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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-22] British Columbia. Supreme Court Jun 22, 1990

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 567  Submissions by Mr. Wolf  1  2  3  4  THE  REGIS1  5  6  7  THE  COURT  8  9  10  11  12  13  MR.  WOLF:  14  15  THE  COURT  16  MR.  GRANT  17  18  THE  COURT  19  MR.  WOLF:  20  21  22  23  24  25  26  27  28  29  THE  COURT  30  MR.  WOLF:  31  32  33  34  THE  COURT  35  MR.  WOLF:  36  37  38  39  40  41  THE  COURT  42  MR.  WOLF:  43  44  45  THE  COURT  46  THE  COURT  47  MR.  WOLF:  VANCOUVER, B.C.  June 22, 1990  PRAR:  Order in court.  In the Supreme Court of British  Columbia, this 22nd day of June, 1990.  Delgamuukw  versus Her Majesty the Queen, at bar, my lord.  :  Before you start, Mr. Wolf, can counsel direct my  attention to any evidence, not now but sometime, on  the number of Gitksan and Wet'suwet'en there are.  I've heard different figures mentioned and somebody  told me there was evidence about it, and I'm not sure  where that evidence is.  I don't have an exact figure, my lord.  Perhaps Mr.  Grant could help you.  :  Well, I don't need to know now.  :  I'll make a note of that that we'll provide you with  a reference.  :  All right, thank you.  My lord, I'm continuing with the Federal Defendant  site specific analysis of the use and occupancy  evidence.  As you will recall, yesterday we looked at  three Delgamuukw territories, and I'm going to  continue today looking at some additional Gitksan  territories, and then we will move on to the  Wet'suwet'en territories.  But before I do that, I  have an amended or a more complete index to all the  territories in this section, and I'll just hand that  up to you.  :  Thank you.  Now, that goes --  That goes at the beginning of part IX of our  argument.  You should have a partial summary that we  handed out yesterday, you can throw away the old  index.  :  Mm-hmm.  And you're on page 12?  Well, my lord, I'm not going to take you through all  of our submissions on all of the territories, so I'm  going to ask you to skip ahead to page 18 of our  submissions, and I'm going to begin today with one of  the Wiigyet territories.  It's the Chipmunk Creek  territory.  :  Thank you, yes.  This territory, my lord, is located in the northeast  section of the claim area.  It's this one up here on  the Upper Skeena River at the corner of the map here.  :  Yes.  :  That's Chipmunk Creek, is it?  Yes. Submissions by Mr. Wolf  1  THE  COURT  2  3  MR.  WOLF:  4  THE  COURT  5  MR.  WOLF:  6  7  THE  COURT  8  MR.  WOLF:  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  MR.  GRANT  25  26  27  28  29  MR.  WOLF:  30  31  32  33  34  THE  COURT  35  MR.  WOLF:  36  THE  COURT  37  MR.  WOLF:  38  39  40  41  42  43  44  45  46  47  :  What's that large lake, I can't see through the  overlay.  To the right there's Thutade Lake.  :  Thutade, yes.  And then there's another couple of lakes above  Thutade.  :  Thank you.  Thutade of course isn't in this particular territory.  Other features of the territory are Chipmunk Creek,  the Skeena River and Alma Creek.  This territory was  described in the affidavit of James Morrison, and both  Mr. Morrison and his brother, Sam, gave evidence  concerning the use of the territory.  Our conclusions with respect to the evidence of  use and occupation of this territory are as follows:  The evidence is that this territory was used or at  least visited from 1936 until 1963.  The territory  appears to have been used regularly during this period  for hunting, trapping and the gathering of certain  plants.  However, the evidence is clear that the  territory was not used after 1963.  And we say that  non-use for a period of 21 years or more constitutes  abandonment.  :  Is that the period my friend fixes the magic time  is, 21 years, because yesterday he referred to 40  years, or is there a fixed period of abandonment, I  want to be clear on my friend's argument, or does it  depend on the territory?  Well, we say that approximately 20 years, we say 20  years or more.  We say -- my submission with respect  to the 40 years was that there was evidence that a lot  of the territories haven't been used for 40 years, and  we say --  :  Since 1951 or thereabouts?  Or thereabouts.  :  Yes, all right.  In this particular case, this territory had not been  used for at least 20 years prior to the commencement  of the action, and we say also that that is sufficient  to be abandonment.  I'll just refer to page 19 of my submissions now,  paragraph 3, and this is the evidence on this  territory.  James and Sam Morrison testified that they  travelled to this territory with their father, Simon  Morrison, and others.  Simon Morrison was Wiigyet, I  believe.  James Morrison testified that a group of  people travelled in 1936 to that part of the territory 569  Submissions by Mr. Wolf  1 lying west of the Skeena River.  And if you -- you may  2 have observed, my lord, that part of the territory is  3 on the west side of the Skeena River and the Chipmunk  4 Creek, part of the territory is on the east side of  5 the Skeena River.  The portion on the eastern side is  6 the larger portion of the territory.  7 THE COURT:  Chipmunk Creek comes in from the east, does it?  8 MR. WOLF:  Yes, it does.  9 THE COURT:  Yep.  10 MR. WOLF:  On that particular trip in 1936 he testified that he  11 trapped marten, wolverine and beaver, and he  12 identified on Exhibit 378 the camps used by his family  13 when they stayed on the territory.  And perhaps I'll  14 just refer your lordship to volume 1 of our references  15 which I handed up yesterday.  16 THE COURT:  Yes.  17 MR. WOLF:  And I'll refer you to tab 3(C)3.  18 THE COURT:  3(C) —  19 MR. WOLF:  3.  And four pages into that tab there's a photocopy  20 of a map that the Plaintiffs used when they were  21 leading the evidence of James Morrison, which is  22 Exhibit 378.  Do you see where the word Waiget,  23 W-A-I-G-E-T, is on the north-central part of the map?  2 4 THE COURT:  Yes.  25 MR. WOLF:  Okay.  Just to the north of that is Chipmunk Creek,  26 and it's below Grossman Peak on the map.  2 7 THE COURT:  Yes.  28 MR. WOLF:  There are a series of triangles along this creek  29 which are said to represent camps along Chipmunk  30 Creek, and this is what Mr. Morrison was referring to  31 when he said that camps on Chipmunk Creek were used by  32 his family when they stayed on that territory.  33 However, he also testified that the main camp was  34 located on the west side of the Skeena River and is  35 labelled "Waiget Camp".  And that's considerably below  36 that area we were just looking at.  There's a triangle  37 on the Skeena River that's labelled "Waiget Camp".  3 8 THE COURT:  Yes.  39 MR. WOLF:  Paragraph 4 of my submission:  In addition to marten,  40 wolverine and beaver, Mr. Morrison testified that he  41 hunted moose, bear, porcupine, goat and groundhog on  42 different parts of the territory.  43 James Morrison testified that his family used the  44 territory every year.  Mr. Morrison was unsure when he  45 had last trapped on the territory, but he agreed that  46 he had not trapped there for at least 20 years.  On  47 the next day of his cross-examination, when asked when 370  Submissions by Mr. Wolf  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  he was last on the adjacent Wii Minosik territory, he  stated that his brother and father were there in 1952  and he was there before 1952.  It appears likely that  this was the last time that James Morrison was in this  Upper Skeena area except for helicopter flights in the  1980's.  MR. GRANT:  Does my friend have a reference for that last  proposition?  MR. WOLF:  No.  That's our submission on the evidence.  Paragraph 6 of my submission:  Sam Morrison  testified that he had gone out to the Chipmunk Creek  territory very often, and he believed the last time he  was there was in 1963.  He stated that he was on the  territory in 1963 and he recalled that fur prices  dropped "about maybe 1959 I think...'54, 1960 or  something".  And he also gave evidence about trapping  along Chipmunk Creek.  James Morrison also gave evidence of fishing on  the lakes on the territory and in Chipmunk Creek  itself.  Just to go back to our conclusions on this  territory, my lord, we say that this territory appears  to have been used for a number of years for hunting,  trapping, probably fishing and some gathering of  plants, but there's no evidence that it was used after  the early 1960's.  And we say that it's been abandoned  since that time.  The next territory that I would like to take you  to is at page 25 of our submission.  You don't have a section for Chipmunk Creek in your  outline headed "Conclusion" like you do for the  others, do you?  Well, I thought so, my lord.  I'll just double-check  that.  On page 18 -- Do you have page 18?  THE COURT:  Yes.  MR. WOLF:  At the bottom.  THE COURT:  I see.  Sorry, the conclusion comes before the --  MR. WOLF:  Yes.  Our general format is to introduce --  THE COURT:  And then do the support work.  All right.  MR. WOLF:  Yes.  THE COURT:  Page 25.  MR. WOLF:  Yes.  And the territory that I would like to refer  you to here is the Luus territory, the Xsi Lax Uu  Andoo'o territory.  Now, this territory is located in the  north-central part of the claim area along the Nass  River, and it's a small territory.  THE COURT  MR. WOLF: 371  Submissions by Mr. Wolf  1  THE  COURT  2  MR.  WOLF:  3  THE  COURT  4  MR.  WOLF:  5  6  7  8  9  10  11  12  13  14  15  16  17  MR.  GRANT  18  19  20  MR.  WOLF:  21  22  23  THE  COURT  24  MR.  WOLF:  25  26  27  28  THE  COURT  29  MR.  WOLF:  30  31  32  33  THE  COURT  34  35  MR.  GRANT  36  37  38  39  MR.  WOLF:  40  41  42  43  THE  COURT  44  45  46  MR.  WOLF:  47  THE  COURT  :  Yes.  I see it here.  Yes.  It's this one here.  :  Yes.  This territory was described in the affidavit of  Walter Blackwater.  However, there is no evidence  presented that this territory was used.  There's no  evidence from Mr. Blackwater's cross-examination,  there's no evidence from any other source that this  territory was used, and we say that the Plaintiffs  have not established that they have ever used the  territory or that they have any rights to it.  And  this conclusion is repeated with respect to a number  of territories.  There are a number of territories  with which there is absolutely no evidence that that  particular area was specifically used.  The next territory I would like to take you to --  :  In that respect, is my friend also referring to the  affidavit itself of Mr. Blackwater as well as the  cross-examination to make that statement?  Well, if we could turn to Mr. Blackwater's affidavit.  I don't recall at the moment.  That affidavit is at  4(B) -- pardon me.  :  Well, 4(B) looks like Mr. Muldoe's affidavit.  Yes.  It's the wrong document at that tab, my lord.  I will have to -- I may have made a mistake with  respect to the proper affidavit on this territory, my  lord.  I will have to double-check on that.  :  Yes, all right.  The affidavit -- it appears that it was Peter Muldoe  who gave evidence with respect to this territory, but  I don't think that that's right. I'll check that, my  lord, and go back to that.  :  Do you have -- you haven't included here the full  affidavit -- yes, it is.  :  Yes.  It's Section E of 605, and it's right there.  And paragraph 32 I think should be noted in light of  my friend's conclusions, which indicates that Mr.  Muldoe and Abel Tait both travelled on that territory.  Well, that's the general form of their affidavit, my  lord, is that they say that the territory was  travelled upon, but we don't say that that constitutes  evidence that they used it.  :  Yeah.  But I should change the affidavit of Walter  Blackwater, I should change that to say "Peter  Muldoe", should I?  It appears that that's right.  :  I'll do that.  If you find in your research that 372  Submissions by Mr. Wolf  1 there's another affidavit of Mr. Blackwater's that  2 makes your text correct, perhaps you can let me know.  3 MR. WOLF:  I will, my lord.  The next territory I would like to  4 refer you to is at page 33 of our submissions.  This  5 is territory 7(A), the Wii Elaast-Giist territory.  6 This territory is located 35 miles north of the  7 village of Kispiox on the east bank of the Skeena  8 River five miles south of the site of the village of  9 New Kuldo.  10 THE COURT:  That's a tiny little property, isn't it?  11 MR. WOLF:  Yes, that's right.  12 THE COURT:  Yes.  13 MR. WOLF:  It's just on the east bank of the Skeena River there.  14 This territory was described in the affidavit of Peter  15 Muldoe.  16 There are only -- this is our conclusion with  17 respect to the territory.  There are only two  18 instances of use of the territory before the court,  19 and we say that the evidence is insufficient to  20 establish that the Plaintiffs continuously used this  21 area.  In addition, it is likely that the evidence of  22 use of this territory occurred in the 1950's or  23 earlier, and therefore, it's probable that the  24 territory has not been used by the Plaintiffs for at  25 least 30 years.  26 Peter Muldoe testified that he travelled through  27 this territory with Luus to reach a place called Andax  28 Aaws, where he hunted goat.  He stated that he  29 travelled up the creek called Giist on this territory  30 to reach Andax Aaws, which is located in the adjacent  31 Luus territory.  The location of Andax Aaws is  32 indicated on Exhibit 486.  And perhaps if your  33 lordship will turn to tab 7(A)3 of our references  34 binder, I will have better luck in -- better luck with  35 the references.  That's tab 7(A)3.  And if you turn  36 two or three pages into the tab, the last page of the  37 tab —  38 THE COURT:  Well, the bottom of the first page he talks about —  39 oh, he may be talking about a different property  40 there.  41 MR. WOLF:  No, this is his testimony.  I was just going to refer  42 you to the map at the back of the tab.  43 THE COURT:  Oh, yeah, right.  44 MR. WOLF:  Which is Exhibit 486, the map that the Plaintiffs  45 used to lead Peter Muldoe's evidence.  And you can see  46 at the right-hand corner of the Wii Elaast territory  47 there's a feature, Andax Aaws. 373  Submissions by Mr. Wolf  1 THE COURT:  Yes.  2 MR. WOLF:  And that's located just outside the Wii Elaast  3 territory; it appears to be on the Luus territory.  4 This feature, Andax Aaws, lies near the head of  5 Larkworthy Creek at the southern end of the Luus  6 territory and outside of the Wii Elaast territory.  7 We say in paragraph 4 of my submission that the  8 Plaintiffs' submissions at pages 65 to 66 of their  9 argument misconstrues Peter Muldoe's evidence on this  10 point.  We say that Mr. Muldoe cannot hunt goat in  11 this territory on his way to Andax Aaws.  12 In paragraph 5 of my submission I say that the  13 Plaintiffs also misconstrue Mr. Muldoe's evidence in  14 the first full paragraph of page 66 of their argument  15 where they stated "Mr. Muldoe was hunting and trapping  16 on the territory with Steve Morrison".  Mr. Muldoe  17 actually stated that he was trapping with Steve  18 Morrison on Wiigyet's territory and that Morrison's  19 sisters, Alice and Jane, were trapping at Giist at the  20 same time.  Mr. Muldoe also testified that there was a  21 cabin and smokehouse on the territory across from a  22 place called Milkst on the Skeena River.  And that  23 particular feature is not labelled on Exhibit 486,  24 that sketch map.  Oh, I'm sorry, there is a -- it's  25 not labelled as such, but there's a triangle at the  26 very edge of that sketch map that I've referred your  27 lordship to earlier.  It's in the northwest part of  28 the territory along the heavy black line indicating  29 the western boundary of the territory along the Skeena  30 River.  There's a portion -- indication of a triangle  31 at that point, and I believe that that's the reference  32 to Milkst.  However, Mr. Muldoe stated that the cabin  33 and smokehouse at that place are no longer standing.  34 Mr. Muldoe did, however, testify that he used this  35 territory.  He stated that he trapped beaver on the  36 territory and that he gave the furs to Alice and Jane  37 Williams.  38 We say that the fact that the cabin on this  39 territory no longer exists supports the inference that  40 the trapping which occurred on this territory occurred  41 some years ago.  There is no -- the Plaintiffs have  42 not presented the evidence -- in their evidence they  43 don't set the time frame in which Mr. Muldoe was on  44 this territory.  45 Just to recapitulate my conclusion, I say that  46 this scanty evidence about the territory at some point  47 in the distant past, in the last 30 or 40 years, 28874  Submissions by Mr. Wolf  1  2  3  MR.  GRANT  4  5  6  7  8  9  THE  COURT  10  MR.  WOLF:  11  12  13  14  15  THE  COURT  16  MR.  WOLF:  17  18  19  THE  COURT  20  MR.  WOLF:  21  THE  COURT  22  MR.  WOLF:  23  THE  COURT  24  MR.  WOLF:  25  26  27  28  THE  COURT  29  MR.  WOLF:  30  THE  COURT  31  MR.  WOLF:  32  33  34  35  36  37  38  THE  COURT  39  MR.  WOLF:  40  41  42  43  44  45  46  47  perhaps, it's not sufficient to establish that the  Plaintiffs continuously used the area.  :  My lord, I just ask that when you're considering  that, that you have -- if my friend's finished this  territory, that you make reference to the original of  486 and of these maps, because I think these copies  are very difficult to see the references, which are  clear on the underlay.  :  Yes, yes.  I'm having some trouble too.  My lord, I was just informed with respect to that  Luus territory that I was dealing with previously at  page 25 of my submission, and there is -- it's 4(B) of  my references, and that's the number of the territory.  It is in fact Walter Blackwater's affidavit.  :  Oh, all right.  But we put the wrong front page on that particular  reference, and I'll provide you with an alternate  document.  :  So I should put --  You can rip out the Peter Muldoe.  :  And leave it as Walter Blackwater.  Yes, it is Walter Blackwater.  :  All right, thank you.  Walter Blackwater gave evidence about the territories  in that area in the Upper Skeena and Upper Nass River  and Mr. Muldoe didn't, and that was why I was a little  bit nonplussed about the cover page.  :  Counsel are never nonplussed.  Never taken by surprise.  :  They just appear to be.  The next territory that I would like to refer you to,  my lord, is paragraph -- pardon me -- page 43 of my  submissions.  This is territory 9(C), the Geel  territory at Barker Creek.  And this is another  territory located on the Upper Skeena River.  It's  this territory up here in the north-central edge of  the claim area on the east side of the Skeena River.  :  Yes.  This territory was described in Walter Blackwater's  affidavit, but the only solid evidence of use of the  territory was provided by Martha Brown.  Our conclusion with respect to this territory is  that there is no evidence before the court that it was  used by the Plaintiffs after 1920, and one of two  possible conclusions result from that:  Either the  Plaintiffs have not established that they continuously  used the territory, or they have abandoned the area. 375  Submissions by Mr. Wolf  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.  THE  MR.  THE  WOLF:  COURT  GRANT  COURT  MR. GRANT  THE COURT  We say that both of these conclusions have the same  effect, that is that the Plaintiffs have not proved  that they have any aboriginal rights to that  territory.  Although Walter Blackwater described the territory  in his affidavit, which states that he travelled on  the territory, no evidence was presented in either his  cross-examination or re-examination regarding the uses  made of this territory.  However -- I'm at page 44 of my submission, my  lord -- Martha Brown testified that she travelled to  this territory with her family for about eight years  when she was between the ages of 12 and 19.  She  stated that when they were on the territory they dried  caribou, groundhog and beaver meat and hunted goats.  Mrs. Brown was born in 1901, according to the Kliiyem  Lax Haa genealogy, and therefore it appears that she  was last on this territory about 1920.  That is when  she was 19 years old.  And there is no evidence that  this territory has been used for over 60 years.  Mrs.  Brown, Martha Brown, was Kliiyem Lax Haa before she  died.  The next territory I would like to refer you to is  the Antgulilbix territory.  This is at page 46 of my  submission.  This is the territory 10(B),  Antgulilbix-Andamhl territory.  :  Mr. Wolf, you told me yesterday, and I regret that  now it's not clear, how this is organized, but my  recollection is that this is the order in which the  Plaintiffs dealt with these properties.  Yes.  : All right. Sorry, is there another order to this?  Were they organized in terms of clans, Mr. Grant, or  they're not alphabetical.  :  No.  They're not alphabetical.  :  How do we jump from Geel in the north to Antgulilbix  in the central part?  :  As I remember, I don't have our summary of argument,  but as I recall at the time we were organizing them,  we did them in three groupings.  Wet'suwet'en is at  the end, the western territories just before that, the  northern territories.  Internally, within the northern  territories, as I recall, we did them by -- roughly by  order of the Plaintiffs, but I can't recall, because  they were done by different counsel, different parts  of them.  :  Yes, all right.  Thank you. 376  Submissions by Mr. Wolf  1  MR.  GRANT  2  3  THE  COURT  4  MR.  GRANT  5  6  7  THE  COURT  8  MR.  GRANT  9  THE  COURT  10  11  MR.  GRANT  12  THE  COURT  13  MR.  GRANT  14  15  THE  COURT  16  MR.  WOLF:  17  THE  COURT  18  MR.  WOLF:  19  20  21  22  23  24  25  THE  COURT  26  MR.  WOLF:  27  28  THE  COURT  29  MR.  WOLF:  30  31  32  THE  COURT  33  MR.  WOLF:  34  35  THE  COURT  36  MR.  WOLF:  37  38  39  40  41  42  43  44  45  46  47  There was a certain level of arbitrariness to it, my  lord, in proceeding through the affidavits.  All right, thank you.  But each witness will be grouped, so I think Pete  Muldoe's -- Walter Blackwater's, for example, the ones  that he testified to, would all be dealt with.  Yes.  Mr. Benson had an affidavit --  Yes.  With many properties at the beginning of the  submissions, did he not?  Yes.  All right.  So they would all be grouped together by the  affidavits.  All right, thank you.  Now, you were on 10(B).  10(B).  10(B), yes.  Sorry, my lord, there isn't more continuity to the  way that these submissions are presented.  Mr. Grant  is right, that the first group of territories in both  their submission and our submissions are the northern  Gitksan territories, and then we get to the western  Gitksan territories, and then the Wet'suwet'en  territories.  