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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-09] British Columbia. Supreme Court Jun 9, 1990

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 2801?  Submissions by Mr. Willms  1 JUNE 9, 1990  2 VANCOUVER, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 9th day of June, 1990.  Delgamuukw  6 versus Her Majesty The Queen at bar, my lord.  7 THE COURT:  Mr. Willms.  8 MR. GRANT:  Before my friend starts, my lord, I may have misled  9 my friend when I said at the very end of yesterday  10 that regarding the Robinson report the whole -- it  11 says the whole thing could not go in.  What I meant  12 was that it had been agreed at the time that certain  13 chapters of that dissertation we were not opposed to  14 going in or certain sections.  Our difference is that  15 my friend wants everything in, and we say only those  16 sections referred to should go in.  So I just didn't  17 want to mislead my friend.  18 THE COURT:  All right.  19 MR. WILLMS:  My lord, the next tab in the blue book is tab 2.  20 If your lordship could have volume 4 of the  21 plaintiffs' argument.  As with the last instance, you  22 will see the only difference here, my lord, is that  23 there is a second tab in volume 4.  There is a tab 2  24 in the plaintiffs' argument, not in the blue book, my  25 lord, but in the plaintiffs' argument in volume 4  26 there is a tab 2.  2 7 THE COURT:  Yes.  28 MR. GRANT:  And this should — after that tab 2 in the  29 plaintiffs' argument the heading should be "Nature of  30 the Gitksan and Wet'suwet'en Organized Societies at  31 Contact".  32 THE COURT:  Plaintiffs' volume 4?  33 MR. WILLMS:  Plaintiffs' volume 4, tab 2.  34 THE COURT:  Yes.  All right.  35 MR. WILLMS:  Now, what I would like to do is once again I am not  36 going to go through all of them.  I will just go  37 through a number of them.  38 What I have done on the first page is on the very  39 first page of tab 2 at the bottom in volume 4 of the  40 plaintiffs' argument they start quoting extracts from  41 Harmon, and they quote over the next couple of pages a  42 number of extracts from Harmon.  And I have added  43 other extracts from Harmon which I say relate to the  44 argument that the plaintiffs make which follows.  45 And so, for example, my lord, on page 1 of the  46 blue book, the very first paragraph I point out that  47 on June 16th, 1811 Harmon reports something that the 28019  Submissions by Mr. Willms  1 Babine people have told him.  2  3 "But they (Babine) say there are numerous Tribe  4 who are scattered over a large tract of country  5 almost west of this, and that it is not more  6 than eight or ten days march to their first  7 village."  8  9 Not canoe, my lord, but march.  10  11 "They also inform us of a large river that  12 passes through their country, and no great  13 distance from there disembogues (discharges)  14 into the Pacific Ocean.  They likewise say that  15 every Autumn a number of white people come up  16 that river in barges to traffic with the  17 Indians who live along its banks but I could  18 not learn from them of what nation those white  19 people belong."  20  21 So this is in 1811 that Harmon notes that.  And on  22 the next page Harmon actually goes, and I mean on the  23 next page of this annotation at the top you will see  24 in the very first paragraph Harmon on January 20th,  25 1812 was at Babine Lake and said:  26  27 "The day following we proceeded further on and  28 during our jaunt saw four others of their  29 villages and at all of which we were well  30 received for at the second we found the two  31 Indians who last summer came to our Fort  32 therefore they were not much surprised to see  33 us among them, for I had promised the two that  34 I would in the course of this winter pay them a  35 visit to see their country, et cetera and they  36 now gave us some account of the white people  37 who came up the large river as they had done  38 before when at the fort last summer and to  39 convince us of what they had said was true they  40 showed us many articles, which they barter from  41 their neighbours the Atenas who purchase them  42 directly from the white people which were guns,  43 cloth, blankets, axes and cast iron pots, et  44 cetera."  45  46 And the point there, my lord, is this is ten years  47 before Brown gets to Babine Lake, and this is what 28020  Submissions by Mr. Willms  1 Harmon notes at Babine Lake.  2 Now, at the bottom of this page, my lord, Harmon  3 says about the Carriers:  4  5 "Their language is very similar to that of the  6 Chipewyans, and has a great affinity to the  7 tongues, spoken by the Beaver Indians and the  8 Sicaunies.  Between all the different villages  9 of the Carriers, there prevails a difference of  10 dialect, to such an extent, that they often  11 give different names to the most common  12 utensils.  Every village has its particular  13 name, and its inhabitants are called after the  14 name of the village, in the same manner as  15 people in the civilized world receive a name,  16 from the city or country which they inhabit  17 ..."  18  19 The point there, my lord, is back to Kobrinsky and  20 Morice and Septs (?) and the villages that we  21 mentioned.  And the top of the next page, my lord,  22 just refers to what they prefer to wear.  23 Now, the next extract I would like to draw your  24 lordship's attention to is at page 4 of the blue book.  25 And it's another reference to Harmon.  And this is  26 Harmon talking about the Carriers in general.  27  28 "The Carriers have little that can be  29 denominated civil government, in the regulation  30 of their concerns.  There are some persons  31 among them, who are called Mi-u-ties or Chiefs,  32 and for whom they appear to have a little more  33 respect than for the others; but these chiefs  34 have not much authority or influence over the  35 rest of the community.  Anyone is dubbed a  36 Mi-u-ties who is able and willing occasionally,  37 to provide a feast, for the people of this  38 village.  An Indian, however, who has killed  39 another, or been guilty of some other bad  40 action, finds the house or tent of the chief as  41 safe retreat, so long as he is allowed to  42 remain.  But as soon as he leaves it, the Chief  43 can afford the criminal no more protection,  44 than any other person of the village can,  45 unless he lets him have one of his garments.  46 This garment of the chief, will protect a  47 malefactor from harm, while he wears it; for no 28021  Submissions by Mr. Willms  1 person will attack him, while clothed with his  2 safeguard, sooner than he would attack the  3 chief himself; and if he should, the chief  4 would revenge the insults in the same manner as  5 if it were offered directly to himself.  The  6 revenge which the chief, in this case, would  7 take, would be to destroy the life of the  8 offending person or that of some of his near  9 relation, or the life of one of the same tribe,  10 if he should happen to be a stranger."  11  12 And that note, my lord, at a very early occasion,  13 you might recall comes up again in Brown and other  14 people in the area.  15 But the next reference is at page -- if your  16 lordship could turn to page 18 of the blue book.  And  17 at the same time turn to page 13 of the plaintiffs'  18 argument.  19 MR. GRANT:  Just so I am clear.  I understood yesterday that the  20 blue book wouldn't include, and in this case it's Mr.  21 Adams' submissions, it wouldn't be the entire  22 submission but extracts from the transcript, is that  23 right, but not sequentially, not the whole thing.  24 MR. WILLMS:  No, I haven't put in Mr. Adams' whole submission.  25 I tried to put in the submissions --  2 6    THE COURT:  To which you wish to reply.  27 MR. WILLMS:  To which I wish to reply here, and to draw your  28 lordship's attention to where Mr. Adams is making the  29 submission as he is going through the book.  30 MR. GRANT:  Okay.  31 MR. WILLMS:  And so it does two things at the same time.  You  32 see whether Mr. Adams resiles from any of the  33 propositions or supplements them.  34 But here I point out that at the bottom of the  35 page, my lord, of page 13, the plaintiffs start a  36 quote from Exhibit 964-12.  After the word  37 "followers", the document carries on to say, and this  38 is what I note on page 18 of the blue book, goes on to  39 say:  40  41 "With a number of others belonging to the clans.  42 The whole amounts to 24 families.  Casepin is  43 now in his prime and would be a tolerable good  44 hunter if he was not of such an indolent and  45 lazy disposition."  46  47 And then picking up again, the plaintiffs then 28022  Submissions by Mr. Willms  1 quote the beginning of another sentence in their  2 argument.  They start off with "his followers are  3 few", and then there is three dots after tribe.  But  4 after tribe the exhibit continues:  5  6 "And over these he has but little control which  7 is as well for if he had more influence he  8 would be both more troublesome and expense."  9  10 And then I note another part, my lord.  The quote  11 carries on over to the next page of the plaintiffs'  12 argument, over to page 14 of the plaintiffs' argument,  13 my lord, at the very top, and they refer to a chief  14 called Houchete tah kie as a chief who was an inferior  15 chief with no independent band of his own.  16 Well, the other reference in Brown that is  17 important is that this chiefs:  18  19 "... lands are very extensive, and are the best  20 stocked with beaver of any in the vicinity of  21 the lake.  Of which he is particularly careful  22 in neither killing too many ...",  23  24 And that should be T-O-0 many, not T-W-O.  25  26 "... himself, nor allowing any other to do so.  27 He generally gives into the fort from 20 to 30  28 skins in the course of the season."  29  30 So that my submission, my lord, when you add what  31 is left out of the quote, you can see that an inferior  32 chief with no tribe has the best lands (Houchete tah  33 kie), another chief has little control over his  34 "followers", that's Casepin, and another chief appears  35 to have influence over his village and others (Ack Koo  36 Shaw).  37 And what I say from that is that none of those  38 facts fit within the plaintiffs' claim of house  39 territories.  You have got someone whose got large  40 territories, but apparently no house.  He's got no  41 tribe, but he's got extensive territories.  You have  42 got another one who is acknowledged to be a chief who  43 has no control over his followers, and a third chief  44 who not only has influence in his own village, but  45 influence outside, which is reminescent of people like  46 Legaix from the coast, the super chiefs, the people  47 who had influence outside their own village. 28023  Submissions by Mr. Willms  1 The next extract I would ask your lordship to turn  2 to is at page 28 of the blue book.  And the reference  3 is to page 20 of the plaintiffs' argument.  And on  4 page 20, my lord, in the first sentence of the very  5 first paragraph the plaintiffs say on at least two  6 occasions Brown speaks of trading beaver coating with  7 the Gitksan.  So with respect to that comment I point  8 out on page 28 beside paragraph 3 that it's misleading  9 to say 'on at least two occasions' Brown speaks of  10 trading beaver coating with the Gitksan.  Exhibit  11 964-12, which was his trip down the Babine River --  12 sorry, 964-12 is his 1826 report.  It includes a  13 summary of his voyage, which is set out at 964-14.  So  14 what has happened here is Brown has summarized in his  15 report what happened on his voyage.  It shows up in  16 two documents authored by Brown, but it was only one  17 occasion, not two occasions.  18 My friend is quite right.  And if all my friend  19 meant to say that on at least two occasions Brown  20 spoke of trading beavers, but he only traded it on one  21 occasion.  Now, that doesn't leap out from the  22 argument, my lord.  The argument seems to suggest that  23 there were two instances of trading with the Gitksan.  24 Then the plaintiffs carry on there and say this on  25 page 20:  26  27 "While on another occasion he has spoken of as  28 having procured a small quantity of beaver from  29 the Gitksan, all of which suggests ...",  30  31 And then they carry on.  Well, the reference  32 there, my lord, is a reference to the new -- and I  33 point this out in paragraph 4 on page 28.  I say it's  34 even more misleading to say that on another occasion  35 he had spoken of having a small quantity of beaver  36 from the Gitksan.  This is taken from the New  37 Caledonia district report of 1826, Exhibit 964-4, page  38 143, which is again a reference to Brown's trip  39 initially described at 964-14.  40 So what's happened here is the plaintiffs have  41 turned one instance of two pounds of beaver coating  42 into three separate, in my submission, three separate  43 instances of trading.  There was only one, not three.  44 The next reference is at page 29 of the blue book,  45 and it's another reference again to page 20.  The  46 plaintiffs say on page 20 of their argument that there  47 was also evidence put to Professor Ray on 28024  Submissions by Mr. Willms  1 re-examination of the Gitksan feasting on beaver, as  2 if -- and this was to go to the point of whether the  3 Gitksan at the time of Brown ate beaver.  And so my  4 friends in their argument, they suggest, well, it's in  5 the re-examination of Professor Ray.  When you look to  6 the re-examination of Professor Ray, the reference is  7 to Downie, 1859.  And that's the point at the bottom  8 of page 299.  It's not a reference to anything that's  9 happening at the time of Brown, it's over 30 years  10 after Brown that is put to Professor Ray in  11 re-examination.  12 THE COURT:  Where is Kittcoonra?  13 MR. WILLMS:  Kittcoorna, I think is —  14 THE COURT:  K-I-T-T-C-O-O-N-R-A.  15 MR. WILLMS:  I think that is Kitwangar.  I think it's Kitwangar.  16 Now, the next reference is to page 39.  17 THE COURT:  Of the summary?  18 MR. WILLMS:  Of the summary.  And page 32 of the argument.  Page  19 39 of the summary, page 32 of the argument.  20 Here the plaintiffs are making a submission about  21 regional trade in feasting.  They quote from Professor  22 Ray at the bottom of the page, and then they stop the  23 quote at the word "peripheries".  Really there should  24 be three dots after the word "peripheries".  Because  25 what Professor Ray then said after that was he said:  26  27 "Of even greater importance, it was an economy  28 in which the Gitksan held the whip hand because  29 of their superior strategic position."  30  31 He was referring to the Atna practise of barring  32 the river to prevent fish from ascending to Babine  33 Lake.  34 When you read the plaintiffs' argument on this  35 point, it looks like there is sort of an equal  36 exchange relationship going on.  That's not the tenor  37 of what Professor Ray was trying to suggest in his  38 evidence, and that is pretty clear from this deletion.  39 The next point is at page 51 of the blue book, and  40 page 44 of the argument.  What I point out here, my  41 lord, is that the quote on page 44 from Exhibit 964-12  42 ends with the word "provisions".  When you read on,  43 you see that Brown then says:  44  45 "To manage the business of this place to  46 advantage it would require from three to four  47 hundred skins yearly and at least three-fourths 28025  Submissions by Mr. Willms  1 of these of the best quality."  2  3 That's leather, my lord.  4  5 "With such a supply little else would be  6 necessary:  except guns, traps, ice chisels -  7 beaver nets and ammunition - while good returns  8 might be relied upon."  9  10 And I say this is important because it was the  11 European fur trade that brought the leather to the  12 Atnah's and the Carriers.  It was not prehistoric  13 native trade.  When the plaintiffs say at lines 23-24,  14 and I'll turn to that in a minute, that's a reference  15 to the oral argument, that "it's not the European fur  16 trade which is driving these economies and these  17 societies", they ignore the fact that leather brought  18 in by or from Europeans, was not used primarily for  19 subsistence but was used primarily in the potlatches.  20 So if you read down below, my lord, you will see  21 starting at line 21 at the bottom of page 51, this is  22 from Mr. Adams, he is making this submission:  23  24 "And again, my lord, say on this evidence, that  25 there is every indication from this material  26 that it's not the European fur trade which is  27 driving these economies in these societies."  28  29 What my friends were pointing to there was the  30 fact that they said it was really leather that the  31 people wanted, and not European goods.  But I say it  32 doesn't matter, because it was the fur trade that  33 brought leather to the people.  It wasn't any native  34 trading network.  It was the Hudson's Bay Company from  35 the interior, the coastal traders from the coast who  36 brought the leather.  So when I say European fur  37 trade, my lord, I don't limit fur trade to trade in  38 European items.  I include the leather apparently the  39 people of the claim area were desperate to have.  40 THE COURT:  So you say this three to four hundred skins refers  41 to skins to leather, not fur skins?  42 MR. WILLMS:  That's the leather — they were bringing in the  43 leather to trade for the furs, and there is evidence  44 that some of the leather came from as far way as down  45 the coast from Oregon and up the coast and then some  4 6 came over land.  47 The next point, my lord, is at page 59.  The 28026  Submissions by Mr. Willms  1 reference in the plaintiffs' argument is to page 50.  2 In the plaintiffs' argument they say on page 50 that  3 the plaintiff argues in its summary quoting Dr.  4 Robinson that the fur trade seems to have spurred to  5 Gitksan occupation of the middle Nass and especially  6 the Upper Nass and Upper Skeena.  Then they carry on  7 with a second quote.  What I point out on page 59  8 towards the bottom, my lord, is that although the  9 second part of the quote, that is the part that says  10 where the resources is close at hand, that is Dr.  11 Robinson, the first part of the quote is not Dr.  12 Robinson, it's Dr. Rigsby that's being quoted.  So my  13 friends suggest here that this is what Dr. Robinson  14 said.  In fact it's what Dr. Rigsby said.  15 My lord, then you will see that this ends with  16 section -- page 65, and then you start after page 65  17 with April 23rd, again another reference to the  18 transcript that I am taking extracts from.  19 THE COURT:  All those submissions up from the start of your tab  20 2 are from April 20th?  21 MR. WILLMS:  Are all from April 20th, yes, and then it switches  22 to April 23rd.  My lord, the first number of extracts  23 that I was going to draw to your lordship's attention  24 to here tie-in with my submission on Dr. Robinson, and  25 I don't want to make it if my friend isn't ready to  26 deal with it today, and I don't -- maybe my friend  27 could -- whether he's had a thought about it overnight  28 and whether he wants to deal with it.  If he wants to  29 deal with it today, I will do these next series, if he  30 doesn't, I'll save them.  31 MR. GRANT:  I advised my friends yesterday it wasn't possible.  32 MR. WILLMS:  All right.  33 MR. GRANT:  So I'm not ready to proceed to make my argument on  34 Dr. Robinson today.  35 MR. WILLMS:  Now, the first number of extracts that I wanted to  36 direct your lordship's attention to relate to my  37 friends submissions about Dr. Robinson, and I am going  38 to save those until my friend is ready to proceed.  39 But I would ask your lordship to turn to page 15 on  40 the second part of the blue book.  At the bottom of  41 the page I refer to page 66 of the plaintiffs'  42 argument.  And on page 66 of the plaintiffs' argument  43 the plaintiffs suggest that the -- they make an  44 argument about the value of marten versus the value of  45 beaver, and refer to Dr. Ray's point that if the value  46 is the important thing or one of the important things,  47 why wasn't exactly the same thing applied to marten, 28027  Submissions by Mr. Willms  1 river otter, muscrat and lynx.  Those furs actually  2 had a higher relative value than beaver.  That's the  3 quote that my friends put in.  What they don't refer  4 to at this point is that Dr. Ray gave evidence, and I  5 don't have the cite on page 66, but I did refer to it  6 in my argument, my lord, but Dr. Ray gave evidence  7 that marten had a three pelts equals one made beaver  8 value.  So with respect to marten, at least you have  9 got a bit of an inconsistency in what Dr. Ray said.  10 But Dr. Ray said earlier on in his evidence that you  11 have three marten pelts to one made beaver.  Dr. Ray,  12 I point out, did not refer to any territoriality  13 associated with marten.  He said there was none.  14 And then here we -- I would like to read the  15 exchange between myself and Mr. Adams.  I said -- I  16 asked my friend if he could give me a reference to  17 where Dr. Ray said there was any territoriality about  18 marten.  I said I didn't recall that from any of Dr.  19 Ray's evidence.  Mr. Adams says at the bottom of the  20 page:  21  22 "I will pursue it and supply it if I can, to  23 suit my friends."  24  25 I note over at the top of the next page that no  26 such reference was ever provided by Mr. Adams.  I say  27 that because the only territoriality noted in the  28 early records was with respect to beaver.  29 The last extract from this tab that I would like  30 to draw to your lordship's attention is at page 41.  31 The reference to 86 and on, my lord, is a reference  32 that from page 86 and on, and you don't need to turn  33 to it, but from that page to the end of this part of  34 the plaintiffs' argument they dealt with a lengthy  35 discussion of Drs. Dyen and Aberle.  I point out here  36 that the published writers that have considered Dyen  37 and Aberle's work have not come to the conclusions  38 that the plaintiffs' witnesses have come to.  39 Dr. Bishop considered Dyen and Aberle twice, and  40 it didn't effect his opinions.  Dr. Kobrinsky  41 considered and rejected Dyen and Aberle even with  42 respect to matrilineality.  Dr. Toby commented on Dyen  43 and Aberle's matrilineality, but said it didn't effect  44 the discussion of borrowing of the potlatch rank  45 complex.  Dr. Robinson said that the borrowing of the  46 potlatch rank complex is acknowledged by Drs. Dyen and  47 Aberle, and that they only speak to matrilineality. 2802?  Submissions by Mr. Willms  1 Dr. Ives considered the work of Drs. Dyen and Aberle,  2 and did not consider it relevant, other than to  3 matrilineality.  I say when it is independently  4 tested, Dr. Robinson's theory stands up better than  5 the plaintiffs on what Dyen and Aberle mean.  6 Now, the next section, my lord, is --  7 MR. GRANT:  My friend indicated that there was a part he didn't  8 want to refer to now.  