, on the question of which -- which  24 came in through Art Mathews, where he was describing  25 the privileged access to his territory.  And he gave  26 three examples by which his house enforced trespass on  27 the house territory itself.  28 THE COURT: These are not in your outline?  29 MS. MANDELL:  Yes, they are.  It's page 67.  The principles are  30 not in the outline.  31 THE COURT:  All right.  Thank you.  32 MS. MANDELL:  Art Mathews talked about Tenimgyet's territory,  33 and in that territory there were a number of special  34 features on the land which gave rise to special ways  35 for the trespassers to be identified by house members.  36 He spoke about the berry patch on the territory, and  37 this was in house mother's time something which was  38 still used, where the ladies would make woven  39 trumplines of specific colours for their berry boxes,  40 and for those people who were going up to use the  41 berry patch they were given these identifying marks,  42 and those people in the house would know that the  43 ladies there from outside the house had permission to  44 be there.  45 And the men, when they were hunting on the  46 territory, were given a special cane, and on page 68  47 Art Mathews refers to a lake in the Tenimgyet 25030  Submissions by Ms. Mandell  1 territory where there was blue -- a blue dye which was  2 able to be used from the lake where they made -- they  3 made a cane using the dye.  And these staffs were  4 coloured this light blue and again given to those that  5 were hunting on the territory, and it was an  6 identifying mark.  7 Now, as I understand it from the evidence, these  8 symbols of permission are not used today, but they  9 were used in the lifetime of Art Mathews' mother.  But  10 one of the identifiable permission signs which is  11 continued to be used today is in respect of the  12 fishery, and the evidence of Mr. Mathews, and I think  13 Mr. Grant referred to it as well earlier, is that  14 the -- there was a lookout site, and there still is,  15 on the Skeena River where the fishery is, and Art  16 Mathews stated:  17  18 "The people going through our territories have  19 to report at this anjok to the chief that they  20 are going to use your territory to go through  21 it for access of their territory maybe or  22 trading or whatever.  The rule specifies the  23 law you have to stop and check in like and tell  24 the owners of that territory your intentions.  25 And then in turn they give you a pilot to go  26 through your territory in friendly manner.  If  27 you do not stop at this particular site, or  28 just using our site for an example but all  29 sites are the same, if you don't report into  30 this anjok, then -- they know you had other  31 intentions.  You might not attack this village,  32 but they will stop you and ask -- whatever  33 intentions you have of governing -- further up  34 the river.  This rule applies -- to all the  35 Gitksan.  Even today people that are riding up  36 and down the river stop off and just chat for a  37 minute and take off."  38  39 And we say that it's a kind of natural border  40 control that exists on the Skeena that is used by the  41 house to patrol the fishing site.  42 I make reference at page 69 to the historical  43 record which is marked with examples of Gitksan and  44 Wet'suwet'en chiefs requiring non-Indian people to pay  45 for the right to cross over the territory.  And this  46 will be referred to further in the submissions of Mr.  47 Adams, when he's dealing with the historical record on 25031  Submissions by Ms. Mandell  1 this period.  2 Now, by far the most important institution for the  3 promulgation of notice of the boundaries and of the  4 laws relating to trespasses is the feast.  At page 69  5 I recite some of the procedures and ceremonies which  6 form part of the headstone or pole raising fees.  And  7 Your Honour will recall that the territory isn't  8 described in all of the feasts, but certainly at the  9 headstone or pole raising feast in which a chiefly  10 name and territory are passed to a new chief.  These  11 procedures and ceremonies require that the history of  12 ownership of a territory, its boundaries and place  13 names be described and witnessed by all the clans.  14 The reiteration of the history of ownership, the  15 history of the house crests, the migration, the  16 telling of ancient histories, the singing of songs  17 which deal with the trespass issues, the telling of  18 boundary features, all combine to provide an  19 opportunity for people from all clans to learn or  20 relearn about the ownership of house territories.  21 And I would like to remind your lordship here of  22 the testimony of Mr. Morrison.  And he testified that  23 mentioning the boundary at the feast helps to protect  24 the territory.  And this is how he put it:  25  26 "People sitting in the feast hall (hear) what  27 you saying that identified boundary and they  28 know where the boundary is.  You name the place  29 where the post is, like An Lii Diks, and they  30 know where the boundary is.  It's in the feast  31 and anyone that is sitting in the feast listen  32 to you what you said the feast, An Lii Diks.  33 That's where the law has been passed onto  34 another chief.  35 The crest which are displayed at the feast  36 operates to protect the territory in this way:  37 Well, they know where they found that in  38 those days in the early, I don't know how many  39 years, years when they found this on that  40 territory and only history that's been told in  41 that territory is one of those crests, and  42 that's why they have different crests in each  43 clan.  They know where they come from.  If you  44 see someone walk into the feast hall and they  45 have blanket on, you know where they come from  46 and so they protect the territory.  One way to  47 protect the territory, in order to know the 25032  Submissions by Ms. Mandell  1 boundaries of that territory."  2  3 And basically what he is talking about is the  4 wearing of the crests, and the reiteration of the  5 boundaries at the feast helps to, in a general  6 reputation way, explain to those people that are  7 listening, not only where the territory is and its  8 place names, but that the owner cares about their  9 territory, wears the crest, comes to the feast and  10 exemplifies his ownership or her ownership during the  11 course of the feast's procedure.  12 In addition to the inherent procedure which I have  13 just described, there is also a procedure which is  14 utilized in the feast where regular users of a  15 territory are announced publicly, and this informs  16 people as to who has legal rights to the land.  17 And your lordship may recall that Mary MacKenzie's  18 mother spoke at the feast when Mary MacKenzie took the  19 name Gwamoon.  Her mother announced at the feast that  20 Mary's husband had permission to trap on the  21 territory.  And Mary explained:  22  23 "because there are witnesses there, the head  24 chief is there to witness it and another thing  25 too, where our territory is, there are other  26 territories that we see -- that he has to go  27 through to get to our territory.  So this has  28 to be explained in the feasting that the people  29 up there, my neighbours, our neighbours around  30 our territory, if they see him, they know where  31 his destination is, where he is going to go and  32 trap."  33  34 THE COURT:  Why would Mrs. MacKenzie have a right to allow her  35 husband to trap there, considering the fact that she  36 holds it on behalf of the members of her house?  