Yes, all right.  And I've tried not to take you through everyone,  because I think that that would be a bit much.  Yes.  Although we do wish that you read our submissions on  these various other territories that we're not giving  oral submissions about.  Not a bit much, that would be a much much.  Yes.  Back to the Antgulilbix territory.  Have you  located that, my lord?  Yes.  This is the one directly west of the village of  Kispiox.  And the major features of the territory  include the Kispiox range of mountains and Upper Date  Creek, and this territory was described by Mary  Johnson in her testimony at the beginning of the  trial, and Jessie Sterritt also appears to have  testified about the area.  Our conclusions with respect to the evidence on  this territory is that it's clear that there was once  a village called Wilt Gallii Bax located on the  mountain of Andamhl, and this was abandoned long  before Mary Johnson was born.  There is minimal 377  Submissions by Mr. Wolf  1 evidence of hunting, trapping and berry picking and  2 fishing on the territory, and we say that that  3 evidence is insufficient to establish that the  4 Plaintiffs have any aboriginal rights to the  5 territory.  Furthermore, there is no evidence before  6 the court that the territory has been used for any of  7 these purposes within recent decades.  8 Mrs. Johnson testified that the adaawk of her  9 house stated that in ancient times there was a village  10 on the mountain behind Glen Vowell.  The village is  11 identified by the name of Wilt Gallii Bax.  When she  12 was younger, Mrs. Johnson was taken by her grandmother  13 to the place on the mountain where the village is said  14 to have stood.  It is evident that this village was  15 abandoned long before Mary Johnson's lifetime.  16 Mrs. Johnson also identified a fishing site at  17 Gwin Disygenn.  There also used to be a smokehouse at  18 this site.  And this site is depicted evidently on  19 Exhibit 358-22, and it's at the -- it's on the Skeena  20 River in the vicinity of Glen Vowell.  It may or may  21 not be located on the Sik-e-dakh Indian Reserve No. 2,  22 from the maps we can't identify where it is.  23 Mrs. Johnson testified that her  24 great-great-grandmother used cedar bark from this  25 territory and that her aunt trapped at Date Creek.  26 Mrs. Johnson also testified that she used to pick  27 blueberries behind the "vegetable farm" near the creek  28 called Wilt Gallii Bax.  And this creek is depicted on  29 Exhibit 17-9-A.  That map indicates that the creek  30 flows through the Sik-e-dakh Reserve before it enters  31 the Skeena River.  It is unclear whether Mrs. Johnson  32 was picking berries on the reserve, on private land,  33 or on Crown land.  34 Mrs. Johnson also testified that her father took  35 her brother, Stanley Wilson, onto the territory when  36 he was young and showed him where to set traps.  Mrs.  37 Johnson's statements that her brother trapped on the  38 mountain and hunted groundhogs on the top of the  39 mountain must have been based on hearsay, because it  40 appears that Mary Johnson did not accompany her  41 brother on these trips.  The same submission applies  42 with respect to Mary Johnson's statement that Fred  43 White went to the territory before Stanley did, and  44 without that inadmissible evidence -- or pardon me --  45 without that hearsay evidence, my lord, there is very  46 little evidence, there's none, actually, of hunting  47 and trapping on the territory, but we say that that Submissions by Mr. Wolf  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.  MR.  THE  MR.  THE  MR.  COURT  WOLF:  GRANT  COURT  GRANT  COURT  GRANT  THE COURT  MR. GRANT  MR. WOLF:  THE  MR.  COURT  WOLF:  evidence, as led through Mary Johnson, is almost  surely hearsay and is not admissible.  Is her brother still alive?  Yes.  Fred White is deceased, my lord.  Is her brother Fred White?  No.  Stanley Wilson is still alive, he's  hospitalized, but Fred White is deceased.  All right.  I must say, my lord, on this point that my friends  raised yesterday on the hearsay, we take great  exception to this, and we will have to deal with it in  reply to the hearsay issue, because in the context of  what my friends are arguing we say we must prove use  and ancient use, and too bad you can't use it, because  you can't use the reputation of use.  I don't think he's saying you can't use reputation  of use, I think he's saying you can't use out-of-court  statements to prove a particular fact.  But what I understood him to say is that we could,  through reputation, say "My grandmother told me this  land belonged to so and so", but Millirrpum it is "but  we couldn't say that my grandmother told me that she  trapped on that territory".  And that's the first part  of their proposition.  The second part is we must  establish that to establish title.  So I just want --  I take it my friends have made their submission on the  hearsay, and we'll deal with it in reply.  I believe you understand our submissions with respect  to hearsay, my lord.  We say that these out-of-court  statements made to the witnesses, which they repeat in  court, are generally hearsay and inadmissible.  However, there are circumstances which you set out in  your ruling on hearsay where the Plaintiffs could  establish a reputation of use perhaps, but generally  speaking, the evidence is not presented in that form.  It's in the form "My husband told me he trapped  there".  Yes.  The next territory that I would like to direct your  attention to is at page 50 of my submission.  It's the  Wii Minosik territory at Fort Creek, and we're jumping  back and forth to the Upper Skeena here.  It's this  large territory here which lies below the Wii Gaak  territory at Chipmunk Creek which we reviewed earlier,  and it also has portions on both the east and west  side of the Skeena River. 379  Submissions by Mr. Wolf  1 THE COURT:  Yes.  2 MR. WOLF:  This territory was described in the affidavit of  3 James Morrison, and both James Morrison and Solomon  4 Jack appear to have given evidence about the use of  5 the territory.  6 Our conclusions with respect to the evidence on  7 this territory is that there is some evidence of  8 hunting and trapping on this territory, but we say the  9 evidence is insufficient to establish that the area  10 was continuously used for these purposes.  11 Furthermore, there is no evidence that the territory  12 has been used for trapping since 1940 and hunting  13 since 1952.  And we say that given the remoteness of  14 this area, it is reasonable to infer that the  15 Plaintiffs have abandoned it.  16 Moving on to the evidence with respect to the  17 territory, James Morrison testified that he hunted  18 goat on those parts of the territory lying east of the  19 Skeena River which are marked on Exhibit 378 with the  20 word "goat".  The map indicates two such areas, one  21 north of Fort Creek and the other below that creek.  22 The Plaintiffs stated in their submissions at the  23 bottom of page 97 that Mr. Morrison "went to the camp  24 which is indicated by a triangle marker with Jack  25 Wright".  However, we say that it appears that Mr.  26 Morrison was referring to the Wii Gaak cabin which  27 appears on Exhibit 378 on the west side of the Skeena  28 River below Cutfoot Creek and not the triangle marked  29 "Wii Minosik Camp" near the confluence of the Mosque  30 and Skeena Rivers.  When Mr. Morrison was hunting goat  31 he was with his father, Simon Morrison, his brother  32 Sam, and Peter Angus.  Mr. Morrison did not state --  33 pardon me -- Mr. Morrison did, however, state on the  34 next day of his testimony that he camped at that "Wii  35 Minosik's Camp".  36 Mr. Morrison does not state when he was hunting  37 goats on the territory.  However, he did testify that,  38 other than a 1983 helicopter trip, the last time he  39 was on this territory was before 1952.  40 Solomon Jack testified that he had trapped on the  41 east side of the Skeena River above the Sustut River  42 with his grandfather on the territory that belonged to  43 Wii Minosik in the area of the Moose River.  The Moose  44 River he named may have been referring to the Mosque  45 River.  This trapping appears to have taken place  46 before 1940, because he says that the last time that  47 he trapped with his grandfather was about that time. 28880  Submissions by Mr. Wolf  1 So just to sum up, there is no evidence that this  2 territory was used for trapping after 1940 and hunting  3 after 1952, and we say that that constitutes  4 abandonment.  In one case it hasn't been used for 30  5 years, in the other for 40 years or more.  6 I would like to refer you to another Wii Minosik  7 territory at page 53 of my submissions.  It's  8 territory 11(D), the Blackwater Lake or Dam Tuutsxwhl  9 Ax Lake territory of Wii Minosik, and that's at the  10 north-central portion of the Gitksan claim area.  11 THE COURT:  That's the big round one?  12 MR. WOLF:  Yes, oval-shaped one, yes.  13 THE COURT:  Yeah, oval-shaped one.  14 MR. WOLF:  The major features of the territory include the Nass  15 River, Damdochax Lake and Creek, and Slowaldo Creek.  16 As I said, this territory is described by Walter  17 Blackwater in his affidavit.  18 Our conclusions with respect to the evidence on  19 this territory is that although it's located in a  20 relatively remote area, there is substantial evidence  21 of use for hunting and trapping purposes up until the  22 mid 1960's.  Upon the death of Jimmy Blackwater, who  23 was Walter Blackwater's father, these activities seem  24 to have ceased, and it has only been in the mid 1980's  25 that there is evidence of renewed activity on the  26 territory.  But although there was a cession of  27 native -- cessation of native activity on this  28 territory for almost 20 years, we say that this time  29 falls on the less-than-20-years side of the  30 abandonment proposition which we presented; that is it  31 has been used for 18 years.  So they appear to have  32 gotten in under the wire with respect to this  33 territory.  However, the Plaintiffs have not  34 established which parts of this territory were  35 actually used by the Plaintiffs, and it is not  36 reasonable to infer that all of the territory was  37 continuously used by them.  Therefore, we say that  38 except for the immediate area of Jimmy Blackwater's  39 cabin site, there is insufficient evidence to prove  40 that the Plaintiffs have any aboriginal rights to this  41 large area.  And this -- we're confronted with this  42 territory with that situation, that there's only very  43 general evidence that the Plaintiffs, in this case  44 Jimmy Blackwater's family, used this territory for  45 hunting and trapping, but we don't know where on this  46 huge territory that actually occurred, and we say that  47 there has to be some evidence of that before the court 51  Submissions by Mr. Wolf  1 can say that the Plaintiffs have an aboriginal right  2 to a particular area.  3 Just to deal with the evidence on this territory,  4 Walter Blackwater testified that he was actually  5 brought up on this territory.  He stated that he lived  6 on the territory with his parents until he moved to  7 Kispiox in 1956.  He testified that even after he  8 moved to Kispiox he returned to the territory.  He  9 also gave evidence that he trapped on the territory  10 with his father, Jimmy Blackwater, until Jimmy  11 Blackwater died in 1966.  Between 1948 and 1966 he  12 stated that he trapped with his father in the area of  13 Blackwater Lake and with other persons on the  14 territory.  So there is some evidence of where they  15 trapped, and that is in the vicinity of Blackwater  16 Lake.  17 Jimmy Blackwater's house was located near  18 Damdochax and Xsan Six Moohl Creeks.  Walter  19 Blackwater testified that his brother David and Robert  20 Stevens have recently trapped on the territory.  The  21 source of this information is likely to be hearsay,  22 because there's no evidence that Walter was on the  23 territory with either David or Robert.  24 Victor Giraud, a retired federal fishery officer,  25 testified that when he was trapping along the Yukon  26 telegraph trail, in the vicinity of Kuldo before the  27 outbreak of the Second World War, he recalled seeing  28 Jimmy Blackwater and his family travelling along the  29 telegraph trail several times.  This evidence is  30 consistent with Mr. Blackwater's evidence that his  31 family was living in the Damdochax area.  32 The next territory I would like to refer you to,  33 my lord, is at page 61 of my submissions.  It's  34 territory 13(A), the Tsabux-Tsim Gwi Dagantwit  35 territory.  And this is a small territory located  36 approximately 25 miles northwest of Kisgegas on the  37 north end of the Atna range of mountains.  You see  38 that, my lord, it's this territory here.  39 THE COURT:  Yes.  An inverted triangle?  40 MR. WOLF:  Yes.  41 THE COURT:  Yes.  42 MR. WOLF:  A major feature of this area is Shedin Peak, and this  43 territory was described in the affidavit of James  44 Morrison.  45 This territory appears, from the evidence, to have  46 a limited purpose, that is mountain goat hunting.  Mr.  47 Morrison gave evidence of one occasion when he hunted Submissions by Mr. Wolf  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  THE  COURT  22  MR.  WOLF:  23  24  25  26  THE  COURT  27  MR.  WOLF:  28  THE  COURT  29  MR.  WOLF:  30  31  THE  COURT  32  MR.  WOLF:  33  34  35  36  37  38  39  40  41  42  43  THE  COURT  44  45  46  MR.  WOLF:  47  THE  COURT  mountain goat there.  And we say that, although  obviously a small area can support only a limited  amount of hunting, evidence of one hunting trip does  not establish an aboriginal right to hunt mountain  goats on this territory.  The only evidence with respect to the territory  was Mr. Morrison's testimony that he hunted goat on  the territory at the place marked "goat" just below  where the word "Tsabux" is marked on Exhibit 379.  Exhibit 379 is another of these sketch maps that was  used to illustrate Mr. Morrison's evidence.  And this  hunting trip took place in either 1956 or 1957.  And  that's all the evidence there is about the use of this  specific territory.  The next territory I would like to take you to is  at page 65 of my submissions.  It's another Tsabux  territory, in this case it's the Red Creek territory.  This territory is located in the northeast part of the  claim area on the northeast border of the claim area  above Bear Lake, north of Bear Lake.  :  Yes.  Major features of the area include the Bear and  Sustut Rivers and Birdflat and Red Creeks. This  territory was described in the affidavit of Abel  Sampson.  :  Well, Bear Lake's not in that territory, is it?  No, it's not.  :  Just south of there.  But the Bear River is on the southern border of that  territory.  :  Yes, all right.  Our conclusions with respect to the evidence on this  territory is that the only site specific evidence  before the court concerning the use of the territory  is Abel Sampson's evidence that he trapped and hunted  on the territory for three years in the 1940's with  his father.  This evidence does not establish that  this territory was continuously used by the  Plaintiffs.  Furthermore, there is evidence that the  area around Bear Lake was effectively abandoned in  approximately 1950, when many of the residents of Bear  Lake permanently moved away from their village.  :  Whose traplines are these on this territory?  There  seems to be a trapline that includes most of the north  part of the territory.  Yes.  :  Will I get that from looking at the other analysis Submissions by Mr. Wolf  1 that —  2 MR. WOLF:  Yes.  3 THE COURT:  They're included in that other analysis?  4 MR. WOLF:  That's correct.  I haven't — I don't know who the  5 current registered holder of that trapline is, but  6 it's one of our submissions that just because someone  7 is registered on the trapline doesn't mean that  8 they've used it.  9 THE COURT:  How would I move conveniently from your analysis to  10 the other analysis?  I would go to --  11 MR. WOLF:  It should be in the same order of territories, my  12 lord.  13 THE COURT:  That would be Miss Koenigsberg's chart.  She has  14 them in alphabetical order.  15 MR. WOLF:  On the index at page 5, my lord --  16 THE COURT:  Yes.  17 MR. WOLF:  You will see a reference to --  18 THE COURT:  Tsabux?  19 MR. WOLF:  To Tsabux.  This is the third of the territories.  2 0 THE COURT:  So that should be somewhere —  21 MR. WOLF:  Page 35 it appears.  22 THE COURT:  Page 35, yes.  23 MR. WOLF:  The pages are at the bottom of the page.  2 4 THE COURT:  Yes.  25 MR. WOLF:  It doesn't appear to have the registered trapline  26 holder on that particular page, but there is a list --  27 I don't think I can advise you at this moment, my  28 lord, which -- who's the holder of that registered  29 trapline.  That particular piece of information may  30 not be in our extinguishment materials.  31 THE COURT:  I think someone has given me a list, is it the  32 Province's material?  33 MS. KOENIGSBERG:  I don't know if the Province — I don't  34 recall, my lord, if I can just interject here, if the  35 Province did a list of the registered trapline holders  36 among the Plaintiffs, they may very well have, but it  37 will only show up on our list if in fact in that  38 territory there is a trapline registered to a  39 non-plaintiff.  4 0 THE COURT:  Yes.  41 MS. KOENIGSBERG:  The inference then is that it's a Plaintiff,  42 it is a Plaintiff.  43 THE COURT:  A Plaintiff, probably this one?  44 MS. KOENIGSBERG:  And probably that one, and we can certainly  45 confirm that.  46 THE COURT:  Yes, all right, thank you.  Sorry, Mr. Wolf.  47 MR. WOLF:  Miss Koenigsberg just reminded me, my lord, that 28884  Submissions by Mr. Wolf  1 there is evidence that even though some registered  2 traplines are held by Plaintiffs, they're not used by  3 them.  4 THE COURT:  Oh, yeah, yep.  So that use, if there was, would  5 show up on your analysis.  6 MR. WOLF:  Yes.  The use that was put into evidence.  7 THE COURT:  Yes.  8 MR. WOLF:  Unfortunately, the way that the Plaintiffs have  9 presented their evidence, in many cases the evidence  10 of use only came out in cross-examination of the  11 territorial affidavit.  The affidavits themselves did  12 not refer to the use, and so that information was only  13 elicited on cross-examination.  14 MR. GRANT:  Well, that was objection -- partly because of a  15 ruling on an objection on that.  One of the things I  16 have, if my friend -- he says that if there's evidence  17 of use of the registered trapline in the material, my  18 question is if the evidence of use through the  19 trapline documents returned by Plaintiffs, I take it  20 my friend has not included that in this, that there is  21 evidence there of returns, trapline returns, I take it  22 that's not included in here, because I haven't seen my  23 friend make any reference to it yet; is that right?  24 MR. WOLF:  In some of the trapline files that the Province has  25 tendered as an exhibit, it's Exhibit 995-41A, there  26 are some fur returns that are part of those trapline  27 files, and that's some of the best evidence that the  28 Plaintiffs could have led if they had access to that  29 kind of material of use, because that gives specific  30 years, specific places where trapping was done.  31 However, my understanding is that those files that are  32 in evidence do not contain many of those returns, but  33 where I know or I'm aware of the specific trapline  34 return or fur return, I have made reference to that in  35 my submissions.  36 THE COURT:  All right.  37 MR. WOLF:  The evidence about this territory at Red Creek, as I  38 said before, came through Abel Sampson, who testified  39 that he went to this territory for three years with  40 his father when he was between the ages of 13 and 15.  41 It appears that these visits occurred about 1948.  Mr.  42 Sampson moved to Hazelton when he was 15 years old and  43 has not returned to the territory since that time.  He  44 stated that his father, Arthur Sampson, was the last  45 person to use the Red Creek territory in the late  46 1950's.  And we say that this evidence is probably  47 based on hearsay and therefore is inadmissible, 55  Submissions by Mr. Wolf  1 because it's obvious that Abel Sampson did not go with  2 his father on these trips in the 1950's.  3 When Abel Sampson was on the territory as a young  4 man, he and his father hunted groundhogs, goats and  5 caribou in the summer, but they were there all year  6 round.  As well he testified that his family had  7 fished along the Bear River.  These fishing sites are  8 not well identified in Mr. Sampson's evidence, but it  9 should be noted that there are a number of small  10 Indian reserves along the Bear River.  11 One of the reasons offered by Mr. Sampson in  12 answer to the question "Why did you leave Bear Lake?"  13 was:  14  15 "The only reason how we can stay up there is  16 from trapping.  The trapping got so poor that  17 they had a store up there, and pretty soon you  18 can't afford to get the airplane in to pay for  19 stuff and we had to move into town."  20  21 The next territory I would like to refer to is at  22 the next page, page 67, territory 14(A).  Nii  23 Kyap-Babine River territory.  This territory is  24 located immediately south of Kisgegas.  It's this  25 territory here, my lord.  2 6    THE COURT:  Yes.  27 MR. WOLF:  The territory at the Babine River was described in  28 the affidavit of Joshua McLean.  29 Our conclusions with respect to the evidence on  30 this territory is that there is evidence that Mr.  31 McLean trapped on the territory regularly, although  32 his trapping activities appear to have declined  33 recently.  However, we say that the Plaintiffs have  34 not established which parts of this territory were  35 actually used, and without that evidence it's  36 impossible for the court to infer the places that have  37 been trapped or used continuously.  And therefore, we  38 say that the Plaintiffs have not established that they  39 have any aboriginal rights to trap on this territory.  40 The evidence with respect to the territory, Mr.  41 McLean testified that he had trapped all his life  42 beginning at the age of seven and that he continues to  43 trap to the present day.  Mr. McLean was born in 1930.  44 He stated that he trapped with Henry Wright, Thomas  45 Wright and his father, William McLean, on this  46 territory.  There is evidence that recently either Mr.  47 McLean's trapping activities are tailing off or his 56  Submissions by Mr. Wolf  1 success rate is declining.  He had testified that he  2 told Rae Mclntyre during a recent season he only  3 caught three marten, five squirrels and a beaver.  