I think as long as my friend is  9 clear that the issue I understand that I was not  10 prepared to deal with is what is in Part 4, that is  11 the admissibility of the dissertation of Dr. Robinson.  12 I understand -- my friend may have other comments  13 about how Dr. Robinson -- but he may need that for  14 that point.  I just want him to be clear as to what I  15 cannot deal with --  16 MR. WILLMS:  Well, yes, the point on Dr. Robinson is that my  17 friends attack on Dr. Robinson's credibility, and his  18 attack on Dr. Robinson's research only has merit if  19 her dissertation is excluded.  In other words, if the  20 dissertation is not in evidence, then my friend can  21 make the arguments that he makes.  If the dissertation  22 is in, the dissertation refutes each and every one of  23 the plaintiffs' arguments on the credibility of Dr.  24 Robinson and on the extent of her research.  25 Now, that's why I skipped over the points here  26 that I dealt with, my lord, where my friend -- it is  27 in this part of my friends' argument that they attack  28 Dr. Robinson, and my friend did that in  29 cross-examination as well, and it's the dissertation  30 that deals with that.  And that's what I am saving.  31 The credibility aspect of Dr. Robinson, the allegation  32 that she didn't do detailed research.  33 Now, I would then ask your lordship to turn to tab  34 3 and have volume 8 of the plaintiffs' argument.  In  35 volume 8 at tab 2, my lord, volume 8 of the  36 plaintiffs' argument in the black book at tab 2, you  37 should see an argument entitled "establishment  38 acceptance or use of reserves as surrender, cession of  39 purchase".  That is what this replies to at tab 3.  40 So if you turn the page.  I have done this one  41 somewhat differently, my lord.  You will see at the  42 top of the first page I have page references in the  43 left-hand column.  Ill to 148.  Those are at tab 2.  44 And what I say is that the plaintiffs in their  45 argument, pages 111 to 148, discuss the laying out of  46 reserves in the claim area in the period 1871 to 1898.  47 Rather than deal with the plaintiffs' submissions page 28029  Submissions by Mr. Willms  1 by page, this annotation at this part will deal with  2 the section.  Most of the documents which are referred  3 to in the following pages are also referred to in the  4 plaintiffs' argument.  Here they are dealt with in  5 chronological order, and the extracts are not taken  6 out of context or selectively quoted as they are in  7 the plaintiffs' argument.  When the documents are  8 considered in their totality, it is our submission  9 they support the allegations in paragraph 34 of the  10 Statement of Defence.  11 What I have done then, my lord, from here on, is  12 given you the exhibit number of the exhibit that I am  13 going to quote from, and I have tried to avoid three  14 dots in all of this as much as possible.  15 So for the first document, for example, is the  16 letter from Dewdney to Pearse talking about what  17 Dewdney did at Hazelton.  18 And over to the second page of the blue book you  19 will see a reference to the notice.  And when it's  2 0 indented and quoted, my lord, it's from the document.  21 When it goes out to the margin those are my comments.  22 So when you go out to the margin you will see "there  23 is a notice attached to the letter which reads as  24 follows:"  That's my comment.  Then it quotes from the  25 notice.  And then I say my comment again, I say there  26 is a map attached to the letter which is entitled  27 "sketch showing Indian reserve at the Aguilgate and  28 proposed townsite".  On the last page of the document,  29 which is dated September 1871, Pearse says, and then I  30 quote from what the documents say again.  31 And the point, for example, of this document in  32 respect of the plaintiffs' argument is at page 3.  And  33 what I try to do, my lord, is at the end of each  34 document make some comment that would relate it to the  35 plaintiffs' argument.  This is an important document  36 to review in full.  But when the document in full is  37 reviewed, I say it at page 3 of the blue book, that  38 the plaintiffs' counsel asked during the course of  39 argument where he could find the evidence which shows  40 that Dewdney laid out an Indian Reserve at Hazelton in  41 1871.  This is the document that shows it.  There is a  42 map, there is a note, and there is a discussion of it,  43 and there is also a discussion of Lieutenant-Governor  44 Musgrave's comments on the authority that Dewdney had  45 to do what he did.  46 THE COURT:  I think the plaintiffs' point was that it wasn't  47 formalized and completed, gazetted -- 28030  Submissions by Mr. Willms  1 MR. WILLMS:  Well, it wasn't surveyed.  That is clear.  The  2 townsite was surveyed, but the reserve wasn't  3 surveyed.  But, my lord, the whole process of the  4 reserves was that, for example, when O'Reilly came  5 through, O'Reilly laid out the reserves and then a  6 surveyor came through later to survey it.  And it's a  7 two-stage process for the reserves.  You have the  8 laying out and then a subsequent survey.  9 MR. GRANT:  And O'Reilly laid out this — the reserve in 1991 in  10 this area --.  11 MR. WILLMS:  Well, that's next year —  12 MR. GRANT:  I said 1891.  13 MR. WILLMS:  Perhaps to go to another example, if you could turn  14 to page 8 of the blue book.  I point out here -- this  15 is Exhibit 1035-54, report of Charles W. Clifford of  16 the Hudson's Bay Company in 1890.  This is before  17 O'Reilly comes up.  And he has a sketch plan of the  18 Hazelton post in his report, which shows an Indian  19 village to the north of the property claimed by the  20 CMS, the missionaries.  But he also says in his  21 report, he says:  22  23 "In 1870 or 1871 the flat was laid off by the  24 Government as a townsite but no lots were sold.  25 A few occupants paid ground rents for a short  2 6 time but when the Omineca mining excitement  27 passed away the place was almost deserted and  28 all landmarks lost and forgotten."  29  30 I just pause there -- well, I'll read the next  31 extract, because I have summarized it at the bottom.  32 If you skip the next paragraph, Clifford then says:  33  34 "It has been proposed that the flat should be  35 made part of the Indian Reserve."  36  37 Are you with me, my lord?  3 8    THE COURT:  Yes.  39 MR. WILLMS:  So the point that I make at the bottom of this  40 document, is that if there were no Indian reserve, as  41 the plaintiffs allege, Clifford would have said an  42 Indian reserve, not the Indian reserve.  He clearly  43 knew there was an Indian reserve there.  And the  44 notice posted by Dewdney in 1971, he referred to  45 ground rent that would have to be paid by pre-emptors.  46 And as Clifford notes here, ground rent was paid for  47 awhile, but then people stopped paying the ground rent 28031  Submissions by Mr. Willms  1 under the pre-emption.  So the point I make, my lord,  2 here is that 20 years later his acknowledgement that  3 land was pre-empted, because the ground rent was paid,  4 but the pre-emptions were never carried through.  5 That was another point, I think, that my friends  6 made about -- they said that the land was never  7 pre-empted.  Well, there is a difference between  8 carrying a pre-emption through to getting a Crown  9 grant and starting out on the pre-emption.  And as  10 Dewdney pointed out in his notice, in order to start  11 the pre-emption process, you pay the ground rent for a  12 period of time before you are entitled to the grant.  13 That happened, but people never entitled themselves to  14 the grant.  15 The next document, my lord, which is not a  16 document that my friends refer to in their argument,  17 is O'Reilly's letter of instructions.  And it says --  18 gives the exhibit number, my lord.  And the part of  19 the instructions that are important for these purposes  20 are at the bottom of page 9 where O'Reilly was  21 instructed that:  22  23 "... in allotting reserve lands to each band you  24 should be guided generally by the spirit of the  25 Terms of Union between the Dominion and local  26 governments which contemplated a 'liberal  27 policy' being pursued towards the Indians.  You  28 should have special regard to the habits, wants  29 and pursuits of the band, to the amount of  30 territory in the country frequented by it, as  31 well as to the claims of the white settlers (if  32 any)."  33  34 And I will come back to that in a moment.  But I  35 say at the bottom, and once again this is my comment,  36 because it's not indented at the bottom.  I say that  37 it is clear from the provincial Order in Council and  38 from the instructions to O'Reilly that he was to carry  39 out the policy commenced by Douglas before Union.  40 That policy, in contradistinction to the the U.S.  41 policy, was to leave the Indians in possession of  42 their villages rather than to remove them and to allow  43 the Indians to hunt, fish and carry on their  44 activities over unoccupied Crown land, rather than to  45 confine them to the reserves.  As was made evident in  46 the meetings with the Indians described in the  47 documents which follow, the reserve process clearly 28032  Submissions by Mr. Willms  1 contemplated settlement and alienation after reserves  2 had been laid out.  However, to the extent that lands  3 were not settled or alienated, there was to be as  4 little interference with the aboriginal lifestyle as  5 possible.  6 I say at the top of page 11, my lord, this  7 prospect was well-known by each of the bands whom  8 O'Reilly visited.  In light of O'Reilly's instructions  9 and the statements in the meetings, no band could have  10 been under the misapprehension that all the land was  11 theirs, after the reserve had been laid out.  12 The arguments advanced by the plaintiffs to this  13 effect can only be based on ethnocentric  14 characterizations of the ability of the bands visited  15 by O'Reilly to understand exactly what was taking  16 place in the reserve process.  Throughout the  17 plaintiffs' argument respecting the laying out of  18 reserves, this ethnocentric approach to the  19 understanding of the Indians during O'Reilly's  20 meetings underlies, and I say is necessary to their  21 submissions especially when you read the back and  22 forth that takes place.  23 And so what you can see following, and I am not  24 going to go through them, my lord, but following this  25 I have tried, whenever there was a meeting, to put the  26 whole extract in of what happened between the  27 commissioner and the band that he was meeting with.  28 THE COURT: I don't understand that second paragraph.  29 MR. WILLMS:  The second paragraph, my lord, is an argument that  30 my friends make from time to time that on the one hand  31 the -- there is some sort of thinking going on in  32 looking at the historical record that the native  33 population couldn't speak for themselves, they didn't  34 understand what was going on.  My friends refer time  35 and time again to what they have called the racist  36 theory of viewing the dealings between the aboriginees  37 and the white people.  What I say is that when they  38 ask your lordship to interpret every single one of  39 these documents as if the Indians didn't understand  40 what was happening, they are falling into exactly the  41 same trap that they have warned this court about and  42 us about time and time again throughout their  43 argument.  They are making the suggestion that when an  44 aboriginal person is quoted, that you have to take  45 from that that he probably didn't know what he was  46 saying, he probably didn't understand the process, he  47 was confused.  You have got to give him every break, 28033  Submissions by Mr. Willms  1 construe every ambiguity, even in conversations in his  2 favour.  What I say, my lord, is that argument is  3 ethnocentric.  It's also completely contrary to the  4 evidence that the plaintiffs led which I say shows  5 that the plaintiffs' ancestors clearly understood what  6 was going on at all times in the claim area.  There  7 were no misapprehensions.  8 THE COURT:  So you're saying, really, just give the Indians'  9 pronouncements the literal meaning.  10 MR. WILLIAMS: Literal meaning, my lord.  11 Now, as I said, my lord, what I have tried to do,  12 and I won't go through it, but in the next several  13 pages set out the back and forth when O'Reilly had  14 minutes.  But I would ask your lordship to turn to  15 page 28.  And this is one occasion when I would ask  16 your lordship also to turn to page 118 of the  17 plaintiffs' argument.  This lends, my lord, support to  18 my suggestion that you have got to read all of the  19 documents, and that you can't take selective quotes as  20 the plaintiffs have done.  21 What the plaintiffs say on page 118 in the second  22 full paragraph:  23  24 "Finally writing on July 18, 1892 O'Reilly  25 observed with respect to the establishment of a  26 reserve at Hazelton in 1891 there was a very  27 considerable complication in regard to the  28 townsite of Hazelton portions of which the  29 Indians had fenced and cultivated."  30  31 They put that in a section in a submission to try  32 to show that there were a lot of problems that  33 O'Reilly had in the reserve process.  34 Now, when you look at the document, and I start  35 the document at page 28, this is the document that my  36 friends refer to, the whole paragraph is on the next  37 page.  And it's the second full paragraph beginning:  38  39 "my reception ..."  40  41 "My reception by the Chief, 'Tet mol doc', and  42 the members of his band was most cordial; I had  43 several meetings with them; they expressed the  44 utmost satisfaction at the prospects of having  45 their lands defined; they were reasonable in  4 6 their demands, and though there was a very  47 serious complication in regard to the townsite 28034  Submissions by Mr. Willms  1 of Hazelton, portions of which they had fenced  2 and cultivated, I was fortunately able to  3 satisfy them both as to cultivable land and  4 timber."  5  6 Then when you read the whole document, you can see  7 that it was but a very, very minor difficulty, yet  8 that is the part that the plaintiffs pull out and put  9 in their argument, leaving the balance of the document  10 which describes the -- what O'Reilly did, and the  11 reception that he had as being most favourable.  And  12 when you review the minutes of the meeting, my lord,  13 it's quite clear that O'Reilly had no difficulties at  14 all at Hazelton.  15 The next point, my lord, goes to something that my  16 friend, I think it was Mr. Grant asked me, where is  17 the evidence of pre-emptions; that O'Reilly knew about  18 pre-emptions in the reserve process.  And if you go to  19 page 31 of the blue book, there is a reference to  20 Exhibit 997-12, a letter from O'Reilly to the  21 Superintendent of Indian Affairs.  And Here O'Reilly  22 is writing about what happened at Kitwanga when he was  23 at Kitwanga the year before.  On the next page, on  24 page 32 he says this in respect of the claim of the  25 people at Kitwanga:  26  27 "This stretch of country, thirty-five miles,  28 included the pre-emption claims of two  29 settlers, and I told them I had no power to  30 give it to them."  31  32 Now, that I just draw to your lordship's attention  33 and my friend's attention because he asked where is  34 the evidence of pre-emptions at the time of O'Reilly.  35 So not only do we have the pre-emptions at Hazelton,  36 but in the land claimed by the Kitwanga people for a  37 reserve, O'Reilly knew of two pre-emptions which  38 prevented him to the knowledge of the Indians from  39 laying that reserve out.  40 THE COURT:  What do you take that to mean, "I told them", the  41 pre-emptor's or the Indians?  42 MR. WILLMS:  The Indians.  You see, he had no power to gift the  43 land to the Indians because of the two pre-emptions.  44 The next -- if you turn to page 40 of the blue  45 book, my lord, I refer to -- at the bottom of the page  46 a letter from Loring to Vowell of August 3, 1896.  And  47 on the next page -- I quote the whole letter, or I 28035  Submissions by Mr. Willms  1 quote a considerable part of the letter, and then say  2 at the bottom of page 41:  The plaintiffs, in their  3 argument, incorrectly date this document as 1898  4 instead of 1896.  And it's page 145 where they  5 incorrectly date it.  And then they make a submission  6 about -- they say O'Reilly didn't care about the  7 wishes of the Indians, he just wanted to know what  8 Loring thought.  And I say that the only reason why  9 Loring was asked to investigate the reserve issue at  10 Kispiox was because O'Reilly, in his letter of April  11 9, requested a report from Mr. Loring before  12 undertaking the great expense of returning to Kispiox.  13 That return was necessitated by two letters in  14 February of the same year, which I have set out in  15 this extract, my lord, from the Indians at Kispiox,  16 asking Mr. O'Reilly to return.  17 So I point out that all that Loring was being  18 asked to do in 1896 was not to find -- not to give his  19 opinion on how big the reserves should be.  He was  20 asked to confirm that he understood what the wishes of  21 the Kispiox Indians were, because O'Reilly didn't want  22 to go to the expense of coming back up to Kispiox  23 unless there was going to be something done at  24 Kispiox.  25 The next extract that -- if I can ask your  26 lordship to turn to page 48 of the blue book, and at  27 the same time to page 129 of the plaintiffs' argument.  28 On page 129 of the plaintiffs' argument they say in  29 the second paragraph:  30  31 "As for O'Reilly's statement about never making  32 a promise without seeing the land I was  33 reserving, Loring wrote in 1918"  34  35 And then they quote from Loring's letter, and this  36 is the letter, my lord, that I have set out in greater  37 detail at page 48.  38 Now, when you read the letter, and especially the  39 part quoted, you can see that what Loring is writing  40 about was Lot 1196, range 4 partly occupied by an  41 Indian named William Leo or Canyon Creek William.  All  42 right.  Then he refers to William Leo or Canyon Creek  43 William, and he gives his description, and then it's  44 on the next page where you find the paragraph from  45 which the plaintiffs have taken the quote that they  46 have reproduced on page 129.  The suggestion that the  47 plaintiffs make is that O'Reilly didn't go to all of 28036  Submissions by Mr. Willms  1 the places where people were, he just stayed in a  2 couple of locations.  3 The point that I make after this, my lord, is that  4 Loring's letter was written in 1918.  In another  5 document, and I have the document later on in this  6 argument, it was noted that Canyon Creek William, far  7 from being on lot 1196 since time-immemorial, had only  8 been there for six years before 1915.  9 William Leo or Canyon Creek William, who this  10 letter is really about, had only been on the land  11 since 1909.  It's no wonder O'Reilly missed it.  12 Now, that -- the first 49 pages, my lord, deal  13 with that reserve process, and then I carry on with  14 the other method of just putting the page number in  15 the left-hand margin.  16 THE COURT:  In tab?  17 MR. WILLMS:  In tab 3.  So the pages 1 to 49.  18 THE COURT:  Yes.  19 MR. WILLMS:  Are my detailed response, including comments --  20 including the documents on the reserve process from  21 1871 to 1898 dealt with by the plaintiffs at page 111  22 to 14 8, and that ends on page 49.  And then what I do  23 from page 49 on is I set out again the page reference  24 in the plaintiffs' argument in the left-hand column  25 and then my comments in the body.  1 to 49, including  26 comments.  But I have tried to put in as much of the  27 document, leaving as little out as possible, and  28 basically they are the same documents that the  29 plaintiffs have referred to, only I just set them out  30 in chronological order so you can see the story.  31 THE COURT:  Then 50 to 54, then.  32 MR. WILLMS:  You will see —  33 THE COURT:  Are other format.  34 MR. WILLMS:  The rest of the comments up to the end of this  35 section of the plaintiffs' --  36 THE COURT:  Yes.  All right.  37 MR. WILLMS:  -- argument.  So the last extract is at page 51  38 that I would like to refer your lordship to.  And what  39 I do here, my lord, is I make a reference in the  40 left-hand column to pages 163 to 176 of the  41 plaintiffs' argument, and I say that on these pages  42 the plaintiffs quotes extensively from 1035-380, the  43 1915 Royal Commission on Indian Affairs for the  44 Province of B.C., Babine Agency.  I point out  45 throughout the statements of the Indians made to the  46 Royal Commission, their requests for the land back.  47 As stated earlier, this is not consistent with the 28037  Submissions by Mr. Willms  1 continued and existing ownership.  It is consistent  2 with a change of mind after cession, surrender or  3 abandonment.  You don't ask for your own land back, if  4 you're still asserting that it's your land.  You are  5 not asking for the government to give it back to you.  6 It's your land.  And if you read through these  7 sections you will see almost invariably there is at  8 least one comment in each location "We want the land  9 back."  10 Now, I also set out some other extracts which I  11 say are relevant, and I do --  12 THE COURT:  Isn't that semantical, Mr. Willms?  How am I to know  13 at what point what they meant or put it differently?  14 Why should I assume that the request to have land back  15 does not include the unspoken?  'It's always been  16 mine.  You took it.  I want it back.'  17 MR. WILLMS:  My lord, when you read the whole sections, and you  18 just have to read the whole section in which they say  19 we want the land back.  Because they say that in the  20 context of its our forefather's land, the white people  21 are here, we want the land back.  And I just say that,  22 my lord, you take it as they say it.  What they mean  23 what they say, and they are not saying, as was said at  24 Metlakatla, that "It's all ours, and it's not yours.  25 You don't have it."  That's not what they are saying  26 in this series of meetings.  It's not Metlakatla, it's  27 "We want it back".  And the important aspect of that,  28 my lord, is this all takes place after O'Reilly and  29 Vowell have been through laying out the reserves.  And  30 I say it adds support to the submission that is made  31 that there was no misunderstanding at the time of the  32 effect of the reserve process, none at all, that each  33 of the bands visited knew, that after the reserves  34 were laid out the rest of the land was going to be  35 opened up to pre-emption, and that was that, and to  36 the extent that lands weren't pre-empted or otherwise  37 alienated, there was the continuing right to hunt,  38 which is held in common by every one over unoccupied  39 Crown land, but that was it.  40 So I just draw on that, my lord, as further  41 support for that earlier proposition.  But you do have  42 to read the whole thing, my lord.  I don't want to  43 take the word back out of context.  