37 MS. MANDELL:  This is something which we'll go into more detail,  38 but the ownership of the territory permits the chief  39 to grant access rights to others besides those in the  40 house, and there is a number of both kinship and  41 non-kinship relationships which could expect to be  42 granted access rights to the territory.  The two major  43 ones are the relations on the father's side and those  44 on the spouse's side.  And your lordship might recall  45 that when Mr. Grant was talking about the organized  46 society, there is obligations which are fufilled by  47 the father's side to the house territory at the feast, 25033  Submissions by Ms. Mandell  1 and this is part of the interlocking of the house  2 units, where the feast obligations fufilled and the  3 rights to use the territory are granted as part of  4 that relationship, and so too are the relationships to  5 the spouse's side.  And we'll be dealing with those  6 interests and those rights to grant in more detail  7 later in the argument, but we say that it's a very  8 fundamental aspect of the system that the way that the  9 houses are related and those rights which people have  10 to each others territories are very much tied to the  11 rights and obligations of the spouse's side and the  12 father's side and the mother's side.  And it's in all  13 those relationships that your lordship will see how  14 the houses are interlocked in the most basic way, both  15 on the land and at the feast.  16 THE COURT:  Well, is there any room for naivety in any of this?  17 For example, it's being presented to me as if these  18 laws are universal within the community.  Everyone  19 knows them, everyone obeys them.  Is there no risk  20 that some people would say that's what you say, but I  21 don't accept that?  They say it to themself and carry  22 on as if it's never been said.  Am I to -- the picture  23 I am getting from the plaintiffs' case is that this is  24 a compliant society that follows these rules, and  25 there is rarely any failure to live according to this  26 structure that's being described.  Is there any room  27 for doubt about the likelihood of such a system  28 working on a regular basis in an universal way?  It  29 doesn't work in any other society.  Why should it work  30 in this one?  31 MS. MANDELL:  Well, this case isn't about a perfect society.  32 This case is about real life people.  33 THE COURT:  Well, that's what I find disturbing, that I am  34 getting a picture that looks to me to be only one side  35 of the coin.  36 MS. MANDELL:  Well —  37 THE COURT:  As if everybody agrees with everybody on everything.  38 Maybe that's a cultural problem I have, but that's not  39 the way human nature works as I have come to  4 0 experience human nature.  41 MS. MANDELL:  It's a challenging point you raise.  I wanted to  42 try and deal with it by reference to, for example, our  43 law about not permitting people to steal.  And we  44 have —  45 THE COURT:  Every society has those laws, and they hardly ever  46 obey them.  Well, I shouldn't say that.  They are  47 widely obeyed, but wildly disobeyed. 25034  Submissions by Ms. Mandell  1 MS. MANDELL:  I think that's the same here.  We are not talking  2 about a pristine and perfect world, but what we are  3 talking about is, for example, if I could back into  4 the not stealing law, if the church stands up and  5 through its pulpits and teachings says one of the  6 commandments is you shouldn't steal, and if parliament  7 passes a law that says you shouldn't steal, and if the  8 courts enforce the law against those that have been  9 brought before it, who have been alleged to be in  10 breach of it, everybody gets the point, that in our  11 society we don't accept stealing, and there is a way  12 that that's all dealt with.  And we say that the  13 analogy is with what's going on at the feast, where if  14 people -- the feast isn't the church and parliament  15 and the courts.  We don't in kinship societies have  16 those forms of institutions, but it does operate to  17 service those various spiritual and legal and  18 political functions.  And where at the feast it's --  19 people stand up at the most important feasts of their  20 lifetime, the headstone feast and the pole raising  21 feast, and people reiterate their boundaries and those  22 are corrected.  23 And you will see later that the law of trespass  24 can be enforced through the feast, and people at  25 feasts announce whose going to be able to have rights  26 to the territory, and it's done in a fairly global  27 way, and everybody knows that.  Everyone knows that  28 this system cares about trespass.  It's a law which  29 permeates in the same sense as if it were stated in  30 our society to have come through the institutions  31 which we know create law and define conduct.  32 I have practised criminal law too.  I mean, a lot  33 of people steal, but it doesn't negate the fact that  34 we all understand that that's a basic rule of our  35 society.  And I say that the same thing -- for those  36 areas that we are calling laws, that those same  37 principles apply in the Gitksan and the Wet'suwet'en  38 society.  39 THE COURT:  In the Kerkoff labour dispute I made a consent  40 injunction order by consent.  That was promptly  41 disobeyed and escalated into a riot in twenty-four  42 hours.  It went on for two weeks.  It was a consent  43 injunction.  Everybody knew that it was an order that  44 should have been obeyed.  Nobody played the slightest  45 attention to it until finally we decided we better do  46 something about it.  47 MS. MANDELL:  Of course you would never go home and say, "Well, 25035  Submissions by Ms. Mandell  1 there wasn't a law."  You would say, "They have broke  2 it."  3 THE COURT:  There has been a disobedience, yes.  And you are  4 telling me that I should assume that there is some  5 disobedience then?  6 MS. MANDELL:  I don't see how a society can exist without it.  7 THE COURT:  Moslem brothers cut off the hand of the offender,  8 and it doesn't seem to stop it there either, does it?  9 MS. MANDELL:  I think the real question is whether or not, as  10 you put it, the disobedience is contained within a  11 system to contend with it, or whether or not it's  12 random anarchy, and we got people bumping their heads  13 against anybody and without any way of enforcing it.  14 And I think if the provincial defendant's case would  15 be accepted at its highest, what we have is no laws  16 and random enforcement and irregular behaviour, and  17 there is no pattern which can be seen to explain the  18 conduct of people.  And the plaintiffs' case is to  19 explain to you that there is a pattern here, and while  20 there will be breaches to it, it doesn't negate the  21 fact that there is a pattern which has both the law  22 and a method of enforcing it.  23 You know, I might say here, and it's a point that  24 I was about to get into, that my sense of one of the  25 essential differences between what's at heart going to  26 force people in the Gitksan and the Wet'suwet'en  27 society to obey the law versus the law that we have in  28 our non-Indian law has to do with the fact that  29 society is organized around close kinship ties, and so  30 the -- for example, the provincial defendant makes the  31 point that the law, for example, of trespass only  32 applies to those that show up at the feast.  But what  33 that kind of statement defies is the fact that people  34 are born into their house, and they are born into the  35 feast, and they are born into the community that their  36 parents live and their grandparents live and their  37 uncles and aunts live and their children live, and  38 it's not in the same way impersonal that you can  39 simply get away with it, because it's going to reflect  40 back on how your whole family is in the community  41 within which they live.  