The  4 note of this interview is Exhibit 1231, tab 50.  Mr.  5 McLean sold these furs for a total of $108.00.  And we  6 say that that's evidence that Mr. McLean does not  7 appear to be doing much trapping, although the primary  8 problem with the evidence on this territory is that  9 it's so non-specific.  He says that he's trapped  10 regularly there, but we don't know where, and we say  11 it's unreasonable to infer that he's used the entire  12 territory for those purposes.  13 The next territory I would like to take you to is  14 at page 72 of our submissions.  It's the Bowser Lake  15 territory of Skiik'mlaxha.  16 THE COURT:  What page?  17 MR. WOLF:  72.  This is the large territory located in the very  18 northwest corner of the Gitksan area.  Major features  19 of the area include Bowser Lake, Bell-Irving River,  20 Skawill Creek and Taft Creek.  And the territory was  21 described in the affidavit of Gerald Gunanoot.  Gerald  22 Gunanoot, David Gunanoot and Jessie Sterritt gave  23 evidence about the area.  24 And we say in our conclusion that, although there  25 is a large body of evidence regarding hunting and  26 trapping on the territory, the Plaintiffs have not  27 established that this territory was continuously used  28 for these purposes since approximately 1950.  And we  29 say that the most reasonable inference from the  30 evidence is that the territory was abandoned at that  31 time, at approximately that time, although I believe  32 that there is some evidence of recent trips to the  33 territory, that is in the 1980's.  34 The evidence with respect to this territory is  35 that the Gitksan have not been in the Bowser Lake area  36 for all that long.  Jessie Sterritt, who is  37 Wii'goob'l, testified that the territory was obtained  38 from the Stikine as a peace settlement when Daniel  39 Skawill was still alive.  Daniel Skawill died in 1945.  40 Mrs. Sterritt also claimed that she was the most  41 knowledgeable member of her house about this  42 territory.  Wii'goob'l appears to be related to  43 Skiik'mlaxha, I think, as she was talking about the  44 territory or the house that includes the house  45 claiming this territory when she made that statement.  46 Gerald Gunanoot, in his testimony, basically confirmed  47 what Mrs. Sterritt stated.  He said that the territory 57  Submissions by Mr. Wolf  1 was obtained as a peace settlement from the Stikine in  2 the "very early nineteen hundreds, eighteen hundreds  3 or maybe late seventeens".  4 David Gunanoot testified that he trapped in the  5 Bowser Lake area soon after -- pardon me -- after  6 moving to the town of Stewart in 1923.  The areas he  7 trapped included the Bell-Irving River and Spruce,  8 Taft, Little Skawill and Hodder Creeks.  In 1931 Mr.  9 Gunanoot took over the William Scott registered  10 trapline in the Gilbert Lake area north of Daniel  11 Skawill's trapline.  After that time he hunted in that  12 area.  And as I recall from the evidence, my lord, the  13 lower part of this territory was within a registered  14 trapline held by Daniel Skawill, and at the northern  15 end of the territory was an area that Mr. Gunanoot  16 took over, and it appears that he may have taken it  17 over from a white man, a man by the name of William  18 Scott.  19 Gerald Gunanoot testified that he was born "on the  20 trapline" in this area in 1943, and he said that he  21 lived on the territory until he was six or seven years  22 old.  23 Although there is no clear evidence that Gerald  24 Gunanoot was using the territory in the 1950's, 60's  25 or 70's, he stated that he has worked the Bowser Lake  26 territory as much as possible because it is a big  27 area.  He stated that he had flown in supplies on  28 separate occasions to Gilbert and Bowser Lakes.  He  29 made trips to the area in 1986 and 1987, but he does  30 not appear to have trapped on these trips.  31 Gerald Gunanoot testified that Daniel Skawill had  32 two cabins on the territory, one at Awiijii Lake and  33 one at Bowser Lake.  Gerald and David Gunanoot had  34 used these cabins.  35 Jessie Sterritt testified that she went on one  36 trip to the territory with Daniel Skawill when she was  37 16 years old.  She also testified that prior to 1986  38 when Johnny Wilson went on the territory, no one from  39 "our house" was using the property.  When Mrs.  40 Sterritt was at the territory when she was 16 years  41 old she picked berries at Awiijii Lake.  42 Mrs. Sterritt gave evidence about individuals who  43 hunted and trapped on this territory at one time,  44 including Nagun, Simon Gunanoot, Peter Morrison,  45 Martha Brown, Tommy Danes and Phillip Morrison.  46 However, all of this evidence, plus her evidence  47 regarding Johnny Wilson's activities, appears to be Submissions by Mr. Wolf  1 based on inadmissible hearsay.  2 MR. GRANT:  My lord, Johnny Wilson of course is Skiik'mlaxha,  3 which my friend doesn't point out, but I wonder what  4 my friend means in his conclusions, because he keeps  5 using the term "continuously used".  I thought I  6 understood it in an earlier reference, where he  7 said -- he described a territory that hadn't been used  8 since the 1950's or 60's, I can't recall, and then he  9 got on to explain that's what it implied in his oral  10 submission, that's what he meant by "continuously  11 used".  Now, here he uses the same term on page 73,  12 "has not been continuously used for these purposes  13 since approximately 1950", but what he does is he goes  14 on and explains the evidence, and he did allude to  15 this even in his conclusion that there is evidence  16 that the territory was used and then it was not used  17 and then it was used.  Now, is my friend saying is  18 there a specific period of time of non-use then that  19 constitutes abandonment, even if there's a re-use?  20 I'm just unclear about that, because I thought what he  21 meant when something was not used after 1950 and 1960,  22 and he said 20 years, that's what he meant by  23 non-continuous use, but he uses that term in much --  24 many different contexts, and I would like him to  25 explain it in this context of their submission.  26 MR. WOLF:  Well, as I understand my friend, he is right.  We say  27 that continuous abandonment is really one way of  28 looking at continuous use, and that if the Plaintiffs  29 have not used a territory for 30 years during a  30 particular period we say that it's been abandoned, and  31 it doesn't matter that that happened after 1950.  If  32 it occurred from 1940 to the 1970's, as in the case of  33 the Delgamuukw territory of Kwinageese Lake, that does  34 constitute abandonment, because the territory was not  35 continuously used for at least a generation.  We also  36 say that evidence of recent use, that is since the  37 whole land claims research process has started, can be  38 inferred that that recent use has something to do with  39 the litigation, that the Plaintiffs are trying to  40 establish or re-establish their presence on the  41 territory to show in fact they haven't abandoned it,  42 but in fact they had.  43 MR. GRANT:  Well, in this territory my friend, in paragraph 6,  44 he does allude to the fact there's evidence, although  45 as he says no clear evidence, of use in 1950, 60's or  46 70's.  This is why I'm confused on this.  Why does he  47 say non-continuous use on this territory? Submissions by Mr. Wolf  1  MR.  WOLF:  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  THE  COURT  19  MR.  WOLF:  20  21  THE  COURT  22  MR.  WOLF:  23  24  25  26  27  28  29  THE  COURT  30  MR.  GRANT  31  32  33  34  THE  COURT  35  36  37  38  39  MR.  GRANT  40  41  THE  COURT  42  43  44  45  46  47  Because I say in that paragraph that there is no  clear evidence that he was using the territory during  those years.  He stated that he had worked the Bowser  Lake territory because it was a big area, but he  provides no time frame for when that work was done.  Obviously he was on the territory up to the time he  was seven years old, there's evidence that he was on  the territory in '86 and '87, there's evidence that he  flew into the territory, but we don't know when that  was.  He doesn't say that he was trapping on or  hunting in that area during that period, we said that  the inference that the court can draw from that, that  in fact they weren't using this during that time, but  again, this goes back to the problem with the evidence  in this case and the difficulty of using  cross-examinations.  This evidence was all given on  cross-examination of Gerald Gunanoot.  You say that you just haven't got enough evidence.  In many cases there's obviously -- I've referred to  some territories where there's absolutely no evidence.  After 364 days there's no evidence?  Well, we tried to elicit this kind of evidence on  cross-examination, and we did get some information,  but the information is not a complete record of the  Plaintiffs, because they have cast this as a claim for  ownership, have not given us that specific evidence  which we say they must have to establish aboriginal  right.  All right.  I'm sure your lordship's aware that my clarification  of what he means by "use" is a cession to that  fundamental difference that we have to prove use to  prove the title, and that's clearly in issue.  No, oh, no.  There's many dimensions to these  problems.  What Mr. Wolf is really doing at this time,  he's saying, I suppose, that even if the Plaintiff had  established the juristic commencement of aboriginal  right, it hasn't continued, that's --  I'm just trying to clarify what he's meaning in this  aspect of the submission, my lord.  Because there's been so much loose and general talk  about aboriginal rights, that one starts with most  discussions about aboriginal rights with the  assumption that they arose -- except for Mr. Goldie's  new argument, I think, that they arose in some --  backwards in time immemorial, and it continued through  constant use to the present time.  I think that's the 590  Submissions by Mr. Wolf  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  common concept of aboriginal right.  This is, apart  from Baker Lake and Bear Lake, is the first real  effort, it seems to me, to deal with aboriginal rights  in some specific way.  Your friend, Mr. Grant, says  that the aboriginal rights are divisible,  diminishable, extinguishable, abandonable.  And these  are all concepts that have to be applied -- or  considered, rather, and I take it that what we're  really now saying, I think, as I understand Mr. Wolf,  is that even if all those other conditions are met,  what's happened here in this century has -- has  operated to undo those aboriginal rights, if they ever  existed.  Is that it, Mr. Wolf?  MR. WOLF:  Yes, that's our submission, my lord.  THE COURT:  Yes, all right.  Well, let's pursue that as far as  you wish.  MR. WOLF:  I might just make one other point, my lord, and that  is that it is our submission generally that there is  evidence of abandonment since 1950 or the 40's with  respect to a lot of territories.  There is general  evidence of that, and I introduced that yesterday.  Some of this -- some of our submissions have to be  viewed in that light as well.  THE COURT:  Yes.  MR. WOLF:  Would it be convenient to take the morning  adj ournment?  THE COURT:  Yes, all right.  Thank you.  THE REGISTRAR:  Order in court.  Court stands adjourned for  morning recess.  (MORNING RECESS TAKEN AT 11:15)  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  Graham D. Parker  Official Reporter  United Reporting Service Ltd. 591  Submissions by Mr. Wolf  1 (PROCEEDINGS RESUMED PURSUANT TO SHORT RECESS)  2  3 THE COURT:  Mr. Wolf.  4 MR. WOLF:  My lord, I'm going to move from the Babine River  5 territory of Nii Kyap to another Nii Kyap territory at  6 Tutadi Lake.  The one we pointed out on the map  7 earlier.  It's at page 71 of my submissions.  8 THE COURT:  All right.  9 MR. WOLF:  This territory is located in the northeast corner of  10 the claim area 50 miles north of Bear Lake.  And Neil  11 J. Sterritt described the territory in his affidavit.  12 And this is another of those territories where there's  13 no evidence before the court that anyone ever used it.  14 THE COURT:  Yes.  15 MR. WOLF:  Neil J. Sterritt had been informed by David Gunanoot  16 about the territory, but Neil J. Sterritt had never  17 used the territory.  And David Gunanoot, who gave  18 commission evidence about the territory, did not give  19 evidence that he used it either.  Therefore, we say,  20 there's no evidence which establishes the plaintiffs  21 have used the territory or have any rights to it.  22 I'm sorry, my lord, I appear to have jumped over  23 that territory earlier.  That came before the  24 Skiik'mlaxha territory.  I meant to deal with that,  25 but I hadn't.  So I'll jump over the Skiik'mlaxha  26 territory which we covered, the one about Bowser Lake,  27 and I'll ask you to turn to page 80 of my submissions.  28 This is the Miluulak territory on the Duti River.  29 This is another territory on the upper Skeena.  It's  30 this territory up here, my lord.  31 THE COURT:  Yes.  32 MR. WOLF:  This territory was described in the affidavit of Sam  33 Morrison, brother of James Morrison.  Again, we say,  34 that there is no admissible evidence before the court  35 that this territory was used by the plaintiffs.  And,  36 therefore, we say, they haven't established they have  37 any rights to the area.  38 It is evident from Sam Morrison's testimony that  39 he learned of this territory when he was on the  40 adjacent Wiigyet territory with his father Simon  41 Morrison.  And that's the Wiigyet territory that I  42 made submissions about earlier.  That's the one at  43 Chipmunk Creek.  Sam Morrison testified that his  44 father showed him the territory when Sam was 23 or 24  45 years of age.  Mr. Morrison was 67 years old when he  46 testified in 1988.  The plaintiffs at page 140 of  47 their argument refer to Mr. Morrison's evidence that 592  Submissions by Mr. Wolf  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. WOLF:  MR. GRANT  MR. WOLF:  MR. GRANT  MR. WOLF:  he was trapping at Chipmunk Creek, but it is clear  from his evidence that he was trapping south of  Chipmunk Creek on Wiigyet's territory, and that he  wasn't actually on the territory of Miluulak.  Although Mr. Morrison testified that this  territory is managed by Robert Jackson Sr., a chief in  the House of Miluulak, there is no evidence that  Robert Jackson has ever been to the territory.  Robert  Jackson also testified that he could control who goes  onto the territory, and that no one has been there  since Johnny Moore died.  Johnny Moore died in 1987 at  the age of 85 according to the Wii Gaak genealogy.  Jackson also testified that Johnny Moore had used the  territory in the past.  However, we say, that this  evidence is probably hearsay because as noted above  Jackson does not appear to have been on the territory.  If he had been on the territory he would have been the  appropriate person to swear the affidavit in regard to  it.  The next territory I would like to refer you to is  at page 84 of our submissions.  This is the Niist  territory at Kotsine Creek.  And it's located on the  upper Nass River.  That's a very large territory, my  lord.  It's this one up here.  :  Yes.  And this territory was described in the affidavit of  Walter Blackwater.  Our conclusions with respect to the area are that  although Mr. Blackwater testified that he had been on  the territory there is no direct evidence that it was  used for hunting and trapping.  Therefore, we say, the  plaintiffs have not established that they have any  aboriginal rights to hunt or trap in the area.  :  What does my friend mean when he says "no direct  evidence"?  That seems to be a modifier he isn't using  generally.  Is there some indirect evidence that my  friend doesn't want to refer to?  Well, the only reference, my lord, is that Mr.  Blackwater had been on the territory.  There's no  description of what he was doing on the territory,  whether he was travelling on the territory.  No  evidence that he was hunting or trapping.  That's what  I mean by that.  :  Thank you.  I should also point out, my lord, that we've  endeavored in every possible case to add additional  evidence which the plaintiffs missed in their review 593  Submissions by Mr. Wolf  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  of the evidence and in their submissions.  We've added  references to use and occupation which we found in the  record and which does not appear on the plaintiffs'  argument.  As I've already mentioned this morning, Walter  Blackwater testified that he was born and raised on  Wii Minosik's territory at Damdochax Lake, which is  immediately to the southeast of this area.  When Mr.  Blackwater was old enough his grandfather took him on  this territory.  When his mother was still alive he  would come home and then go onto the territory of  Niist northwest of the Nass River.  Mr. Blackwater's  mother Mary died in 1974.  Walter Blackwater also testified that his brother  David Blackwater, who is Niist, traps at ninth cabin  and parts of Kotsinta Creek and Muckaboo Creek.  There  is no indication of how long David Blackwater has  trapped in that area, and what the source of Walter  Blackwater's information is.  Walter does not state  that he trapped with his brother, therefore it would  appear that this information is hearsay and  inadmissible.  THE COURT:  These numbered cabins relate to the construction,  did they not, of the Yukon telegraph?  MR. WOLF:  That's correct.  THE COURT:  In about 1900?  MR. GRANT:  1898, 1899, 1901 or 1902.  THE COURT:  Yes.  Was it ever completed?  MR. GRANT:  Yes, it was, my lord.  MR. WOLF:  Yes, it was.  That was the line that was abandoned in  the 1930s.  THE COURT:  I see.  Did it follow the route of the Collins line  to Fort Stager and then take off on its own beyond  that point?  MR. WOLF:  Yes.  I believe so.  THE COURT:  All right.  Thank you,  MR. WOLF:  My lord, the next territory that I would like to  refer you to, it's at page 91, it's the Gyologyet  Taylor River territory.  And this territory is  adjacent to the Niist territory we just referred to.  The features of the area include the Nass and Taylor  Rivers.  And the territory was described in the  affidavit of Richard Benson.  Again, it's quite a  large territory.  THE COURT:  Is it the north one or the south one?  MR. WOLF:  It's the most northern of the three Gyologyet  territories.  It's on the north side of the Nass 28894  Submissions by Mr. Wolf  1 River.  2 Our conclusions with respect to the evidence  3 before the court on this territory is that the only  4 evidence of use is Richard Benson's testimony about  5 his one trip into the area in 1935.  And, we say, that  6 this evidence is insufficient to establish that the  7 plaintiffs have continually used or occupied the area.  8 Richard Benson testified that he trapped along the  9 Taylor River in 1935 with Marianne, Tommy and Jasper  10 Jack.  Benson trapped the right side of the Taylor  11 River travelling north with Jasper Jack for four days.  12 Marianne and Tommy Jack trapped the other side of the  13 creek.  And Benson estimated that he travelled 35  14 miles from the mouth of the Taylor River.  On this  15 trip the Benson party hunted moose for food and  16 trapped beaver and marten.  Mr. Benson testified that  17 this was the only trip he ever made to the Taylor  18 River area.  And that is the only evidence before the  19 court that this territory was used by the plaintiffs.  20 My lord, Ms. Koenigsberg has handed me an overlay  21 for our desk series of map which shows the Collins  22 Overland Telegraph Trail and the Yukon Telegraph  23 Trail.  And it is Exhibit 1247 tab 7.  24 THE COURT:  Just a moment.  I wonder where I was when I made  25 that note.  26 MR. WOLF:  That would be at page 84 of our submissions.  84 and  27 85.  2 8 THE COURT:  Yes.  All right.  And what's the exhibit number  29 again, please?  30 MR. WOLF:  1247 tab 7.  31 THE COURT:  Thank you.  32 MR. WOLF:  It shows the two telegraph trails.  And it appears  33 that the Yukon Telegraph Trail followed the course of  34 the Collins Overland line and then pushed on to the  35 north from Fort Stager.  36 THE COURT:  Yes.  When did you say it was abandoned, Mr. Grant?  37 MR. WOLF:  I said I thought it was in the 1930s.  Victor Giraud  38 gave evidence that he was trapping along a trapline in  39 that area from third to sixth cabin.  And I believe  40 that he said it was abandoned at that time.  And in  41 fact he was using as -- for trapping cabins he was  42 using some of the old telegraph cabins.  4 3 THE COURT:  Thank you.  44 MR. WOLF:  The next territory I'd like to refer you to, my lord,  45 is the Luutkudziiwus territory on the north side of  46 the Suskwa River.  It's at page 115 of my submissions.  47 That's this territory here, my lord. 595  Submissions by Mr. Wolf  1 THE COURT:  Yes.  2 MR. WOLF:  I referred to this territory yesterday as one in  3 which there is extensive evidence that it has been  4 used for hunting and trapping.  The territory was  5 described in the affidavit of Arthur Ridsdale.  And  6 Mary McKenzie, David Green and Ray Mclntyre also gave  7 evidence about the area.  8 Our conclusions with respect to this evidence is  9 that unlike most territories in the claim area there  10 is a wealth of evidence concerning aboriginal uses,  11 and in particular trapping.  The evidence establishes  12 that the plaintiffs have continuously trapped and  13 probably hunted on parts of this territory at least up  14 to the present time.  However, the evidence does not  15 sufficiently delineate the areas used by the  16 plaintiffs and without such evidence we say that the  17 court cannot rule which areas are subject to  18 aboriginal rights.  19 And I've alluded to that problem before with the  20 evidence, my lord, that there is evidence of hunting  21 and trapping on this territory, but it is not specific  22 as to the area.  23 The evidence with respect to the territory.  Art  24 Ridsdale testified that he used to camp and travel on  25 the territory with Ben McKenzie Sr., the husband of  26 Mary McKenzie, and Chief Luutkudziiwus, when they were  27 younger.  He also testified that he travelled with Tom  2 8 Campbell on the territory.  Tom Campbell was the  29 former Luutkudziiwus.  And that he had been there last  30 year, 1987.  Mr. Ridsdale's travels with Tom Campbell  31 must have occurred before 1945 which is when Mr.  32 Campbell died according to the Luutkudziiwus  33 genealogy.  34 Mary McKenzie testified that she and her husband  35 Ben McKenzie Sr. used this territory extensively.  She  36 stated that her husband's grandmother had a homestead  37 on the territory where she raised cattle and horses.  