I say when you  44 read it in context, that's what it means.  45 The other point, and I didn't draw your lordship  46 to the document, but you might recall the Kitwanga  47 people complaining about the Kitsegukla people on 2803?  Submissions by Mr. Willms  1 their reserve and that correspondence.  They weren't  2 complaining about the Kitsegukla people being on their  3 traditional tribal lands.  They didn't complain about  4 the Kitsegukla people being on their house  5 territories.  They complained about the Kitsegukla  6 people being on their reserve.  And I say that that's  7 even further support for the understanding that after  8 the reserves were laid out that the rest of the land,  9 whatever interest they may have had or may have  10 thought they had was gone as part of that process, to  11 their knowledge and with their agreement.  12 Now, the last extract, my lord, is at page 53 that  13 I would like to direct your lordship to.  And here I  14 am quoting at the bottom of the page from the Babine  15 Agency meetings, and it's from page 101 from the  16 exhibit that I start quoting from some two pages  17 before.  18 THE COURT:  What is this exhibit?  19 MR. WILLMS:  The exhibit is Exhibit 1035-380.  2 0 THE COURT:  What is that?  21 MR. WILLMS:  That is the evidence — the 1915 Royal Commission  22 on Indian Affairs, Babine Agency.  23 THE COURT:  Yes.  All right.  24 MR. WILLMS:  And there was a joint meeting at Hazelton with the  25 Babine, Kuldoe and Kisgegas bands of Indians, and at  26 the conclusion of the meeting, and I quote this at the  27 bottom of the page, Jimmy Michell of Hagwilget, and  28 that should be in square brackets, my lord, one of the  29 ancestors of the plaintiffs, because that is not part  30 of the quote, that's me saying -- because there is  31 evidence that Jimmy Michell of Hagwilget is one of the  32 ancestors of the plaintiffs.  33 THE COURT:  Yes.  34 MR. WILLMS:  Met commissioners McKenna and McDowell and made the  35 following statement.  36  37 "We object to the Gitenmax tribe getting part of  38 our reserve at Hagwilget, and if the government  39 wishes to give this part away, we, the  40 Hagwilgets, must be paid for it in money.  41 There are 203 acres in the piece and we value  42 it at $20 per acre.  Or if they don't want to  43 do that, the government must give us a piece of  44 land equally as good as the piece they're going  45 to take away from us.  We also wish to have our  46 fishing rights preserved from the Gitenmax and  47 we want the river to be the dividing line." 28039  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  Two things there, of course, my lord.  The  difference of opinion between the Wet'suwet'en and the  Gitksan as to the reserve at Hagwilget, and I think  your lordship has heard some evidence that there is  some rule of Gitksan and Wet'suwet'en law that allows  that reserve to be there, but not according to Jimmy  Michell.  He was unhappy about the prospect of giving  part of it to the Gitksan in 1915.  The second point, my lord, is the reference to the  "government must give us a piece of land".  All right.  That's inconsistent with it being their land.  It's  completely consistent with them wanting land back.  And I have already made submissions on that.  Now, that takes care of that, my lord. So there  are two things still that I would like to deal with,  and my friends have -- I want to deal with Dr.  Robinson, and I would like to deal with Dr. Robinson  as soon as possible outside of normal sitting hours,  so that we don't take up the small time that we have  left to deal with Dr. Robinson.  The second point, my lord, you might recall that I  handed up the draft -- the document that Downie wrote  in hand that was reproduced in the colonial -- in a  colonial paper.  And I only did that to show your  lordship that Downie had written two documents, and  one said that there was a village at the forks, and  the other one didn't mention the village at the folks.  And my friend said that Mr. Rush would have to speak  to that.  I don't know what there is to speak to, but  those are the two things that I still would like to  deal with, and I would like to deal with them as soon  as possible.  But I am in my friend's hands, I think.  :  When will you be ready, Mr. Grant?  :  I had suggested out of court to my friends that  Tuesday -- we would be ready Monday or Tuesday.  But  if my friend is now proposing to -- if he is going to  take the entire day on other parts of his submission  today and not moving things up and needs the time,  it's really, as far as I am concerned, in the early  part of next week.  If he wants it on other hours, it  would be subject to your lordship's view as to what  would be a convenient evening.  I discussed it with  Mr. Rush, and he has analyzed the Downie document, and  that's why --  :  Well, I hesitate to say that my social side is  starting to intrude on this trial for the next three 28040  Submissions by Ms. Sigurdson  1 weeks.  June is always a dreadful month.  All the  2 various organizations of the bar wanting to have their  3 various functions before they depart for wherever  4 lawyers depart for in July and August, and I have very  5 few evenings in June that aren't already committed.  6 MR. GRANT:  Well, I understood -- I mean, as I said, I have  7 talked to Mr. Rush.  We are prepared to deal with it  8 Tuesday.  9 THE COURT:  What about 9:00 o'clock Tuesday morning?  10 MR. GRANT:  That's fine.  That's fine with me.  11 MR. WILLMS:  That's fine with me, my lord.  12 THE COURT:  All right.  Look forward to hearing it then.  13 MR. GRANT:  Thank you.  My lord, that concludes my dealing with  14 1 through 3.  And Ms. Sigurdson will now deal with  15 some further points.  16 MS. SIGURDSON:  My lord, I am dealing with the next tab in the  17 blue book, and that's tab 5.  18 THE COURT:  5.  19 MS. SIGURDSON:  Yes.  And it's an addendum to Part 4, Section 2,  20 paragraph 41.  21 Mr. Plant in his submission noted that:  22  23 "Although the house is given pride of place in  24 the Plaintiffs' model of Wet'suwet'en social  25 organization ... it is clear that the line  26 between the house and clan is  ..."  27  28 THE COURT: I'm sorry, I'm not sure what — your Part 4 of the  29 plaintiffs' argument.  30 MS. SIGURDSON:  Our argument, my lord, the province's summary of  31 argument.  32 THE COURT:  So this is an addendum to plaintiffs' argument.  33 Would it be better to leave it here, or should it be  34 put into that volume?  35 MS. SIGURDSON:  At your convenience.  You will find when we have  36 our final index that we stay in the blue supplement  37 binder.  May be convenient to make it there.  38 THE COURT:  I should make a note that there is this addendum.  3 9 Is volume 4 handy?  40 MS. SIGURDSON:  It will be the blue volume 2.  41 THE COURT:  I'm sorry.  What I need, though, is the province's  42 volume 2, I guess.  4 3 MS. SIGURDSON:  Volume 1.  44 THE COURT:  Plaintiffs' volume 1.  45 MS. SIGURDSON:  Province's volume 1.  46 THE COURT:  And it's Part 4, Section 2.  47 MS. SIGURDSON:  And it should be entitled "identity geneaology 28041  Submissions by Ms. Sigurdson  1 and descent", and it's paragraph 41 in that section.  2 THE COURT:  Yes.  All right.  Thank you.  3 MS. SIGURDSON: And in that part Mr. Plant submitted that:  4  5 "Although the house is given pride of place in  6 the plaintiffs' model of Wet'suwet'en social  7 organization ... it is clear that the line  8 between house and clan is in many cases so  9 sketchily drawn as to be virtually invisible  10 ..."  11  12 And Mr. Plant referred to your lordship a few  13 examples that indicated the Wet'suwet'en witness  14 considered the clan to be the determining factor for  15 ownership and for rights of access to territory.  16 And in paragraph 41b I set out the exchanges that  17 occurred in the transcript at that time where your  18 lordship said:  19  20 "THE COURT:  Well, I did not understand the  21 plaintiffs' evidence to be that the clan  22 members as such have rights on each other's  23 territory."  24  25 And Mr. Plant asserted that there was evidence to  26 that effect.  27 On page 2 your lordship said:  28  29 "THE COURT:  Because that's not what I  30 understood the burden of the plaintiffs'  31 evidence is, that house territory belongs to  32 members of a house.  This is introduced in a  33 different regard, that is to say, that clan  34 territory is for clan members.  And I would  35 have taken this statement of Mrs. Daum's to be  36 out of step with the burden of the evidence and  37 indeed the burden of the plaintiffs'  38 submissions ... a contradiction, as it were, in  39 the plaintiffs' basic submission."  40  41 And Mr. Plant agreed that it was a contradiction,  42 but had a different view of the burden of the  43 plaintiffs' evidence.  44 In this addendum, my lord, he set out further  45 examples from the evidence of the Wet'suwet'en  46 witnesses where they assert that ownership or rights  47 of access turn on clan, the clan designation of the 28042  Submissions by Ms. Sigurdson  1 member, not the house.  And I will not take your  2 lordship through all of them, but I will highlight a  3 couple.  And on page 3 in the evidence of Bazil and  4 Josephine Michell, and the second question:  5  6 "Q   When you say that you want to keep your  7 territory for your grandchildren, does that  8 Wet'suwet'en word mean for the younger  9 generation of people in your clan?  10 A  When I refer to the future generation I am  11 referring to the people from my clan."  12  13 And at page 4 Emma Michell of the Laksilyu or  14 Beaver clan was asked:  15  16 "Q   Emma, if the Wet'suwet'en chiefs win this court  17 case against the province, can you tell us what  18 you would like to see changed in how your  19 territory is managed and controlled?  20 A   I would like to see my grandchildren who have  21 the rights to the territory look after the  22 territories, Laksilyu and Gilseyhu and all the  23 other clans."  24  25 And I refer you, but will not read the evidence of  26 Mr. David at page 7.  There is another extract from  27 the evidence of Madeline Alfred and from Henry Alfred  28 of the House of Wah Tah Keght, and I draw your  29 attention to the underlined portion of Madeline  30 Alfred's evidence:  31  32 "Q   So do the people of the different houses of  33 the Laksilyu have the right to go on each  34 others territories?  35 A   Yes."  36  37 And at page 8 I have an extract from the evidence  38 of Mr. Joseph.  And I said the association between  39 territories and clans was also noted by the  40 Plaintiff's expert on the Wet'suwet'en, Dr. Mills.  41 Dr. Mills was of the opinion that:  42  43 "Under Wet'suwet'en law, feast names are legally  44 related to distinct territory ... The feast  45 names are passed on from clan member to clan  46 member, and not to someone outside of the clan  47 28043  Submissions by Ms. Sigurdson  1 ... The assumption of a name in the clan is a  2 manifestation of the holder's right to use clan  3 territory."  4  5 And she cites a personal communication with Mr.  6 Joseph.  7  8 "All the name holders belong on all the clan  9 territory."  10  11 THE COURT:  Well, is Dr. Mills perhaps using clan and house  12 interchangeably?  13 MS. SIGURDSON:  She in her opinion has a section on clans and on  14 houses.  She does not use the words interchangeably.  15 THE COURT:  All right.  16 MS. SIGURDSON: And I conclude by saying these examples, and I  17 digress to say these are but examples of the  18 Wet'suwet'en witnesses but several other examples that  19 could be given.  These examples provide further  20 illustration of the contradiction in the basic  21 position of the Wet'suwet'en plaintiffs.  While it is  22 contended on their behalf that territory belongs to  23 houses, it is clear that many of the Wet'suwet'en  24 chiefs see matters quite differently.  For those whose  25 evidence has been quoted above, including Dr. Mills,  26 ownership and rights of access to territory are  27 matters for the clan, not the house.  28 And those are my submissions on that point, my  29 lord.  30 Turning down to the next tab in the blue  31 supplement binder, tab 6.  Before I get into the text,  32 I will just explain what we are doing here.  We are  33 returning to the issue of territories.  Submissions  34 were made by Mr. Mackenzie in Part 4, Section 5 on the  35 inconsistent and conflicting evidence as to the  36 ownership and boundaries of a selection of  37 territories.  Mr. Willms addressed your lordship on  38 the extent and the effect of overlapping claims of the  39 enabling nations.  4 0    THE COURT:  Yes.  41 MS. SIGURDSON: It was and is our position that those examples  42 that were described by Mr. Mackenzie are included in  43 his submissions and other material, and that part of  44 the argument show that there is no reputation of the  45 type asserted by the plaintiffs in the community as to  46 the ownership or the boundaries of the claimed areas.  47 However, to respond more directly to the plaintiffs' 28044  Submissions by Ms. Sigurdson  1 territory by territory argument, we will cast the net  2 a little wider and show that the evidence is  3 inconsistent and contradictory throughout claim area.  4 Mr. Mackenzie will follow me, and he will make  5 submissions on several territories and several bodies  6 of evidence.  In my submissions I focus on one type of  7 evidence, and that's the sworn statements of  8 hereditary chiefs describing their territories, and  9 the statements I refer to are their affidavits in  10 response to interrogatories delivered by the province,  11 and the maps that were attached to those  12 interrogatories.  And in these submissions they are  13 compared to the claimed areas as shown on Exhibit  14 646-9A and 9B.  That's the plaintiffs' so-called final  15 map.  16 And turning to my addendum, I note that throughout  17 the course of the trial and in final argument, the  18 plaintiffs have emphasized that knowledge of house  19 territory, boundaries and features is essential to  20 their claim of ownership.  Boundaries and features  21 within the territories are commonly known in each of  22 the Gitksan and Wet'suwet'en communties, and  23 hereditary chiefs have a duty to know the boundaries  24 of their and their neighbours' territories.  And I set  25 out a few references from the plaintiffs' argument.  26 And I will just draw your attention to the underscored  27 portion on page 2 where Mr. Rush as I recall said:  28  29 "It is one of the principle responsibilities of  30 the Gitksan and Wet'suwet'en hereditary chiefs  31 when they are invited to the feast of other  32 houses and clans to perform the essential role  33 of witnesses and validators to the claims to  34 chiefly names and titles to territories made by  35 other chiefs and houses.  In order for chiefs  36 to perform their roles in this distinctive form  37 of public acknowledgement of land title, they  38 are trained by their predecessors in the  39 boundaries of their own house, territories and  40 the boundaries of the territories of the  41 neighbours."  42  43 And the other reference refer to the plaintiffs'  44 assertion that boundaries, ownership are common  45 knowledge in each of the Gitksan and Wet'suwet'en  4 6 communties.  47 Turning to page 3, we submit that it is part of 28045  Submissions by Ms. Sigurdson  1 the plaintiffs' case that knowledge of territories,  2 boundaries, et cetera, is widely dispersed, and that  3 the chiefs have a particular obligation to know their  4 territories, and their neighbours' territory.  5 Exhibit 646-9A and 9B allegedly depict the  6 boundaries of the house territories.  These maps were  7 based on territorial affidavits, many of which were  8 sworn by persons other than the hereditary chiefs of  9 the houses claiming ownership of and jurisdiction over  10 the territories.  11 Prior to the commencement of trial, this defendant  12 delivered interrogatories to each of the named  13 plaintiffs, and that would be the hereditary chiefs of  14 the houses as described in the Statement of Claim.  15 Answers were received by way of affidavits.  16 Each named plaintiff was asked, 'Does your house claim  17 ownership of or jurisdiction over any particular  18 territory, and if so, what are the boundaries of your  19 house territories?'  20 Now, in several cases a map was attached to the  21 affidavit, and usually it was labelled a draft map,  22 and it is accepted that the hereditary chiefs'  23 affidavits were true as they swore them to be to the  24 best of their information and belief.  It follows that  25 it must be accepted that the interrogatory maps  26 reflect the information and beliefs of the hereditary  27 chiefs at the time the affidavits were sworn.  The  28 draft designation must be understood to refer to a  29 draft in terms of the mapping process.  In that  30 context it is reasonable to expect that a boundary  31 line may be modified to more accurately reflect a  32 height of land or the extent of a drainage system.  33 Subject to that minor qualification, the  34 hereditary chiefs' descriptions in their responses to  35 the interrogatories must be taken as true statements  36 of the chiefs' knowledge of the ownership and location  37 of the territories, the key geographic features on the  38 territories, their boundaries, and the ownership of  39 neighbouring territories.  4 0 In this addendum we go through several examples,  41 comparing the interrogatory responses to map 9A and  42 9B, and it will be shown that the boundaries and  43 ownership of territories claimed by the hereditary  44 chiefs in their interrogatory responses are often  45 strikingly different from the boundaries and ownership  46 described in the territorial affidavits and depicted  47 on maps 9A and 9B.  And those differences in most 28046  Submissions by Ms. Sigurdson  1 cases, many cases go far beyond any cartographic  2 inaccuracy that could be encompassed within the  3 designation draft.  4 And we say the differences show that ownership and  5 boundaries of territories are not a matter of common  6 knowledge in the Gitksan and Wet'suwet'en communties.  7 Further, the sworn statements of the hereditary chiefs  8 in their responses to interrogatories cannot be  9 reconciled with the differing depictions of their  10 territories on Exhibits 646-9A and 9B.  If the latter  11 depictions are correct, then where there is a  12 discrepancy the affidavits are false.  The  13 interrogatory affidavits are false.  Assuming that the  14 chiefs had no intention to mislead, only one  15 conclusion follows, that the hereditary chiefs do not  16 know their territories, and on the plaintiffs' theory  17 of the case, that cannot be.  18 What I propose to do, my lord, is go through two  19 examples, and leave the rest for your lordship.  But  20 for the first example I would like -- I would ask that  21 Exhibit 1020-2 be put before you.  22 Before turning to that, if I can just locate your  23 lordship on the map.  The territory I am referring to  24 is shown on Exhibit 646-9A as being claimed by  25 Gaxsgabaxs, Wiis Dis and Hanamuxw.  Now, that is just  26 at Kitsegukla Village.  27 THE COURT:  Yes.  No, I haven't found it.  28 MS. SIGURDSON:  If your lordship has Skeena Crossing and the  29 Kitsegukla Reserve and Andimaul, that's in that --  30 THE COURT:  Well, this map has so many overlays on it that it's  31 hard to figure it out.  32 MS. SIGURDSON:  Perhaps if I can point it out on my map and —  33 THE COURT:  I know the area.  I just can't quite pick it out  34 because the names of the houses are supposed to be on  35 here, and I don't recall them with three names on it.  36 MS. SIGURDSON: Three separate territories on it.  One  37 Gaxsgabaxs, one Hanamuxw, one Wiis Dis.  38 THE COURT:  All right.  39 MS. SIGURDSON:  This may be a way of doing it.  4 0 THE COURT:  Let me come down there.  There is Gaxsgabaxs, I have  41 that one.  42 MS. SIGURDSON: And Hanamuxw territory and Gaxsgabaxs territory.  43 THE COURT:  Yes.  All right.  Yes.  Thank you.  44 MS. SIGURDSON: That will be what I am referring to.  45 THE COURT:  All right.  46 MS. SIGURDSON: Now, in his interrogatories response Larry Wright  47 who owns the name Haakaxs, he is the head chief of 28047  Submissions by Ms. Sigurdson  1 that house, swore his affidavit, and I have the  2 affidavit, and he says in paragraph 1:  3  4 "I am one of the plaintiffs in this action and  5 have received interrogatories served on me by  6 the defendant.  I have attached hereto and  7 marked Exhibit A to this my affidavit, my  8 answers to those interrogatories.  Those  9 answers are provided in the same numerical  10 order as the interrogatories."  11  12 Paragraph 3.  13  14 "The answers that are attached to Exhibit A to  15 this my affidavit are true to the best of my  16 knowledge including information which I have  17 received from others."  18  19 And I point out in paragraph 4 that these are  20 further responses to the interrogatories as were  21 ordered by Mr. Justice Locke.  But turning to the map  22 attached to Mr. Wright's affidavit.  2 3 THE COURT:  Yes.  24 MS. SIGURDSON:  In the centre southern of the territory your  25 lordship may be able to see the Kitsegukla Village.  2 6 THE COURT:  Yes.  27 MS. SIGURDSON: Skeena Crossing the Kitsegukla Reserve.  2 8 THE COURT:  Yes.  29 MS. SIGURDSON:  Up in towards the northern part you may be able  30 to see Carnaby, which is in the territory claimed by  31 Hanamuxw.  It's right on the border of the Haakasxw  32 territory.  And it's my submission that these can be  33 compared, and this whole territory claimed by Haakasxw  34 in his interrogatories is virtually the same as the  35 three territories now said to be claimed by the houses  36 of Gaxsgabaxs, Wiis Dis and Hanamuxw on Exhibit  37 646-9A.  38 That 1020-2 is the affidavit and map of Larry  39 Wright.  4 0 THE COURT:  What you're saying is that the map attached to Mr.  41 Wright's affidavit or affidavit response to  42 interrogatories, Exhibit 1020-2, is approximately  43 equivalent to three territories shown in 646-9A?  44 MS. SIGURDSON: Yes.  4 5 THE COURT:  Yes.  46 MS. SIGURDSON: And we say those are completely inconsistent  47 assertions, and in light of that type of evidence it 28048  Submissions by Ms. Sigurdson  1 cannot be said that there is a reputation in the  2 community as to the ownership of that territory.  3 THE COURT:  Is it convenient to take the morning adjournment  4 now?  5 MS. SIGURDSON:  Yes, my lord.  6 THE COURT:  You are going to another set of documents now?  7 MS. SIGURDSON:  Yes.  8 THE COURT:  I think we will take the adjournment now.  Thank  9 you.  10    THE REGISTRAR:  Order in court.  Court stands adjourned.  11  12 (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS)  13  14 I HEREBY CERTIFY THE FOREGOING TO BE  15 A TRUE AND ACCURATE TRANSCRIPT OF THE  16 PROCEEDINGS HEREIN TO THE BEST OF MY  17 SKILL AND ABILITY.  18  19    2 0 LORI OXLEY  21 OFFICIAL REPORTER  22 UNITED REPORTING SERVICE LTD.  