And I say that there is  42 stronger reasons why the law and systems for enforcing  43 the law within a community based on kinship, than  44 there is for one where you just simply hope that the  45 police don't show up at your door --  46 THE COURT:  Well, the impression I am getting, with some  47 exceptions, in all of the plaintiffs' case, has been 25036  Submissions by Ms. Mandell  1 that everyone agrees within the community, that these  2 are the laws, and everybody obeys them with very minor  3 exceptions.  That's all I have heard about.  That's  4 the impression I have received in the plaintiffs'  5 case.  I'll do no more than tell you that that's the  6 impression that I have been -- I think I have been  7 exposed to it from, and I think accurately from the  8 evidence.  You do whatever you want with that.  I  9 don't know what it means.  And you don't have to deal  10 with it now.  11 MS. MANDELL:  Well, I have taken it as far as I can go now.  12 THE COURT:  That's fine.  All right.  13 MS. MANDELL:  All right.  Well, let me talk about those people  14 that have broken the laws, and some of the ways in  15 which --  16 THE COURT:  If you wish.  Whatever you want to do.  17 MS. MANDELL:  Its right where I am.  Some ways in which the  18 system contends with that.  19 One method of dealing with those people who have  20 trespassed was spoken about by Solomon Marsden, and I  21 am reading -- I am dealing with his example at the  22 bottom of page 71.  2 3    THE COURT:  Yes.  24 MS. MANDELL:  If a person trespassed by mistake, he may make a  25 public apology in the feast hall and compensate the  26 chief.  In answer to why this must be done in the  27 feast, he testified:  28  29 "It is not for the Gitksan people to do this by  30 themselves, because no one would know about it.  31 And in order for people to recognize what has  32 been done and what's going on, they announce it  33 in the feast and ... this is a correction  34 that's made before the people."  35  36 And he says that such apologies continue to this  37 day.  38 Now, another method of dealing with the -- those  39 that break the law, and also, I might add, tie into  40 the warning aspect of the way that the system works  41 was discussed by Alfred Joseph and Johnny David.  And  42 this is the method used by the chief of the offender's  43 house and clan where they discussed the matter with  44 the offender, and in serious cases they raised the  45 issue at the feast.  And the way that Alfred Joseph  46 put it, which is -- which is typical of this  47 expression, is that the persons violating the trespass 25037  Submissions by Ms. Mandell  1 law are always reminded by the owners.  And this is  2 the point of the house chief on behalf of his house  3 whose territory is being trespassed upon pressing the  4 case of the trespass and doing it in the manner which  5 creates a warning.  He says:  6  7 "It's the members of that house that know this  8 man or a person that is using another territory  9 without their permission and that person is  10 reminded of it very often ... if it's  11 continued, that person will have to be invited  12 to a feast and it is taken up in that place ...  13 the person would be there but then the chief  14 would say why the feast is held and he would be  15 told that he or she is not supposed to be at a  16 certain place, not supposed to be taking any  17 food or any animals off the territory in front  18 of the witnesses."  19  20 And this is a very -- in our submission a  21 tremendous internal and moral pressure on a person to  22 obey the system.  And this is just one of the ways in  23 which the pressure is exerted.  24 Johnny David testified that one who is  25 untrustworthy and uses land without permission is  26 referred to in the community as a sneak, and there is  27 a Wet'suwet'en name for that.  Social pressure is  28 applied to such a person in the hope that he will mend  29 his ways.  He may be ostracized by being denied the  30 use of any territory and denied entry into the feast  31 hall.  Then this transgressor may be called to a feast  32 where the head chiefs reprimand him and demand that he  33 mend his ways.  And there is a special name for that  34 kind of feast where a transgressor is brought forward.  35 And Alfred Joseph explained further that the person is  36 invited to a feast and it's taken up in that place,  37 the person would be there, but then the chief would  38 say why the feast is held, and he would be told that  39 in a certain place he is not supposed to be taking  40 food or animals off the territory.  And this would  41 happen in front of the witnesses.  And this is where  42 we say that both -- there is the aspect of warning  43 that goes on.  44 There is also the aspect of community pressure,  45 and it's also within this context that notice of the  46 law and notice of the violation of it is pressed in a  47 contest way.  And it's done publicly and there is 2503?  Submissions by Ms. Mandell  1 witnesses.  And that implies that if there is  2 witnesses and people who don't agree, that others can  3 come in and press the case as to why it's not  4 trespass.  But it's done in a public witnessing forum.  5 Dr. Mills stated what Johnny David had earlier  6 said, in which I referred you to, which is that  7 ostracism is another sanction, and she explains the  8 power of ostracism, that:  9  10 "When a person has been ostracized from his own  11 people and goes onto the territory of other  12 people  ..."  13  14 I'm sorry.  15  16 "The ostracized person is without kin to mourn  17 his death or name or territory to pass on.  He  18 will not even have people who wish to have him  19 reincarnate among them.  The removal of a  20 title, which happens today, albeit rarely, is a  21 form of ostracism from the feast."  22  23 And we heard Mr. Grant refer to a chief, although  24 not in the context of trespass, who recently had a  25 title removed, although he wasn't also banished from  26 the feast.  27 Now, Alfred Mitchell and Solomon Marsden and Pete  28 Muldoe also referred to another form of both warning  29 and also redress with respect to the law of trespass.  30 Alfred Mitchell testified -- this is an old example  31 about a blaze which he saw in Namox's territory which  32 related to a trespass several generations back.  And  33 it was a place along the southeast boundary of Namox's  34 territory, and he named the creek.  And he stated:  35  36 "apparently that next door neighbour trapper set  37 six traps into Namox's territory, and Namox  38 found these and they took it all out and set  39 the traps right on the boundary of that creek,  40 and they placed one jackpine, blazed it well  41 enough so you could write on it.  He carved the  42 words in it telling that other guy this is the  43 boundary.  That's in Indian, way not in  44 English."  45  46 And Alfred was told the story by his father, and  47 according to the evidence of Alfred Mitchell Chief 25039  Submissions by Ms. Mandell  1 Namox had no further trespass problems with his  2 neighbour.  3 Solomon Marsden spoke about the method of  4 notifying somebody on the ground, and also taking a  5 sanction into their own hands when he spoke about --  6 into the hands of the house when he spoke about  7 seizing.  In this case it was traps.  And he said:  8  9 "... at one time when we went out, that's some  10 of the people from Kitwancool, when we went out  11 to my territory we found there was somebody  12 trapping there.  So what we did was we took all  13 the traps."  14  15 And then he said the reason why he did this was  16 because somebody was trespassing.  