38 The first time that Mrs. McKenzie appeared to have  39 visited the territory was in 1937 when she had to stay  40 at home cabin to look after the family horses.  She  41 testified that there was a hay field there and the  42 family kept horses that were used to guide hunters in  43 the summer.  When Ben McKenzie went trapping by  44 himself during winter it was necessary for Mary to  45 stay in the cabin to look after the horses.  They  46 would often go out together in November of the year  47 and stay on the territory until March.  She also 596  Submissions by Mr. Wolf  1 stated that they would sometimes go out to the  2 territory in May for beaver.  Mrs. McKenzie testified  3 that she only went out with her husband on his  4 trapline once, and it took them three and a half weeks  5 to travel its length.  Ben McKenzie usually only took  6 two weeks to travel his trapline if he was by himself.  7 Mrs. McKenzie testified that she was last on her  8 husband's territory in 1980 when they went trapping  9 for beaver in April.  She also gave evidence of  10 picking berries on the territory.  11 Ray Mclntyre gave evidence concerning trapping  12 activities for part of this area.  He gave evidence  13 about two individuals who had applied for special ARDA  14 funding in relation to their traplines.  Those  15 individuals were Simon Muldoe and Delbert Turner.  And  16 they have registered traplines that take in very small  17 parts at the western end of this territory.  18 Mr. Mclntyre testified that Simon Muldoe was rather  19 vague about his trapping experience.  And Exhibit  20 1231-44 is a note of Mr. Mclntyre's interview with  21 Simon Muldoe in which Mr. Muldoe told him that he had  22 not trapped in approximately 15 years.  And Mr.  23 Muldoe's registered trapline number is 608T034.  And  24 you'll see that on your trapline overlay.  25 I was trying to find the exhibit number for the  26 trapline overlay, my lord.  That's 1243G for the desk  27 series of the defendant.  28 THE COURT:  1243G?  29 MR. WOLF:  Yes.  And that shows 608T034, that registered  30 trapline takes in a very small portion at the very  31 western end of the territory.  The territory or the  32 trapline, registered trapline which is immediately  33 south of that trapline is number 608T046.  And that  34 trapline is Delbert Turner's trapline.  And it's  35 located at 15 Mile Creek.  36 And Mr. Mclntyre -- just returning to my  37 submissions at the bottom of page 117 -- testified  38 that Delbert Turner told him that he was an active  39 trapper.  And then I described where that trapline  4 0 was.  41 Arthur Ridsdale testified that Kenny McKenzie,  42 Simon Muldoe and Delbert Turner trapped on this  43 territory.  Mr. Ridsdale did not state that he had  44 travelled with these individuals out to their  45 traplines, and therefore his information is probably  46 hearsay.  This conclusion is supported by the fact  47 that Mr. Ridsdale's statement about Simon Muldoe's 597  Submissions by Mr. Wolf  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. WOLF:  THE COURT  MR. WOLF:  THE COURT  MR. GRANT  activities contradicts Simon Muldoe's statements to  Ray Mclntyre which I just referred to.  And others -- there was one other person who gave  evidence about this trapline, and that was Jeff Boys,  the Indian agent at Hazelton in the late 1940s.  And  he recalled in his commission that he had gone out on  one native trapline, and that was Ben McKenzie's.  David Green who's a chief in another house, his  name is Wagilwil (phonetic), he testified that he  occasionally hunted on the McKenzie or north side of  the Suskwa River.  He gave evidence about the Gyetm  Galdoo territory immediately across the river to the  south.  And, we say, that one other submission with  respect to this evidence is that Ben McKenzie probably  trapped in the area of his registered trapline.  That's the best that we can say with respect to where  his trapping activities were.  But that's a very large  area and it's likely that he did not use all of this  area.  And it's not reasonable -- we say,  respectfully, that it's not reasonable to infer that  he used all of the territory.  :  What do you say I should do if I find, everything  else being equal, that there was use of a part of a  territory, but it's not possible to determine what  part of the territory was so used?  Excuse me for a moment.  One conclusion that you can  draw, my lord, is that the plaintiff's claim fails.  However, we will make submissions at the end of our  case about how you should deal with that type of  situation.  :  All right.  If that's all right.  :  Yes.  :  I just wonder also, because my friend -- the  question I wanted, if he could deal with this, answer  this question either now or at that time, my friend  suggests, and here's a good example where he says  there's extensive use but not clear of where.  And in  my friend's theory of use is necessary to prove for  aboriginal title my question is what is he saying must  be shown in the detail of where?  Does it presumably  in a territory has to be something less than every  square inch, but it seems like it's pretty -- it's  much greater than square mileage.  What does -- does  it have to show that people have walked or utilized  the whole territory or the depth of detail.  And I'd Submissions by Mr. Wolf  1 like that question answered before we reply.  2 THE COURT:  Well, your friends can reply to that if they wish.  3 MR. GRANT:  It's the theory they have, my lord.  Their theory  4 which is different than the plaintiffs.  But their  5 theory is to proof aboriginal title you have to prove  6 use.  So then here we come to a territory and they  7 say, yeah, here they show use, but it's not specific  8 enough or it's not everything.  It's not part of --  9 THE COURT:  That argument arises because of the internal  10 boundaries that you have made as part of your case.  11 MR. GRANT:  Well, take away the internal boundaries.  I presume  12 the argument would apply even if there were no  13 internal boundaries.  My friends would say --  14 THE COURT:  That's part of the argument, that's why the question  15 assumes to me some greater importance.  If I was to  16 conclude that the internal boundaries on a particular  17 territory are not reliable for the various reasons  18 shown in Mr. McKenzie's latest chart, for example, and  19 as you say take them away and then I have in this area  20 I have Canada saying, well, I think there was some  21 aboriginal use in here somewhere, but I don't know  22 where.  Then where am I?  23 MR. GRANT:  Well, I'm assuming that on the plaintiffs' theory  24 they're not saying that it's impossible for an  25 aboriginal group to prove aboriginal title in this  26 country.  I'm assuming that for the purpose of this  27 argument.  For the purpose of this particular  2 8 argument.  29 THE COURT:  You're using aboriginal title in the sense of use.  30 MR. GRANT:  That's right.  31 THE COURT:  That's exactly what Calder —  32 MR. GRANT:  They're saying you can use aboriginal title as of  33 use, and that that's not impossible.  But they're  34 saying even in a case such as Luutkudziiwas' territory  35 where they can see an extensive evidence of use of a  36 fairly delineated piece of land they're saying it's  37 not specific enough even though they concede there's  38 lots of evidence.  So what I'm saying is what my  39 friends are saying can be shown on this theory of use,  40 if they're saying it's something you can do.  Do you  41 have to show every square inch.  It becomes increasing  42 to me that maybe you do on their theory.  I would just  43 like to know so we can respond to that part of this  4 4 argument.  4 5 THE COURT:  Mr. Wolf.  46 MR. WOLF:  Well, I don't think that it's our responsibility to  47 tell the plaintiffs how they should prove their claim. 599  Submissions by Mr. Wolf  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. WOLF:  THE COURT  But we say that there should be some reference to  geographical points, otherwise the evidence is too  generalized to be useful.  And I will come in a few  minutes to a territory or a description of a trapline,  it's Herbert Wesley's evidence I believe in the Guxsan  territories, one of the Guxsan territories where he  discusses exactly where he trapped, along which  features.  And in that kind of situation we say, well,  there's enough specific evidence for the court to find  that they used that specific area.  But there's lots  of evidence in that case on Guxsan territory that he  wasn't on three-quarters of it.  :  I'm just casting about for difficulty at the moment,  but it seems to me there may be a difference between a  claim for this kind of aboriginal right where the  aborigines are nomadic as on the Canadian Prairies  perhaps.  If they were.  I don't know if they were or  not.  And in an area where they lived in villages and  went out into -- seasonally into other areas for the  exercise of aboriginal use.  If they were nomadic and  they moved around in a random way it would only be  necessary on one view of the case to say, well, this  was within the range of their sweep or within the  range of their likely utilization.  And I'm not sure  that that's necessarily an accurate or sufficiently  specific way to give effect to Chief Justice Dickson's  dictum about aboriginal rights having to be considered  site specific if it's not a nomadic wandering sort of  utilization.  But I'm not sure that's a useful  analysis of this.  I haven't given it much thought,  but I'm beginning to become alive to the difficulties  that your submission raises, Mr. Wolf, as to what I'm  to do if I conclude within or apart from internal  boundaries I accept the submission that somebody went  trapping on this property, but where.  And it seems to  me it's conceivable that someone would trap along the  left or the right bank of a river or stream and never  cross to the other side.  Well, that's certainly their evidence in this case  given the way they have carved up the territories.  They say you don't have a right to go across that  creek to use it.  :  I'm making -- dividing up the piece of pepper even  smaller and saying what if both sides of the creek are  within an area, an identifiable area.  In this case,  for example, within a -- well, let's take Mrs.  McKenzie's northern territory where they only trap the 28900  Submissions by Mr. Wolf  1 one side of the Taylor River, or assuming that was the  2 only side of the river that was trapped on yet both  3 sides of the river are within the territory.  Does the  4 trapping on one side of the river give rise to a claim  5 for these kinds of evidence or rights on the other  6 side.  You're saying, I take it, no.  7 MR. WOLF:  That's correct.  8 THE COURT:  Yes.  Well, your friend has notice of what you're  9 saying for the purpose of his reply, and I have notice  10 of the fact I've got a terrible problem here.  11 MR. WOLF:  Yes, it is a problem, and we will provide a few more  12 submissions at the conclusion of our case.  13 THE COURT:  Yes.  All right.  14 MR. WOLF:  That might help you a little bit on that.  15 THE COURT:  Thank you.  16 MR. WOLF:  The next territory -- I'd like to try to get through  17 the Gitksan territories before lunch so we can cover  18 the Wet'suwet'en territories this afternoon, my lord.  19 The next territory I'd like to refer you to is  20 32(A) and it's at page 125 of my submission.  This is  21 the Nika Teen territory at Mount Glen in the vicinity  22 of Hazelton.  That's this territory right here, my  23 lord, just above Hazelton.  2 4 THE COURT:  Yes.  25 MR. WOLF:  This territory was described in Steve Robinson's  26 affidavit.  Mr. Robinson in his evidence did not  27 distinguish between this territory and the other Nika  28 Teen territory which is located immediately to the  29 south of Hazelton.  It appears to be on the south side  30 of the Skeena River.  They are -- in the plaintiffs'  31 evidence there's the two areas are distinguished, but  32 Mr. Robinson's evidence about what he had done there  33 does not distinguish between the two areas.  But we  34 say that given the fact that this territory is located  35 very close to the village of Hazelton it is not  36 surprising that there is very little evidence of  37 recent hunting and trapping.  Mr. Robinson testified  38 that he had hunted and trapped with his father on Nika  39 Teen's territory.  However, he stated that as an adult  40 he only trapped infrequently around the reserve -  41 "occasionally I slip a little trap in here and there".  42 And we say this evidence is insufficient in our  43 submission to establish that the plaintiffs have  44 continuously hunted and trapped in this area.  45 The next territory I would like to refer you to is  46 moving into the western Gitksan territories at page  47 129.  And this is the Tenimgyet territory at Cedar 28901  Submissions by Mr. Wolf  1 River.  This territory is located at the western end  2 of the claim area here.  3 THE COURT:  Yes.  4 MR. WOLF:  Art Matthews Jr. gave quite a bit of evidence about  5 it, but the area was described in his father's  6 affidavit.  7 And our conclusions with respect to this area is  8 that although the plaintiffs have set out detailed  9 submissions in their argument regarding the territory,  10 there is insufficient evidence before the court to  11 establish that the plaintiffs have continuously used  12 the area.  The only admissible evidence before the  13 court regarding the area arises from the personal  14 observations of Art Matthews Jr..  Because Mr.  15 Matthews does not appear to have been on the territory  16 prior to the mid 1970s --  17 THE COURT:  That's because Mr. Art Matthews Jr. does not appear?  18 MR. WOLF:  That's correct.  The plaintiffs have not established  19 that they have continously used the territory.  20 Without additional admissible evidence we say the  21 court cannot find on the facts before it that the  22 plaintiffs have any aboriginal rights to the area.  23 With respect to the evidence on the area, Art  24 Matthews Jr. testified that Wallace Morgan took him  25 into this territory at least three or four years  26 before Morgan's death in 1978.  Mr. Matthews'  27 statement that Wallace Morgan's family lived at Lax  28 Lilbax, which as I recall is an island in Sand Lake at  29 the very western end of this territory, for much of  30 the year is not admissible if it relates to a period  31 prior to when Art Matthews Jr. first visited the  32 territory because it must be based on hearsay.  His  33 testimony at the same page that Richard Morgan was  34 born on the territory is also almost surely based on  35 hearsay.  36 Art Matthews Jr. testified that the trail which is  37 depicted on the map of Tenimgyet territories, which is  38 Exhibit 349, is still used.  The particular stretch of  39 trail which is in use starts at An gol Hon on the  40 Skeena River.  Perhaps I should refer your lordship to  41 the reference.  I believe we may be moving here into  42 our second or third volume of references which I  43 haven't handed up to you yet.  This is in Volume 2 of  44 our references.  45 THE COURT:  All right.  46 MR. WOLF:  If I could ask Madam Registrar if —  4 7    THE COURT:  Thank you. 28902  Submissions by Mr. Wolf  1  MR.  WOLF:  2  3  4  5  6  7  THE  COURT  8  MR.  WOLF:  9  THE  COURT  10  11  MR.  WOLF:  12  THE  COURT  13  MR.  WOLF:  14  THE  COURT  15  MR.  WOLF:  16  THE  COURT  17  18  MR.  WOLF:  19  20  THE  COURT  21  MR.  WOLF:  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  THE  COURT  39  MR.  WOLF:  40  THE  COURT  41  MR.  WOLF:  42  43  44  45  46  47  There are a total of five volumes of references that  we've provided with respect to the Gitksan  Wet'suwet'en use and occupation evidence, which is our  best attempt to master the huge volume of evidence.  At tab 34A.4 there should be a sketch map of this  territory.  :  34?  34A.4.  :  Right.  We're almost out of this volume, are we?  Yes, I have it.  Thank you.  This is -- do you have the sketch map there?  :  I think I do.  It should be at the front of the tab, my lord.  :  34A.4?  Yes.  :  I don't think it is.  No.  I'm sorry.  I'm at 34.4.  Yes, it's here.  Thank you.  This was the sketch map which the plaintiffs used to  lead some of Art Matthews Jr. testimony.  :  Yes.  I remember it well.  The trail is depicted.  You can see on the Skeena  River a place called An Gol Hon.  It's a little  triangle.  And that evidently is the starting place of  this trial he gives evidence about.  And I believe  that in fact that is not within the territory of  Tenimgyet at Cedar River.  That territory is -- or  that boundary of that territory is marked by a broken  line about two inches to the left, but the trail  starts off near the Skeena River and then heads  through someone else's territory before it gets to the  Cedar River territory.  Mr. Matthews testified that this stretch of trail  from An Gol Hon on the Skeena extends through Tsim  Tsitxs, which is another triangle located on the  Skeena, to Yag Axa Loobit on the Cedar River.  And  that feature is a creek in the middle of the Cedar  River territory.  Do you see that creek?  :  Yes.  Yag Axa Loobit.  :  Yes.  He also stated that he has gone to this territory  every year since 1981 to pick berries, although  location is not specified.  And he gave evidence about  the type of berries picked.  The plaintiffs' submissions at pages 194 to 196 of  their argument of trapping on this territory do not  reflect that the source of Mr. Matthews' evidence 28903  Submissions by Mr. Wolf  1 about trapping cannot be based on personal  2 observation.  There is no evidence that Mr. Matthews  3 himself trapped on this territory, and as noted above  4 he does not appear to have visited the territory prior  5 to the mid nine 1970s.  Mr. Matthews states that  6 Richard Morgan and his brother were currently trapping  7 on the territory, but if he has not been on the  8 territory trapping with him it is difficult to see how  9 this information can be anything but hearsay.  10 So all we have then is Mr. Matthews' evidence that  11 he has used this trial to go on to the territory and  12 that he has picked berries there.  And we say that the  13 evidence is insufficient to be admissible evidence  14 before the court.  It is insufficient to establish  15 that the plaintiffs have continuously used the area or  16 that they have any rights to the area.  17 The next territory I would like to take you to is  18 page 142 of our submission, territory 38(C).  19 THE COURT:  Yes.  20 MR. WOLF:  Gaxsbgabax, Burdick Creek territory.  This territory  21 is located on the north side of the Skeena between  22 Kitsegukla and Hazelton.  It's below the Luutkudziiwas  23 territory at Hazelton Creek.  It's the next territory  24 down towards Kitsegukla.  2 5    THE COURT:  Yes.  26 MR. WOLF:  Stanley Williams described this territory in his  27 affidavit.  And a sketch map of the territory is  28 marked as Exhibit 446-4P.  29 Our conclusions with respect to the evidence on  30 this territory is that the evidence concerning the use  31 made of it is so vague and indefinite that it's not  32 possible to determine whether it was used at all.  33 Furthermore, there is no evidence before the court of  34 any plaintiffs presence on the territory after Simon  35 Turner died in 1947.  It is plain therefore that the  36 plaintiffs have not established that they have used  37 this territory continuously or otherwise and we say  38 that they have not proved that they have any rights  39 there.  40 The evidence with respect to the area.  Stanley  41 Williams testified that he travelled on this territory  42 with Simon Turner and that Mr. Turner used this  43 territory.  There is no evidence of what Turner or  44 Williams did on the territory other than that.  45 Furthermore, there is no evidence that this territory  46 was used after Simon Turner died.  He was born in 1884  47 according to the Gaxsbgaxbax genealogy.  And he died 28904  Submissions by Mr. Wolf  1 in 1947 according to some state administration  2 documents.  3 The next territory I would like to direct your  4 attention to, my lord, is Wii Hlengwax territory at  5 Stenstrom Creek.  This territory is located  6 approximately 20 miles northwest of Gitwangak.  And  7 that's this territory up here on the edge of the claim  8 area.  9 THE COURT:  Yes.  10 MR. WOLF:  It's at page 149 of my submissions.  Territory 39(E).  11 This territory was also described by Stanley Williams  12 in his affidavit.  13 Our conclusions with respect to the area are that  14 Mr. Williams testified that he hunted mountain goats  15 on this territory five times with Mathias and Joe  16 Bright.  His evidence is insufficient to establish  17 that the plaintiffs have aboriginal hunting rights to  18 the area.  There is no indication of when these hunts  19 took place although they are unlikely to have happened  20 recently given Mr. Williams' age at the time he  21 testified, and the fact that both Mathias and Joe  22 Bright are deceased.  Nor is there any evidence of  23 where these goat hunts took place on the territory.  24 The evidence with respect to the area.  Mr.  25 Williams testified that he went to this territory with  26 his father and Mathias Bright.  He stated that he  27 hunted goats on this territory with Mathias just  28 twice, and he went with Joe Bright, hunting  29 presumably, three times.  It is not clear from this  30 evidence what Mr. Williams was doing with his father  31 on this territory although they appear to have been  32 travelling to another territory to trap at a place  33 called Tsim An Makhl.  34 According to the Wii Hlengwax genealogy Mathias  35 Bright died in 1945 at the age of 72.  According to  36 the same genealogy at page two, Mathias Bright had a  37 nephew named Josiah Bright who took the chief's name.  38 Josiah Bright, according to the genealogy, was born in  39 1899 and is deceased.  We say this man is likely to be  40 Joe Bright that Stanley Williams referred to although  41 Mr. Williams said that Joe and Mathias were brothers.  42 The genealogy does not indicate that Mathias had a  43 brother named Joe.  We say it was probably his nephew  44 he was referring to, the one that was born in 1899  45 according to the genealogy.  46 The next territory I'd like to refer you to, my  47 lord, is at page 172 of my submission.  Territory 28905  Submissions by Mr. Wolf  1 44(B), the Lelt territory at Quill Creek.  This  2 territory is located approximately 18 miles southwest  3 of Gitwangak.  That's this territory here.  That's at  4 page 172 of my submission.  5 THE COURT:  Yes.  6 MR. WOLF:  Again, this territory was described in the affidavit  7 of Stanley Williams.  8 THE COURT:  I thought it was Fred Johnson.  