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 28049  Submissions by Ms. Sigurdson  1 (PROCEEDINGS RESUMED AT 11:15)  2  3 THE REGISTRAR:  Order in court.  4 MS. SIGURDSON:  My lord, I've placed before you another overlay.  5 This is an overlay that fits on the judge's series, or  6 Mr. Macaulay's map.  For the purposes of these  7 submissions, I won't ask your lordship to put it on  8 the map.  I have taped it to a paper print of map 9A  9 and 9B.  What this map is was a cartographer's attempt  10 to map the interrogatories maps as available at that  11 time.  And on the green overlay -- or I should say the  12 paper print is -- the black and white is a paper print  13 of map 9A and 9B on the 1 to 500,000 scale.  The  14 legend to the overlay is in the upper right-hand  15 corner, and what the cartographer did was try to plot  16 the interrogatories maps.  You'll notice that wherever  17 there is a solid circle, or a solid line around --  18 circle around a number, that is where there was an  19 interrogatories map provided.  In other areas there's  20 a broken line around a circle, and that is where the  21 interrogatories and just a general written description  22 was provided.  And I tender this not as an exhibit, of  23 course, this is the exhibit -- is the interrogatories  24 map itself, and it's on the interrogatories map that  25 you see the geographic features that were claimed by  26 that hereditary chief and the neighbours that were  27 claimed by that hereditary chief, but this may be of  28 some assistance in placing your lordship in seeing the  29 differences in discrepancies.  30 By way of example, on the interrogatories map  31 legend number 1 is Xhliimlaxha, here spelled  32 X-H-L-I-I-M-L-A-X-H-A, and on the northern boundary of  33 the land claim area and about the centre, your  34 lordship may see a number 1?  35 THE COURT:  Yes.  36 MS. SIGURDSON:  And this is a long thin territory of  37 Kliiyemlaxhaa.  Now, in her interrogatories response,  38 the chief of the House of Kliiyemlaxhaa attached this  39 map, or a map approximately showing that area as  40 describing the area over which she claimed ownership  41 and jurisdiction.  And you'll note it extends far past  42 the northern boundary as presently claimed.  4 3    THE COURT:  Yes.  44 MS. SIGURDSON:  And you'll notice that it does not go as far  45 west as it previously did.  The difference there, my  46 lord, is the boundary line on her interrogatories map  47 follow the river, the Nass River.  More recently the 28050  Submissions by Ms. Sigurdson  1 claim has been altered, and her claim is asserted to  2 territory west of the Nass as well.  And the other one  3 that I will point out is the Ma'uus territory that I  4 set out in paragraphs 15 to 18 of my submissions.  5 Now, on the west boundary of the land claim area,  6 and it's just at and north of Kispiox on the map -- in  7 fact, if you can recall where the Gaxsbgabaxs  8 territory we were talking about earlier --  9 THE COURT:  Yes.  10 MS. SIGURDSON:  North of that is the Luutkudziiwas territory,  11 north of that Angulilbix and Ma'uus, and the Ma'uus  12 territory is the area addressed in the following  13 paragraphs of my submission.  And I note in my  14 submissions that on Exhibit 646-9A Ma'uus claims two  15 territories on the west side of the Kispiox River, at  16 and north of the Kispiox Reserve, and a small Wii  17 Elaast/Amagyet territory on 9A divides those two  18 territories.  In 1986 Jeffrey Harris Jr., Chief  19 Ma'uus, swore an affidavit in response to  20 interrogatories, and his answer to question 59(c) was:  21  22 "I will accept the map attached to Schedule 'B'  23 because it is a 'draft' and it is subject to  24 change in the future to more accurately reflect  25 the exact boundaries of my territory."  26  27 And harken back to my submission on "Draft".  That is  28 what we say the chiefs had in mind by the designation  29 "draft".  It was accurate to their best of their  30 belief and knowledge, but they contemplated there  31 could be a modification to more accurately reflect the  32 precise location of a boundary point.  Chief Ma'uus'  33 description of the territory of Ma'uus is inconsistent  34 with the description given by his father, Jeffrey  35 Harris Sr., who holds the name Luus, in his  36 territorial affidavit.  And some of the  37 inconsistencies are on the interrogatories map.  38 Ma'uus does not claim ownership of the southern  39 territory at Kispiox village shown at 646-9A.  And if  40 you can see on the overlay, my lord, that area is with  41 the interrogatories map of Antgulilbix, that's 6B.  42 THE COURT:  Yes.  43 MS. SIGURDSON:  So at that time, according to Jeffrey Harris  44 Jr., the chief of the house, he didn't claim that  45 area.  On the interrogatories map Ma'uus claims the  46 mountains north of Date Creek.  Now, on 9A Antgulilbix  47 claims those areas, although those weren't claimed in 28051  Submissions by Ms. Sigurdson  1 her interrogatories.  On Exhibit 1020-8, that is the  2 interrogatories map, Ma'uus' neighbour to the north is  3 Amagyet, whereas on 646-9A the neighbour is now  4 Kliiyem lax haa.  On the interrogatories map there is  5 no reference to a small Wii Elaast/Amagyet territory  6 at Date Creek, whereas on Exhibit 646-9A there is.  On  7 the interrogatories map, Ma'uus' neighbour on the east  8 of the Kispiox River is Kliiyem lax haa.  And that,  9 I'm afraid, you would have to see from the  10 interrogatories map itself.  But on 646-9A the  11 neighbour is said to be Delgamuukw.  12 Now, we say, my lord, that it must be noted that  13 the lands in question are not remote or inaccessible  14 mountain peaks; they are the hills readily available  15 from the village, and they can be seen by people in  16 the village who are people who pass through the area.  17 And we say the question deserves to be asked on what  18 basis can a claim based on exclusivity of possession  19 be advanced where the owner cannot identify that which  20 is said to be possessed?  And I take that from  21 paragraph 18 of my submissions, my lord, at page 8.  22 And, my lord, because of time constraints, I will  23 not go through the rest of my submissions orally.  I  24 would just draw your attention to a conclusion at page  25 20, and where we say that the examples set out show  26 that the hereditary chiefs' perception of their  27 territories is quite different from the claims  28 described in Exhibit 646-9A and 9B.  Exhibit 646-9A  29 and 9B do not reflect a consensus, or reputation,  30 within the community as to the ownership of territory  31 within the claim area, and we say that must be clear  32 in light of the conflicting contradictory evidence of  33 the hereditary chiefs themselves and their sworn  34 statements and sworn responses to interrogatories.  35 And, my lord, that concludes my submissions.  3 6    THE COURT:  Thank you.  37 MS. SIGURDSON:  And Mr. Mackenzie will now address you.  38 MR. GRANT:  I just wondered if my friend could -- our map ratio  39 is, of course, different from Mr. Macaulay's, and if  40 my friend would have the courtesy of providing me with  41 at least the underlay so that I could follow this as  42 well.  43 MS. SIGURDSON:  Yes.  It is for the judge's series, and he has  44 that, but I can provide an underlay as well.  45 MR. GRANT:  Yes, my lord.  46 MR. MACKENZIE:  My lord, I will be speaking about Part VII,  47 which can be inserted in your lordship's binder, which 28052  Submissions by Mr. Mackenzie  is volume IV of the plaintiff -- of the Province's  summary.  COURT:  Volume IV?  MACKENZIE:  The blue book.  COURT:  Oh, in this?  MACKENZIE:  Which your lordship has.  COURT:  Oh, this is volume IV.  Yes, all right.  MACKENZIE:  And this, as your lordship can see, is tab VII.  Your lordship may not wish to insert that right now,  it's —  COURT:  First tell me where I should install it in this blue  book now, what tab number?  MACKENZIE:  Tab VII, my lord, Roman numeral VII.  COURT:  It's going to be difficult, again I don't think I  have a tab VII.  MACKENZIE:  I just handed it to your lordship.  COURT:  All this?  Oh, I see.  That won't conveniently go in  the book, I don't think.  MACKENZIE:  It will eventually, my lord, because it has  three-hole punches that -- it's punched for three  holes and it's just kept together for easy reference  together with a press.  COURT:  Shall I put it in?  MACKENZIE:  No, my lord.  If your lordship will remember to  put it in at that tab.  COURT:  Okay.  I'll just put a little reminder.  MACKENZIE:  Just take a little time to get all the separate  pages in, right now it might take a little longer.  COURT:  All right, thank you.  MACKENZIE:  So —  COURT:  So this is Plaintiffs' —  MACKENZIE:  The Province's —  COURT:  All right, the Province's -- the Province's volume  IV, tab VII.  MACKENZIE:  Yes, my lord.  COURT:  And when I get a diskette of this book it will  include this tab VII, will it?  MACKENZIE:  Yes, my lord, the written portions of it.  COURT:  Yes, all right.  MACKENZIE:  That tab VII, as I say, can be put conveniently  into your lordship's blue binder so that madam  registrar has it.  COURT:  All right, thank you.  MACKENZIE:  I refer to the Table of Contents which follows  the tab, my lord, to orient your lordship to the  position of this material in the Plaintiffs' -- in the  Province's argument.  This is an addendum to Part IV,  1  2  3  THE  4  MR.  5  THE  6  MR.  7  THE  8  MR.  9  10  11  THE  12  13  MR.  14  THE  15  16  MR.  17  THE  18  19  MR.  20  21  22  23  THE  24  MR.  25  26  THE  27  MR.  28  29  THE  30  MR.  31  THE  32  MR.  33  THE  34  35  MR.  36  THE  37  38  MR.  39  THE  40  MR.  41  42  43  THE  44  MR.  45  46  47 28053  Submissions by Mr. Mackenzie  1 5(g) of the written summary.  2 THE COURT:  All right.  Now I've got to go to — I've got to go  3 to that now.  Is part (g) in volume II perhaps?  4 MR. MACKENZIE:  Yes, my lord.  5 THE COURT:  Yes, all right.  6 MR. MACKENZIE:  It carries over in part.  7 THE COURT:  May I have volume II of the Province, please.  8 MR. MACKENZIE:  The title of this addendum — oh, sorry.  9 THE COURT:  That's all right.  Thank you.  10 MR. MACKENZIE:  My lord, the section to which this is an  11 addendum, that is 5(g), was a detailed analysis of  12 territorial boundary evidence, as it appears from the  13 top information on the Table of Contents here.  And  14 the title of this material, this addendum, which I'll  15 be -- to which I'm directing your lordship's  16 attention, is "Inconsistent Evidence As To Plaintiffs'  17 'Core' Claim Area Ownership and Boundaries", that is  18 claim areas not covered by non-plaintiff overlaps.  19 So, my lord, this is -- these are territories that  20 are in the heartland of the Plaintiffs' claim area  21 unaffected, or only partially affected by the overlaps  22 from neighbouring nations.  And referring to the Table  23 of Contents, section A contains written submissions,  24 at which I'll be going through, dealing with the  25 evidence.  Section B contains a table -- just  26 referring that to your lordship, section B, which is  27 tab B, contains a table.  And if your lordship will  28 just look at that to see that there is a table there  29 with several pages, 27 pages, and I'll be discussing  30 that in more detail, my lord.  That is a summary of  31 inconsistent territorial ownership and boundaries  32 evidence.  And then section C consists of four  33 detailed analyses:  CI, C2, C3, C4, dealing with  34 analysis of some of these territories in the core  35 area.  And then finally, section D is a map.  Perhaps  36 your lordship can pull that out, because it will be of  37 relevance to the discussion, and your lordship will  38 see this is a paper copy of map 9A and 9B, and  39 highlighted on this map are the territories which are  40 dealt with in the table and in the submissions I'm  41 making today.  If your lordship would keep that handy,  42 there are 70 territories highlighted on that map.  43 THE COURT:  There's 70 pink lines on this map?  44 MR. MACKENZIE:  Yes, my lord, 70.  45 THE COURT:  All right, thank you.  46 MR. MACKENZIE:  Now, my lord, I'll move to section A of these  47 submissions.  And commencing with paragraph 1 of 28054  Submissions by Mr. Mackenzie  1 "Introduction", my lord, I have referred your lordship  2 to the section 5(g) of the Province's summary, where  3 there was a detailed analysis of evidence for certain  4 claim areas.  And that was designed to show  5 inconsistencies and conflicts in the evidence with  6 maps 9A and 9B.  At the time those submissions were  7 made, counsel submitted that "the same exercise could  8 be done for every House territory".  9 Following the Defendant Province's submissions, my  10 lord, your lordship commented, as I've outlined in  11 paragraph 2, that every territory had not been dealt  12 with in detail.  I won't read that quote from your  13 lordship's comments, I'll pass on to paragraph 3.  14 This submission deals with boundary and ownership  15 evidence for 70 territories located in the core area  16 of the claim area which are not covered or are only  17 partially covered by overlapping claims of  18 non-plaintiff Indian groups.  And I've referred your  19 lordship to the map, which your lordship has removed  20 for easy reference.  21 Paragraph 5 I refer to the table, which is at tab  22 B.  It is emphasized that that table is not a detailed  23 analysis of the evidence, it's a general summary.  24 In paragraph 6 I note that there is a detailed  25 analysis of five of the core claim areas:  Hagwilnegh,  26 Spookw, Wah Tah Keght, K-E-G-H-T, Wiigyet, and Wii  27 Minosik.  Those two latter territories are in the  28 Shedin Creek Valley north of Kispiox.  These are  29 territories -- I'm just adding to paragraph 6 now, my  30 lord.  These are territories in the heartland of the  31 Plaintiffs' claim area.  In our submission, the  32 unreliability of the evidence has shown that these  33 analyses adversely affects all the neighbouring house  34 claim areas.  35 The table and the map for these 70 claim areas  36 provide further support for our earlier submission  37 that for virtually every house claim area comprising  38 the entire Plaintiffs' claim area there is conflicting  39 evidence of ownership and boundaries.  These  40 inconsistencies dilute the alleged reputation evidence  41 of ownership and boundaries contained in the  42 territorial affidavits and on maps 9A and 9B.  43 Reference is made to the Defendant Province's  44 submissions on reputation evidence earlier in our  4 5 summary.  46 Now, my lord, the next part of my submissions  47 review the sources of conflicting evidence, which 28055  Submissions by Mr. Mackenzie  1 comprise the contents of the table.  And if your  2 lordship could have open page 1 of the table, just to  3 follow along -- the table is at tab B -- your lordship  4 will see the column headings.  If your lordship would  5 just have that open as we go through paragraphs 9 and  6 10.  As your lordship reviews the table, your lordship  7 can see that along the top of the table are the  8 various categories of information, with column 1  9 indicating the house claiming area, column 2  10 indicating the claim area Indian name, column 3  11 indicating the claim area English name, column 4  12 identifies the territorial affidavit, column 5  13 discusses interrogatories, column 6 refers to Exhibit  14 22.  15 THE COURT:  What's Exhibit 22?  16 MR. MACKENZIE:  Exhibit 22 is Chris Harris' map, my lord.  I  17 will refer to that in these submissions as we go  18 through those.  Exhibit 101 was that map of the  19 territory with certain areas indicated by codes.  20 Exhibit 5 —  21 THE COURT:  Just a moment, please.  What is Exhibit 102?  22 MR. MACKENZIE:  My lord, I'm just referring your lordship now to  23 the top of the table in summary fashion, I go into  24 this in some detail later in my submissions, but  25 Exhibit 102 is a map prepared by Marvin George in  26 October, 1985.  27 THE COURT:  October, 1985?  28 MR. MACKENZIE:  Yes, my lord.  2 9 THE COURT:  Thank you.  I know what Exhibit 5 is.  30 MR. MACKENZIE:  And the last two columns summarize other data  31 and evidence and the general remarks column, referring  32 to the table.  33 Now, my lord, returning to my submissions on page  34 3 at tab A, your lordship will see that I review these  35 various categories of evidence set out on the table.  36 At paragraph 10 I summarize those various sources of  37 evidence, at paragraph 11 I discuss Exhibit 22.  38 Your lordship will recall -- I'm now reading page  39 4, Exhibit 22.  The court reviewed Exhibit 22 in  40 detail during the Province's submissions as to the  41 relationship between house claim areas and registered  42 traplines.  43 Exhibit 22 is a map which Neil J. Sterritt  44 obtained from Chris Harris in 1975.  Mr. Sterritt made  45 notations on the map.  Mr. Sterritt did not know  46 whether Chris Harris had drawn the map.  The original  47 information on the map is hearsay evidence which is 28056  Submissions by Mr. Mackenzie  1 not admissible for the truth of the information  2 depicted.  The map information, however, can be used  3 to dilute ownership and boundary evidence in the  4 territorial affidavits.  In addition, Mr. Sterritt's  5 annotations are direct evidence inconsistent with  6 evidence in territorial affidavits, particularly those  7 relating to the Thutade and Bear Lake claim areas.  I  8 refer there to the Province's earlier submissions on  9 that point.  10 Exhibit 22 is a significant source because the  11 information was obtained relatively early in the  12 information-gathering process prior to the beginning  13 of the litigation.  14 Now, Exhibit 102, as your lordship asked, that was  15 prepared by Marvin George.  Mr. George testified that  16 that information was based upon Mr. Sterritt's and  17 other researchers' working maps and data sheets  18 containing information obtained from the hereditary  19 chiefs.  This map is significant because it reflected  20 the views of Mr. Sterritt's and the other researchers'  21 informants at a relatively early stage in the  22 information-gathering process prior to the intensive  23 research project directed towards the production of a  24 map and affidavit to be used in this court.  25 And I now hand up to your lordship another overlay  26 for your lordship's series of that map, Exhibit 102.  27 Now, my lord, I will not be requesting your lordship  28 to review this overlay at this time or to use it on  29 your lordship's series, but your lordship will see the  30 use to which that overlay can be put later in these  31 submissions.  I may say, my lord, that one of the  32 Plaintiffs' overlays purported to be a copy of that  33 trial Exhibit 102, and this is in fact a reproduction  34 of that Plaintiffs' overlay, Exhibit 646-4.  As it  35 turns out, there were -- it is not a true copy of  36 trial Exhibit 102.  The copy that I've handed to your  37 lordship has a legend on it summarizing the codes  38 which are contained in the various territories on  39 trial Exhibit 102.  I have put trial Exhibit 102 on  40 the board beside your lordship's desk, and that is the  41 actual trial exhibit, and I'll refer to that later in  42 these reasons.  43 THE COURT:  Well, this says — this shows that it's Exhibit  44 646-4.  45 MR. MACKENZIE:  Yes, my lord.  As I indicated, my lord, that is  46 the Plaintiffs' overlay, which purports to be a copy  47 of trial Exhibit 102. 28057  Submissions by Mr. Mackenzie  1 THE COURT:  All right, yes, all right.  2 MR. MACKENZIE:  And that was the understanding upon which that  3 overlay was marked as Exhibit 646-4.  4 THE COURT:  What's the difference between this, what you've  5 given me now, and 646-4?  6 A  What you have now, the difference between that is  7 simply the legend.  8 THE COURT:  Oh.  9 MR. MACKENZIE:  With the codes.  The plaintiffs did not include  10 that.  I submit it's a little difficult to use that  11 map without those codes, because that explains what  12 those territories are.  13 THE COURT:  You put the Exhibit 102 code onto 646-4?  14 MR. MACKENZIE:  That's correct, my lord.  15 MR. GRANT:  But, my lord, the code — the code on the  16 Plaintiffs' map -- this code is -- it was put on the  17 base so that when you had 646-4 on your Plaintiffs'  18 map, you will see the code, it was just a question of  19 cartography.  So it wasn't on the overlay, it was  20 actually on the base, so there is no difference when  21 you look at them again.  22 THE COURT  2 3 MR. GRANT  2 4    THE COURT  There's no difference if I look at 102?  If you look --  102, when it's -- when it's super-imposed on the  25 base of 646-4.  26 MR. GRANT:  Right.  The copy of 102, which is 646-4.  If you put  27 it on the base of our series you will have all of the  28 information.  2 9 THE COURT:  Yes, all right.  30 MR. MACKENZIE:  Yes, that's correct, my lord.  This was made for  31 use with the judge's series, and so the -- so that's  32 the reason that the code was added to the overlay.  33 THE COURT:  All right.  34 MR. MACKENZIE:  Now, there are some other points about that that  35 I will be making later in my comments.  36 And now moving over to page -- to page 6 and  37 paragraph 14, I refer to Exhibit 101.  Now, that is  38 the Carrier-Sekani overlay map.  Marvin George  39 prepared that map for display at the All Clans Feast  40 at Moricetown in April 1986.  It depicts the  41 boundaries of the Wet'suwet'en claim areas and the  42 extent of the Carrier-Sekani overlap.  At the All  43 Clans Feast the Wet'suwet'en chiefs relied on this map  44 as an accurate depiction of their territories.  45 There's no indication on Exhibit 101 that this is a  46 draft map.  There is no evidence that anyone at the  47 All Clans Feast said that it was a draft map.  There 2805?  Submissions by Mr. Mackenzie  1 were several references in the All Clans Feast  2 transcript, Exhibit 82, to this map as depicting the  3 Wet'suwet'en territories.  4 And in my table, references to 101 are contained  5 in the second-to-last column with other data and  6 evidence.  7 Now, carrying on to Exhibit 5.  Your lordship is  8 familiar with Exhibit 5, and I have placed a copy  9 beside your lordship's desk for later reference as  10 well.  That was the first map produced at the trial  11 depicting the boundaries of all the house claim areas.  12 Exhibit 5 is dated May 2, 1987.  It was delivered to  13 the Defendants as a "correct copy of the internal  14 boundaries with the names of the chiefs of those  15 territories marked thereon".  Plaintiffs' counsel  16 submitted the map for marking as an exhibit proper.  17 It was marked, however, as an exhibit for  18 identification on May 20, 1987.  Plaintiffs' counsel  19 referred to Exhibit 5 as a map of the Plaintiffs'  20 internal boundaries.  There is no indication on  21 Exhibit 5 that it is a draft map.  Several witnesses,  22 such as Mary McKenzie, Mary Johnson and Alfred Joseph,  23 identified the boundaries of their house claim areas  24 as depicted on Exhibit 5.  They testified that Exhibit  25 5 boundaries were correct.  