17 And I might here refer you as well to volume 103,  18 page 6520.  And this is a reference to Pete Muldoe's  19 testimony where he also testified to picking up the  20 traps of a non-Indian person at Deep Canoe.  21 THE COURT: Volume?  22 MS. MANDELL:  Volume 103, page 6520.  23 THE COURT:  Somehow that doesn't seem like the right page for  2 4 that volume number.  25 MS. MANDELL:  I'll check it for you.  26 THE COURT:  Well, one of them is probably right.  I can probably  27 find it.  It just seems to me if you got 25,000 pages  28 and 225 volumes, you would have more than 6,500 pages  29 in 103 volumes.  30 MS. MANDELL:  Art Mathews described a contemporary incident  31 where he told Ralph Pierre to stop logging at Wilson  32 Creek.  33 I am told by my friends I have got the right page.  34 THE COURT:  All right.  Thank you.  35 MS. MANDELL:  Now, another method of both warning, and also  36 which carries with it the principle of deterrence, was  37 spoken of by Alfred Joseph primarily for the  38 Wet'suwet'en, which is the evoking of the spirit power  39 as a sanction against trespass and a means of  40 deterrent.  And this is -- this was a -- it's a method  41 of dealing with trespassers which Dr. Mills explained:  42  43 "If a chief noticed that someone had been  44 poaching in his winter territory but he did not  45 know the person's identity, upon coming back to  46 the summer village he would make a little  47 figure of a person out of sinew and go through 25040  Submissions by Ms. Mandell  1 the village displaying it.  The person who was  2 guilty of poaching would see that the chief of  3 the territory was displeased and would start to  4 sicken.  If the head chief chose to he could  5 heal the poacher and make him well.  If he  6 chose to, he could let him die.  These powers  7 were respected and considered appropriate to  8 use in protecting and managing one's territory.  9 Today practise of these powers is done less  10 openly, but the younger generation as well as  11 older Wet'suwet'en dream and explain events in  12 terms of the kun and ha bo tsat causes of  13 accidents and misfortunes that befall them."  14  15 And in Alfred's Joseph's testimony he also  16 testified to the use of spirit power to punish  17 trespassers and those who were stealing.  And in the  18 middle of the quote he says:  19  20 "... it's intended for him to return the  21 property and if he doesn't that person -- will  22 be very sick and suffer a lot."  23  24 And he explains that this is used for people who  25 have stolen food.  And he mentions that food is  26 especially important when you rely upon it being there  27 when you come back.  And he says in the middle of the  2 8 quote:  29  30 "It's to sort of deter whoever is going to take  31 something for nothing."  32  33 Now, your lordship earlier referred to capital  34 punishment, and -- well, capital punishment for  35 trespass is not followed today.  The understanding of  36 how it works is important, because we say that the  37 example of the use of capital punishment for trespass  38 both underscores how important the issue of trespass  39 was and is within the community, and also it  40 demonstrates a regulated set of principles as to how  41 the breach is sorted out.  42 Now, Dr. -- the chiefs identified and Alfred  43 Joseph spoke to it, that the consequences of the law  44 against trespass according to the Wet'suwet'en law  45 could be death.  And Dr. Mills stated:  46  47 "To go onto territory where permission has not 25041  Submissions by Ms. Mandell  1 been sought or granted constitutes the serious  2 offence of trespassing.  A person caught  3 trespassing might get a warning the first time.  4 (often in the form of a service of the service  5 of a feather); however, a persistent offender  6 could face the severest sanctions, includes  7 death."  8  9 And she based her opinion on oral history, one of  10 which was referred to earlier by Mr. Grant when he  11 pointed out the location on Wah Tah Keg'ht's  12 territory, which explained an event involving the  13 Nuutsenii man who had ignored the warning against  14 trespass and was strangled.  And there was a song  15 which was composed of this event, and it's part of the  16 chiefly property of Wah Tah Keg'ht's house to this  17 day, and it's performed in the feasts along with the  18 kungax.  19 Emma Michell also spoke about the event giving  20 rise to the trespass, and I might mention that  21 Josephine Michell in her commission also did, and she  22 sang the song.  23 Now, Emma Michell testified that it is her belief  24 that her eldest brother Jimmy Michell was killed by a  25 party of Wet'suwet'en for trespassing near the Suskwa  26 River in 1935, and although this event hasn't been  27 publicly admitted or hasn't been any compensation paid  28 at a feast, this is her belief.  And Dr. Mills relied  29 upon this incident to conclude that the last time a  30 Wet'suwet'en was killed for trespassing was in 1935.  31 Olive Ryan testified, as did Dr. Mills, that there  32 is a warning given, and if they still didn't listen  33 they can kill you, and it has a name.  And Thomas  34 Wright described an incident where somebody  35 trespassing on Waiget's territory was killed in 1918.  36 Now, Dr. Mills makes the point where I would like  37 to here illustrate that even though the recognized  38 sanction for trespass was to kill the trespasser, if  39 you refuse to respond to the warnings, the house that  40 engaged in such a killing would have to arrange for a  41 settlement feast with the house and clan to which the  42 trespasser belonged.  The settlement feast was  43 intended to resolve any dispute or problem arising of  44 the killing.  And Dr. Mills described what is a  45 sophisticated process of feasting as repayment when a  46 human life was taken for trespass:  47 25042  Submissions by Ms. Mandell  1 "The taking of the life of a trespasser entailed  2 legal consequences.  Although treated as a  3 justified homicide, the person who had taken  4 life was required to wear a sign of having  5 committed the act, as he was himself in a  6 vulnerable and dangerous situation until the  7 relatives of the victim had been appeased  8 through a feast.  Proper compensation was made  9 for having taken the life of a valued clan  10 member, even if he had been in the wrong in  11 trespassing.  Until that time the people who  12 had taken the life were in danger of being  13 killed themselves.  14  15 Now, we say that feasting to compensate for a  16 death resulting from trespass is a potent example of  17 the exercise of jurisdiction among the Wet'suwet'en.  18 The house had the authority to kill a trespasser, a  19 right arising from ownership and governed according to  20 law under the discretion of the chief.  However,  21 subsequently, the house had to recognize the  22 Wet'suwet'en collective jurisdiction by feasting,  23 explaining the trespass and paying compensation in  24 order for the homicide to be sanctioned by the whole  2 5 community.  26 And I would like to here pause for a minute and  27 explain that part of the very delicate way in which  28 the laws are enforced in kinship communties, and we  29 are here talking about the plaintiffs' communties to  30 be included in it, is that everyone has to eventually  31 live together, and because of that there is through  32 the feasting a settling or a balancing of the peace  33 which occurs as part and parcel of the enforcement of  34 the law.  And so in the case of even the capital  35 punishment, there is a regulated set of principles.  36 There is a law.  There is warning.  There is a breach.  