He gave evidence,  9 didn't he?  10 MR. WOLF:  Yes, that's correct.  11 MR. GRANT:  No.  That was commission evidence before the trial  12 started.  13 THE COURT:  Yes.  14 MR. GRANT:  Before the ruling on that afidavits.  15 MR. WOLF:  It appears that Mr. Johnson didn't give evidence  16 about this territory in his commission.  17 MR. GRANT:  Well, I think my friend's mistaken in that.  18 MR. WOLF:  Our conclusions with respect to the area are that  19 there are some sketchy evidence of trapping activities  20 on this territory when Solomon Harris was still alive.  21 This evidence appears to be confined to the time prior  22 to Solomon Harris' death in 1938.  There is no  23 evidence of this territory being used after that time.  24 And we say that the plaintiffs have not established  25 that this territory was used continuously for trapping  26 or any other purpose.  27 The evidence with respect to the area.  Mr.  28 Williams testified that he went to this territory with  29 his father and with Solomon Harris when he still had  30 his eyesight.  That is when Solomon Harris had his  31 eyesight.  After Mr. Harris lost his eyesight Mr.  32 Williams and his father went to the territory two more  33 times while his father was still strong.  These two  34 last trips appear to refer to a time after Lelt had  35 lost his eyesight, but before he died.  As noted above  36 the genealogy of Lelt showed that Mr. Harris died in  37 1938.  38 It appears that on one of the occasions that Mr.  39 Williams was on the territory with his father trapping  40 he caught the flu and his father took him home.  This  41 trip took place after Mr. Williams had taken the name  42 Gwis Gyen when he was ten years old.  That is he took  43 the name of Gwis Gyen at the age of ten and this trip  44 took place sometime shortly after that.  After Mr.  45 Williams regained his strength he went back to the  46 territory with his father.  He also testified that  47 many people died of the flu at this time which places 28906  Submissions by Mr. Wolf  1 it, I think, around the late nineteen teens or early  2 1920s.  3 I'd like to refer to a Guxsan territory now of  4 page 179 of my submissions.  Territory 46(B).  This is  5 Dam Giist or Kitsegukla Lake.  And this territory is  6 located south of Kitsegukla.  That's this territory  7 here.  This was the territory that I referred to you  8 earlier.  It was described in the affidavit of Herbert  9 Wesley.  10 Our conclusions with respect to the area are that  11 Herbert Wesley appears to have trapped most of his  12 life on a trapline stretching from a creek called Xsan  13 Gokhl.  That creek is unnamed in the affidavit on the  14 area.  That is it's unnamed with an English name.  15 Unnamed on government maps as Mr. Grant informs me.  16 And that trapline stretched from that creek along  17 Rocky Ridge to Kitsegukla Lake.  Mr. Wesley appears to  18 have trapped this area very frequently since the  19 1930s.  We say therefore that the plaintiffs have  20 established that they have used this area within the  21 Guxsan territory for trapping and they have an  22 aboriginal right to trap in that area.  However, Mr.  23 Wesley did not appear to have direct knowledge of  24 activities in other parts of the territory because he  25 did not trap in those other areas.  As a result  26 although he testified that these areas were used by  27 other people the source of his information is likely  28 hearsay and therefore inadmissible.  With respect to  29 the areas outside of the trapline described by Mr.  30 Wesley, the plaintiffs have not established that they  31 continuously used those areas.  32 The evidence with respect to the territory.  33 Herbert Wesley testified that he went out on this  34 territory with his grandfather Daniel Guxsan, his  35 uncle Peter Mark, and his brother Mathias and Ed  36 Wesley.  He also stated that he had trapped on the Dam  37 Giist territory a lot of times.  Mr. Wesley described  38 Segyukla, the mountain called The Nipples on  39 government maps, as the place where the cabins were  40 and that was the starting point when we go trapping.  41 He stated that they would trap starting at a creek  42 called Xsan Gokhl and they would go along Gaakhl  43 Segyukla, or Rocky Ridge, as far as Dam Giist or  44 Kitsegukla Lake.  45 Kitsegukla Lake is on the eastern end of the  46 territory near the boundary with the Wet'suwet'en  47 people.  Rocky Ridge is this ridge on the northeast 28907  Submissions by Mr. Wolf  1  2  3  4  5  6  7  8  9  10  11  12  13  THE  COURT  14  MR.  WOLF:  15  THE  COURT  16  MR.  WOLF:  17  THE  COURT  18  MR.  WOLF:  19  20  21  THE  COURT  22  23  24  MR.  WOLF:  25  THE  COURT  26  MR.  WOLF:  27  28  29  THE  COURT  30  MR.  WOLF:  31  32  33  34  THE  COURT  35  MR.  WOLF:  36  37  38  THE  COURT  39  MR.  WOLF:  40  THE  COURT  41  MR.  WOLF:  42  43  THE  COURT  44  MR.  WOLF:  45  THE  COURT  46  MR.  WOLF:  47  edge of the Guxsan territory.  And the creek that he  mentions I believe is in some vicinity or in the  vicinity of the Kitsegukla River, though I'm not sure.  But I believe this trapline he's referring to is in  this northeastern area of the territory.  Mr. Wesley testified that he had trapped on the  trapline that was registered in 1955 from one end of  the trapline to the other.  A map of this registered  trapline is marked as an exhibit, 607A2.  And perhaps  we should refer to that.  I believe we're in Volume 3  of our references now, my lord.  And this will be at  tab 46B paragraph 4.  :  46?  46B.4.  :  Yes.  And at the second page of that tab --  :  Yes.  -- There is a trapline showing the -- pardon me.  There's a map of the registered trapline of Herbert  Wesley.  :  Yes.  It says Wesley Edward and Company and then it  says Herbert Wesley.  You think it's the northern one,  the one in heavy black lines?  Yes, I believe that's the case.  :  Yes.  Thank you.  I believe even though he was not the head person on  that line he was a registered -- or he was a member  registered as part of the trapline company.  :  Yes.  And this map here appears to take in the northeastern  one-third of this territory.  If you flip over to the  next page of that tab I've tried to photocopy the desk  sized or the desk series of overlays and base map.  :  Yes.  And the trapline which we're referring to here I  believe is 609T039.  Do you see where Guxsan is on  this map, my lord?  :  Not yet.  It's in this area, the lower middle part of the page.  :  Yes.  Yes, I have that.  Just above that to the right you see the Kitsegukla  River on there as well.  :  Yes.  And just above that is registered trapline 609T039.  :  Yes.  I believe that that is the trapline that we're  referring to here.  And it's easier to see it if you 2890?  Submissions by Mr. Wolf  1 actually look on the desk sized series of overlays.  2 That only takes in part of this Guxsan territory in  3 the northeastern section, and that's why I'm referring  4 to this.  5 THE COURT:  All right.  6 MR. WOLF:  Mr. Wesley testified that there are a lot of house  7 members who use different areas of the territory and  8 one person just doesn't go and use the whole area.  9 Different members use different areas of the territory  10 within the territory of Guxsan  11 Page 181 of my submissions.  Mr. Wesley stated  12 that the trapline that he used with Ed Wesley "goes up  13 Segyukla where the cabins are".  He stated that that  14 was the trapline he used with Ed "and other people and  15 other members of the House of Guxsan use other areas  16 of the territory within the territory".  These people  17 he described as Arthur Sampare, Ed Wesley, Mathias  18 Wesley and Ben Woods.  He stated that all of these men  19 trapped on the territory and that they are deceased.  20 Finally Mr. Wesley testified that he trapped  21 between the time that he stopped working on the coast  22 at about age 26 until he retired.  23 And Mr. Alfred Joseph also testified that Guxsan  24 had a cabin on this territory at the west end of  25 Kitsegukla Lake.  26 So with this territory we have evidence that  27 Herbert Wesley used this territory continuously at  28 this one area and no place else on the territory.  2 9    THE COURT:  All right.  30 MR. WOLF:  I have one other Gitksan territory that I could just  31 deal with in two minutes, my lord.  32 THE COURT:  I can't.  I'm sorry.  I have a heavy press of social  33 obligations.  I'm entertaining my departing law clerks  34 for lunch today so I'll have to do this after lunch.  35 I'm sorry.  36 THE REGISTRAR:  Order in court.  Court stands adjourned until  37 2:00.  38  39  40  41  42  43  44  45  46  47 28909  Submissions by Mr. Wolf  1 (PROCEEDINGS ADJOURNED)  2  3 I hereby certify the foregoing to  4 be a true and accurate transcript  5 of the proceedings transcribed to  6 the best of my skill and ability.  7  8  9  10  11    12 Peri McHale,  13 Official Reporter,  14 UNITED REPORTING SERVICE LTD.  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 28910  Submissions by Mr. Wolf  1  2  3  THE  REGIS1  4  THE  COURT  5  MR.  WOLF:  6  7  8  9  10  THE  COURT  11  12  MR.  GRANT  13  14  15  THE  COURT  16  MR.  WOLF:  17  18  19  20  21  22  23  24  25  26  THE  COURT  27  MR.  WOLF:  28  29  30  THE  COURT  31  MR.  WOLF:  32  33  34  THE  COURT  35  36  37  MR.  WOLF:  38  THE  COURT  39  MR.  WOLF:  40  41  THE  COURT  42  MR.  WOLF:  43  44  THE  COURT  45  46  47  MR.  WOLF:  (PROCEEDINGS RECOMMENCED AT 2:00 P.M.)  PRAR:  Order in court.  :  Mr. Wolf.  Thank you my lord.  I am just going to finish off with  one more Gitksan territory.  It's page 181 of my  submission.  This is the Yal territory.  It's the only  Yal territory, and it's located 15 miles northwest of  Kitwangak, and that's this territory right here.  :  Yes.  There wasn't another Yal territory way up  north somewhere?  :  No, my lord.  There was a member of the house of  Antgulilbix whose name was Yal, and she, Mary Johnson  talked about that a bit.  But that's another Yal.  :  Thank you.  This territory was described in the affidavit of  Phillip Turner, but Mr. Turner was unavailable for  cross-examination due to illness, and as a result  there is absolutely no evidence before the Court that  this territory has ever been used, and therefore we  say that the plaintiffs have not established that they  have any aboriginal rights in this area.  A short  submission, my lord.  The next section, my lord, is our Wet'suwet'en  section.  :  Yes.  I would ask Madam Registrar to hand up our submission  on this. This is to replace whatever you have in your  binder on Wet'suet'en territories.  :  Where will I find that?  Well, it would be in Part 9, Tab 9 of our summary,  and this follows on the Gitksan materials that I've --  that we have just gone through.  :  I wonder if I have already thrown it out.  What I  have now starts with your index and runs, I think,  consecutively through to page 181 -- 182.  Yes.  :  Does this start at 183?  No, it doesn't start.  It starts again from page 1,  but it follows page 183.  :  All right.  Thank you.  And perhaps on Monday I will provide the registrar  with the dividing tabs so it separates the two parts.  :  You don't need to do that.  Mr. Macaulay has given  me three, and I only used two.  He is always very  generous.  The first territory I would like to address is the 28911  Submissions by Mr. Wolf  1 territory at the very beginning of my submission on  2 the Wet'suwet'en territories, and that's the Gisdaywa  3 territory at Owen Lake.  And this territory is --  4 begins about 25 miles south of Smithers.  The only  5 Gisdaywa territory, and that's right here.  6 THE COURT:  Yes.  7 MR. WOLF:  There was no affidavit describing the boundaries of  8 this territory.  Albert Joseph described the territory  9 and his boundaries during evidence at trial.  Our  10 conclusions with respect to this territory are that it  11 appears not to -- pardon me, it appears to have been  12 abandoned by the plaintiffs in approximately 1940.  13 There is little, if any, admissible evidence that the  14 plaintiffs used this territory for hunting or trapping  15 after the 1930's.  Mr. Joseph's evidence indicates  16 that his family only claims to use a small fraction of  17 the Gisdaywa territory as it's depicted on Exhibit  18 646-9B.  They say the plaintiffs have not established  19 that they continually used this territory.  20 The evidence with respect to the area, historical  21 documents show that Mr. Joseph's grandfather, Felix  22 George, who was Goohlaht, appeared before the  23 McKenna-McBride Commission in 1915 requesting land for  24 himself and his family.  Originally Felix George  25 requested land in the Ootsa Lake area.  This land was  26 unavailable.  As an alternative lot 3417 was  27 constituted a reserve for Felix George.  This lot is  28 located on the north end of Owen Lake in Gisdaywa  29 territory.  Historical documentation also indicates  30 that Felix George had already applied to pre-empt this  31 same lot.  Felix George's son, Thomas George, who was  32 Gisdaywa and was Mr. Joseph's maternal uncle, also  33 pre-empted land at Owen Lake, which he subsequently  34 sold in 1937.  This is the first known and recorded  35 presence of any ancestors of the plaintiffs in this  36 area.  37 THE COURT:  What do you mean by "this"?  The two of them, Felix  38 George and Thomas George?  39 MR. WOLF:  Yes.  4 0    THE COURT:  Yes.  41 MR. WOLF:  Mr. Joseph claimed to have no specific knowledge of  42 this history, and it is not reflected in the crest,  43 songs and traditions of the house of Gisdaywa.  44 During his cross-examination, Mr. Joseph acknowledged  45 that the Felix George Indian Reserve on Owen Lake on  46 this territory is currently allotted to the Broman  47 Lake Band.  Mr. Joseph stated that to his knowledge 28912  Submissions by Mr. Wolf  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. WOLF:  THE COURT  MR. WOLF:  THE COURT  MR. WOLF:  there was only one person, Rita George, who was both a  member of the house of Gisdaywa and the Broman Lake  band.  Mr. Joseph testified that he remembered being at  Owen Lake as a child with his family.  After 1931,  however, his family moved to Hagwilget and did not  return to Owen Lake.  Mr. Joseph made intermittent  trips through the territory.  There is no evidence he  hunted or trapped on the territory, however, Mr.  Joseph's knowledge of the area has, by his own  admission, been acquired largely from and grew, and  Leonard George, sons of Thomas George, who he said,  Alfred Joseph said, use a trapline within the area.  Mr. Joseph also said that there is always someone on  the territory.  It is obvious, however, that much of  Mr. Joseph's knowledge of hunting, trapping and  fishing in the area is based on inadmissible hearsay.  With respect to berry picking, Mr. Joseph  testified that there were some berry picking sites on  the Owen Lake territory near Morice Mountain.  During  cross-examination, however, he admitted that his  grandmother, Cecilia George, picked berries around the  village of New Hazelton.  He further admitted that it  was not necessarily travelling to the territory to  pick berries that was important, but rather to go to  an area where there had recently been a burn.  Mr. Joseph's perspective about the size of this  territory did not coincide with the area depicted on  maps provided by the plaintiffs which were marked as  Exhibits 5 and 646-9B.  Mr. Joseph was cross-examined  about his territory, as it was depicted on Exhibit 5,  which was the map at that time as far as we knew that  was the final version of the internal boundaries of  the claim area.  If you compare that to the 646-9B  boundaries, they are very similar.  There is only one  or two minor changes.  The territory that is mapped on Exhibit 5 is  approximately the same size and shape as the mapping  of the area on Exhibit 646-9B.  When asked the --  : What is Exhibit 1243E and H?  Those are the overlays.  One is the Exhibit 5  overlay.  :  Yes.  The Exhibit 5 overlay is 1243E, and the map 9A and 9B  overlay is 1243H.  :  All right.  When asked the approximate size of this territory in 28913  Submissions by Mr. Wolf  1 square miles, Mr. Joseph responded it was  2 approximately 40 square miles in size.  In  3 cross-examination it was suggested to Mr. Joseph that  4 this territory was actually 315 square miles.  When  5 this figure was put to Mr. Joseph he stated that this  6 could be the total size, but that his house used  7 approximately 40 square miles.  This evidence taken in  8 conjunction with later evidence regarding the speech  9 made at the Moricetown all-clans feast by Leonard  10 George suggests that the area used by the house of  11 Gisdaywa is synonymous with the trapline registered by  12 Leonard and Andrew George.  This trapline is located  13 in the southwest portion of the territory and  14 comprises less than -- my submission says it's a  15 quarter of the area, but I think it's closer to  16 one-third, and I would ask you to change your copy of  17 our written submission.  18 THE COURT:  Thank you.  I'm not sure that I understand what  19 you're saying here at the top of the page where you  20 say "compare Exhibit 5 with the overlays".  You're  21 saying they are all the same, aren't you?  22 MR. WOLF:  I am saying they are virtually the same.  When Mr.  23 Joseph was cross-examined, he was referred to Exhibit  24 5 and asked about the size of his territory, and at  25 that time it was put to him that the territory was 315  26 square miles.  Subsequently, of course, the plaintiffs  27 delivered another version of the boundary of the house  28 of Gisdaywa or the territory of Gisdaywa, and there  29 are some slight changes in that boundary, but it's  30 approximately the same size and shape.  So we are  31 saying that his testimony about the territory in  32 relation to Exhibit 5 is -- applies also to 646-9B.  33 That is the size of the territories are approximately  34 the same shape as they are depicted on the two maps,  35 and his testimony that his house only used 40 square  36 miles in relation to that map can be applied to the  37 more recent map.  38 THE COURT:  Is it your point that he didn't realize or that his  39 concept of his territory was as depicted on those  40 maps?  It's a bit smaller than it really is.  He  41 didn't really know how big his territory was.  42 MR. WOLF:  Well, the 40 square miles is his concept of what his  43 house used.  44 THE COURT:  Yes.  I see.  45 MR. WOLF:  I mean, I haven't reviewed his evidence recently, but  46 I assume that when he gave his evidence, he gave the  47 boundaries as they appear on 646-9B, and that would be 28914  Submissions by Mr. Wolf  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. WOLF:  THE  MR.  THE  COURT  WOLF:  COURT  MR. WOLF:  THE  MR.  COURT  GRANT  THE COURT  MR. GRANT  the source of his evidence, would be the source of  the -- of Marvin George's information when he mapped  this area.  :  Is 315 square miles the actual square mileage of the  Gisdaywa territories shown on 9B, or is 315 square  miles something else?  Well, that's approximation.  That was put to him in  cross-examination.  :  Yes.  And that's —  : I'm just speculating here, but I would have thought  that if this territory of Gisdayway's -- I would have  thought it's much more than 315 square miles if there  is 24,000 square miles of the whole territory. I  would have thought that territory would be a thousand  square miles. But I am just eyeballing it. I don't  know.  Well, 315 square miles may be a very generous  estimate in terms of the plaintiffs.  :  All right.  :  I think it's important, my lord, on that point that  my friend, as he rightly says, hasn't looked at that  evidence quite -- just recently.  And when you look at  48-7, I -- that is in the tab of my friend's  authorities where he has put that reference.  What Mr.  Joseph says is not what my friend summarized.  He  talks about hunting and trapping, but then he says,  "We don't use for hunting and trapping, we only use  the valleys and the lakes, and the plateaus and the  mountains are for summer and fall hunting."  So the  answer must be read in its full contention.  And Mr.  Joseph did not suggest that he did not use all the  territory.  He didn't use it all for hunting and  trapping at certain times is what is apparent from his  whole answer.  :  He offered 40 square miles as -- "How big is the  territory of Gisdaywa?"  And he said it was around 40  square miles.  :  Then the question was:  "I thought it was larger  than that."  And the answer is:  "It is larger than  that, but we don't use for hunting and trapping".  And  that's where my friend suggests they only use 40  square miles for hunting and trapping, but he doesn't  pay attention to the rest -- the second sentence of  the answer.  "We only use the valleys and the lakes,  and the plateaus and the mountains for summer and fall  hunting".  So Mr. Joseph was, I say -- the 40 square 28915  Submissions by Mr. Wolf  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  miles is referring to the valleys and the lakes, but  he is talking about what he does use the plateaus and  mountains for.  THE COURT:  Well, you are not suggesting you would use the  mountains for winter trapping and hunting, would you?  MR. GRANT:  Well, what I am saying is my friend says that -- but  that his house used approximately 40 square miles.  That's my friend's summary of argument, but that's not  what Mr. Joseph, I say, says, when you look at his  actual evidence.  He only uses -- he uses for hunting  and trapping.  THE COURT:  He says, "We only use the valleys and the lakes and  the plateaus and the mountains for summer and fall  hunting."  MR. GRANT:  Yes.  THE COURT:  What else is there?  MR. GRANT:  Well, you see, this is in the context of its larger  than that, and Mr. Joseph says, "It is larger than  that, but we don't use for hunting and trapping."  Then he explains what he means, "We only use the  valleys and the lakes."  THE COURT:  No, he says, valleys, lakes, plateaus and mountains.  MR. GRANT:  "We only use the valleys and lakes and plateaus and  the mountains are for summer and fall hunting."  I  interpret that, my lord, that Mr. Joseph is saying  when we don't use for hunting and trapping, we only  use the valleys and the lakes.  He is talking there  about the 40 square miles, the smaller area, and the  plateaus on the mountain are for summer and fall  hunting, and my friend says his house used  approximately 40 square miles.  I don't think that's  what he is saying there.  THE COURT:  I'm sorry, I may not be reading this rightly, but I  don't see where he has made any distinction between  summer and winter hunting.  He has said, "We use the  valleys, the lakes, the plateaus and the mountains."  MR. GRANT:  "We only use the valleys  ..."  THE COURT:  What else is there that they would use other than  for summer and fall hunting?  