In addition, these  26 witnesses identified in further detail the house claim  27 area boundaries on enlarged maps with boundaries  28 similar to Exhibit 5.  In the summer of 1987 the  29 Plaintiffs and their counsel regarded Exhibit 5 and  30 these enlarged excerpts from Exhibit 5 as accurate  31 depictions of the boundaries and the ownership of the  32 claim area.  33 Continuing on with the summary of these categories  34 of evidentiary sources, my lord, I turn to  35 Researchers' Field Notes and Data Sheets.  36 Information from these sources appears on Exhibit  37 102 and the interrogatories maps, which Miss Sigurdson  38 dealt with.  The field notes and data sheets are  39 significant because they identify sources of some of  40 the information recorded on the data sheets, the  41 working maps and Exhibit 102.  The working maps were  42 the maps that Mr. Sterritt and the other researchers  43 kept to record their information and which they passed  44 on to Marvin George.  For example, in the case of the  45 Spookw claim area, there are several data sheets  46 indicating that Neil J. Sterritt obtained information  47 from Steven Robinson, who is chief Spookw, and Henry 28059  Submissions by Mr. Mackenzie  1 Wright of the House of Wii Gaak, which conflicts with  2 boundary and ownership information in Mr. Robinson's  3 later territorial affidavit and on map 9A.  4 Now, that evidence and those references are dealt  5 with in detail in my analysis of the Spookw territory  6 in these submissions at section C2.  7 Paragraph 17.  In the case of the Tsabux, Wii  8 Minosik and Wiigyet claim areas in the Shedin Creek  9 watershed, Mr. Sterritt obtained from Henry Wright of  10 the House of Wii Gaak information conflicting with  11 James Morrison's later territorial affidavit and map  12 9A.  Mr. Morrison deposed that he relied upon Mr.  13 Wright as one of his informants.  Detailed references  14 to that information are contained in my analysis of  15 that -- those territories at tab C4 of these  16 submissions.  Passing on to interrogatories, my lord,  17 Miss Sigurdson has dealt with interrogatories in  18 detail.  I refer to Peter Muldoe's interrogatories in  19 paragraph 18.  I point out that the Plaintiffs who  20 responded to the interrogatories each swore an  21 affidavit attaching interrogatories responses.  22 Subsequently, several Plaintiffs swore supplementary  23 affidavits, so in many cases we have two affidavits.  24 For example, Peter Muldoe swore an affidavit in  25 September 1986 and a supplementary affidavit in  26 February 1987.  And we dealt with those in Mr.  27 Muldoe's cross-examination.  28 In his September interrogatories affidavit, Mr.  29 Muldoe deposed in paragraph 3:  30  31 "The answers that are attached as Exhibit 'A' to  32 this my affidavit are true to the best of my  33 knowledge except where stated to be upon  34 information and belief and where so stated I  35 verily believe them to be true."  36  37 Interrogatory 59(c) was as follows:  38  39 "What are the boundaries of your house's  40 territory?"  41  42 Mr. Muldoe responded as follows:  43  44 "The boundary of some of Gitludahl's territory  45 is set out in Schedule C."  46  47 Schedule C was a map of the Gitludahl territory. 28060  Submissions by Mr. Mackenzie  1 At tab 10 of these submissions following what I'm  2 reading now, my lord, is contained -- are contained  3 the references which I make in these paragraphs  4 dealing with Mr. Muldoe's interrogatories.  I won't go  5 through those in detail.  I have a copy, for example,  6 of the transcript and Mr. Muldoe's interrogatories  7 affidavit there.  8 Paragraph 21.  Mr. Muldoe then swore a  9 supplementary affidavit, where he deposed again:  10  11 "The answers that are attached as Exhibit A to  12 this my affidavit are true to the best of my  13 knowledge including information which I have  14 received from others."  15  16 And in -- Mr. Muldoe, in that February affidavit,  17 referred again to his interrogatories map, and Miss  18 Sigurdson has dealt with this question of draft maps  19 in paragraph 23 of my submissions.  20 Paragraph 24 I point out, as Miss Sigurdson did,  21 in many cases there are major discrepancies between  22 the location and boundaries of the house claiming area  23 shown on the interrogatories map and those shown on  24 maps 9A and 9B.  And that can be seen from an  25 examination of the interrogatories map overlay and the  26 map 9A and 9B base which Miss Sigurdson handed to your  27 lordship.  28 These responses are true to the best of the  29 Plaintiffs' knowledge, referring to paragraph 25 of my  30 submissions.  The Plaintiffs' responses to  31 interrogatory 59(c) are not said to be based upon  32 information and belief.  The information is alleged to  33 be true to the best of the personal knowledge of the  34 Plaintiff answering the interrogatories.  35 Where such sworn evidence in the interrogatories  36 responses and maps conflicts with territorial  37 affidavits and maps 9A and B, the alleged reputation  38 as to boundaries and ownership in the territorial  39 affidavit is diluted to the point of invisibility.  40 There is significance also if the response to  41 interrogatory 59(c) does not identify a house claim  42 area later depicted on map 9A or 9B.  The inference is  43 that the Plaintiff is unaware of that claim area.  In  44 addition, if the --  45 THE COURT:  You mean is or was?  46 MR. MACKENZIE:  Was at the time of swearing the affidavit, my  47 lord. 28061  Submissions by Mr. Mackenzie  1 THE COURT:  Yes.  There aren't any areas that are left unclaimed  2 at the end of the day, are there?  3 MR. MACKENZIE:  That's correct, my lord.  4 THE COURT:  Yes, thank you.  5 MR. MACKENZIE:  In addition, if the response to the question  6 "What are the boundaries of your house's territory?",  7 consists of a vague reference to an area without any  8 boundaries indicated, that, too, is significant.  The  9 obvious inference from such vagueness or lack of  10 response is either that the boundaries are  11 unimportant, or that ignorance was the state of the  12 Plaintiffs' knowledge when he or she swore the  13 affidavit to which the responses were attached.  14 Now, my lord, that concludes my discussion of the  15 general areas of evidence contained in the table.  The  16 whole point of my submissions, of course, is simply to  17 hand the table to your lordship, and what I am doing  18 now is describing the table for your lordship.  And on  19 page 12 I summarize the contents of the various  20 columns, which I've already done with your lordship.  21 Page 13, paragraph 33 of my submissions I point  22 out the analysis in the Table is not exhaustive; there  23 are many more examples of inconsistencies in the  24 evidence in addition to those summarized in the Table.  25 Paragraph 34 I refer to the various overlays which  26 your lordship now has in order to compare the mapping  27 for these claim areas over the years, and the -- to  28 determine the inconsistencies.  And for your  29 lordship's convenience, I have actually provided  30 excerpts from all of these overlays for one territory.  31 I plan to go through each overlay for one territory in  32 this table to show your lordship how this table works.  33 Now, paragraphs 35 and 36 I refer to the map which  34 I have —  35 THE COURT:  That's this one?  36 MR. MACKENZIE:  — to which I've drawn your lordship's  37 attention.  Yes.  It shows the areas in the core which  38 are dealt with in these submissions.  39 Now, I turn then, my lord, to give your lordship  40 an example of the working of the table, and turn to  41 the table at page 10 -- page 10 and 11.  And I now  42 deal with the Hagwilnegh information.  Does your  43 lordship see Hagwilnegh on page 10 of the table?  4 4 THE COURT:  Yes.  45 MR. MACKENZIE:  If your lordship will open page 10 and page 11  46 and have those handy.  Now, I will proceed through  47 those columns, and, my lord, I have provided for your 28062  Submissions by Mr. Mackenzie  1 lordship the references in this -- these entries so  2 that the table may be used for all the entries after  3 this example has been completed.  The overlays and  4 maps to which I will refer are contained in a pocket  5 following tab 10 in your lordship's binder.  If your  6 lordship could take those materials out, and if your  7 lordship can keep the paper clip handy, that will be  8 useful to pin the overlays to the base map.  9 The first document which appears is the base map,  10 and that is a black and white copy of the base map for  11 the judge's series.  And directing your lordship to  12 that, this is an excerpt from the base map showing the  13 area covered by Hagwilnegh's claim, and I'm going to  14 now orient your lordship to that location.  Your  15 lordship may see Smithers in the upper right-hand  16 corner.  17 THE COURT:  I understand the map.  18 MR. MACKENZIE:  Yes, my lord.  And McDonell Lake is an important  19 geographic feature in these submissions.  The next  2 0 document is -- the next document is an overlay which  21 is an excerpt from Exhibit 646-9B.  It should be a  22 black plastic overlay, and it should say "Hagwilnegh".  2 3 THE COURT:  Yes.  24 MR. MACKENZIE:  That, my lord, is the claim area of Hagwilnegh.  25 That may be placed on the base map by aligning the  26 external boundaries generally to get an idea of the  27 current claim area presently claimed by Hagwilnegh on  28 map 9B.  Now, using the paper clip, your lordship  29 could affix the overlay to the base map.  30 THE COURT:  They don't coincide.  31 MR. MACKENZIE:  No, this one doesn't coincide exactly, but your  32 lordship could place that on by aligning the external  33 boundary on the left.  34 THE COURT:  As close as you can make it?  35 MR. MACKENZIE:  Yes, my lord.  3 6 THE COURT:  Yes.  37 MR. MACKENZIE:  So now your lordship will see, having placed  38 that overlay on the base map, that Hagwilnegh claims a  39 large area from McDonell Lake south across the Telkwa  4 0 River.  41 THE COURT:  Yes.  42 MR. MACKENZIE:  And down to just north of — and including the  43 headwaters of a river known as the Thauril River.  4 4 THE COURT:  Yes.  45 MR. MACKENZIE:  And now that's the claim area.  If your lordship  46 will just keep that handy, and referring to page 10 of  47 the table, we are now at column 4 of the table.  If 28063  Submissions by Mr. Mackenzie  your lordship could just keep those documents handy.  COURT:  Yes.  MACKENZIE:  And the reference to the territorial affidavit  is contained in column 4, my lord, that's Mr. Johnny  David's territorial affidavit.  If your lordship could  write there "tab 1", because that affidavit appears at  tab 1 of your lordship's binder.  COURT:  That is J. David, tab 1?  MACKENZIE:  Yes, my lord.  COURT:  Tab 1 of what?  MACKENZIE:  Tab 1 of your lordship's binder.  COURT:  Of this book?  MACKENZIE:  Yes.  And without going into that, my lord, I  will say that in that section is contained references  to this territory set out on map 9B.  COURT:  Yes.  MACKENZIE:  And actually at page 6 of that table, paragraph  19 and paragraph 21 of that -- sorry, tab 1 --  COURT:  Yes.  MACKENZIE:  Mr. David refers to McDonell Lake, and he refers  to this area which is shown that is claimed by  Hagwilnegh.  Now, moving on -- does your lordship have that  general reference?  COURT:  Yes.  MACKENZIE:  Yes.  Now, moving on with the overlays and  now -- and on the table, my lord, the next column on  the table deals with interrogatories, and the next  overlay should be a green overlay, which is an excerpt  from the interrogatories maps that Miss Sigurdson  handed up to your lordship.  And that can be placed on  the base map and 9B aligning along the external  boundary.  COURT:  Yes.  MACKENZIE:  If your lordship does that, of course, my lord,  this can be done with the large overlays too, these  are just excerpts.  COURT:  Oh, yes.  MACKENZIE:  Your lordship will see the number 15a at  McDonell Lake, and that is, as will be seen from -- as  could be seen from the legend on the overlay map, is  John Namox's interrogatory, the interrogatory of Wah  Tah Kwets.  And looking at my table, page 10, in  column 5 I say:  1  2  THE  3  MR.  4  5  6  7  8  THE  9  MR.  10  THE  11  MR.  12  THE  13  MR.  14  15  16  THE  17  MR.  18  19  THE  20  MR.  21  22  23  24  25  THE  26  MR.  27  28  29  30  31  32  33  34  THE  35  MR.  36  37  38  THE  39  MR.  40  41  42  43  44  45  46  47  'Major inconsistency.  Wah Tah Kwets  interrogatories map covers McDonell Lake claim 28064  Submissions by Mr. Mackenzie  1 area."  2  3 Does your lordship see that on the table?  4 THE COURT:  Yes.  5 MR. MACKENZIE:  If your lordship would make a note at that  6 point, tab 2 is Mr. Namox's interrogatories response,  7 his affidavit, that's Exhibit 828.  8 THE COURT:  Yes.  9 MR. MACKENZIE:  And then Mr. Namox swears the usual affidavit,  10 then carrying on, Mr. Namox refers to in interrogatory  11 58 to a geographical feature, MacDonald Lake, which  12 may or may not be McDonell Lake.  I'll just hang on.  13 Does your lordship have tab 2, Exhibit 828?  14 THE COURT:  Yes.  15 MR. MACKENZIE:  And I've referred your lordship about four pages  16 in to the interrogatories responses.  17 THE COURT:  Yes.  18 MR. MACKENZIE:  Carrying on, my lord, to interrogatory response  19 number 63 at just another two pages on at tab 1 --  2 0 THE COURT:  Yes.  21 MR. MACKENZIE:  And at that response Mr. Namox says:  22  23  24 "A copy of the map of my territory which roughly  25 delineates the boundaries is set out as  26 Schedule B to these answers."  27  2 8 THE COURT:  Yes.  29 MR. MACKENZIE:  And carrying over to tab 3, my lord, is the  30 interrogatories map.  That is John Namox's  31 interrogatories map, Wah Tah Kwets' interrogatories  32 map.  Now, on the right-hand side is the north  33 designation, my lord.  34 THE COURT:  Yes.  35 MR. MACKENZIE:  And the point of the arrow should be pointed  36 north up to the top, and Smithers is right there on  37 the right-hand side about -- just up from the north  38 designation, just to orient your lordship.  Does your  39 lordship see the "N" for "North"?  4 0 THE COURT:  Yes.  41 MR. MACKENZIE:  And does your lordship see "NR" going up to  42 Smithers?  4 3 THE COURT:  Yes.  44 MR. MACKENZIE:  The purpose of that, my lord, is simply to  45 orient your lordship.  If your Lordship would go west  46 to Smithers we see Hudson Bay Mountain.  4 7 THE COURT:  Yes. 17 THE COURT  18 MR. GRANT  19 THE COURT  28065  Submissions by Mr. Mackenzie  1 MR. MACKENZIE:  And then you have the claim area, or Mr. Namox's  2 interrogatories area, in the centre of this map west  3 of Hudson Bay Mountain, and right in the north-west  4 portion is a lake with a Wet'suwet'en name, but that  5 is MacDonald Lake right on the boundary there.  6 THE COURT:  Yes.  7 MR. MACKENZIE:  So does your lordship see that?  8 THE COURT:  No.  I can't say that I found the lake yet.  What's  9 the Indian name for the lake?  10 MR. MACKENZIE:  It starts with D-Z-O, my lord.  There are some  11 district or mining lot numbers right on the boundary,  12 north central boundary straight across from Smithers  13 west of -- past Hudson Bay Mountain, and lot numbers  14 are lot 2549, lot 517.  15 THE COURT:  Yes, I see the lake, yes.  16 MR. MACKENZIE:  Yes, my lord.  Right on the boundary.  D-A-T.  D-A-T, yes, I have it.  20 MR. MACKENZIE:  Perhaps your lordship could circle that for ease  21 of reference.  22 THE COURT:  Yes.  It didn't look like that when I saw it.  23 MR. MACKENZIE:  So, my lord, your lordship will see that the  24 green overlay which we've placed on the base map  25 represents the area which is depicted on John Namox's  26 interrogatories map.  2 7 THE COURT:  Yes.  28 MR. MACKENZIE:  Thank you, my lord.  I've finished with that  29 interrogatories map, my lord.  30 THE COURT:  So have I.  31 MR. MACKENZIE:  Now, my lord, we're still in the table,  32 interrogatories column on the table.  33 THE COURT:  Yes.  34 MR. MACKENZIE:  And your lordship could make a point that the  35 map, Exhibit 828A is at tab 3.  And if your lordship  36 would just put tab 3 --  37 THE COURT:  Yes, all right.  38 MR. MACKENZIE:  Then carrying on in that table, my lord, is the  3 9 comment:  40  41 "Hagwilnegh interrogatories response to 59(c)  42 does not mention McDonell Lake or Keel  43 Weniits."  44  45 If your lordship could put tab 4 at that comment.  46 Now, my lord, the point that is probably clear, but  47 Hagwilnegh is said to claim this area we are speaking 28066  Submissions by Mr. Mackenzie  about now, but there's no mention in his  interrogatories response about this area.  Now, if your lordship would be kind enough to turn  to tab 4, your lordship will see Hagwilnegh's  interrogatories affidavit and response set out there.  Does your lordship have that reference?  COURT:  Yes.  MACKENZIE:  And that interrogatory 59(c), the question is:  "Q   What are the boundaries of your house's  territory?  A   Boundaries are Blunt Creek to the east and  the western boundary is Blunt Mountain."  In other words, Mr. Williams is there referring to  the —  COURT:  I haven't found that yet.  MACKENZIE:  Sorry, my lord, we're at tab 4.  COURT:  Yes.  MACKENZIE:  And if your lordship can follow past the  affidavit to interrogatories answer 59(c) on page  11 --  COURT:  Oh, yes.  MACKENZIE:  Does your lordship have that?  That's quite a  ways down the page.  COURT:  Oh, yes.  The boundaries are Blunt Creek to the east  and the western boundary is Blunt Mountain.  MACKENZIE:  Those are —  COURT:  Blunt Mountain is on the other side of the Skeena,  isn't it?  MACKENZIE:  Other side of the Bulkley, my lord.  COURT:  Bulkley, sorry, yes.  MACKENZIE:  It's north-east of Moricetown.  That's Blunt  Creek and Blunt Mountain, that area which is now  claimed by Goohlaht Kaspit.  COURT:  Yes.  MACKENZIE:  Now, turning to the table, my lord, column 6  refers to Exhibit 22, but Exhibit 22 it deals with  Gitksan territories and claim areas, so that is not  applicable here.  Carrying on to column 7, a reference to Exhibit  102.  Now, if your lordship now will return to your  overlays, your lordship will see an overlay in red  ink.  That, my lord, is an excerpt from Exhibit 646-4,  which purports to be Exhibit 102.  COURT:  Yes.  MACKENZIE:  So aligning that with the external boundaries,  1  2  3  4  5  6  7  THE  8  MR.  9  10  11  12  13  14  15  16  17  THE  18  MR.  19  THE  20  MR.  21  22  23  THE  24  MR.  25  26  THE  27  28  MR.  29  THE  30  31  MR.  32  THE  33  MR.  34  35  36  THE  37  MR.  38  39  40  41  42  43  44  45  46  THE  47  MR. 28067  Submissions by Mr. Mackenzie  your lordship will see that -- just looking at the  overlay, that the house or the designation of the  house claiming the McDonell Lake area is 7-H-44.  Does  your lordship see that?  COURT:  Mm-hmm.  MACKENZIE:  And going down to the Telkwa River, the  designation of the house claiming that is 7-H-43.  COURT:  Yes.  MACKENZIE:  Carrying on south, the designation is 7-H-44.  Does your lordship see that?  COURT:  Yes.  MACKENZIE:  Now, my lord, on the legend which is affixed to  Exhibit 102, 44 refers to Wah Tah Kwets, K-W-E-T-S.  COURT:  Yes.  MACKENZIE:  I have a copy of the legend to hand up to your  lordship.  COURT:  I have it here.  MACKENZIE:  The designation of 43 is Hagwilnegh.  Now, my  lord, I have to say now that the point can be made  that is still inconsistent with the Hagwilnegh claim  to McDonell Lake, but I have to say now that trial  Exhibit 102, the trial exhibit does not have these  numbers, the numbers have been changed, and I have an  excerpt from trial Exhibit 102, and I've also put up  trial Exhibit 102 on the sideboard beside your  lordship.  Now, does your lordship have a white and  black paper photocopy of trial Exhibit 102 in your  lordship's collection?  COURT:  With the legend?  MACKENZIE:  With the overlays, small eight and a half by  eleven.  COURT:  Overlay?  MACKENZIE:  It should follow the overlays, my lord.  Here's  a copy.  Yeah, it's the very last one.  It should  say -- I've handed one to your lordship so your  lordship can add that in.  I'm just making the point  here, my lord, I'm moving over to the copy of trial  Exhibit 102 which I've placed before your lordship's  desk, and I have the excerpt from that map and trial  exhibit in my hand, and I now point your lordship to  the designation at McDonell Lake, which is number 45.  COURT:  Yes.  MACKENZIE:  And the designation further south is number 43,  so that has not changed, but the designation further  south is number 45.  COURT:  Yes.  MACKENZIE:  And, my lord, number 45 on the legend is Wah tah  1  2  3  4  5  THE  6  MR.  7  8  THE  9  MR.  10  11  THE  12  MR.  13  14  THE  15  MR.  16  17  THE  18  MR.  19  20  21  22  23  24  25  26  27  28  29  THE  30  MR.  31  32  THE  33  MR.  34  35  36  37  38  39  40  41  42  THE  43  MR.  44  45  46  THE  47  MR. 2806?  1  2  THE  3  MR.  4  5  6  7  8  9  10  11  THE  12  MR.  13  14  THE  15  MR.  16  17  18  19  THE  20  MR.  21  22  THE  23  MR.  24  THE  25  MR.  26  THE  27  MR.  28  29  THE  30  MR.  31  32  THE  33  MR.  34  THE  35  36  MR.  37  38  MR.  39  THE  40  MR.  41  42  43  THE  44  MR.  45  THE  46  MR.  47  Submissions by Mr. Mackenzie  Keght, K-E-G-H-T.  COURT:  Yes.  MACKENZIE:  So, my lord, to that extent the overlay, the  Plaintiffs' Exhibit 646-4, is not a true copy of trial  Exhibit 102, as it is indicated as being.  But that is  a point that's not necessary to be made any further  with respect to the table, my lord.  Trial Exhibit  102, as I've indicated on the table, has the area  attributed to Wah Tah Keght.  Does your lordship have  that?  COURT:  Yes.  MACKENZIE:  Yes.  And it also has the area to the south  attributed to Wah Tah Keght.  I made an error there.  COURT:  Yes.  MACKENZIE:  So if your lordship could amend the table in  column 7 to put Wah Tah Keght, K-E-G-H-T, for the  McDonell Lake area, and also for the house and creek  area in column 7.  COURT:  It should be Wah Tah —  MACKENZIE:  K-E-G-H-T.  That's the bottom, my lord, house  and creek area.  Does your lordship see that?  COURT:  You're talking about the bottom?  MACKENZIE:  Paragraph — entry.  COURT:  Paragraph on the Exhibit 102 column?  MACKENZIE:  Yes, my lord.  COURT:  And what is the change that should be made?  MACKENZIE:  It should be changed from K-W-E-T-S to  K-E-G-H-T.  COURT:  Yes.  MACKENZIE:  That's the reference to the actual trial  exhibit.  COURT:  Yes.  MACKENZIE:  But the point can be made -- sorry, my lord.  COURT:  But both of these territories on the overlay you  showed me are attributed to 44?  MACKENZIE:  That's correct, my lord.  And that is Wah Tah  Kwets, K-W-E-T-S.  MACKENZIE:  K-W-E-T-S.  COURT:  Yes.  MACKENZIE:  So the overlay is inconsistent as well.  The  point that I'm making here is that it's different from  Exhibit 102, which is -- was not expected.  COURT:  What's the number of the overlay?  MACKENZIE:  The overlay is Exhibit 646-4.  COURT:  Yes, all right.  MACKENZIE:  My lord, then I'll pass on to the rest of  this -- moving on to column number 8, which is the 28069  Submissions by Mr. Mackenzie  1 Exhibit 5 column, your lordship will find an overlay  2 with blue coloured ink.  