37 There is and was at that time the ability of the house  38 to kill for trespass.  However, the house can't  39 enforce the law alone, and once the killing occurred,  40 the house and the clan had to defend their action and  41 contribute to the peace, and this occurred at the  42 feast where the giving of gifts at the feast is the  43 medium through which the balancing occurs and peace is  44 restored.  45 I say that this is quite important for your  46 lordship in understanding the concepts of  47 jurisdiction, where it isn't, as in our case, a 25043  Submissions by Ms. Mandell  1 situation where a centralized institution has the  2 authority to enforce laws and to meet out punishments.  3 In the end there isn't a final resolution of breaches  4 of the law, especially serious ones, and ones, for  5 example, as serious as killing of somebody without  6 there being evoked the process to restore peace  7 generally within the kinship communties.  And that's,  8 in this case, what's being described through the  9 feasting, which was referred to the witnesses.  10 If I could conclude by reference to the quote of  11 Dr. Daly.  It was his opinion that trespass is a  12 question of great concern to the Gitksan and  13 Wet'suwet'en.  He identified the strong public opinion  14 which is mobilized against trespassers, including  15 mournings, social ostracism and the formal public  16 debate and announcements at the feast hall.  These  17 work as a forceful sanction against those who violate  18 the laws of ownership.  And he explained:  19  20 "Every house group knows of instances in which  21 its lands or fishing sites have been used by  22 outsiders without permission.  People point  23 that they apply their own local,  24 non-government/non-police sanctions against  25 trespassers within their community.  The  26 actions they take involve the warning,  27 isolation, and ostracism of trespassers, and  28 formal public debate on the the subject, with  29 the outcome witnessed in the feast hall by the  30 high chiefs."  31  32 And we say that he, Dr. Daly there, is reiterating  33 the principles which govern the implementation and  34 breaches of the law of trespass as we have earlier  35 described them.  36 THE COURT:  Want to take a break now?  37 MS. MANDELL:  Sure.  38 THE COURT:  All right.  39 THE REGISTRAR:  Order in court.  Court stands adjourned.  40  41  42  43  44  45  46  47 25044  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 25045  Submissions by Ms. Mandell  1 (PROCEEDINGS RESUMED FOLLOWING SHORT RECESS)  2 MS. MANDELL:  My lord, I will try and move at least through the  3 next section before we finish for the day.  4 THE COURT:  Yes. All right.  5 MS. MANDELL:  One of the incidents of ownership which was spoken  6 about by both Dr. Daly's cross-cultural definition and  7 also His Honour Judge Gould, is that ownership entails  8 rules to govern the conveyance of rights from person  9 to person and generation to generation.  And Mr.  10 Justice Gould stated that possession should be of  11 indeterminate time, that it can be passed to one's  12 heirs.  And if the evidence of the chiefs is accepted,  13 in our submission, the evidence is that there is a  14 succession of rights from generation to generation,  15 and that house property is the subject of such  16 succession.  And I think that in this case,  17 matrilineality is at the heart of the system and it's  18 our submission that there is just overwhelming  19 evidence that the feasting and payments made at the  20 feast, support the people's long-standing adherence to  21 the law of matrilineal descent.  22 And I might, before I get into the evidence,  23 remind your lordship that Bob Atkinson, who was a  24 witness called with respect to estate files, the only,  25 in our submission, place where there was any attempt  26 on the part of the defendants to take a crack at  27 whether or not the territory passed matrilineally,  28 through succession, his evidence was that the people  29 passed what he called the crest property or the house  30 territory at the feast, and this occurred  31 notwithstanding whatever rules the Department of  32 Indian Affairs may have had with respect to the  33 passage of property patrilineally through the will  34 system of the Indian Act.  35 THE COURT:  Is that in your outline?  36 MS. MANDELL:  I will get you Bob Atkinson's reference.  I have  37 summarized the beginning of the section and it's not  38 in the outline.  3 9    THE COURT:  Thank you.  40 MS. MANDELL:  Now, we say that the chiefs created a litany of  41 testimony to the basic law that house property is  42 passed from generation to generation with the passage  43 of the head chief's name at the feast.  And they all  44 said it the same way, no matter whichever territory  45 they were talking about.  Pete Muldoe, in describing  46 the Cullen Creek territory said whenever -- he said  47 that: 25046  Submissions by Ms. Mandell  1  2 "...it was owned by the former Gwiiyeehl for a  3 good many years and they are still using the  4 same name today.  That could be the Gwiiyeehl,  5 the same name a couple of thousand years ago.  6 But whenever one passed on to the next family  7 or take over the name and it keeps on going  8 like that right up to today."  9  10  11 Pete Muldoe described, with respect to the McCully  12 Creek territory:  13  14 "...the former Kliiyem lax haa passed on, well  15 they passed on to the next one.  Then from  16 there they describe as the next Kliiyem lax haa  17 is going to be responsible for all this  18 territory and that's how it goes."  19  20 Alfred Joseph:  21  22 "When I was given the name I took the name  23 Gisdaywa.  I was told that was where my  24 territory was so it just came with the name.  25 It was our laws that when you take a name, the  26 House Chief name, that the territory goes with  27 it.  28 When they...spoke on it, they said the  29 territory goes with the name."  30  31 Johnny David when he got his name "along with the  32 name went the territory."  33  34 And Dr. Mills summarized this evidence in her  35 opinion:  36  37 "If the deceased person has a name, it is passed  38 on like the flag bearer.  Whenever one dies  39 another has to come and carry the flag on, the  40 Wet'suwet'en say.  The highest chief's name in  41 the Wet'suwet'en houses are associated with the  42 territory.  Ownership of the territory and  43 authority over the territory is passed on with  44 are the title."  45  46  47 We say that the Gitksan and Wet'suwet'en 25047  Submissions by Ms. Mandell  1 matrilineal system of inheritance and succession  2 provides the intergenerational continuity to the land  3 ownership.  Ownership in the house territories is a  4 birthright to those born in the house.  The succession  5 to chiefly names through a matrilineal line of  6 inheritance transmits the rights of ownership and  7 resource management from one incumbent to the next  8 ensuring thereby perpetual succession.  In this way  9 property rights over territory are extensions of  10 Gitksan and Wet'suwet'en genealogical life cycles.  11 The law that I have explained is to the passage of  12 territory matrilineally, was explained by the many  13 witnesses, it was described as a law, and Alfred  14 Joseph said this this way:  15  16 "The Chief's names, territories of the House  17 and the regalia are inherited through the  18 passing at a feast.  This has been labelled the  19 matrilineal system and that is the system the  2 0 Wet'suwet'en go by."  21  22 And Dr. Mills said:  23  24 "A law of the Wet'suwet'en is that inheritance  25 takes place through the house and clan.  26 Wet'suwet'en names and territories are  27 inherited through the mother's side."  28  29 And Heather Harris stated the same law for the  30 Gitksan.  