What is there that would  increase the area that we use in the winter-time or  use beyond the 40 square miles he is talking about?  MR. GRANT:  What I am saying, my lord, is that I take it my  friend is referring to -- he's asked about the 40  square miles, and he says "I thought it was larger  than that."  Then Mr. Joseph says, "It is larger than  that, but we don't use for hunting and trapping."  And  then in the same answer, "We only use the valleys and 28916  Submissions by Mr. Wolf  1 the lakes", and what I am saying is --  2 THE COURT:  No, it goes on.  "We only use the valleys and the  3 lakes and the plateaus and the mountains."  4 MR. GRANT:  "We only use the valleys and the lakes for hunting  5 and trapping."  This is what I am asking you to -- and  6 the plateaus and the mountains are for summer and fall  7 hunting.  The plateaus and the mountains are not for  8 the trapping, which would make sense, because of  9 course you wouldn't be trapping on the mountains in  10 the summer and the fall.  11 THE COURT:  So you say I should read that as if all he was doing  12 there was describing 40 square miles as being what  13 they use for -- what they use for summer and fall  14 hunting and trapping, which would be the valleys and  15 the lakes?  16 MR. GRANT:  That's right.  Because he does say it is larger than  17 that, and then the plateaus and the mountains are for  18 summer and fall hunting.  19 THE COURT:  All right.  20 MR. WOLF:  Well, that's not the way that we submit the evidence  21 should be read, my lord.  Paragraph 8 of my submission  22 Mr. Joseph testified that there was considerable  23 logging and clear cutting on this territory, which has  24 affected the ability to trap and destroy the trails.  25 And that, of course, we say would be evidence of  2 6 extinguishment.  27 Mr. Mclntyre, a former employee of the Department  28 of Indian Affairs, who was the Superintendent of the  29 Burns Lake sub-agency during the late 1960's,  30 testified that during his tenure with the Department  31 of Indian Affairs, Felix George Indian Reserve on Owen  32 Lake was held by the Omineca Band.  He testified that  33 in the course of his duties he travelled to Owen Lake.  34 He did not see any Indian people living on the  35 reserve, nor any signs of old habitations.  Mr.  36 Mclntyre was, however, aware that the reserve "was at  37 one time a home site of an Indian person or persons  38 and their families."  We say that this evidence  39 undermines Mr. Joseph's assertion that there is by the  40 ongoing use by the plaintiffs of this territory.  41 The next territory I would like you to turn to, my  42 lord, is at page 13 of our submission, Section 50(B).  43 This is the Woos territory on Upper Harold Price  44 Creek.  That's this territory, small territory here.  4 5 THE COURT:  Yes.  46 MR. WOLF:  Alfred Mitchell swore an affidavit and gave evidence  47 at trial with respect to this territory.  And our 28917  Submissions by Mr. Wolf  1 conclusion about the evidence given on this area is  2 that Alfred Mitchell gave contradictory evidence  3 concerning the number of occasions he hunted there.  4 At best he was there three or four times, at worst  5 once in 1955.  However, we say that even if Mr.  6 Mitchell hunted on the territory three or four times  7 over the course of 20 or more years, this evidence  8 does not establish that the plaintiffs continually use  9 the territory.  Furthermore, there is no evidence that  10 the plaintiffs or their ancestors used this territory  11 prior to 1955 for any purpose.  And we say that on the  12 whole this evidence is insufficient to support a claim  13 for aboriginal rights to this territory.  14 With respect to the evidence about this area, in  15 cross-examination Alfred Mitchell appears to have  16 stated that he had been on this territory three or  17 four times between 1955 and the 1970's.  However, on  18 examination in chief he stated that he hunted goats on  19 only one occasion.  In 1955 he went in an area with  20 Dick Naziel and William Naziel.  And he identifies  21 that place by its name, which I won't try to  22 pronounce.  But that place is shown on Exhibit 211 as  23 in the southern area of the Woos territory.  I won't  24 refer you to that reference in our binder, my lord,  25 but that exhibit map will be in our references if you  26 care to look at it.  And this is the only trip for  27 which specific evidence is provided by the plaintiffs.  28 The plaintiffs assert in their final argument at  29 page 342 that Alfred Mitchell hunted deer and moose in  30 this territory.  And there is a page citation given,  31 however, at this page in the transcript Mr. Mitchell  32 is speaking about hunting on another territory, we  33 say, however he did state at this page that there was  34 moose and deer on the Upper Harold Price Creek  35 territory, but he did not say that he hunted them.  36 The next territory I would like to refer you to is  37 at page 14 of our submissions, and this is the Woos  38 territory at McBride Lake.  Section 50(C) of our  39 submission.  And that is this territory down here.  It  40 includes part of Morice Lake.  It's a large territory.  41 THE COURT:  South of Morice Lake?  42 MR. WOLF:  It actually includes most of Morice Lake and McBride  43 Lake.  And this is the territory that I mentioned in  44 my general submission earlier, is one in which there  45 is some evidence that the plaintiffs have been in this  46 territory on a relatively continuous basis hunting and  47 trapping.  Mable Critch was the person who described 2891?  Submissions by Mr. Wolf  1 and gave evidence about the territory, and Roy Morris  2 and Pat Namox also gave some evidence.  Our conclusion  3 with respect to this evidence is that it appears that  4 parts of this territory have been used for trapping on  5 a relatively continuous basis up to current times.  6 Mable Critch and Roy Morris testified that they  7 trapped in this area on Matthew Sam's trapline.  8 Matthew Sam was Mable Critch's father.  This trapline  9 appears to be in the vicinity of McBride Lake and on  10 the northern end of Morice Lake.  Although the  11 evidence is not very detailed, it appears likely that  12 this trapping activity is confined to the northern end  13 of the trapline formerly registered by Matthew Sam now  14 held by Gordon Hall.  And we say that with respect to  15 this area only, we say that the plaintiffs have  16 established that they continuously used this area for  17 trapping.  Other evidence tends to establish that the  18 western end of this territory is not used by natives.  19 The evidence on this territory is that Mable Critch  20 testified that she and her parents used this territory  21 regularly.  She and her family would go into this  22 area --  2 3    THE COURT:  Go ahead.  24 MR. WOLF:  — in the fall.  The trapline in this area belonged  25 to her father Matthew Sam.  She said that she has gone  26 out to the territory for most or all of her life and  27 "we" trap on different areas.  Mrs. Critch also  28 testified that she trapped all her life at Sunset Lake  29 on a different territory, and that her father did so  30 as well until shortly before his death.  31 And that's the territory -- that territory is over  32 here in the southeast portion of the claim area at  33 Sunset Lake.  Yes, it's the Hagwilnegh territory here.  34 So she says that she trapped all her life here and  35 over here.  36 At page 16 of my submission I say Roy Morris also  37 testified that Matthew Sam had a trapline in the  38 vicinity of Morice Lake.  He testified that it was  39 around McBride Lake and went over to the north side of  40 Morice Lake.  McBride Lake is in this area in the  41 centre of the territory, and the north end of Morice  42 Lake would be this area here.  So this would be the  43 area that Roy Morris was talking about.  44 Mr. Morris testified that he had trapped this  45 line.  When and how often was not specified.  Mr.  46 Morris stated that Gordon Hall was currently  47 registered on this trapline, and he further testified 28919  Submissions by Mr. Wolf  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.  COURT  WOLF:  THE COURT  MR.  THE  MR.  THE  MR.  GRANT  COURT  GRANT  COURT  GRANT  THE COURT  MR.  THE  WOLF:  COURT  MR. GRANT  MR. WOLF:  that he believed Gordon Hall was last out on the  trapline in 1985.  The source of this information was  not elicited, but it is likely to be hearsay.  It  should be noted that Mr. Hall would have been age 85  in 1985.  Mr. Hall is not a plaintiff?  Yes, he is.  He is Gylogyet in the house of Woos, I  believe.  Mable Critch testified that John Wall, a white  man, has a registered trapline and traps on the south  side of Morice Lake.  It is likely therefore that she  does not trap in that area.  Charlie Austin is registered on the trapline which  borders the northwest side of Morice Lake.  And Mr.  Austin testified that he had never been out on that  trapline.  Pretty steep mountain on the northwest side of  Morice Lake -- the northwest end of Morice Lake?  That's right.  That's a sheer face or pretty close to it.  That would be the north -- I think that would be the  northeast, my lord.  That was right up on the eastern  end.  I suppose the lake does run a bit that way.  If you see on the map, the lakes run down right at  one end, so actually would be the northeast side.  All right.  I think you are right.  Certainly  wouldn't want to have a trapline on the other end.  Okay.  Well, are you referring to the western end of the  lake, my lord?  I suppose I would have -- I think that I believe the  lake ran more north, south than east, west.  I think  you are right, it runs Morice west.  It was actually right up into that mountainous area  just up on the north side of the lake towards the  eastern end.  Well, my submission was with respect to the western  end of the lake where Charlie Austin had his  registered trapline on the north side of the lake and  John Wall had his registered trapline on the south  side, and evidence that Charlie Austin doesn't trap in  this area and John Wall traps there, and the  implication is that Mable Critch doesn't go down and  trap in that area I say from the evidence.  The next territory I would like to refer you to,  my lord, is at page 27 of our submission.  This is 28920  Submissions by Mr. Wolf  1 Section 52(A).  Kweese territory at Shea Lake.  This  2 territory is located approximately 30 miles southwest  3 of Smithers.  That's this territory here.  It includes  4 the Burnie Lake and river system.  And Florence Hall  5 described this territory in her affidavit.  Our  6 conclusion with respect to the evidence on the  7 territory are that this territory was once used for  8 hunting and trapping by an ancestor of Florence Hall  9 named Mooseskin Johnny.  Subsequent to Mooseskin  10 Johnny's death in 1930 there was only sporadic use of  11 this area.  And after 1937 there is virtually no  12 admissible evidence regarding the plaintiffs'  13 activities on this territory.  The plaintiffs have not  14 established that they continuously used this territory  15 since that time.  16 The evidence with respect to the territory is that  17 Mrs. Hall stated that she has never hunted or trapped  18 on this territory.  However she recalls going to this  19 area with her family at a time when Mooseskin Johnny  20 was alive.  That is before 1930.  She stated that her  21 mother and father both trapped when they were at this  22 territory.  Primarily they hunted beaver, but they  23 would also catch marten, fisher, lynx, otter and mink.  24 When questioned further on these catches, she admitted  25 it was quite rare to catch a fisher, "sometimes two",  26 or a lynx, "sometimes one", and the same applied to  27 mink as well.  Moose were rarely hunted because of  28 there scarcity.  Mooseskin Johnny had a house on the  29 territory and he died in 1930.  30 Mrs. Hall testified that others used the  31 territory.  August Pete, Mooseskin Johnny's successor  32 to the name of Kweese, seems only to have gone to this  33 area once with Florence Hall's father, Paddy Isaac,  34 Peter Alfred, Francis Alfred and Dan Joseph.   Gordon  35 Hall, Florence Hall's husband, went out on the  36 territory with Florence's brother Sam.  He went out  37 between the years 1937 and 1959, but how often is  38 unclear.  She stated that Gordon built a cabin on the  39 trapline in 1937.  We say, however, that most of this  40 information with respect to her husband's activities  41 appears to be based on hearsay because Mrs. Hall only  42 visited the territory once after 1937.  43 Contrary to what the plaintiffs suggest at page  44 369 of their argument, Mrs. Hall admitted that between  45 1937, when she was married, and 1962 she did not go to  46 the territory at all.  Although Mrs. Hall made the  47 broad assertion that she went out on the territory all 28921  Submissions by Mr. Wolf  1 the time, when the evidence is examined it would  2 appear that the period she is referring to is after  3 the age of 10, and prior to her marriage, that is  4 between 1921 and 1937.  Mrs. Hall admitted that she  5 had not been on the territory in a long time.  6 Mrs. Hall visited the territory in 1962 with  7 Gordon Hall, Alex, "mother", and Andrew Albert and  8 stayed in the cabin with her husband.  Although Mrs.  9 Hall testified that her brothers Jim and Alex spent a  10 lot of time on this territory with their mother, Mrs.  11 Hall appears not to have been with them, and there is  12 no specific evidence of use or where they were on the  13 territory.  Mrs. Hall's knowledge of recent events on  14 the territory came from her brothers Alex and Jim, who  15 flew into the area for 20 days in 1985.  They reported  16 to Mrs. Hall that the population was very low, and  17 those that they did catch looked like they were  18 starving.  I think she is referring to game animals  19 there.  20 During the 1985 trip all they did was walk all the  21 trails.  The traps were gone and the cabin had  22 collapsed, however this information about this trip is  23 obviously hearsay, and we say it's inadmissible.  24 With respect to fishing in the area, the only  25 evidence of use before the Court dates back to the  26 1920's when Mrs. Hall's mother caught trout and white  27 fish through the ice.  28 Mrs. Hall's family never did much berry picking on  29 the territory because they were there in the winter  30 and it was pretty hard to pick huckleberries.  31 So the evidence shows, just to recapitulate, my  32 lord, that there is only, we say, admissible evidence  33 on one occasion of a visit to the territory since  34 1937, and there is no evidence that when they were  35 there in 1962 that any hunting or trapping took place.  36 The next territory I would like to refer you to,  37 my lord, is at page 34 of our submission.  This is  38 Section 53(B), Smogelgem, McQuarrie Lake territory.  39 This territory is located 20 miles southeast of  40 Smithers, and it includes the town of Walcott.  41 Walcott is there and McQuarrie Lake is in the  42 northeast corner of the territory.  4 3    THE COURT:  Yes.  44 MR. WOLF:  It's in the heart of the Bulkley Valley.  45 Mary Joseph swore a territorial affidavit and was  46 cross-examined on this territory.  47 THE COURT:  Yes.  Thank you. 28922  Submissions by Mr. Wolf  1 MR. WOLF:  With respect to the conclusions on the evidence  2 before the Court on this territory, we say that the  3 evidence indicates that portions of this territory  4 were used around Grouse Mountain and Barrett Lake -- I  5 don't think Grouse Mountain is depicted on our judge's  6 series map.  I am having trouble finding it on this  7 larger map as well.  My lord, I believe it's in the  8 eastern portion of this territory.  And the evidence  9 also indicates that the area around Barrett Lake was  10 used in the past, but there is little concrete  11 evidence that the territory was used after 1953.  Mary  12 Joseph had a limited knowledge of the area.  She  13 admitted she had not been on the territory in 20  14 years.  There is no admissible evidence that any part  15 of the territory is currently used by the plaintiffs,  16 and therefore we say the territory has been abandoned.  17 With respect to the evidence, we say the area  18 which Mrs. Joseph is most familiar is in the  19 mid-southwest section of the territory, near Barrett  20 Lake where two adjoining lots were pre-empted by her  21 father and grandfather, Arthur Charlie and Bill Nye.  22 Mrs. Joseph testified she grew up in this area, but  23 that she moved to Smithers 20 years ago.  24 Mrs. Joseph was aware that Florence Hall had taken  25 over the trapline registration for part of this  26 territory.  She further admitted that before Florence  27 Hall, Emily Dennis, Florence Hall's mother, had  28 territory at Walcott.  Mrs. Joseph testified that  29 Emily Dennis lived right in Walcott, and that's why  30 they trapped in that territory.  31 Mrs. Joseph stated that Margaret Williams trapped  32 on the other side of the river towards Nelgii,  33 N-e-1-g-i-i, I believe that's on the west side of the  34 river, but gave no evidence as to what Mrs. Williams  35 trapped, nor when Mrs. Williams had used the trapline.  36 Mrs. Joseph testified that Bill Nye, her grandfather,  37 used the territory nor her grandmother, but no  38 specifics as to when or where the territory was used  39 are in evidence.  Furthermore, Bill Nye died in 1963,  40 and was blind for many years before he died.  41 So the evidence of his activities obviously pre-dates  42 1963 by a number of years.  43 Additional evidence of the use of this territory  44 is found in the testimony of Bazil Michell, who was a  45 member of the house of Hagwilnegh.  His evidence for  46 this territory focuses on the area at Barrett Lake and  47 Grouse Mountain.  He testified he had hunted and 28923  Submissions by Mr. Wolf  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. WOLF:  THE COURT  MR. WOLF:  THE COURT  MR. WOLF:  trapped, as did his father and many other people of  the Laksilyu clan who lived at Grouse Mountain.  They  hunted groundhog, mountain goat, caribou and trapped  beaver, mink and other wild game.  Mr. Mitchell stated  that once there were many caribou and very little  moose at Grouse Mountain; now there is a lot of moose  and very little caribou.  He could not recall exactly  how his father came to use the area, except he was  able to use the area because of his ancestors who used  it before.  Mr. Mitchell testified there was also fishing in  this area where the CN tracks cross the Bulkley River  near Houston.  People used fish traps there to catch  salmon.  He also testified that berries and roots were  picked at both Grouse Mountain and near Barrett Lake.  Bazil Michell testified that he was raised on the  territory at Grouse Mountain.  The Grouse Mountain is  where his grandfather had died, and he testified there  was a village there because of the good hunting.  People would gather and smoke meat there.  There were  also houses at Barrett Lake, and people would travel  between the two places.  People lived in the area all  year round.  At an unspecified time, the people were  forced off the land at Grouse Mountain.  :  Grouse Mountain?  Lhe Tait is Grouse mountain.  :  I see.  Mr. Michell testified that after this he never went  back to the area.  Mr. Michell acknowledged that any  remaining houses there have rotted down.  Mr. Michell  further stated that after his father's death in 1953  people did not use the territory as much, although he  believes Margaret Williams uses the territory.  So there is quite a bit of evidence of use of that  territory, my lord, but it appears to refer to the  time prior to the 1950's, we say.  And there is very  little, if any, specific use or admissible evidence of  use of the territory since that time.  The next territory I would like to refer you to is  set out at page 38 of my submission.  That's the next  page, territory 53(C).  This is the Smogelgem  territory at Parrott Creek, which is located  approximately 45 miles southwest of Smithers.  And  that is this territory, I believe, on north side of  Francois Lake.  Parrott Creek as shown there.  :  Yes.  All right.  I may have said southwest, my lord.  I meant 28924  Submissions by Mr. Wolf  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.  COURT  WOLF:  MR. GRANT  MR. WOLF:  MR. GRANT  MR. WOLF:  THE  MR.  COURT  GRANT  THE COURT  MR. GRANT  southeast of Smithers.  :  Yes, all right.  This was a territory that Roy Morris swore an  affidavit on.  :  Just before my friend goes to this one, I take it  given that we've heard much evidence, although my  friend isn't fully aware of -- the description of  Barrett Lake, what happened there, because my friends  say that no matter why persons left an area, in fact  the case of Bazil Michell in burning out, that it is  irrelevant as to why they left an area for the purpose  of the argument of abandonment.  Well, we say it is relevant because the evidence of  voluntariness, but we say that there is all types  of -- there is many examples of other kinds of  evidence that people did voluntarily abandon areas and  moved into places like Smithers and off the land.  : Is that the case with Barrett? Is that what my  friend is saying with respect to Barrett, people  voluntarily move, this territory we are talking about?  Well, I would say, my lord, that if there were camps  or houses at Barrett Lake that people were forced to  move from, they still had the opportunity to go back  to the area.  Even after they were forced to move from  the area, that didn't prevent them from going back to  the area hunting and trapping off lands that were  pre-empted.  There is evidence that most of the land  or much of the land along the river in the Bulkley  Valley are farms and ranches, and a lot of that area  is no longer suitable or nor is it permissible to hunt  or trap in those areas, and obviously with respect to  that we would say that any hunting and trapping in  those areas have been extinguished.  :  I don't recall at the moment what it is Mr. Grant is  referring to.  Is this one of the ones --  : Mr. Michell describes how his family, their cabin,  their place at Barrett was burned out, and they were  forced out, and it was then homesteaded, and he gave  evidence, mind you it wasn't before your lordship, it  was commission evidence. This is evidence which has  been alluded to by the plaintiffs in argument.  :  Yes.  But I thought it might have been Mr. Goldie  that said that that resulted from homesteaders who had  South African war script --  :  I can't recall.  It certainly was a result of  homesteading.  I am not sure when you say was it the  South African war script, I can't recall right off the 28925  Submissions by Mr. Wolf  1  2  3  4  5  6  7  8  9  10  MR.  