These are all indicated in a  3 tab in the upper right-hand corner by their exhibit  4 number, my lord.  5 THE COURT:  Yes.  6 MR. MACKENZIE:  Now, affixing that Exhibit 5 excerpt to the  7 external boundary, your lordship will see the  8 information summarized in the table column 8 with  9 respect to Exhibit 5.  10 THE COURT:  Yes.  11 MR. MACKENZIE:  Now, Exhibit 5, Wah Tah Kwets, K-W-E-T-S,  12 claims McDonell Lake and the Howson Creek areas to the  13 south.  Does your lordship see that on Exhibit 5?  14 THE COURT:  Yes.  15 MR. MACKENZIE:  Yes.  That completes the reference to Exhibit 5,  16 my lord.  17 THE COURT:  Hagwilnegh claims only the middle area?  18 MR. MACKENZIE:  Yes, my lord.  And that is indicated on table  19 column 8.  2 0 THE COURT:  Yes, my lord.  Moving to column 9, I have not — or  21 I will not go through the evidence in detail, but I'm  22 going to ask your lordship to note the tabs where this  23 evidence is contained in your lordship's binder.  Now,  24 reading in column number 9:  25  26 "Lucy Bazil and Pat Namox stated that McDonell  27 Lake is in Wah Tah Kwets claim area."  28  29 And if your lordship could put down there tab 5 for  30 Exhibit 99.  31 THE COURT:  Yes.  32 MR. MACKENZIE:  Tab 6 for Exhibit 672A.  Does your lordship have  33 that reference?  34 THE COURT:  Yes.  35 MR. MACKENZIE:  And as I've already pointed out to your  36 lordship, this table is a summary analysis, it doesn't  37 go into details.  A lot of the details can be made,  38 but Lucy Bazil and Pat Namox are members of the House  39 of Wah Tah Kwets who were examined on commission.  I'm  40 just speaking now in elaborating on this point, my  41 lord, and they gave that evidence which is set out at  42 those tabs.  I should also point out that there is a  43 detailed analysis of this area, much more detailed,  44 set out at tab -- in section CI of these submissions.  45 Now, carrying on in that column 9:  46 "Johnny David agreed that Wah Tah Kwets owns an  47 area around Beaver Creek near McDonell Lake." 28070  Submissions by Mr. Mackenzie  1  2 That is tab 7.  Johnny David, of course, was the  3 territorial affient, he was cross-examined.  Carrying  4 on in column 9:  "Alfred Joseph testified that the  5 Howson Creek claim area" -- that's the southern  6 most -- "was Wah Tah Kwets".  And that reference is  7 tab 8.  And because of the time constraints, I'm just  8 going to summarize Alfred Joseph's evidence by  9 directing your lordship to Exhibit 5.  10 Alfred Joseph is Gisdaywa, and he was asked to  11 describe the territories bordering his claim area, and  12 he spoke about the northern tip of his claim area, and  13 he said that Wah Tah Kwets owned the area to the west  14 of the northern tip of his claim area.  And that is a  15 reference on Exhibit 5 to this southern area, which  16 was then claimed by Wah Tah Kwets.  And carrying on in  17 that column, my lord, this is on -- we're on page 11,  18 carried on on page 11.  19 THE COURT:  Yes.  20 MR. MACKENZIE:  On Exhibit 101, the McDonell Lake area is  21 attributed to Wah Tah Kwets, and I have included a  22 paper copy of Exhibit 101 with your lordship's  23 overlays.  It is noted as being Exhibit 101 in the  24 upper right-hand corner of the exhibit.  2 5 THE COURT:  Yes.  26 MR. MACKENZIE:  And the information your lordship can orient  27 yourself with Smithers on the right.  2 8 THE COURT:  Yes.  29 MR. MACKENZIE:  Yes.  So that's that point.  This is Exhibit  30 101, which is the Carrier-Sekani overlay map, my lord.  31 THE COURT:  Yes.  32 MR. MACKENZIE:  We discussed in detail.  Now, reading from the  33 table on page 11:  Johnny David and John Namox were  34 both at the All Clans Feast on April 6th, 1986, where  35 Exhibit 101 was displayed.  They were prominent  36 participants.  Finally in that column, another  37 reference to Pat Namox, my lord.  He has a registered  38 trapline at McDonell Lake.  He continues to hunt and  39 trap there, and the reference there is tab 9 of your  40 lordship's binder.  41 THE COURT:  And that's 672A.  42 MR. MACKENZIE:  Yes, my lord.  4 3 THE COURT:  Is tab 9.  44 MR. MACKENZIE:  Yes.  And that completes my review of the  45 references, my lord.  46 And finally, the final column for this territory  47 on page 10, is a summary of the -- of what in our 28071  Submissions by Mr. Mackenzie  submission arises from all this inconsistent evidence.  Does his lordship have that column?  COURT:  Back to page —  MACKENZIE:  Page 10, my lord.  COURT:  Of your text?  MACKENZIE:  No, page 10 of the table, my lord.  COURT:  Oh, yes, yes.  MACKENZIE:  Just continuing on under "Hagwilnegh",  "Remarks":  Until at least 1988, when map 9B was  produced, the Plaintiffs regarded McDonell Lake and  Howson Creek as Wah Tah Kwets' claim areas, and in our  submission, no reputation has been established there  for the ownership and boundaries of these territories.  My lord, that is a summary review of one entry in this  table showing how the table operates.  And would your  lordship wish to adjourn at this time or --  COURT:  Oh, yes, I think so, but before we do, could you  make a suggestion what I should do with these  overlays?  MACKENZIE: The overlays should be put together, my lord,  and returned to the pocket following tab 10 in your  lordship's binder.  COURT:  Yes, all right.  Is it necessary to have the paper  in between each one; do they rub off?  MACKENZIE: No. I think that's because it was wet at the  time, my lord.  MACKENZIE:  Sometimes they stick to each other, my lord.  COURT:  They were in this envelope, were they?  MACKENZIE:  Yes, my lord, pocket tab 10 in your lordship's  binder.  COURT:  All right.  We'll adjourn then until 1:32 or  thereabouts.  REGISTRAR:  Order in court.  (LUNCHEON RECESS TAKEN AT 12:30)  1  2  3  THE  4  MR.  5  THE  6  MR.  7  THE  8  MR.  9  10  11  12  13  14  15  16  17  THE  18  19  20  MR.  21  22  23  THE  24  25  MR.  26  27  MR.  28  THE  29  MR.  30  31  THE  32  33  THE  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability  Graham D. Parker  Official Reporter  United Reporting Service Ltd. 28072  Submissions by Mr. Mackenzie  1 (PROCEEDINGS RESUMED AT 1:30 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Yes, Mr. Mackenzie.  5 MR. MACKENZIE:  Thank you, my lord.  My lord, this morning we  6 reviewed the entry for the House of Hagwilnegh and in  7 the table at tab B of your lordship's binder, we  8 reviewed the references contained in the table for  9 that entry.  Same exercise can be done for the rest of  10 the 17 entries in that table.  Some of those claim  11 areas have been dealt with in more detail at tab C of  12 your lordship's binder, and I'll refer to that tab now  13 if your lordship has that.  14 THE COURT:  Yes.  15 MR. MACKENZIE:  The first item at tab C is the detailed analysis  16 of the Hagwilnegh area which we have just gone through  17 on the table, and your lordship is now aware that  18 that -- has been aware that that area is just west of  19 Smithers in the McDonell Lake area, and that appears  20 on this map that I have handed up to your lordship of  21 map 9A and B.  Perhaps your lordship might note that  22 Hagwilnegh is dealt with at tab CI in detail.  23 That's -- I point out as a result of the analysis in  24 these pages -- that these pages are not as detailed as  25 the analysis we did earlier in section 5G, but the  26 submission is made that the inconsistent evidence  27 supports the proposition that the reputation for  28 ownership and boundaries of that house have been  29 reduced to the point of invisibility and unreliability  30 and that affects the reputation for the surrounding  31 and adjoining house claim areas.  And can your  32 lordship locate that on map 9A and B?  33 THE COURT:  I was just looking at Hagwilnegh and, yes, I have  34 it, thank you.  35 MR. MACKENZIE:  The next item at tab 2 in your lordship's  36 binder, section C, is the Spookw territory.  I am  37 turning to that now, my lord.  That is the area near  38 Hazelton and it's referring to the map again that's  39 right in the centre of the plaintiffs' claim area.  40 Does your lordship have that?  41 THE COURT:  Yes.  42 MR. MACKENZIE:  That is dealt with in detail at tab 2, and of  43 course is also dealt with in summary in the table at  44 page 21 of the table.  The same comment can be made  45 for the Spookw territory and I refer your lordship  46 briefly to paragraph 15 on page 5 of the Spookw  47 analysis.  The final point should be made that the 28073  Submissions by Mr. Mackenzie  1 Spookw claim area is in the Gitksan heartland.  This  2 is not a remote wilderness claim area.  The many  3 serious inconsistencies as to Spookw claim areas and  4 ownership illustrate the lack of any settled  5 reputation as to the location and ownership of this  6 and all the plaintiffs' claim areas.  Your lordship  7 will recall that is the territory right at New  8 Hazelton.  9 Continuing on, my lord, to tab 3.  I deal here  10 with the Wah Tah Keght, k-e-g-h-t, area and this is  11 Moricetown.  This is Wet'suwet'en heartland area.  In  12 my submission, the points made in this analysis  13 supports the conclusions on pages 6 and 7 of this  14 section, C-3.  Refer your lordship to paragraph 21 on  15 page 7.  This is with respect to the Wah Tah Keght,  16 k-e-g-h-t, territory at Moricetown.  The lack of  17 reliable evidence or reputation as to the Wah Tah  18 Keght boundaries affects the boundary evidence for all  19 other claim areas with which this claim area has a  20 common boundary, including Goohlaht, Woos, Woos,  21 (Gyologyet), Hagwilnegh, Guxsan, Gwis Gyen and  22 Djogaslee.  23 And continuing on now to the final section of  24 this -- these analyses, my lord.  This is section 4  25 and this refers to the Wiigyet and Wii Minosik claim  26 areas just north of Kisgagast and I locate your  27 lordship to that location.  2 8    THE COURT:  I have found it.  29 MR. MACKENZIE:  Yes, my lord, that's in the Shedin Creek  30 Watershed.  And, in summary, the evidence as analyzed  31 in the section 4 and also referred to in the table  32 shows that there are several inconsistencies both in  33 the interrogatories, maps and data sheets on previous  34 maps and in other evidence relating to these two  35 territories which leads to the propositions on page 6  36 of this section at paragraph 16.  Whether or not the  37 conflicting evidence is more reliable, it casts  38 doubt -- casts doubt on the credibility of the James  39 Morrison's territorial affidavit.  It is submitted  40 therefore there is no reliable evidence as to  41 boundaries and ownership of these two claim areas.  42 THE COURT:  When you say whether or not it is more reliable,  43 more reliable than what?  44 MR. MACKENZIE:  More reliable than the evidence in the  45 territorial affidavit, my lord.  A point should be  46 made again, my lord, that the map is based upon the  47 territorial affidavits. 28074  Submissions by Mr. Mackenzie  1 THE COURT:  Yes.  2 MR. MACKENZIE:  And the fact that this conflicting evidence is  3 being compared to the territorial affidavit would  4 appear from my reading of the previous paragraphs in  5 the section.  And so, my lord, paragraph 17, the  6 conclusion follows that there is no reliable  7 foundation and no reputation for the boundaries and  8 ownership of these two claim areas.  9 The lack of reliable evidence or reputation as to  10 the boundaries and ownership of these two claim areas  11 affects the boundary evidence and the ownership  12 evidence for all other claim areas with which they  13 have a common boundary, including Tsabux, Shelf Ridge,  14 Tsabux, Upper Shedin, Luus, Larkworthy Creek, and Wii  15 Gaak - Shelagyot/Sustut.  16 THE COURT:  Are those names somewhere conveniently available for  17 madam reporter?  18 MR. MACKENZIE:  The madam reporter is following along with these  19 submissions, my lord.  She has them in front of her.  2 0 THE COURT:  Thank you.  21 MR. MACKENZIE:  And so, my lord, all these territories  22 highlighted on your lordship's map can be found in  23 alphabetical order in the table with those five to  24 which I have just referred -- dealt with in more  25 detail in these analyses at tab C.  26 That completes my submissions on that material, my  27 lord.  28 THE COURT:  All right.  And is it your suggestion that I should  29 now put this material into your volume 2, was it?  30 MR. MACKENZIE:  It is volume 4, my lord.  31 THE COURT:  I am sorry, yes, you were going to put it in volume  32 4.  33 MR. MACKENZIE:  Of the Province's supplement.  And it goes in  34 there under tab 7.  35 THE COURT:  All right.  36 MR. GRANT:  Could I get clarification?  When the disk is  37 available for this, will the table be included in that  38 disk?  39 MR. MACKENZIE:  I don't think the table will be included in the  4 0 disk, my lord.  41 THE COURT:  All right.  Perhaps I won't put it in right now.  We  42 can do it later.  All right, thank you.  43 Now, this map D of inconsistent ownership and  44 boundary evidence, that's just an aide memoire, is it?  45 MR. MACKENZIE:  That, my lord, goes at tab D in your lordship's  46 binder of this section.  47 THE COURT:  Yes, all right. 28075  Submissions by Mr. Mackenzie  Submissions by Mr. Goldie  1 MR. MACKENZIE:  That is more than an aide memoire, that is a  2 paper copy of maps 9A and 9B, the plaintiffs' claim  3 area and it's an aide memoire in the sense that it is  4 highlighted in those areas which are dealt with in the  5 table.  Those are the areas which generally speaking  6 are in the core of the claim area partially or not  7 affected by the overlapping claims.  Your lordship  8 does have another piece of paper there and that's the  9 code -- codes for Exhibit 102 and your lordship might  10 put that paper right in that pocket following tab 10  11 as your lordship is doing.  12 THE COURT:  Yes, all right.  What about this overlay?  13 MR. MACKENZIE:  That overlay is to go in the judge's series, my  14 lord.  Can be used with the judge's series.  15 THE COURT:  All right.  Can you look after that?  16 THE REGISTRAR:  Yes.  17 THE COURT:  Thank you, Mr. Mackenzie.  18 MR. GOLDIE:  My lord, could I return your lordship to volume 2  19 of the Defendant's summary, and I am going to complete  2 0 one item remaining under tab Roman IX.  21 THE COURT:  Am I going to need this new book of —  22 MR. GOLDIE:  I hope to get to that immediately after.  23 THE COURT:  All right.  What number was it?  24 MR. GOLDIE:  It's tab Roman IX, Arabic 8, and Mr. Plant has  25 dealt with 8(a), and following 8(a) page 7 is 8(b), my  26 lord, Miscellaneous Matters South African War Land  27 Grant.  And your lordship will also need the yellow  28 binder, volume 19, and I am wishing to complete some  29 of the documents under that.  In the yellow binder, if  30 your lordship would turn first to tab IX/8b-2, the  31 thinner of the two insertions that I have handed up is  32 an additional Proclamation, and it with the blue  33 separator sheet should immediately follow the  34 Proclamation that is presently under tab 8b-2.  35 THE COURT:  Yes.  36 MR. GOLDIE:  And then under tab 8b-10, the additional documents  37 which start with the page number in the lower  38 right-hand corner, page 8.  39 THE COURT:  I am sorry.  40 MR. GOLDIE:  I am sorry, page 7 would immediately follow the  41 last blue separator sheet -- I am sorry, would  42 immediately follow with the blue separator sheet  43 preceding page 6.  4 4 THE COURT:  Thank you.  45 MR. GOLDIE:  Now, my lord, if I could go back to the narrative  46 in volume 2 of the Province's summary, it is headed  47 South African War Land Grant, and I say Dr. Lane filed 28076  Submissions by Mr. Goldie  1 evidence of her researches -- of her researches into  2 grants of land made under the South African War Land  3 Grant Act as amended from time to time.  The preamble  4 to the Act stated its purposes:  recognition of  5 military service and:  6  7 " is also expedient that such recognition  8 should take the form of grants of land to be  9 made in such manner as will be conducive to the  10 actual settlement of the public lands of  11 British Columbia."  12  13 Neither of these purposes was new.  Douglas'  14 Proclamation of March 18, 1861, and of February 23,  15 1863 providing for remission of purchase price and the  16 use of location tickets issued to retired officers of  17 the army and navy in respect of unoccupied and  18 unreserved country lands.  And those are the two  19 Proclamations which are under 8b-2, one of which I  20 just added.  The second purpose -- returning to my  21 summary -- the second purpose, settlement, was of  22 course pressed upon Douglas by Lytton as early as July  23 1858.  And that was the exhortation that -- and it is  24 page 7 under that tab 8b-2, my lord, where the last  25 paragraph of the second paragraph of Lytton's despatch  26 of July 1, 1858 to Douglas states, and I quote:  27  28 "All claims and interests must be subordinated  29 to that policy which is to be found in the  30 peopling and opening up of the new country,  31 with the intention of consolidating it as an  32 integral and important part of the British  33 Empire."  34  35 I say that the South African legislation expressly  36 protected Indian settlements and villages in Section 3  37 where lands other than "...unoccupied, unclaimed and  38 unreserved Crown lands..." were excluded from  39 settlement.  The applicant was required to swear that  40 the land sought was not an Indian settlement.  And  41 that appears under the next tab, my lord, which is a  42 photocopy of the declaration -- does your lordship  43 have the declaration?  4 4    THE COURT:  Yes.  45 MR. GOLDIE:  The declarant was required to swear that the land  46 that for which he has made application, and this is  47 the third line down: 28077  Submissions by Mr. Goldie  1  2 " unoccupied and unreserved Crown Land,  3 within the meaning of the 'Land Act' and is not  4 an Indian settlement or any portion thereof."  5  6 Returning to my summary.  I say:  Although the  7 terms of the Act respecting exemption from taxation  8 and freedom from execution were meant to encourage  9 permanent settlement by the returned volunteer the  10 favourable access to land represented by the scrip  11 itself created a speculative interest.  There is no  12 evidence that this result was intended.  13 Now, I say that the purposes of the legislation  14 were as stated in the Act itself of settlement and a  15 reward for service in the Armed Forces and that the  16 manner in which it was set up was unremarkable in the  17 sense of achieving those purposes.  18 And paragraph 5, I say:  The utilization of scrip  19 in the Bulkley Valley resulted in disputes over land  20 between Indians, mainly those who were utilizing off  21 reserve lands east of Moricetown, and settlers who  22 claimed rights to Crown lands open to pre-emption.  It  23 has been suggested that the Indians affected were  24 dispossessed of traditional lands.  It is submitted  25 that this was not the case and that the Indian use of  26 the lands in question was recent and occurred after  27 the principal reverse had been set aside.  In any  28 event, it cannot be suggested that the Province in any  29 way departed from the policy of setting aside reserves  30 for the protection, use and occupation of Indian  31 peoples.  The evidence of the -- these disputes is  32 largely irrelevant to the issues in the case at bar  33 and will be reviewed only briefly.  34 In relation to the Indians of the Bulkley and  35 Skeena Valleys the operation of the South African land  36 grant legislation was no different than the  37 legislation providing for settlement by pre-emption.  38 The Indian interest was protected by the continuation  39 of the Colonial policy of setting aside reserves  40 comprising the Indian settlements as indicated by the  41 Indians.  This had been largely accomplished by  42 O'Reilly in 1891 - 1893.  43 In the period between Downie and 1857 and  44 Poudrier, who was employed on behalf of the Provincial  45 Government, reporting on his survey of 1892 - 93, the  46 habits of the native peoples had undergone substantial  47 changes.  With the advent of horses in 1866 it became 2807?  Submissions by Mr. Goldie  1 necessary to obtain winter feed and with the advent of  2 the white man the cultivation of vegetables became  3 more widespread as well as commercially rewarding.  In  4 1891 the agricultural activities at Moricetown were  5 rudimentary and within the area set aside by O'Reilly.  6 There are two documents under that tab in the yellow  7 binder, my lord, the first is Poudrier's report of his  8 survey in the Bulkley Valley in January of 1893, and I  9 will come to that in a little greater detail, and the  10 second at page 8b-7 page 8 is O'Reilly's report of  11 March 26 on the reserves which he had set aside in the  12 Bulkley Valley.  And, in particular, I refer to page  13 435, and I am referring to a handwritten number in the  14 upper right-hand corner, my lord.  15 THE COURT:  In this tab?  16 MR. GOLDIE:  Under this tab, yes.  17 THE COURT:  What number?  18 MR. GOLDIE:  Well, perhaps the better way to go about it is it's  19 8b-7 page 9 at the bottom of the page.  2 0 THE COURT:  Yes, thank you.  And this is from what?  21 MR. GOLDIE:  This is from O'Reilly's report on his setting aside  22 the reserves in the Bulkley Valley.  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  And he says at the top of the page:  25  26 "The Hagwilgets are good hunters and trappers,  27 they also engage in packing between Hazelton  28 and mines.  They grow a limited quantity of  29 vegetables, but have not hitherto engaged in  30 agriculture.  They possess a few horses and  31 cattle, and they expressed their intention to  32 add to their number."  33  34 I ask your lordship to bear in mind that that's 1892,  35 and the horses were introduced into the Valley in  36 1866.  Now, returning to my text, I say that most  37 agricultural development took place after 1892 is  38 evident from Poudrier's report.  It is clear that  39 there were no Indian settlements beyond Moricetown  40 until one reached the Endako River - outside the claim  41 area - where it was noted that an Indian had  42 cultivated some 30 acres of land.  And that, my lord,  43 is -- Poudrier's report is under the next tab.  44 THE COURT:  His report is in twice.  45 MR. GOLDIE:  It's in twice because it's referred to in the two,  46 but -- now he is reporting in 1893, and on page 5 and  47 the page number is the one in the lower right-hand 28079  Submissions by Mr. Goldie  1 corner, he begins a discussion under the heading  2 Climate.  3 THE COURT:  Yes.  4 MR. GOLDIE:  He says about six lines down beginning with the  5 sentence:  "At Moricetown".  6 THE COURT:  Yes.  7 MR. GOLDIE:  8  9 "...where the altitude is also 1,200, potatoes,  10 turnips, carrots, are raised without any  11 trouble by the Indians, and their system of  12 cultivation is of the most primitive nature."  