31  32 "Gitksan inheritance is through the matriline.  33 The primary rule of inheritance is that titles  34 are inherited within the house.  The only  35 exception to this is adoption."  36  37  38 Now on the next few pages, and I must say randomly,  39 we chose some of the genealogies which were tendered  40 in evidence, and in the genealogies we traced the  41 succession of chiefly names.  And an example, for  42 example, was Exhibit 61-1 Sub (1), which was the  43 genealogy of Gisdaywa.  And the passage of chiefly  44 names was illustrated through the genealogy that  45 Alfred Joseph succeeded in 1972 to the name; before  46 him Thomas George was Gisdaywa; he was Alfred's  47 mother's brother.  Before him Joseph Paul Nahloochs 2504?  Submissions by Ms. Mandell  1 held the name until 1946 when he died at the age of  2 100.  And he was related to Alfred on his mother's  3 side.  His mother was married to Zalma Paul and held  4 the name of Gisdaywa before Joseph, before Alfred  5 Joseph.  All these chiefs were from the mother's line  6 in the same house.  Alfred Joseph reviewed the  7 genealogy of Gisdawa and confirmed that the passing of  8 the name from previous name holders to him as  9 indicated on the genealogy, was done according to  10 Wet'suwet'en law.  11 And I am not going to orally take you through the  12 genealogies for Knedebeas, for Smogelgem and the other  13 genealogies, the Gitksan genealogies that we analyzed  14 in the same way.  But I will ask your lordship to note  15 the fact that, and it was stated at page 87, that all  16 the genealogies show the succession of chiefly names,  17 and by extension the succession of territories through  18 the matriline, except one territory, and Mr. Grant has  19 referred to it.  In that case, there was a caretaker  20 and that was announced at the feast.  21 Now, I would like to say this before I begin the  22 next section, that the evidence of succession through  23 matriline, in our submission, was overwhelming.  And I  24 think that in this case the court is compelled to  25 conclude that there is succession and it was -- and it  26 is matrilineal.  27 I would like to speak for a minute about  28 matrilineality and what the -- what it means for the  29 Gitksan and Wet'suwet'en concept of land ownership to  30 be part of the matrilineal system of descent.  It's as  31 I was explaining earlier when I began the discussion  32 of house and the ownership of house, the succession of  33 ownership through the matriline connects the present  34 generation with their ancestors on the land and at the  35 feast.  And I say that there is something very  36 important about the fact that territory passes  37 matrilineally and I think in some ways it explains the  38 tenacity of the plaintiffs in fighting for their land  39 as they have done and as the record shows for as long  40 as they have.  The passing of the territory upon the  41 death of one chief to another is spoken by Gitksan  42 words which translate, "Walk slowly on the breath of  43 your ancestors."  And we say that the connection to  44 the ancestors of the house on the territories,  45 reinforces their belonging to the land.  And I am not  46 here only talking about --  47 THE COURT: "Walk slowly on the breath of..." 25049  Submissions by Ms. Mandell  1 MS. MANDELL:  Your ancestors.  It's page 88, my lord.  2 THE COURT:  You're on page 88?  I am sorry, I thought you  3 were --  4 MS. MANDELL: I am digressing but I want to explain something to  5 you.  6 The connection to the ancestors of the house on the  7 territory, as I was explaining, reinforces the peoples  8 belonging to the land.  And many witnesses talked to  9 you about the feeling of connection with their  10 ancestors, as they travelled and lived on the land of  11 their house territory.  And this connectedness is  12 expressed in many ways.  And it's not only that people  13 belong to a community whose ancestors used the  14 territory before them, it's also that people of their  15 own blood used the territory before them and their  16 feelings about the people who did use the territory  17 are evidenced and reflected on the land.  18 Alfred Mitchell and Emma Michell and Dan Michell  19 all testified to standing at the footprints of Sam  20 Goosly, and I understand you were there too, as I  21 understand in your viewing.  22 THE COURT:  Yes, I stood in the footprints.  23 MS. MANDELL:  And it's one thing to buy a piece of land and  24 stumble upon these footprints and stand in them and  25 say to yourself that there is something unusual about  26 it, but it's another thing to stand there and know  27 that your ancestors, who had gone before you, all of  28 whom were related to you, also stood in those  29 footprints and they were there marking whether or not  30 it was time to move to Moricetown to go fishing.  And  31 it's a way of continuing in the way in which the  32 ancestors have been on the land, that happens as each  33 new incumbent eventually becomes a chief to the  34 territory or somebody is born into the territory.  And  35 you had a lot of examples of people who went on the  36 land and spoke about the connectedness that they felt  37 to the land based on their ancestors' prior presence.  38 There was an interesting trail which Henry Alfred  39 and Alfred Mitchell spoke about where they travelled  40 from Moricetown on the trail leading to the Babine.  41 And Henry spoke about re-cutting a portion of the  42 trail which hadn't been cut for a long time and he  43 said, "You can see there was old cuttings from a long  44 time before.  You can see the old cuttings where I  45 went through, I just re-cut the area."  So in his  46 labour to open up the trail he ends up seeing the  47 people from his genealogy, his mother line, who had 25050  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  been there before to cut the trail.  And he spoke  about various places along the trail which were known  to be places where the ancestors had formerly marked  off.  And on page 90 he referred to a campsite,  he  says :  "It's not too far from this echo, about ten  minutes walk.  Thee big meadowthere. That's the  main campsite for -- for hunters, and that's  where they drive in the peg in the middle and  tie up the horses.  Q   And are the pegs of the ancestors still in  the ground?  And he says:  "Still there. And alfred saw one peg the last  time he was on the trail."  THE COURT:  Of course that would be post-contact, wouldn't it?  MS. MANDELL:  With the horses?  THE COURT:  Yes.  MS. MANDELL: It may very well be.  But it's his family who was  there and he is encountering the evidence of them.  He spoke about a third place with the nighthawk,  and you will recall that there was this stone that was  turned by those that were moving into Wos's territory  to indicate they were on their way to Wos's territory  and were there and similarly turned around when the  people from Wos's territory and beyond were coming  back into Moricetown.  And Fred Alfred Mitchell how his father-in-law,  Dick Naziel, who was Wos, turned the bird around, as  his ancestors before him had done.  "Yes...the time we were going up there with my  father-in-law, Dick Naziel, he broke the spruce  bough, a bunch of spruce bouch.  And there's  another rock, big rock, below that.  Put it on  that big rock and then sat that bird on there  facing where we were going."  The teaching of the very special places on the  territory was spoken about by James Morrison, and he  spoke about a lake which is beside it a camping place  on the southern territory of Wiigyet.  