WOLF:  11  12  13  14  15  16  17  18  19  THE  COURT  20  MR.  WOLF:  21  22  23  24  25  26  27  28  29  30  31  32  33  34  THE  COURT  35  36  MR.  WOLF:  37  THE  COURT  38  MR.  WOLF:  39  THE  COURT  40  MR.  WOLF:  41  THE  COURT  42  43  MR.  WOLF:  44  45  THE  COURT  46  MR.  WOLF:  47  THE  COURT  top whether that particular instance, South African  war script, but my friend here is arguing that this  territory was abandoned, and I am questioning whether  in the circumstances like that, where people were  burned out, is he saying that the abandonment argument  even applies there.  No matter why they left it  doesn't matter.  And that's why I focused on this  territory, because my friend -- he says it was  abandoned.  Well, there is other evidence that I refer to, my  lord, of people who say that their ancestors have used  the territory, and they -- there is no evidence that  they were forced off the land.  However, if the only  evidence before the Court was that Mr. Michell was  forced off the land, his evidence was the only  evidence that that particular area was being used, we  would say that that would be extinguishment and not  abandonment in that area.  :  Thank you.  To return to page 38 of my submission, which is the  Smogelgem, Parrott Creek territory.  As I said, Roy  Morris swore an affidavit on the area.  However, our  conclusion is that there is no evidence before the  Court to substantiate the claim that the plaintiffs  used this territory.  That is because they have  presented no evidence.  There is no evidence before the Court regarding  the use by any plaintiffs of the Parrott Creek  territory.  The only other evidence regarding use and  occupancy of this territory came from J.P. Tourond,  who testified that in his experience he had not seen  native people trapping in the Parrott Creek area.  :  This is the property immediately to the east of the  one you just mentioned, is it?  No, my lord.  :  Where is this one?  This is the one on the north side of Francois Lake.  :  I'm sorry.  Yes.  Down here.  :  That's the one you were just talking about, was it  not?  The one about Bazil Michell that gave evidence about  Grouse Mountain, that is up here.  :  That northern one?  That's the Walcott territory.  :  Which one is Barrett? 28926  Submissions by Mr. Wolf  1 MR. GRANT:  The same as Walcott, my lord.  2 MR. WOLF:  That is Barrett, B-A-R-R-E-T-T.  3 THE COURT:  That's the one that is south of Lakwiget?  4 MR. WOLF:  That's right.  The Smogelgem territory down here is  5 Parrott Creek.  6 THE COURT:  That's the one that is on north shore of Francois  7 Lake?  8 MR. WOLF:  Yes.  9 THE COURT: Yes, all right.  10 MR. WOLF:  I was referring to the evidence of J.P. Tourond, who  11 testified that he hadn't seen native people trapping  12 in the Parrott Creek area.  The plaintiffs' submission  13 at page 377 of their argument is that Mr. Morris traps  14 at Parrott Creek, and we say that that submission is  15 not supported by the evidence.  Mr. Morris's  16 registered trapline is to the west of Parrott Creek in  17 the Knedebeas territory.  I won't refer your lordship  18 to the exhibits, the maps showing where that trapline  19 is located, but we say it is located outside of this  20 territory and in the adjacent Knedebeas' territory to  21 the west.  22 We also say that Mr. Morris's assertion that he  23 traps are too vague and non-specific.  He does not  24 testify as to when or where he actually trapped.  And  25 since he doesn't seem to have trapped in this  26 territory, his testimony on that point is irrelevant.  27 The next territory I would like to refer you to is  28 a Goohlaht territory.  This is at page 5 of my  29 submission.  This is Section 56(B) of our argument.  30 Goohlaht, Nanika River territory.  This territory is  31 located in the southwest corner of the claim area.  32 THE COURT:  Yes.  I have it.  33 MR. WOLF:  This one here, south of Morice Lake.  Stanley Morris  34 and Jimmy Morris both swore affidavits on the area,  35 and Stanley Morris was cross-examined because his  36 father Jimmy Morris was said to be too ill to be  37 cross-examined.  38 Our conclusion with respect to this area and the  39 evidence given on it is that there is virtually no  40 admissible evidence that this territory was used by  41 the plaintiffs, and we say therefore they have not  42 proved that they have any rights to this area.  43 When Stanley Morris was cross-examined about his  44 knowledge of Goohlaht or Caspit territories, he  45 responded he did not know where the Goohlaht, Caspit  46 territories were.  47 Mr. Morris was asked if, traditionally in the old 28927  Submissions by Mr. Wolf  1 days, Caspit, a chief in the house of Goohlaht had his  2 own separate hunting and trapping grounds.  Mr. Morris  3 responded, "There is quite a few places, and I  4 wouldn't know exactly".  Mr. Morris was then asked if  5 Caspit had a hunting ground at Ootsa Lake.  He  6 responded that Caspit did have a territory, that he  7 had heard Moses David talking about it, but Mr. Morris  8 did not know exactly where it would be.  Mr. Morris  9 also did not know if Caspit had any hunting ground  10 around Francois Lake.  11 And Mr. Morris is Caspit today, my lord.  12 Mr. Morris testified that the former Caspit, Jimmy  13 Thomas, was a trapper.  He stated that Jimmy Thomas  14 held a trapline in white man's way, presumably a  15 registered trapline in the Nanika Lake, Nanika River  16 area.  Stanley Morris testified he had never trapped  17 in the Nanika River area, neither did he know who the  18 present registered owner of the trapline in the area  19 was.  Further to his knowledge, no member of his house  20 trapped around Nanika Lake.  Since the price of fur  21 was low in the 1950's, his father and them all -- they  22 all didn't go out any more.  And I referred you to  23 that reference in our general submission on the  24 evidence of abandonment.  25 Mr. Morris's trapping experience is quite limited.  26 He testified he trapped only in the Telkwa area once  27 when he was about 24 years old, some 21 years ago.  28 With respect to the Atna Lake area, which is in  29 the northern part of the territory, this territory, my  30 lord, goes around the west end of Morice Lake and  31 extends along the northern side of Morice Lake, and  32 that is the area that I am referring you to now.  Atna  33 Lake is at the head of Atna Bay, and Atna Bay is a  34 northern arm of Morice Lake.  35 And with respect to that Atna Lake area, which is  36 in the northern part of the territory, Mr. Morris had  37 heard of Antoine Jimmy going out with somebody out  38 there, but I don't know about them trapping out there.  39 Similarly, he testified that Frank Jimmy, Jimmy Thomas  40 and his father went out to the Atna Lake area.  This  41 testimony is clearly based on hearsay because Stanley  42 Morris had never been there.  43 When asked if any member of his was currently  44 trapping in the Atna Lake area, Mr. Morris replied  45 "Noostel" trapped in that area.  For the reason  46 discussed above, this statement is almost certainly  47 based on inadmissible hearsay. 2892?  Submissions by Mr. Wolf  1 Noostel is Walter Williams in the house of  2 Knedebeas, my lord.  3 Pat Namox testified that since 1977 he has gone  4 into this area to trap.  He stated he trapped on both  5 the east and the west side of Morice Lake.  There is  6 no evidence as to what Mr. Namox trapped, nor when he  7 was in the area, nor how often he was there.  8 And this evidence, we say, is too vague to  9 establish that they were trapping on this territory,  10 that he was trapping on this territory.  11 THE COURT:  Should we take the afternoon adjournment?  12 MR. WOLF:  Yes, my lord.  13 THE REGISTRAR:  Order in court.  Court stands adjourned.  14  15 (PROCEEDINGS ADJOURNED)  16  17 I HEREBY CERTIFY THE FOREGOING TO BE  18 A TRUE AND ACCURATE TRANSCRIPT OF THE  19 PROCEEDINGS HEREIN TO THE BEST OF MY  20 SKILL AND ABILITY.  21  22  2 3 LORI OXLEY  24 OFFICIAL REPORTER  25 UNITED REPORTING SERVICE LTD.  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28929  Submissions by Mr. Wolf  1 (PROCEEDINGS RESUMED AT 3:15)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Wolf.  5 MR. WOLF:  Thank you, my lord.  If you would turn to page 65 of  6 my submissions, I'm now going to refer you to the  7 Uncha Lake territory of Goohlaht, section 56(D) of our  8 submission, and this territory is located in the  9 southeast corner of the claim area at part of the  10 Francois Lake.  It's a large territory.  This  11 territory was described in the affidavit of Elsie  12 Quaw.  13 And our submissions on what conclusions should be  14 drawn from the evidence are as follows:  Mrs. Quaw  15 gave evidence that she hunted on this and other  16 territories.  The frequency and the location of her  17 hunts on this territory are not in evidence.  Although  18 there is evidence of fishing, it was over 40 years  19 ago.  There are 15 Indian reserves on this territory  20 allotted to bands whose members, with a few  21 exceptions, are not Plaintiffs in this action.  22 MR. GRANT:  Well, I object to that, because I don't think that  23 there is any evidence in support of that proposition,  24 unless my friend can provide me with the source of  25 that.  I don't think there's evidence of band lists of  26 these bands in evidence, and I know that there are  27 persons who have been witnesses who are members of  28 each of the bands to which my friend is referring.  29 MR. WOLF:  To my knowledge, my lord, there are a number of --  30 there are some Plaintiffs who are members of the  31 former Omineca band, the Nee Tahi Bund band or the  32 Brawma(?) Lake band.  Many of the reserves in this  33 particular area are allotted to Cheslatta people.  34 They are not Plaintiffs, but I would say the  35 majority -- it's our submission that the majority of  36 members of the bands in those areas are not  37 Plaintiffs, and I think that we've been through this  38 before with Mr. Macaulay.  He made submissions on  39 this.  4 0 THE COURT:  Yes.  41 MR. GRANT:  But, you see, I went back, my lord, to see if there  42 was evidence of these band memberships that my friend  43 makes the statement.  I don't think there is any  44 evidence of these bands, lists of these bands.  If my  45 friend knows of such evidence, I would like him to  46 direct us to it.  47 THE COURT:  Is it a matter of onus? 28930  Submissions by Mr. Wolf  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  MR. WOLF:  MR. GRANT:  Well, my friend is making an argument of what --  he's stating a fact.  He's saying there's -- these  members are not Plaintiffs, the members of these bands  aren't Plaintiffs.  Nobody knows, that is what I'm  saying.  THE COURT:  Well, surely the Plaintiffs have to know.  MR. GRANT:  We certainly know.  I know a large number of  witnesses who are Plaintiffs.  We didn't tender band  lists as evidence, and I don't think the Defendants  did either.  THE COURT:  I seem to recall some evidence that -- not a band  list, but of evidence that these reserves were  established to accommodate the Cheslatta people after  the flooding or because of the imminent flooding and  post-flooding of Ootsa Lake.  It seems to me that's  enough to raise transfer of onus of calling evidence  upon the Plaintiffs.  Well, certainly the Cheslatta Reserves are included  in this area. I thought my friend was also referring  to the Nee Tahi Bund and the others as well.  I was referring to both types, my lord.  The  evidence, you may recall, is that of Rae Mclntyre,  who -- he gave evidence that these reserves in this  area were part of his jurisdiction when he was Burns  Lake Agency superintendent in the late 1960's, and we  tendered a number of documents through his evidence  which refer to band council meetings and things like  that, and there was an issue then as to whether any of  these people were Plaintiffs.  And certainly there was  at least one of a list of four or five or six band  councillors that we were able to identify as the  Plaintiffs.  At that time Mr. Grant was objecting,  saying this evidence is irrelevant because these  people were not Plaintiffs.  We say there are some  Plaintiffs there, but there are also other Indians who  are not Plaintiffs who are members of these bands.  THE COURT:  All right.  MR. WOLF:  In fact, Mrs. Quaw, who is the person who gave  evidence about this territory, is not a Plaintiff in  this action.  And we say that the Plaintiffs have not  provided sufficient evidence to support their claim,  if they ever had one, to use or occupy this territory.  And the evidence with respect to their territory  is as follows:  Mrs. Quaw is a Cheslatta Indian and  not a Plaintiff, she states that in her affidavit.  She was born in 1927 and has lived at Stoney Creek  from the time she was married in 1947 until an 28931  Submissions by Mr. Wolf  1 unspecified date, probably 1969, when she was  2 divorced.  She testified that her children are part of  3 a Stoney Creek clan.  Mrs. Quaw testified she was  4 raised on the Uncha Lake territory.  Currently she  5 lives at Grassy Plains, which is a community within  6 the territory.  7 Mrs. Quaw testified that the last time she hunted  8 in the area was with her father, Keom Morris, in 1971.  9 And Keom Morris may or may not be a Wet'suwet'en  10 person.  I should just refer you back to paragraph 3  11 of section 56(C), which is at page 62 of our  12 submissions, and who Keom Morris was was an issue in  13 the cross-examination on another Goohlaht territory,  14 this is at Whitesail Lake, and this was Thomas K.  15 Morris, who is I believe the brother of Elsie Quaw,  16 and their father was Keom.  And our submissions at  17 paragraph 3 of that territory submission is that Mr.  18 Morris does not appear -- that is Keom Morris does not  19 appear on Wet'suwet'en genealogy.  However, Thomas K.  20 Morris says his father's mother was from Hagwilget or  21 Moricetown.  And Mr. Morris, Thomas Morris, considered  22 himself to be a Wet'suwet'en, but neither does he  23 appear on Wet'suwet'en genealogy.  And further, he  24 said he wasn't represented in the case at bar, and in  25 his affidavit he stated that he was a Cheslatta  26 person.  27 THE COURT:  Did Mr. Shelford have something to say about Keom  28 Morris?  29 MR. WOLF:  He gave evidence about Jimmy Andrew.  I don't recall  30 whether he gave evidence about Keom Morris or not.  31 MR. GRANT:  I recall he met Keom Morris at an event, as I  32 recall, when he was travelling through the area.  It  33 was one of the persons he knew.  34 THE COURT:  I thought he said that Keom Morris and his brother  35 came through their part of the end of Francois Lake to  36 go trapping further west.  37 MR. GRANT:  Yes, yeah.  He did know him on the land.  38 THE COURT:  Yes.  I'm not sure what he said about his pedigree.  39 All right, thank you.  40 MR. WOLF:  We say there's some question on the evidence --  41 THE COURT:  Yep, all right.  42 MR. WOLF:  -- who Keom Morris was or where he -- what group he  43 belonged to.  44 THE COURT:  Every case needs a mystery witness.  45 MR. WOLF:  Returning to page 66 of my submission, paragraph 4:  46 Prior to 1971 Mrs. Quaw had hunted with Keom Morris  47 when she was a teenager during the summers of 1943 to 28932  Submissions by Mr. Wolf  1 '46.  It is unclear where Mrs. Quaw hunted during that  2 period.  She testified "All my life because" --  3 sorry -- "because as an Indian family, we are nomads,  4 we go from place to place and not only my family, all  5 of the families of the Indian are, our neighbours,  6 just go from camp to camp, fishing camp".  Later she  7 stated "We were all over the place.  No, not one  8 place".  Mrs. Quaw claims she came back nearly every  9 year to hunt on the Uncha lake territory during the  10 years she lived at Stoney Creek.  Stoney Creek, of  11 course, is outside the claim area.  She stated she and  12 her husband hunted black bear, beaver and some deer.  13 The Plaintiffs assert in their argument at page  14 404 that Mrs. Quaw trapped with her father on his  15 trapline, which they imply is in this area.  However,  16 Mrs. Quaw's trapline is in the Whitesail River area  17 across Ootsa Lake.  When asked, if as a member of the  18 Gilseyhu clan her father could trap on any Goohlaht  19 territory, Mrs. Quaw responded that he could only trap  20 where he was registered.  To her recollection, her  21 father had been registered across from Ootsa Lake "All  22 his life".  Mrs. Quaw said that if her father wanted  23 to trap in the Uncha Lake territory, he sought the  24 permission of his brother, Joseph Morris.  However, if  25 he wanted to hunt there, he could do that at any time.  26 Mrs. Quaw testified that she fished with her  27 father in the Uncha Lake area.  These fishing sites  28 are now "where the white people are living".  Although  29 she had fished at Uncha Lake during the fall of '88,  30 the last previous time she had fished "in the area"  31 was either the winter of 1943 or '46 when her mother  32 died.  33 And then I go on to refer to the Indian reserves  34 in this area, that there are 15 of them, and that the  35 Reserve General Abstracts, which are exhibits,  36 indicate that they are allotted to the Cheslatta,  37 Stellaquo, and Nee Tahi Buhn bands.  38 The next territory I would like to refer you to,  39 my lord, is at page 76 of our submission, section  40 57(C).  This is the Samooh territory at Tahtsa Lake.  41 And that's located of course in the southeast part of  42 the claim area.  This territory was described in the  43 affidavit of Elizabeth Jack.  44 And we say that there is no evidence that the  45 Plaintiffs hunted or trapped on this territory.  There  46 is evidence that Cheslatta Indians used the territory.  47 There is no evidence to support the Plaintiffs' claim 28933  Submissions by Mr. Wolf  1 that they have aboriginal rights in the area.  2 We say that the evidence is that Mrs. Jack is the  3 daughter of Batise, also known as Baptiste, Louie, and  4 a niece of Chief Louie.  By her own admission, both  5 her father and Chief Louie were Cheslatta Indians.  6 Mrs. Jack is also a Cheslatta.  She testified that she  7 was raised on the Tahtsa Lake territory, but had not  8 been there since 1950-52.  Currently none of her  9 children or grandchildren live on or use the  10 territory.  11 With regard to hunting, Mrs. Jack stated the  12 family always did the hunting on the territory.  No  13 specific area was cited.  She testified that she went  14 hunting on the territory with her father and Chief  15 Louie, but she could not remember the last time she  16 went hunting with Chief Louie.  He died in 1951.  17 When Mrs. Jack was asked whether the Tahtsa Lake  18 territory was Chief Louie's, she responded "It is  19 their territory, but I don't know where -- I don't  20 know where his trapline is".  When she was asked about  21 hunting on the territory, she responded "They all go  22 trap in that territory".  23 Mrs. Jack stated she never trapped in the area  24 near Mount Sweeney, otherwise known as Sibola  25 Mountain, yet when she was asked who taught her the  26 territory boundaries, she stated "Ever since I was a  27 little kid we go out trapping all the time and I know  28 the territory".  Mrs. Jack did not know if anyone had  29 trapped the territory since 1952.  30 Alfred Mitchell testified that there were  31 Wet'suwet'en hunters and trappers from the Ootsa Lake  32 area who used this territory, including Chief Louie's  33 son.  It appears Mr. Mitchell has never been to the  34 territory.  We say this information is hearsay.  35 Mrs. Jack was asked during re-examination if she  36 had ever fished on the Tahtsa Lake territory, and she  37 stated that between 1951 and 1952 she fished for  38 trout.  39 She was also asked if she had ever picked berries  40 on Tahtsa Lake territory, and she replied that she had  41 picked huckleberries there when she had lived there.  42 Mrs. Jack admitted that in 1952 she asked Keom  43 Morris to come with her to the territory so that she  44 would know that she was on the right territory.  This  45 was the last time she went there.  She admitted that  46 she did not know where her father's "place" was.  47 There was no evidence as to where they specifically 28934  Submissions by Mr. Wolf  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. WOLF:  THE  MR.  THE  MR.  THE  MR.  COURT  WOLF:  COURT  WOLF:  COURT  WOLF:  went on the territory.  Just to sum up again with respect to this  territory, my lord, there is evidence of Cheslatta  people trapping at this territory, there's evidence  that Chief Louie, Baptiste Louie and Elizabeth Jack  trapped there, and we say that there's no admissible  evidence that any Plaintiffs hunted or trapped there.  And furthermore, the territory does not appear to have  been used since approximately 1952.  The next territory that I would like to --  :  Did anybody decide why Mrs. Quaw ever mentioned  being nomadic?  I don't remember that expression or  that concept in any of the other evidence.  That's the only reference that I recall.  It does  stick out.  :  Yes.  But that's the only reference that I recall.  :  All right, thank you.  At page 79 of my submission, section 58(A), I'm going  to refer now to the Hagwilnegh territory at McDonell  Lake and Telkwa River.  This is a large territory west  of Smithers, this territory here.  :  Yes.  Johnny David described this area in his affidavit,  and Pat Namox and Lucy Bazil also gave evidence about  it.  And our conclusions with respect to the evidence  are that the Plaintiffs have not established that they  consistently used the territory, especially in the  last few decades.  Lucy Bazil's evidence of use, we  submit, is inadmissible.  John and Pat Namox had not  consistently used the territory.  Indeed, it is only  within the last two years that Pat Namox has gone to  the area.  And we say that there is insufficient  evidence before the court to make a finding that the  Plaintiffs have aboriginal rights.  With respect to the evidence, we say that in his  commission evidence Johnny David testified that people  from Moricetown and Hagwilget hunted in the  Kilwoneets-Telkwa River area.  And the Kilwoneets  area, my lord, is I believe that area south of --  south and west of Hudson Bay Mountain in the vicinity  of Aldrich Lake and Dennis Lake.  That's at the  northern end of the territory.  Mr. David identified  Old Sam, Old Dennis, Joe Nass and Thomas, Julia,  Basil, and David Holland as people who used the area.  From the Hagwilnegh genealogy approximate dates of 28935  Submissions by Mr. Wolf  1 birth can be obtained:  Old Sam, born approximately  2 1855; Old Dennis, unknown; Joe Nass, approximately  3 1886; Thomas Holland, approximately 1876, died 1924;  4 and Julia Holland is not on a genealogy; Basil  5 Holland, born approximately 1881; and David Holland is  6 not on a genealogy.  