13  14 And then he goes on to the last sentence, last  15 paragraph, he says:  16  17 "Beyond the head of the Bulkley River, but in  18 the continuation of the same valley on the  19 Endako River, there is an Indian who has a  20 ranch of over thirty acres under cultivation.  21 He raises barley, oats, potatoes, turnips,  22 carrots and other vegetables in abundance, and  23 that was a very defective method of farming."  24  25 THE COURT:  What would you understand he meant "beyond the head  26 of the Bulkley River"; the headwaters of the Bulkley,  27 is it?  28 MR. GOLDIE:  Yes, that's my understanding.  I take that having  29 regard to the reference to the Endako.  30 THE COURT:  So the headwaters of the Bulkley is somewhere west  31 of Burns Lake.  32 MR. GOLDIE:  Yes, yes.  It's — I think that's correct.  33 THE COURT:  Somebody told me where it was once but I don't  34 remember now.  And north of the present railway  35 corridor.  36 MR. GOLDIE:  Well, the railway runs along —  37 THE COURT:  I am sorry, east, yes.  All right.  38 MR. GOLDIE:  Yes.  39 THE COURT:  He doesn't really say there is nothing between  40 Moricetown and --  41 MR. GOLDIE:  This settlement.  42 THE COURT:  — this settlement.  43 MR. GOLDIE:  No, he doesn't, and I am going to refer, my lord,  44 back to -- back to O'Reilly who is there not much more  45 than a year before where he says at -- and all my page  46 numbers will all be to the pages in the lower  47 right-hand corner, under the tab 8b-7, it's page 8. 28080  Submissions by Mr. Goldie  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  Under tab 8b-7 O'Reilly says:  "I have now the honour  to forward" --  THE COURT:  I am sorry, you are at what page?  MR. GOLDIE:  Sorry, my lord?  THE COURT:  What page?  MR. GOLDIE:  8b-7 page 8.  THE COURT:  Yes, yes.  MR. GOLDIE:  He says:  "I have now the honour to forward herewith  Minutes of decision and sketches of twelve  reserves defined by me during the past season  for the use of a portion of the Hagwilget tribe  of Indians who reside on Babine Lake, and on  the Hagwilget River which discharges into the  Skeena immediately below the town of Hazelton."  That's the Bulkley, of course.  He says:  "The Hagwilget Indians occupy scattered  settlements from the Hagwilget river to Fort  George, on the Frazer river, a distance of  about two hundred miles, the greater number of  the reserves for these Indians have not  therefore been dealt with."  And then I have read the next paragraph, and then he  proceeds to describe the various reserves. Number 1  is I think clear, it is Moricetown.  He says:  "...about thirty-five miles from the mouth of  the Hagwilget river.  The principal village of  the tribe, consisting of 18 houses, is at this  place and has, according to the census supplied  by the local Agent, a population of 76, of whom  Legoul is the chief."  He says:  "The most important fishery of the band is  immediately in front of the village; here great  quantities of salmon on annually taken."  And the next page he says:  "Although there is a considerable extent of good  land on this reservation, nothing has been done 28081  Submissions by Mr. Goldie  1 for its improvement, or utilization, excepting  2 only that a few potatoes and vegetables are  3 grown in isolated patches."  4  5 Number 2:  6  7 ...about two miles from Moricetown; and is used  8 by the Indians as a winter run for horses.  9  10 I point out, my lord, that as I said a few minutes ago  11 the horses were introduced in 1866.  Number 3:  12  13 "...situated on the Frazer Lake trail, about  14 five miles south of Moricetown, contains 160  15 acres, the layer portion of which is good hay  16 land."  17  18 And then —  19 THE COURT:  Would that not be "larger"?  I don't know what a  20 layer portion is.  21 MR. GOLDIE:  The larger portion is -- yes, I guess that's what  22 it is, a larger portion of which is good hay land.  23 Now, the next one, my lord, is on the right bank  24 of the Babine River so we have left the Bulkley  25 Valley.  Number 5 is on the left bank of the Babine  26 River.  Number 6 is a reserve at the foot of Babine  27 Lake; and number 7 is a timber reserve, 100 acres  28 situated on the western shore of Babine Lake.  Number  29 8 is on the eastern shore of the Babine Lake; number 9  30 is on the western shore of the Babine Lake; and number  31 10 is on the eastern shore of the Babine Lake; and 11  32 is the same thing.  And the 12th, a timber reserve,  33 some 330 acres, is about a mile and a half southwest  34 on the western side of the Babine Lake.  35 In my submission, it is clear that when O'Reilly  36 laid out those reserves, most of which were on the  37 Babine Lake, he was dealing with the settlements which  38 he found in that area.  39 Now, I have referred to Poudrier who went through  40 that area a year or so later and he found, as I said,  41 an Indian who had cultivated some 30 acres of land.  42 Poudrier of course had before him the so-called  43 telegraph trail, the Old Collins Telegraph Trail.  And  44 he describes its effect, and I am going to refer at  45 page 3, my lord, of that, in the lower right-hand  46 corner.  47 THE COURT:  I am sorry, what are you looking at now? 28082  Submissions by Mr. Goldie  1 MR. GOLDIE:  Poudrier's report again under tab 8b-7 -- I am  2 sorry 8b-8.  3 THE COURT:  I am sorry, is that Poudrier's report?  4 MR. GOLDIE:  Yes, it's repeated again.  5 THE COURT:  I think it is either 7 or 9, isn't it?  6 MR. GOLDIE:  It is under 7.  7 THE COURT:  I am sorry, no -- you are right, it's under 7.  Yes,  8 thank you.  9 MR. GOLDIE:  But at page 3 of that report or the third page of  10 that report he talks about the -- he talks about the  11 various townships that he is crossing and he -- at the  12 bottom of page 2, he says:  13  14 In Township 2, twenty-two entire sections have  15 been surveyed.  The old Telegraph Trail runs  16 through a number of these.  The general  17 appearance of this township is rather uneven,  18 and the greater part is covered with timber.  19  20 He says in the next page that:  21  22 "...numerous extents of open country covered  23 with a rich growth of hay, where from two to  24 three tons can be cut to the acre.  Several  25 tons have been cut by the Indians, and it would  26 be quite easy to use a mower on all open land.  27 The meadows lie near the trail or along the  28 numerous small streams, where some parts of  29 them are rather wet."  30  31 And he says in the Township 3, the third line:  32  33 "All the parts surveyed could be used either as  34 farming or grazing land."  35  36 There is an absence of any present use in those terms.  37 And then he talks about, in Township 4:  38  39 "The Bulkley Valley crosses the south-west  40 corner of the township, and the old Telegraph  41 Trail traverses it from north to south.  There  42 are some very rich open meadows, especially  43 along the trail and along the river.  On the  44 side-hills the grazing land is also very  4 5 abundant."  46  47 And the last -- the last -- and that's near Lake 28083  Submissions by Mr. Goldie  1 Aldermere, my lord.  2  3 "On the north end there is a small house, built  4 years ago as a station of the Union Telegraph  5 Company, and now occupied by Indians."  6  7 And then the next township is again close to Aldermere  8 Lake, and he speaks about the next township, best  9 township for grazing.  And then over the page at the  10 end of the paragraph dealing with -- the section  11 dealing with Township 6, he says:  12  13 "All parts of this township will be utilized  14 some day or other as farming or grazing land."  15  16 Now, I say that, if one reads that report in its  17 entirety, it is clear that he is reporting on  18 potential use, not actual use or occupation, or he  19 notes where there is occupation but not -- but he  20 reports nothing of any -- of any farms other than the  21 one that's about 30 miles from -- not 30 miles, but  22 the one that was some distance from Moricetown.  23 THE COURT:  What is this gentleman doing, laying out townsites?  24 MR. GOLDIE:  He is a provincial government surveyor.  25 THE COURT:  So he is not establishing reserves.  26 MR. GOLDIE:  No, no, he's got nothing to do with that.  His sole  27 purpose was to go through the country and determine  28 its suitability for agricultural purposes and to lay  29 out townsites.  30 THE COURT:  He's building very substantial townships, some of  31 them are 16 sections.  32 MR. GOLDIE:  Yes, it is.  33 THE COURT:  A section is a square mile, isn't it?  34 MR. GOLDIE:  Yes, 640 acres, yes.  35 THE COURT:  All right.  36 MR. GOLDIE:  I am now back at my summary, and I have -- in  37 paragraph 9, I say:  The absence of Indian settlements  38 or occupation is confirmed by the absence of reserves.  39 O'Reilly's care in laying out reserves where and to  40 the extent requested by the Indian peoples themselves  41 is revealed both in his diaries and in the long  42 transcript of the meetings he held in 1888 on the  43 Coast.  It is inconceivable, in my submission, that  44 O'Reilly would not have set aside reserves for farms  45 of the kind described in 1907, and that's the date  46 that some difficulties arose with respect to  47 Wet'suwet'en people in the Bulkley Valley, continuing, 28084  Submissions by Mr. Goldie  1 if they had existed in 1891.  Now, I say that having  2 regard to O'Reilly's instructions, having regard to  3 the absence of settlement that is reported on by  4 Poudrier in 1893, I say that O'Reilly would have had  5 no restrictions in the form of existing white  6 settlement on laying out reserves in 1891 or 1892 if  7 they were there.  I say:  His report of his reserve  8 allocation for the Hagwilget tribe whose "...scattered  9 settlements (extend) from the Hagwilget River to Fort  10 George on the Frazer" and I have already read that, my  11 lord, makes no reference to settlement or Indian  12 occupation between Reserve 3, six miles south of  13 Moricetown on the Frazer Lake trail and the reserves  14 on the Babine River and Lake.  15 Now, the dispute which was the subject matter of  16 Dr. Lane's researches was aired before the Royal  17 Commission by Father Godfrey, a missionary whose  18 sincerity was doubted by Mr. Brody but whose statement  19 to the Royal Commission of the changes in the  20 lifestyles of Moricetown peoples is consistent with  21 all other available evidence.  And his -- an extract  22 from his evidence on April 26, 1915 is found under tab  23 8b-10, and he addresses the Commission on behalf of  24 the chief and the Indians as follows, and about  25 half-way down the paragraph after some introductory  26 remarks, he says:  27  28 "The main grievance around here which may be  29 summed up in the general way is that they  30 desire to have a little more land allotted to  31 them than they have at the present time.  A  32 large portion of the land in and around the  33 Moricetown Reserve is not what you would call  34 exactly good agricultural land."  35  36 And then down at the bottom of the page, three lines  37 from the bottom:  38  39 "They have looked into the ways and means of  40 living of the white population, and for the  41 past ten years, or ever since they came into  42 contact with the white man and especially  43 during the last three or four years, during the  44 railway construction days, they have  45 endeavoured, as far as they were able, to get  4 6 work from the white man and to take out  47 contracts from them..." 28085  Submissions by Mr. Goldie  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  And so on.  And then midway down the page, my lord,  there is a sentence which begins with the words:  "There is a greater desire on the part of the  Indians ..."  THE COURT:  MR. GOLDIE:  Yes.  "...towards the increasing of their stock, and,  I daresay, every one of them wants to launch  into cattle raising, and in order to do this,  they desire to have a little more land, so that  they will be better able to feed their stock  than they are at the present time."  And right at the bottom he says:  "Formerly, all these men made their living by  hunting, going out in the winter time, about  September till about Christmas and from the  middle of January to the end of June."  THE COURT:  I am sorry, I am having problems with that.  MR. GOLDIE:  That's right at the bottom of that page, my lord.  THE COURT:  Yes.  MR. GOLDIE:  And then after talking about the difficulties that  they have with their hunting, I go over to page -- the  page at the lower right-hand corner 8b-10 page 4,  and -- this is about a third of the way down the page  beginning with the sentence:  "Another point I am asked to draw your  attention..."  THE COURT:  MR. GOLDIE:  Yes.  ' regarding some special claims and  grievances which have existed in the past.  We  have had cases I daresay seven, eight or nine  cases where certain families have taken  possession of certain pieces of land  conveniently located near a beautiful lake,  which land naturally offered facilities for  cutting hay, especially formerly when there 28086  Submissions by Mr. Goldie  1 were no mowing machines.  Some of these pieces  2 of land have now been alienated by the  3 Government and have come into the possession of  4 some white settlers.  I daresay that one of  5 those cases is the case of a family around Tyee  6 Lake or McClure Lake.  Those living there are  7 Tyee Lake David, John Baptiste and Big Pierre.  8 Another instance of this kind is a case of two  9 families living at Canyon Creek..."  10  11 And it gives the names of those.  And he is -- he says  12 on the next page in response to the question from the  13 chairman:  14  15 "THE CHAIRMAN:  Is there any cultivation on  16 these lands?  17 A.  There were some spots cleared around the  18 houses where they used to cut hay for their  19 horses.  In each of these cases they had houses  20 on these lands which were used for hunting  21 cabins, and in a great many cases these cabins  22 have been destroyed by the incoming white men."  23  24 And then that, my lord, was in 1915.  25 THE COURT:  Now, this wasn't the McKenna-McBride Royal  26 Commission?  27 MR. GOLDIE:  Yes, it was.  28 THE COURT:  Oh, it was.  This is — yes, thank you.  29 MR. GOLDIE:  I say that the -- I am back in my summary, my lord.  30 After saying that Father Godfrey's evidence is  31 objective, I say in page 6:  Evidence with respect to  32 the most notable example, Jean Baptiste, was collected  33 by Dr. Lane and Dr. Galois.  From these it is clear  34 that by 1923 the Department of Indian Affairs had  35 purchased land for Baptiste.  It is also reasonably  36 clear by Baptiste's own account that there was no  37 Indian occupation of this land before 1899.  Now, that  38 is under tab 8b-10, and it's page 29, and this is a  39 report from Mr. Loring to Mr. Ditchburn of March 20,  40 1920.  Now, my lord, Mr. Baptiste was a man who  41 couldn't be moved and he refused to move.  He said  42 that he had improved the land he was on; he had had to  43 move before and he wasn't going to move his wife and  44 family again.  And Mr. Loring is reporting that the  45 owner of the north half of 882 had said there was an  46 Indian by the name of Jean Baptiste occupying that  47 land and the question was had he occupied that land 28087  Submissions by Mr. Goldie  1 before it became alienated, and "in context to the  2 above" -- this is the second paragraph of Loring's  3 letter:  4  5 "I here beg to state that with the intent to  6 elicit the information required I requested  7 Constable Jas. Hevenor to investigate..."  8  9 And then there is set out what Hevenor's information  10 was:  11  12 Regarding Lot 882, Range V, the information  13 gleaned in the Provincial Land Office at  14 Smithers it stood:  15 Applied for under the S.A.W.G. in the year  16 1904, allowed February 5th, 1905.  Crown  17 Grants issued to Robert Whittington.  18  19 Then with respect to Baptiste, he has on that land a  20 log house; log stable; implement shed; hay shed; root  21 house; 35 acres of land cleared and sown in timothy;  22 and fence; part logs, part poles, for about a mile in  23 length; 21 head of stock, consisting of 19 horses and  24 9 head of cattle.  He has a wife and five children and  25 claims to have been on the land for the last 21 years.  26 That's the basis for my statement that he had not  27 occupied the land before 1899.  And I draw your  28 lordship's attention to the fact that he had a -- a  29 considerable holding of stock for people whose  30 occupation some 40 or 50 years before had been hunting  31 and trapping and who were -- to whom domestic animals  32 such as horse and cows were unknown prior to 1866.  33 My lord, some of the people in question fully  34 realize that they were not dealing with lands that  35 were theirs, and I refer to Mr. Thomas George,  36 beginning at page -- under 8b-10 page 33, is the  37 Order-in-Council approving Mr. George's application  38 for pre-emption.  My lord -- your lordship may recall  39 that Mr. Thomas George was at one time Gisday wa and  40 this pre-emption in fact is in the middle of the lands  41 claimed by Gisday wa.  And your lordship will see in  42 the Order-in-Council which is 1921:  43  44 "It is also represented that Thomas George is a  45 young man, twenty-eight years old, and is  46 industrious, intelligent, of good character and  47 a thoroughly deserving Indian." 28088  Submissions by Mr. Goldie  1  2 And he owns three cows, two calves, four horses,  3 harness and wagon, and so on.  4 Now, returning to my summary, I note that:  In  5 law, it had been acknowledged by the Dominion that  6 Indian rights to lands outside reserves was to be --  7 were to be determined by Provincial laws of general  8 application.  Now, I am referring there, my lord, to  9 an Order-in-Council of the Dominion which was passed  10 in 1895, and it reads as follows:  11  12 "The Committee of the Privy Council have had  13 under consideration a Despatch, hereto attached  14 dated 14 October 1895, from the  15 Lieutenant-Governor of British Columbia,  16 transmitting a copy of his Report of the  17 Committee of his Executive Council, relative to  18 the unsatisfactory state of affairs in  19 connection with Indians settling upon lands  20 other than reservations in different parts of  21 the Province of British Columbia, but  22 especially in the East Kootenay District."  23  24 And then it's referred to the Superintendent-General  25 who reports, beginning at the third line from the  26 bottom:  27  28 "...that the Indian Superintendent, at Victoria,  29 states that for several years he has repeatedly  30 instructed the Indian Agents to discourage the  31 settling of Indians on land other than their  32 reservations, and to advise the Indians that  33 they should, as much as possible, confine  34 themselves to the reserves allotted for their  35 use, endeavouring to make them understand that  36 they could be summarily ejected without  37 compensation from land squatted upon  38 unlawfully."  39  40 And then I go over to the page 8b-ll page 3, the  41 second -- the paragraph at the bottom of the page:  42  43 "The Minister observes, as to the statement in  44 the Report, that it is open to the Provincial  45 Authorities to put the law in operation against  46 the offending Indians and to have them expelled  47 from the land which they have squatted upon; 28089  Submissions by Mr. Goldie  1 that he does not consider that the right of the  2 Province in the matter, is open to question."  3  4 So from 1895 on, the Dominion's position was that the  5 settlement of Indians on lands beyond reserves must be  6 governed by provincial laws of general application.  7 Now, the ejectment of Indians occupying Crown lands  8 open to pre-emption upon the happening of such an  9 event or upon the happening of the acquisition of the  10 fee by a veteran or assignee of the veteran of the  11 Land War Grant Act would cause hardship is  12 self-evident.  Most of the people referred to by  13 Father Godfrey were encouraged to pre-empt lands in  14 place of what they lost and a number did.  15 Now, that, my lord, is evident from the material  16 under tab 10, and as I said earlier, it was apparent  17 that by in the 1920s lands had been purchased by the  18 Indian Department for Jean Baptiste, for instance,  19 under tab 8b-10 page 17 is Mr. Ditchburn's letter to  20 the Indian Agent at Hazelton on behalf of Round Lake  21 Tommy, and obtaining pre-emptions for them, and page  22 18 is to the same effect, it is 1925, reporting that  23 Jack Joseph has received his pre-emption record and  24 then in the last paragraph he says:  25  26 "To my own personal..."  27  28 This is the Indian agent:  29  30 "To my own personal knowledge Tommy has fished  31 on Round Lake and trapped muskrat since 1909.  32  33 Members of Tommy's family are still in evidence  34 and were there over sixteen years ago, so one  35 can quite understand that this Indian has a  36 craving to reside in the vicinity."  37  38 And urging the acquisition of a small piece of land.  39 And that is recorded as having been achieved in 1927  40 at page 19.  Now, the -- some of -- there is  41 correspondence between the registered owners and the  42 Indian Department or Agencies with respect to Jean  43 Baptiste at pages 29 and 30, I have read part of that,  44 and Mr. Ditchburn's letter to Mr. Scott in Ottawa,  45 page 31.  And then a report on page 32 which indicates  46 that Baptiste has been resettled on land purchased on  47 his behalf by the Department of Indian Affairs, that's 28090  Submissions by Mr. Goldie  1 1923.  2 My lord, what I have to say in relation to all of  3 this is that this episode, painful as it was, is  4 unrelated to any aspect of the claims made in the case  5 at bar.  The Indian occupation of the lands subject to  6 claims created by the use of scrip under the South  7 African War Land Act was recent, it reflected a change  8 in lifestyle since the advent of the white man and the  9 horse, and it confirmed in the earlier acknowledgement  10 of the Dominion that outside the reserves the Indian  11 peoples had no interest other than that afforded by  12 the laws of the Province.  If the events referred to  13 by Mr. Brody and Dr. Lane are intended to support a  14 claim to ownership and jurisdiction they are, in my  15 submission, ineffectual and serve to demonstrate the  16 opposite.  17 My lord, I wish to turn to volume 4.  I am going  18 to —  19 THE COURT:  I think, Mr. Goldie, if you don't mind, we'll take a  20 short adjournment.  We have been going a little over  21 an hour now.  22 THE REGISTRAR:  Order in court.  Court stands adjourned.  23  24 (PROCEEDINGS ADJOURNED AT 2:40 p.m.)  25  26 I hereby certify the foregoing to  27 be a true and accurate transcript  28 of the proceedings transcribed to  29 the best of my skill and ability.  30  31  32  33  34  35 Tannis DeFoe,  36 Official Reporter,  37 UNITED REPORTING SERVICE LTD.  38  39  40  41  42  43  44  45  46  47 28091  Submissions by Mr. Goldie  1 (PROCEEDINGS RECOMMENCED AFTER BRIEF RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, I am turning to Roman numeral VIII in  6 Volume 4.  