And it's a lake 25051  Submissions by Ms. Mandell  1 which your lordship will recall he testified changes  2 colour with the weather.  And he says, and I am  3 reading from the bottom of this page as he talked to  4 the court:  5  6 "When it is good weather you start to see the  7 milky thing coming out of that and it starts to  8 change colour onto that.  But they told me  9 before that now is the time to approve it and  10 that's the time when I see it happen.  And I  11 said there is a camp there.  It is always the  12 ones that they use all the time because it's  13 safe place and there is wind blowing to protect  14 the round the camp.  This is where they chose  15 and only one place to camp.  Not all over the  16 place.  That's why they were chosen this place  17 for that time for many thousands of years."  18  19  20 So you have people going to the campsites, in this  21 case a very special spot on Wiigyet's territory, as  22 his ancestors had done, and appreciating this  23 phenomena, which is unique to this territory, of a  24 lake whose colours change with the weather.  25 Alfred Mitchell was speaking about time on the  26 Namox territory when he heard a grizzly bear growl and  27 he returned home and told his father about it and his  28 father told him the history of his ancestors at a  29 place called Cass'an, which is close to the location  30 where Alfred heard the grizzly.  And I won't go into  31 the whole history of Cass'an but only here to  32 emphasize that one generation hears the bear and he  33 goes to speak to his father and his father knows the  34 history and the place and why that place had that name  35 related to a former ancestor who at another time  36 encountered a bear at that place.  37 This is in response to your question earlier about  38 the dead falls.  Alfred Mitchell was trapping on  39 Namox's territory.  He said he regularly saw dead  40 falls.  The dead falls signalled to him the movements  41 of his ancestors whose lives on the territory  42 paralleled his own.  As Alfred was trapping the same  43 lines for the same animals at the same time of the  44 year.  And Alfred mentioned the way in which the dead  45 falls were made and he identified the remnants of the  46 remains of the traps as he goes into the same trapping  47 areas as his ancestors had gone. 25052  Submissions by Ms. Mandell  1 Several witnesses talked about their ancestors  2 being buried on the territory.  Pete Muldoe testified  3 to seeing the charcoal remains of the person who had  4 been cremated on the Wiiget territory and Sarah Layton  5 both spoke of and testified the death of her  6 grandfather at a cabin by Tax'ets'ol'een Ben at Pack  7 Lake and also a photograph of the gravesite in the  8 Knedebeas territory at Pack Lake, which is the place  9 where her brothers, Bobby and Andrew and her sister  10 Maggie has been buried, who-- all of whom who died in  11 infancy or small children.  12 And although, you know, the evidence is such that  13 your lordship will have to accept that this is what  14 the people believe; you're not being asked yourself to  15 believe it.  The witnesses talked about a feeling of  16 connectedness to those who have passed on and who they  17 believe still -- their spirits are still present on  18 the territory.  19 Madeline Alfred testified that communication  20 continues between those living today and the spirit of  21 the ancestors who had gone before them.  She said:  22  23 "Our ancestors who have passed on before us when  24 we are out on the territory they try to  25 communicate with us.  When you hear a whistling  26 noise from a fire, then we immediately take a  27 piece of smoked salmon or something and throw  28 it on the fire.  The whistling noise is our  29 ancestors trying to get our attention."  30  31 And I just want to remind your lordship that the  32 whistling noise that Alfred Joseph testified about  33 hearing at Cass'an and it being a signal or a message  34 which the people listen for to signal the interaction  35 with their deceased relatives.  36 Dr. Mills said that the people believe that people  37 will be reincarnated back into the same house.  And  38 Basil Michell testified that he was recognized at  39 birth as the former Kawachan reborn and that he then  40 succeeded to that name later in his life.  And he  41 testified that he was given the name Kawachan when he  42 was a baby when he was starting to crawl "because I  43 was told I was Kawachan before that."  And he was told  44 this by his mother and his father.  And Maxim Tom  45 held that name before and he was related through his  46 mother's side and his uncle Johnny Austin decided he  47 would get his name.  And Madeline Alfred testified 25053  Submissions by Ms. Mandell  1 that it's on the territory that the elders watch for  2 recognition in their children of places which may  3 suggest a previous reincarnation.  She said, "...  4 because when children recognize things that they have  5 never seen before, or recognize places where they  6 haven't been before, and that's where the  7 understanding is that their ancestors have been there  8 before, and that they are the reincarnation of their  9 ancestors."  10 And Dr. Mills refers to certain other examples in  11 the Wet'suwet'en of people who understood their  12 reincarnation to be within their house.  And we say  13 that the Gitksan and Wet'suwet'en respect the  14 liklihood of a soul belonging eternally to a  15 particular territory connected to the people of the  16 house through time.  17 Mr. Morrison described his belonging to the  18 territory in these words:  19  20 "You have to go out there, and sometimes when  21 you feel like you have to be out there, to be  22 out on the rivers or lakes, wherever you are  23 going to sit yourself and feel, you can hear  24 the creeks and rivers to remind you what  25 happened in the past.  That's one of those  26 things that people -- to go out there and sit  27 in some of that those areas and listen to the  28 creeks, what these people in the past used to  29 speak about these territory.  That's one reason  30 why they went out there, to listen to this, and  31 you can feel the presence of the creators when  32 you have that -- the reflection of this of your  33 territory and yourself."  34  35  36 And he also talked about the territory being  37 related to basic survival and he talked about it as  38 being -- he talked about it as being the table, "all  39 the animals was on the territory and that seems to be  4 0 right on the table.  And that's where we have on your  41 table."  42 And what we are really talking about with  43 matrilineality and what the witnesses were trying to  44 say, is that the same territory that nurtured their  45 ancestors, their bloodline in the past, nurtures them  4 6 and will nurture the generations yet to come.  And  47 matrilineality is deeply rooted in the fact that 25054  Submissions by Ms. Mandell  1 people have survived in one land for a long, long time  2 and when they talk about their ownership to the land,  3 they are talking about it also in terms of their  4 ancestors who have been there and they who are there,  5 as part of the continuity between themselves and their  6 children who aren't yet born.  And that, in our  7 submission, is what matrilineality is about and what  8 succession through the inheritance of matrilineality  9 is about, when the chiefs talk about their ownership  10 in that way.  11 THE COURT:  What would you like to do, Ms. Mandell?  12 MS. MANDELL:  I would like to go on.  13 THE COURT:  All right.  