Mr. Johnny David described these  7 people as Kilwoneetzen, people of the -- or people of  8 Kilwoneets.  Johnny David testified that there was  9 fishing in McDonell Lake.  It was not exclusively  10 Wet'suwet'en fishing; Gitksan people also fished  11 there.  In addition to salmon, the people fished for  12 trout and dolly varden.  He stated that some people  13 still fish there, although he did not say who.  He  14 also stated that huckleberries were picked in the  15 area.  16 Lucy Bazil testified that her uncles, Jack Joseph  17 and Pat Joseph, "used" and held the territory at  18 McDonell Lake.  Mrs. Bazil said that her first  19 husband, Frank Bazil, trapped on this territory for  20 her.  She also testified that George Joseph, brother  21 to Jack and Pat, had a trapline at McDonell Lake.  22 Mrs. Bazil's son, Roger, was a member of the trapline  23 at McDonell Lake, and she stated that both Pat Namox  24 and John Namox went out to the area.  There is no  25 evidence, however, that Mrs. Bazil was ever on the  26 territory, and therefore we say that her testimony  27 about these individuals' activities is almost  28 certainly based on hearsay and therefore inadmissible.  29 Pat Namox testified that he had trapped out in the  30 the McDonell Lake area in 1987 and 1988.  He further  31 testified that he had hunted around the McDonell Lake  32 area for moose, although he did not say when.  33 So we say that through Johnny David it's  34 established that there were people on this territory,  35 probably quite a long time ago, people who lived at  36 Kilwoneets, there's no evidence that anybody lives  37 there anymore, these people were born in the  38 nineteenth century, and some of them died at times  39 such as 1924.  The recent evidence of use through Lucy  40 Bazil is, we say, inadmissible and shouldn't be taken  41 into account, and therefore, there's no recent  42 evidence, that is within a number of decades, that the  43 Plaintiffs have used the territory.  44 MR. GRANT:  Well, your lordship may want to note that my friend  45 missed the evidence of Mr. Fletcher, a witness for the  46 Province, who had in cross-examination described the  47 location of Jack Joseph's cabin and Jack Joseph being 28936  Submissions by Mr. Wolf  1 out there.  My friend seems to have missed that.  2 MR. WOLF:  I was unaware of that evidence, my lord.  3 The next territory I would like to refer you to,  4 my lord, is at page 87 of our submissions.  This is  5 the Wah Tah Kwets territory at Round Lake, and it's  6 located approximately ten miles south of Smithers in  7 the Bulkley Valley.  That's this territory here.  John  8 and Pat Namox swore affidavits with respect to the  9 area, and Pat Namox was cross-examined as a  10 replacement for John Namox.  Lucy Bazil also gave  11 evidence about the area during her commission.  12 Our conclusions with respect to the evidence are  13 that although the area may once have been used by some  14 Indians, even Round Lake Tommy moved away and farmed  15 down in the Barrett Lake area outside this territory.  16 Pat Namox, by his own admission, has never trapped on  17 the area.  Except for a visit in the past two or three  18 years, he was last on this territory approximately 60  19 years ago.  We say the evidence before the court does  20 not establish that the Plaintiffs continuously used or  21 occupied the area.  22 Dealing with the evidence with respect to the  23 territory, Round Lake Tommy, a former Wah Tah Kwets,  24 "used" the land at Quick.  He also owned land down at  25 Barrett Lake, where he had a large farm, that is he  26 owned in fee simple.  Round Lake Tommy died in 1960  27 according to the genealogy.  Round Lake Tommy's  28 brother, Louie Tommy, also "used" this land.  Lucy  29 Bazil's brother, Peter Jim, has a registered trapline  30 in the area.  Peter Jim, however, has worked for the  31 railway for 35 years, and during that time he was not  32 out on the territory very often according to the  33 evidence.  34 Pat Namox was last on the territory two or three  35 years ago.  Whether or not he was hunting, trapping or  36 just driving through is unclear.  Prior to that, the  37 last time he was on the territory was when he was a  38 young boy, aged six or seven.  This was approximately  39 60 years ago.  Mr. Namox admitted he had never trapped  40 on the territory, nor had he ever walked the entire  41 boundary of the territory.  42 The last territory that I'm going to refer you to  43 today, my lord, is at page 91 of our submissions, the  44 last territory in the Wet'suwet'en submissions of the  45 Attorney General of Canada.  It's territory number 60,  46 and it's the only territory claimed by Wah Tah Keg'ht,  47 and that is this territory here.  Basil Michell, Henry 28937  Submissions by Mr. Wolf  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  WOLF:  COURT  WOLF:  THE COURT  MR. WOLF:  THE  MR.  THE  MR.  COURT  WOLF:  COURT  WOLF:  Alfred and his mother, Madeline Alfred, gave evidence  about the territory, and Mrs. Alfred swore an  affidavit about it.  There's extensive evidence about  the territory.  :  Is that right, five miles north of Smithers, not  south of Smithers?  This is the southern boundary of the territory, my  lord, that we're referring to.  As you may recall,  Smithers is in the territory claimed by Woos.  :  Yes.  And the Wah Tah Keg'ht territory is to the north of  Woos.  So the southern boundary of the Wah Tah Keg'ht  territory is a few miles north of Smithers, we say  approximately five miles.  :  I thought it was just in the southern boundary, but  I must be quite wrong.  All right.  This is Smithers, my lord, on this map, and that's in  the Woos territory.  :  Yes.  Where is Smithers now, I can't see Smithers?  This one right there at the tip of my finger.  :  Yes, all right.  With respect to our conclusions on the evidence on  this territory, we say that it is clear that certain  areas of this territory were used in the past.  There  have, however, been extended periods where vast areas  of the territory have not been used, and there is  significant evidence of the detrimental effects of the  clear-cutting and other activities.  The evidence is  clear that Madeline Alfred and Henry Alfred have  trapped in the vicinity of Moricetown for some time,  but Mr. Alfred's testimony places the trapline that he  used near Blunt Creek, which seems to be outside the  territory.  Henry Alfred's use of this territory for  goat hunting seems to have been limited to one-time  excursions into particular areas, first in the 1950's,  then again in the 1980's.  Basil Michell no longer  uses the territory.  However, it appears likely, given  Mr. Alfred's testimony, that moose and deer hunting  has continuously taken place in those areas depicted  on Exhibit 164 as good moose and deer hunting areas  except in those areas that have been logged.  And as I go through the evidence, my lord, I will  refer you to the map which Henry Alfred referred to in  his evidence in which these areas are identified, but  I'll go through my submissions and then we'll turn to  that exhibit.  Madeline Alfred testified that she grew up in the 2893?  Submissions by Mr. Wolf  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. WOLF:  THE COURT  MR. WOLF:  THE COURT  Toboggan Lake-Glentanna area north of Smithers, and  she stated she first went out to the territory with  her uncle, Peter Bazil, the previous Wah Tah Keg'ht.  Madeline Alfred testified she caught muskrats,  rabbits, marten and beaver at Toboggan Lake when she  was young.  She further testified that her ancestors  caught goats.  As well, she claimed she had a  trapline, which had formerly been her mother's, with  which she traps lynx, squirrel, wolverine and marten.  Mrs. Alfred mocked the suggestion that she would have  hunted moose, bear or goat, stating "How could I?  No,  how could I, I am a woman".  Although she is 72 years  old, she stated she still traps on a regular basis.  The area she generally traps is close to Moricetown,  so that she can go out in the morning and be back  before dark.  Aside from this last noted trapping  activity, the majority of Mrs. Alfred's experiences on  the territory were prior to when she was married, at  the age of 15.  Mrs. Alfred testified that after the age of 14 she  did not go back to the Glentanna area. She also never  trapped in the Driftwood Creek area, nor at Too Coo  Kwe, nor at Trout Creek, although she said Peter Bazil  trapped at the former area and her mother used Too Coo  Kwe.  Henry Alfred testified that at a very young age  his grandmother took him out with her while she  trapped.  He stated that this particular line went  very near Blunt Creek.  This evidence concurs with  Madeline Alfred's testimony regarding the location of  the trapline she currently uses.  Although Mr. Alfred testified about a lack of game  in the area due to the effects of logging, he stated  he still hunts moose throughout the whole area and  deer in selected areas.  And this is where the  reference to Exhibit 164 comes up, my lord, and I'll  just ask you to turn -- it should be at the last few  tabs of volume 5 of our references, tab 60.7.  :  What's the tab again?  I'm sorry, it should be at 60.7, but I'm having  trouble locating the map at that tab.  You don't have  a sketch map at your tab 60.7, do you?  :  No.  I do not.  Well, I will obtain a copy of that for you and refer  it to you.  It's a copy of a map which shows the Wah  Tah Keg'ht territory.  :  Oh, I think I have it committed to memory.  We 28939  Submissions by Mr. Wolf  1 looked at it for so long, I know the one you mean.  2 MR. WOLF:  What it shows is that there is moose hunting  3 indicated on an area to the east of Bulkley River.  4 THE COURT:  Yes.  5 MR. WOLF:  And this appears to be the area that Mr. Alfred  6 stated that he hunts, and it is in fact this area we  7 say that there is sufficient evidence to establish  8 that the Plaintiffs have continuously hunted in that  9 area.  10 And at paragraph 8 of my submission, bottom of 93,  11 page 93, I say that with the aid of Exhibit 164, a  12 diagram of the territory, Mr. Alfred noted that some  13 of the traplines depicted on the diagram were not  14 productive at all.  Line 2 on the diagram was set for  15 the first time in 1987, but had thus far trapped only  16 three marten.  17 During cross-examination it came out that Mr.  18 Alfred's use of the territory was somewhat limited.  19 With the aid of Exhibit -- the sketch map, Mr. Alfred  20 was cross-examined about the various harvesting areas  21 shown on the map.  Regarding the area in the top  22 left-hand section of Exhibit 164, identified as used  23 for goat hunting, Mr. Alfred admitted he had gone  24 there once in the 1980's.  Similarly, the area in the  25 bottom left-hand corner of the map he had been to  26 once, recently, and shot one goat.  The area on the  27 right of the map, also identified as "goats", he had  28 been to once, with Alfred Mitchell in the 1950's.  Mr.  29 Alfred had not shot a goat there.  30 There was a period of more than a decade between  31 when Mr. Alfred was first shown the territory by Peter  32 Bazil in 1963 and his next visit to the territory in  33 the 1970's.  Prior to 1963 he did not use the  34 territory.  He has never stayed overnight on the  35 territory.  This, of course, would be outside the  36 confines of Moricetown Reserve.  37 Both Madeline Alfred and Henry Alfred testified  38 that Peter Bazil once used the whole area on the east  39 and west sides of the Bulkley River, and that he had  40 granted Bazil Michell the use of the west side because  41 Bazil Michell had once assisted Peter at a feast.  And  42 there is confusing evidence as to which side of the  43 Bulkley is or has been used by the Alfreds.  44 Bazil Michell testified that the territory he used  45 encompassed Beamont and Moricetown to an area past  46 Tobaggan Lake; the northern boundary being the Bulkley  47 River and the southern being Guxsan Lake.  Bazil 28940  Submissions by Mr. Wolf  1 Michell admitted he does not trap today.  2 Mrs. Alfred testified that there were a few areas  3 where she picked berries.  Occasionally she would go  4 as far as Chapman Lake, more often she gathered  5 berries nearby Moricetown or the Springhill area.  Mr.  6 Alfred, Henry Alfred, agreed that a good berry-picking  7 area was across from Moricetown.  8 Mrs. Alfred testified that one of the reasons she  9 and her family did not go back to Glentanna or the  10 Glentanna area was the incursion of white settlers.  11 She also said that large parts of the territory had  12 been clear cut, thus diminishing, if not eliminating,  13 hunting and trapping prospects.  And she also said  14 that farming had cut into the traditional use of the  15 area.  16 Henry Alfred also testified that there had been  17 considerable logging in the territory, and he admitted  18 that the area around some of his traplines had been  19 destroyed by clear-cutting.  He also said that the  20 Moricetown Band had been involved in logging in the  21 territory, and there are six reserves in this  22 territory and they're all allotted to the Moricetown  23 Band.  24 The references to farming, my lord, clear-cutting,  25 obviously relate to the issue of extinguishment as  26 opposed to abandonment.  In some situations it's  27 difficult to know whether someone's stopped using an  28 area because of an effect like extinguishment, such as  29 clear-cutting, or whether in fact they don't use it  30 anymore voluntarily.  31 If you would excuse me for just a moment, my lord.  32 My lord, I would just like to refer you back to Mr.  33 Grant's interjection with respect to the Hagwilnegh  34 territory that we were talking about.  And he said  35 that Allen Fletcher had given testimony or evidence  36 that Pat Joseph had -- pardon me -- Jack Joseph had  37 been trapping in that area.  38 THE COURT:  I don't think he said that.  He said Mr. Fletcher  39 identified a cabin that Jack Joseph had on the  40 territory.  41 MR. WOLF:  Yes.  42 THE COURT:  He may have gone on —  43 MR. GRANT:  Well, he knew Mr. Joseph was an active trapper as  44 well, and he also knew that this cabin belonged to  45 him.  46 THE COURT:  All right.  Where is that reference, where do I find  47 it? 28941  Submissions by Mr. Wolf  1  MR.  GRANT  2  THE  COURT  3  MR.  WOLF:  4  5  6  THE  COURT  7  MR.  WOLF:  8  THE  COURT  9  MR.  WOLF:  10  11  12  13  14  15  16  17  18  THE  COURT  19  MR.  WOLF:  20  21  22  23  24  25  MR.  GRANT  26  27  28  29  30  31  MR.  WOLF:  32  33  34  35  THE  COURT  36  MR.  WOLF:  37  THE  COURT  38  39  MR.  GRANT  40  THE  COURT  41  MR.  WOLF:  42  43  THE  COURT  44  MR.  GRANT  45  46  THE  COURT  47  MR.  WOLF:  :  That's Exhibit 1145-A, my lord.  :  No.  Where is it in the text?  It's at page 79 of our submission, paragraph 2.  I  was just going to refer to Mr. Fletcher's affidavit,  my lord, which is Exhibit 1145.  :  Exhibit 145?  1145.  :  Yes.  And in paragraph 76 of that affidavit Mr. Fletcher  deposed:  "The only Indian trapline I know much about is  Jack Joseph's line.  Jack told me about his  trapline at McDonell Lake in the 1930's, and I  once saw a cabin there that I assumed was his  during one of my packtrain trips to the area."  :  In 1936?  It says 1930's.  So his evidence is that Jack Joseph  had told him about his trapline in the 1930's and that  he had once seen a cabin there when Mr. Fletcher was  travelling on one of his packtrain trips.  And his  cross-examination doesn't add anything, doesn't have  anything else to say about that.  :  Well, I differ with that substantially.  In his  cross-examination he talks much more at length about  Mr. Joseph than he does in that paragraph, and he also  talks about it later than that.  I will get the  reference for you in Exhibit 1145-A, my lord.  There's  more than what Mr. Wolf suggests.  Well, it appears that he said that he was told that  Jack Joseph was trapping there, it's not clear to me  that he actually knew that or saw Jack Joseph trapping  there.  :  Well, I'll hear what Mr. Grant says in reply.  Yes.  :  And if he doesn't remember or doesn't have time, I  have a note.  :  I'll get a page reference.  :  Yes, all right.  Well, part of the reference, at least, my lord, is at  page 48 of his cross-examination.  :  You think there's a second one, Mr. Grant?  :  Yes.  I don't have the cross-examination, my lord,  but I think there is one.  :  All right, thank you.  My lord, that completes my submissions on the 28942  Submissions by Mr. Wolf  1 individual territories.  I didn't review the evidence  2 with respect to every territory with you, but we have  3 done that for each individual territory, and we say  4 that it is necessary to examine the evidence on each  5 individual territory to determine whether the  6 Plaintiffs have aboriginal rights.  7 THE COURT:  How many territories did you say there are?  8 MR. WOLF:  There are approximately 140.  9 THE COURT:  Yes.  10 MR. WOLF:  And I would also like to say, as a final submission,  11 that I've not only been through the site specific  12 territory analysis, I say that the conclusions that we  13 made, or the submissions that we made in our general  14 abandonment section, which I went through with you  15 yesterday, that's Part VII of our submission, that the  16 general evidence is that the Plaintiffs have not  17 trapped actively for at least 30 years is the general  18 evidence, and it's supported by the site specific  19 evidence.  20 THE COURT:  All right.  What time do you want to start — sorry,  21 Mr. Grant.  22 MR. GRANT:  Yes, my lord, I just wondered, I haven't heard  23 anything further from my friend, and it was good that  24 you asked my friend of the scheduling, because I had  25 no idea until yesterday, nor did my colleagues, about  26 the Sparrow argument, which of course isn't in their  27 summary of argument, and if they're not going to give  28 us their written argument until Wednesday, if they  29 have something entirely new to say, we certainly would  30 like to know.  My colleagues and I are working  31 throughout the weekend on this, and we want to be  32 moving, and we're in the last week, as we all know,  33 and I would ask that if my friends aren't going to  34 give the full argument on Sparrow until -- give it  35 until Wednesday morning, or whatever they're doing, if  36 they can give -- at least give us some summary of what  37 that is, because clearly it's different than what  38 they've done on extinguishment.  39 MS. KOENIGSBERG:  I should say that as far as a written summary  40 of what we say the extent of Sparrow is on Section 35,  41 of course it wasn't in our summary, because the  42 Sparrow decision wasn't there yet.  But I understand  43 that my friend, the Plaintiffs have in fact done a  44 further submission on Section 35, which is on a disk  45 that is not part of their written argument.  The  46 written argument that I have copies of is quite brief,  47 and I believe Miss Mandell gave oral submissions on 28943  Submissions by Mr. Wolf  1 that.  We were late getting disks.  In fact, I'm not  2 certain that we have received the disks from the  3 Plaintiffs.  There was some difficulty in their  4 getting them to us, and I haven't had an opportunity  5 to look for that and get a printout of it so that I'm  6 sure that we are in fact responding.  We're going to  7 actually perhaps meet on an issue, and so that I would  8 otherwise have anticipated having something written  9 and given to my friend by Monday, but that really  10 depends on if what I find when I find it varies quite  11 a bit with what I'm presently anticipating.  12 THE COURT:  Well, I'm not sure the usual rules of reply can be  13 expected to be followed with respect to the authority  14 that's published after the -- well after the  15 commencement of argument, and I'm not sure that it is  16 necessary that submissions on a fresh authority of  17 that kind can be confined within the usual limit of  18 reply anyways, so I think you're going to make  19 whatever submissions by way of reply or de nouveau as  2 0 they may be advised.  Anything that can be done to  21 give notice is very much to be desired.  I'm not sure  22 that it's quite in the same category as ordinarily the  23 responsive submissions that are generally expected,  24 and there's no order I can make at this time.  I'm  25 sure that this case brings upon you, Mr. Grant, at the  26 earliest possible that you can, of anything of a new  27 and inovative nature that you might extract out of  28 recent jurisprudence.  29 MS. KOENIGSBERG:  Yes.  I should say that our submissions are  30 confined to our best interpretation of the Sparrow  31 decision on that issue.  32 THE COURT:  All right.  Do you have any idea — well, firstly,  33 what time do you want to start on Monday?  34 MS. KOENIGSBERG:  Ten o'clock, my lord.  35 THE COURT:  And you expect to finish still either Tuesday or  36 early Wednesday?  37 MS. KOENIGSBERG:  Yes.  38 THE COURT:  All right.  And do you expect you're going to sit  39 evenings or anything like that, Mr. Grant?  4 0 MR. GRANT  41 THE COURT  42 MR. GRANT  Next week?  Yes.  No.  Our plan is not to sit evenings next week, but  43 we're still working out whether we would start  44 immediately after my friend.  45 THE COURT:  Yes.  I'm leaving that entirely with you.  You start  46 when they finish or start the next day, as you wish.  4 7    MR. GRANT:  Yes. 28944  Submissions by Mr. Wolf  1 THE COURT:  It's a dreadful time of the year for extra-judicial  2 or judicial activities, and next week is not as bad as  3 the one I just finished, or finish later this evening,  4 but I have a couple of evening functions that I have  5 been very tentative about.  You don't think we'll  6 argue in the evening?  7 MR. GRANT:  No.  Our objective is not to ask you to sit  8 evenings.  It may be that we hope not even to sit  9 over, but it may be just to sit to 5:00 one day, if  10 that's possible.  11 THE COURT:  That's convenient to me.  12 MR. GRANT:  We'll discuss that over the weekend, and Mr. Rush  13 and myself will advise you.  14 THE COURT:  All right.  I wish you all a very pleasant weekend,  15 last weekend.  Thank you.  16 THE REGISTRAR:  Order in court.  Court stands adjourned until  17 ten o'clock Monday morning.  18  19 (PROCEEDINGS ADJOURNED)  20  21 I hereby certify the foregoing to be  22 a true and accurate transcript of the  23 proceedings herein transcribed to the  24 best of my skill and ability  25  26  27  28  29 Graham D. Parker  30 Official Reporter  31 United Reporting Service Ltd.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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