Thank you.  14 MS. MANDELL:  Now, another incident of ownership which springs  15 from the succession, matrilineally, is the fact that  16 territories can be transferred too within the system  17 and Mr. Justice Gould talked about the incident of  18 ownership as being the right to alienate the  19 territory.  And as Mr. Jackson points out, well, the  20 right to alienate is constrained by the common law  21 principle that the territory is inalienable but to the  22 Crown this does not preclude the fact that territory  23 can be alienated internally.  And the evidence  24 demonstrates that the territory is and was alienated  25 in past and recent times as compensation for peace  26 settlements.  27 THE COURT:  You would add internal at the start of your heading  28 at the top of page 89, would you?  29 MS. MANDELL:  I would say internal to the Gitksan and  30 Wet'suwet'en and also to their neighbours, to other  31 Indian nations that are a part of the -- and recognize  32 the system of ownership within which they function.  33 MR. WILLMS:  Well, there is no evidence of other societies here  34 that recognized this system of ownership, so I don't  35 know where my friend -- what my friend means by that.  36 MS. MANDELL:  We will be referring in greater detail to the  37 Nisga'a and the Sekani, for example, who have  38 participated in the feast system and are part and  39 parcel and understand and recognize the right of  40 alienation as compensation in peace settlements.  41 It's a topic that will be dealt with in full under  42 jurisdiction.  43 One form of alienation, and we say is the most  44 common one is the alienation of territory and  45 compensation for a death.  And Dr. Daly identifies, in  46 his opinion, that,  47 25055  Submissions by Ms. Mandell  1 "Compensation for homicide or the accidental  2 death of a person while on the land of another  3 house, or reparations from war and feuds have  4 to be paid to the offended group so as to  5 avoid, or end hostilities.  These peace  6 settlements   frequently involve the transfer  7 of property and/or House members, as well as a  8 peace ceremony that include the spreading of  9 eagle or swan's down which signifies the  10 binding law of peace. Xsiisxw agreements are  11 legally validated when they have been witnessed  12 in the feast house."  13  14  15 Now Mr. Grant spoke about some of the transfers of  16 territory arising out of homicide, and I am not going  17 to repeat all the evidence which he stated, but I  18 wanted to draw to your lordship's attention some of  19 the examples which illustrate that this is a feature  20 of the ownership system of the both Gitksan and  21 Wet'suwet'en.  22 Alfred Joseph testified that under Wet'suwet'en  23 law interest in house territories may be passed as  24 compensation for harm, and the way he put it:  "When  25 they say an area leaves the house for a while, it's  26 either for compensation for a favour or when someone  27 was harmed."  28 And I will deal with the compensation for favour  29 later in the submission.  30 Some peace settlements which resulted in the  31 conveyance of property from one house to another are  32 very old, and Mr. Grant has already referred to Mary  33 Johnson's testimony involving the hunting mountain on  34 her northern territory.  And I won't take you into  35 that evidence.  36 He also, on page 101, referred you to a more  37 recent peace settlement, where Olive Ryan testified  38 that there was such a settlement in 1957 or '58 when a  39 dispute was settled between Guxsan and the Eagle Clan,  40 and this involved the death of a member of Guxsan's  41 House and Guxsan received compensation by way of a  42 hunting territory below Kitwanga on the right bank of  43 the Skeena.  44 Martha Brown also recounted in her evidence the  45 warfare and subsequent peace settlement which resulted  46 in the Tahltan Wolf chief, Malii, giving his name and  47 his territory to the Gitksan Wolf Clan chief.  This 25056  Submissions by Ms. Mandell  1 was one of Martha Brown's predecessors and this was at  2 the headwaters of the Nass and the Skeena.  3 Olive Ryan told the history of a fishing site  4 which was the subject of a peace settlement and Mr.  5 Grant took you through the events which gave rise to  6 that settlement, where there had been a murder and the  7 death -- a murder in the House of Hanamuxw and I  8 wanted to point out a feature of the transfer which it  9 wasn't stressed by Mr. Grant, and that is that  10 according to the law of the Gitksan and Wet'suwet'en,  11 the site or the territory may not necessarily be  12 transferred permanently, while permanent transfer is a  13 possibility.  And Olive Ryan pointed out that with  14 respect to their site, that Hanamuxw's house received,  15 that the site would be returned to Luutkudziiwus's  16 house at a pole raising to be held at the House of  17 Hanmuxw.  The way she put it:  18  19 "while that's settled.  All the family will  20 settle down and they not angry any more."  21  22 And this was consistent with Dr. Daly's opinion  23 that the transfer of territory in a peace settlement  24 will be or can be returned to the original house only  25 when the hostility has ended.  And you will see that  26 in the case of Mary Johnson's evidence, that territory  27 appeared to be in her house for a very long time and  28 it may not ever come back whereas in case of Olive  29 Ryan, her evidence is that the territory will be  30 coming back.  31 I might here advise my friends and your lordship  32 that the cite from Dr. Daly's Exhibit 884-1, where he  33 is citing an interview with Jessie Sterritt, won't be  34 relied upon us as it is clearly hearsay.  35 THE COURT:  All right.  That's on page —?  36 MS. MANDELL:  102.  37 We say that it's part of his opinion and we  38 continue to see it as evidence on that point but I am  39 not here going to urge it upon your lordship.  40 The very many ways in which a territory may be  41 forfeited or transferred a court according to Gitksan  42 and Wet'suwet'en law reflects the vitality of the  43 system.  And this was spoken about by Neil Sterritt  44 Junior when he was asked whether or not the internal  45 boundaries of the territory are static and he said,  46 and I am paraphrasing what he said, that the internal  47 boundaries, that is the territories within the 25057  Submissions by Ms. Mandell  1 internal boundaries, may very well change in the  2 future.  There is -- the system continues and there  3 may be peace settlements and there may be territories  4 which will be moved back and forth as a result of the  5 application of law within the Gitksan system.  But  6 that, he says, argues for the dynamic nature of the  7 system and not for its static nature.  But I must say,  8 and I would like to emphasize in this section that  9 while there are internal transfers of the territory,  10 for varying periods every time, it doesn't affect the  11 boundaries of the territory.  People know the  12 boundary, they know that the territory -- what the  13 boundary is of the territory which is transferred, and  14 they know what the boundary is of the territory which  15 is being transferred back.  16 My lord, I am about to start a new area.  There is  17 two areas to go and this is a fairly long one.  18 Perhaps it's an appropriate time to stop and we can do  19 the whole area in the morning.  20 THE COURT:  All right.  9:30 tomorrow morning is convenient?  21 MS. MANDELL:  Yes.  22 THE COURT:  All right.  Thank you.  23  24 (Proceedings adjourned to 9:30 a.m., Tuesday, April  25 24, 1990)  26  27  28 I hereby certify the foregoing to be a true  29 and accurate transcript of the proceedings  30 herein.  31  32  33  34 Wilf Roy  35 Official Reporter  36  37  38  39  40  41  42  43  44  45  46  47

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