It's headed "Addendum and Supplement to  7 Submission of the Province".  8 THE COURT:  Yes.  9 MR. GOLDIE:  Contained in Part 5 of its written summary, Royal  10 Proclamation.  Part A.  Comments on the plaintiffs'  11 final argument on the Royal Proclamation of 1763 runs  12 from pages 2 to 13.  And, my lord, I am not going to  13 do anything other than hand that up.  It's in the same  14 form as -- or roughly the same form as others like it,  15 namely, there is a comment from my friends' written  16 argument -- I'm sorry, an extract from my friends'  17 written argument followed by a comment.  18 And then item B, addenda, runs from pages 14 to  19 22.  And it is a comment, firstly, on the case of  20 Mohegan Tribe v. Conneticut in the Second Circuit  21 Court of Appeal in the United States in which my  22 friends have drawn a comparison between the  23 Non-Intercourse Act of that country and the Royal  24 Proclamation.  And again I do no more than hand it up.  25 And then on page 17 there is a reply to my  26 friends' argument on the proposition that even if  27 settled colonies there is a room for the application  28 of the Royal prerogative based upon a submission  29 that -- where the prerogative purports to deal with  30 constitutional matters, then there is continuing  31 application.  And I do no more than hand that up.  32 And then I come at page 23, my lord, to a  33 conclusion or some submissions that can be regarded as  34 a conclusion on the role of the Royal Proclamation in  35 Canada, and in response to the court's question at  36 transcript 347, page 27479.  That transcript reference  37 is under Tab VIII-1 immediately following, and at  38 lines 3 to 36.  Your lordship indicates an interest in  39 the effect of the enlargement of the province of  40 Quebec, and what it had on the operation of the Royal  41 Proclamation, and that's what I am going to deal with  42 now.  43 I say the response is set out in point form below,  44 A.  The great reserve or hunting reserve created in B,  45 and that is the designation in Exhibit 1160 which we  46 have been using, the copy of the Royal Proclamation  47 annotated with letters to indicate various sections. 28092  Submissions by Mr. Goldie  1 And B is the section which creates the hunting  2 reserve, I'll call it, west of the Appalachians and  3 east of the Mississippi.  Now, it excluded the old  4 Quebec.  When I say it excluded, its text excluded the  5 territory of the Quebec that was defined in the Royal  6 Proclamation.  7 Now, under Tab 2 I have an enlargement taken from  8 a map that is over there, my lord, the territorial  9 evolution of Canada.  10 MR. RUSH:  And I take objection to that.  I take objection to  11 this enlargement and the map.  12 THE COURT:  I haven't found it yet.  You say tab 2?  13 MR. GOLDIE:  Tab VIII-2, my lord.  14 THE COURT:  Oh, yes.  15 MR. GOLDIE:  It's just a photographic -- not a photographic, a  16 photocopy enlargement of the third map which is 1763.  17 MR. RUSH:  It's not an exhibit.  It's not a treatise.  It  18 doesn't qualify under any of the heads however  19 liberally applied.  It's a map made in 1969,  20 Government of Canada, for its purposes.  We don't know  21 the author.  We don't know who made it.  We know  22 nothing about it.  It happens to be a convenient  23 pictorial depiction of my friend's argument, and  24 nothing more.  It shouldn't be used.  It has no  25 status.  And it's visual value is more to my friend's  26 purpose than its evidentiary basis or its provenience.  27 THE COURT:  Well, if I walked into a library, I might come —  28 and picked up an atlas, I could come across it, I  29 suppose, could I?  30 MR. RUSH:  That's a very good question.  I suspect that that was  31 obtained from the Government of Canada, the Department  32 of Mines, Minerals and Energy, and is probably housed  33 in there.  Now, if your lordship's search took you  34 there, perhaps.  35 THE COURT:  It's not a map in general distribution?  36 MR. RUSH:  I would say it's in general distribution by the  37 Government of Canada, by one of its departments for  38 their purposes, whatever they are.  But I say, my  39 lord, that if your lordship is moving from the view  40 that your lordship could go out and look for a map of  41 this kind in your own judicial inquiries for the  42 knowledge to come to your lordship, I would say that  43 this map is not likely to be in the libraries,  44 although I couldn't say for sure.  It's likely to be  45 in the Government of Canada, but whatever the case, if  46 that's -- if that's the standard, my lord, then I say  47 it's a very, very baseline standard for the 28093  Submissions by Mr. Goldie  1 acquisition of information about the case, since you  2 know so little about its basis.  3 THE COURT:  But we have -- but we have in the evidence, I  4 suspect, all the documents that brought about these  5 changes of boundaries, do we not?  6 MR. GOLDIE:  Yes.  All this is is a depiction of the description  7 which is contained in the Royal Proclamation.  8 MR. RUSH:  That's not what it is, with respect.  9 MR. GOLDIE:  I beg your pardon?  What is under VIII-2 is a  10 description of the old colony of Quebec, and I am not  11 relying upon it.  It's not evidence.  It is simply a  12 means of advancing my argument.  13 Now, as far as -- so far as the authority of the  14 document is concerned, on its face, it is produced and  15 printed by the surveys and mapping branch, 1969.  16 Copies may be obtained from the map distribution  17 office, Department of Energy, Mines and Resources.  It  18 is stated that these maps are to be published in the  19 National Atlas of Canada.  So there is representation  20 that it is for the public use, and it is created by  21 that office of government which has the responsibility  22 for it.  23 Your lordship is now judicially encouraged by the  24 judgment in the Seaqua (?) case to undertake your own  25 researches.  26 THE COURT:  I hope that's not good law.  27 MR. GOLDIE:  It raised a few eyebrows, but all that I think with  28 respect to His Lordship Mr. Justice Lemare, all that  29 he was saying is that there are certain things of  30 which a judge can take judicial notice, and the  31 boundaries of the country is one of them.  32 Now, this is historical, and if my friend wishes  33 me to -- well, I don't need to do it.  The description  34 of the boundary is firstly in the Royal Proclamation.  35 The description of the enlarged Quebec is in the  36 Quebec Act of 1774.  The description of what happened  37 after the conclusion of the American Revolution and  38 the creation of Upper and Lower Canada in 1791 is  39 found in the Constitutional Act of that day.  All of  40 these can be found in text, and it is not part of -- I  41 don't have to prove the boundaries of Quebec, but I am  42 responding to a question from the Court.  43 MR. RUSH:  This proving nothing, my lord.  It proves my friend's  44 argument.  That's -- it supports his argument, not  45 proves it.  It does nothing more than that much.  My  46 friend says the boundary of Quebec is "x" for his  47 argument.  I say it is not.  To have a depiction -- 28094  Submissions by Mr. Goldie  1 THE COURT:  Well, I have had the boundary of Quebec explained to  2 me with -- in terms of degrees of Latitude and  3 Longitude and by landmark.  4 MR. RUSH:  And that should be sufficient.  5 THE COURT:  Well, I was going to come to that.  I suppose Mr.  6 Goldie could make his argument by including in his  7 argument those descriptions whenever he found it  8 necessary to do so.  9 MR. RUSH:  He is asking you to accept as so the pictorial  10 representation of what he says the boundary is on this  11 map, and that is a point of contention, my lord.  And  12 my argument, I don't think, would have the same force  13 if I could say I know what this was based on, I know  14 who did it, whether it was Bellin, whether it was Bone  15 or who, but I can't in any way challenge what is  16 alleged to be the pictorial representations on this  17 map.  We don't know the authors, we don't know what  18 they relied on, and at the very least, my lord, if you  19 were to go to a library and look at this map and say I  20 can't tell who did the drawing or the coloring on this  21 map, I cannot tell what they relied upon, you would  22 reject it out of hand.  It would be worthless to you.  23 THE COURT:  Well, if I had a description in — by degrees of  24 Longitude and Latitude and by landmark, and I had a  25 map prepared by the Government of Canada purporting to  26 describe that, I don't think I would reject it.  27 Unless somebody showed me that it was clearly wrong, I  28 think I would accept it as probably an accurate  29 pictorial description of the so-called metes and  30 bounds description that's contained in the documents.  31 MR. GOLDIE:  Well —  32 MR. RUSH:  Well, my lord, you have to accept 101 opinions by  33 this map-maker as you go through it.  34 THE COURT:  You do that on every map.  35 MR. RUSH:  Precisely.  But that means you have to be satisfied  36 on each and every one of those metes and bounds  37 descriptions, that the opinion is accurate.  And I say  38 it is self-evident by looking at this that it's simply  39 not so.  40 THE COURT:  Well, Mr. Rush, there is another problem.  Mr.  41 Goldie has been referring to this map throughout his  42 argument.  He has been pointing this out.  I would  43 think he has gone to that map a dozen times.  44 MR. RUSH:  He has indeed, my lord, and if he attempted to do  45 anything with that map, as he is now attempting to do  46 it, and that is to place it before your lordship and  47 say you should accept this as some authority or 28095  Submissions by Mr. Goldie  1 reference to rely upon, that's the point of this, then  2 I object to it as a visual --  3 THE COURT:  All right, Mr. Rush.  I think the thing to do is —  4 I haven't got it open in front of me.  Where is it  5 again?  I think I will take it out, and you will have  6 to count on me to remember, when Mr. Goldie shows it  7 on the map, what it is he shows me.  8 MR. GOLDIE:  Before your lordship fully throws it away, I refer  9 to my friend's words in transcript 308, page 23255,  10 where an issue or a question arose as to the judge's  11 series and the interrogatories overlay, and my friend  12 Mr. Rush said, in raising an objection, line 26:  13  14 "Well, I object to that, my lord, and this  15 particular one, the problem that is now clearly  16 arising is the distinction between aide-memoire  17 and an exhibit is fast becoming irrelevant.  18 And for the most part all of the overlays are  19 being added as exhibits because the underlying  20 facts have now been proven in one way or  21 another.  That's not true with this one, and it  22 can't be true until somebody comes and proves  23 what was done with this map, and I think if my  24 friends want to make use of this in argument as  25 an aide-memoire, then at the time of argument  26 they should produce and make use of it in that  27 form."  28  2 9 And that's all I am doing.  Now, my friend invited  30 us to use whatever we wanted as a means of clarifying  31 and giving some point to our submissions.  32 MR. RUSH:  Not whatever he wanted.  I don't think I would be  33 that foolish.  34 THE COURT:  I don't think you said that.  Well, let's get along,  35 Mr. Goldie.  I don't have to have it in my book.  I  36 have a general idea now that Quebec in 1763 was a  37 great deal smaller than it was the day before  38 yesterday.  And as a matter of fact it's -- I didn't  39 really appreciate until quite recently that the  40 Hudson's Bay Company had more than half of what is now  41 Quebec.  And I know now that it's a relatively small  42 area on both sides of the St. Lawrence River.  And I  43 can follow it, if I can go and look at the map, I have  44 a picture in my mind now of what it is, and I think I  45 can follow it without having to have a copy of a  46 portion of it, an enlargement of a portion of it in  47 the documents I am going to take away.  And we'll all 28096  Submissions by Mr. Goldie  1 have to take your chances on my memory, because I am  2 not going to likely get out another map and plot my  3 own from the Latitude and Longitude and descriptions  4 that appear in the documents.  5 MR. GOLDIE:  Your lordship may recall that when I was dealing  6 with the Star Chrome case, I was at some pains to  7 outline the boundaries of old Quebec.  8 THE COURT:  Yes.  9 MR. GOLDIE:  And it's taken straight from 'D' of the Royal  10 Proclamation.  11 THE COURT:  Yes.  12 MR. GOLDIE:  13  14 "The Government of Quebec bounded on the  15 Labrador Coast by the River St. John ..."  16  17 That's where we start on the north coast.  18  19 "... and from thence by a line ..."  20  21 That is to say a straight line.  22  23 "... drawn from the head of that river through  24 the Lake St. John, to the south end of the Lake  25 Nipissim; from whence the said line, crossing  2 6 the River St. Lawrence and the Lake Champlain  27 in 45 degrees of north latitude ..."  28  29 Another straight line.  30  31 ". . . .  passes along the high lands ..."  32  33 Which is natural line.  34  35 "...  which divides the rivers that empty  36 themselves into the said River St. Lawrence  37 from those that fall into the sea ..."  38  3 9 And so on.  4 0 THE COURT:  Didn't you show me that in that map that was part of  41 your submission in relation to the Star Chrome case?  42 MR. GOLDIE:  Yes.  Yes, I did.  I was showing your lordship the  43 southeastern part of the boundary where it changes  44 from 45 degrees to the height of land.  45 THE COURT:  Yes.  All right.  46 MR. GOLDIE:  Now, that was excluded from the hunting reserve,  47 and that is 'S' in the Royal Proclamation -- I'm 28097  Submissions by Mr. Goldie  1 sorry, I should say 'V, where the King said:  2  3 "And we do further declare it to be our Royal  4 Will and Pleasure, for the present as  5 aforesaid, to reserve under our Sovereignty,  6 Protection, and Dominion, for use of the said  7 Indians, all the lands and territories not  8 included within the limits of our said three  9 new governments."  10  11 So we start, then, with the knowledge that the  12 so-called hunting reserve never extended to what I  13 will call the bounds of old Quebec.  14 Now, the Quebec Act of 1774 enlarged the  15 boundaries of the old or 1763 Quebec, and took in a  16 great part of the northern part of the reserve down to  17 the Ohio River.  18 Now, my friend, I suppose, will object to Tab 3,  19 which is a depiction of the extension of the old  20 Colony of Quebec as a result of the Quebec Act of  21 1774.  But if we look at the Quebec of 1774 itself,  22 and that's under tab 4, my lord --  23 MR. RUSH:  My friend is anticipating that I do object to it,  24 but, my lord, for the two reasons that I have  25 indicated, is that provenience and notes and  26 authorship, I can't do anything with a map like that,  27 to answer it.  28 MR. GOLDIE:  I am referring to the Quebec Act under tab 4.  2 9 THE COURT:  Yes.  30 MR. GOLDIE:  And in the preamble it recites the Royal  31 Proclamation, and in the second preamble it says, and  32 I quote:  33  34 "And whereas by the arrangements made by the  35 said Royal Proclamation a very large extent of  36 country ..."  37  38 THE COURT:  What page are you on now?  39 MR. GOLDIE:  I am under tab —  4 0 THE COURT:  I have the Act.  Whereabouts in the Act?  41 MR. GOLDIE:  It's the first paragraph, my lord.  42 THE COURT:  All right.  Yes.  43 MR. GOLDIE:  And it's the second preamble which is about seven  44 or eight lines down.  4 5 THE COURT:  Yes.  46 MR. GOLDIE:  And the recital refers to the fact that:  47 2809?  Submissions by Mr. Goldie  1 "Very large extent of country, within which  2 there were several colonies and settlements of  3 the subjects of France, who claimed to remain  4 therein under the faith of the said treaty ..."  5  6 That is to say the Treaty of Paris.  7  8 "... was left, without any provision being made  9 for the administration of civil government  10 therein.  And certain parts of the territory of  11 Canada, where sedentary fisheries had been  12 established and carried on by the subjects of  13 France, inhabitants of the said province of  14 Canada, under grants and concessions from the  15 government thereof, were annexed to the  16 government of Newfoundland."  17  18 Now, that tells your lordship that to the east of  19 the old colony of Quebec, established under the  20 Proclamation of 1763, there were subjects of the  21 former province of Quebec -- former province of Canada  22 whose territories were annexed to Newfoundland.  And  23 that is, of course, the origin of the present claim of  24 Labrador.  25 And then the substantive parts of the  26 Proclamation:  27  28 "May it therefore please your most Excellent  29 Majesty that it may be enacted; and be it  30 enacted by the King's most Excellent Majesty,  31 by and with the advice and consent of the Lords  32 spiritual and temporal, and commons, in this  33 present parliament assembled, and by the  34 authority of the same.  That all the  35 territories, islands, and countries in North  36 America, belonging to the Crown of Great  37 Britain, hounded on the south by a line from  38 the Bay of Chalcurs, along the high lands which  39 divide the rivers that empty themselves into  40 the River Saint Lawrence from those which fall  41 into the Sea, to a point in forty-five degrees  42 of northern Latitude, on the eastern bank of  43 the River Connecticut, keeping the same  44 Latitude, directly west, through the Lake  45 Champlain, until, in the same latitude, it  46 meets the River Saint Lawrence."  47 28099  Submissions by Mr. Goldie  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  Now, my lord, that describes a boundary of the old  province, but going in the opposite direction.  THE COURT:  Uh-huh.  MR. GOLDIE:  "... from thence up the eastern bank of the said  river to the Lake Ontario."  We begin to depart from the old colony.  "Thence along the Lake Ontario, and the river  commonly called Niagara; and thence along by  the eastern and southeastern bank of Lake Erie  And by this time we are getting into the United  States.  THE COURT:  We are out west now?  MR. GOLDIE:  Yes.  "... following the said bank, until the same  shall be intersected by the Northern Boundary,  granted by the Charter of the Province of  Pennysylvania, in case the same shall be so  interested; and from thence along the said  Northern and Western Boundaries of the said  Province, until the said Western Boundary  strike the Ohio."  And then:  "But in case ..."  There is an interjection there with respect to the  case.  Then following:  "The said bank until it shall arrive at that  point of the said bank which shall be nearest  to the north western angle of the said province  of Pennsylvania, and thence, by a right line,  to the said northwestern angle of the said  province; and thence along the western boundary  until it strike the River Ohio."  That was the provision in case there wasn't an  intersection. 28100  Submissions by Mr. Goldie  1  THE  COURT:  2  MR.  GOLDIE  3  1  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  1  21  22  23  1  24  THE  COURT:  25  MR.  GOLDIE  26  THE  COURT:  27  MR.  GOLDIE  28  THE  COURT:  29  MR.  GOLDIE  30  31  32  33  34  35  36  37  38  39  THE  COURT:  40  MR.  GOLDIE  41  THE  COURT:  42  MR.  GOLDIE  43  THE  COURT:  44  MR.  GOLDIE  45  46  47  Uh-huh.  :  And along the bank of the said river.  That's the  Ohio.  "... Westward, to the banks of the Mississippi,  and northward to the southern boundary of the  territory granted to the merchants adventurers  of England, trading to Hudson's Bay."  My lord, that comprehends a very large area of  land.  And then the last provision is with respect to the  and attachment to Quebec of part of the Labrador  coast.  Now, I have traced that, irrelevant as it may be  to my friend's consideration, on both of the maps that  are on there, and I can assure your lordship that as  far as a layman's following of the boundary I have  just described, it is coincidental or is pictorially  depicted in the enlargement under tab 3.  Now, that was the largest that Quebec ever  achieved, my lord, the largest territorial extent that  Quebec ever achieved.  And turning back to my summary.  Where are you now?  :  I am at page 23 of the supplement, my lord.  Yes.  :  Item B I have just gone down.  Yes.  :  Now, item C.  The Quebec Act revoked the  application of the Royal Proclamation in respect of  the enlarged Province of Quebec.  And that -- I go  back to the Quebec Act under tab 4, and I refer to the  last paragraph, which is in some versions of this Act  numbered 4 on page 402 beginning with the recital.  "And whereas the provisions made by the said  Proclamation ..."  Just a minute.  :  It's the second page under Tab 8-4, my lord.  Yes.  :  Does your lordship see the last paragraph?  "And whereas the provisions ..."  :  Yes.  The side note describes it all.  "Former provisions made for the province to be  null and void after May 1st, 1775." 28101  Submissions by Mr. Goldie  1  2 I'll read it, because it applies, as I say, to the  3 enlarged Province of Quebec.  4  5 "And whereas the provisions, made by the said  6 Proclamation, in respect to the civil  7 government of the said province of Quebec and  8 the powers and authorities given to the  9 governor and other civil officers of the said  10 province, by the grants and commissions issued  11 in consequence thereof, have been found, upon  12 experience, to be inapplicable to the state and  13 circumstances of the said province, the  14 inhabitants whereof amounted, at the conquest,  15 to about sixty-five thousand persons professing  16 the religion of the church of Rome, and  17 enjoying an established form of constitution  18 system of laws, by which their persons and  19 property have been protected, governed and  20 ordered for a long series of years, from the  21 first establishment of the said province of  22 Canada; be it therefore further enacted by the  23 authority aforesaid, that the said  24 Proclamation, so far as the same relates to the  25 said province of Quebec."  26  27 That's the enlarged province.  28  29 "... And the commission under the authority  30 whereof the Government of the said Province is  31 at present administered, and all and every  32 Ordinance and Ordinances made by the Governor  33 and Council of Quebec for the Time Being,  34 relative to the Civil Government and  35 Administration of Justice in the said Province,  36 and all Commissions to Judges and other  37 officers thereof, be, and the same are hereaby  38 revoked, annulled, and made void, from and  39 after the First day of May, One thousand seven  40 hundred and seventy-five."  41  42 Now, that created the state of affairs which I  43 describe in paragraph C.  44 THE COURT:  Revokes for the territory of the new province, the  45 Royal Proclamation.  46 MR. GOLDIE:  That's correct.  But there is -- there is a savings  47 clause. 28102  Submissions by Mr. Goldie  1 THE COURT:  All right.  2 MR. GOLDIE:  And I say this did not effect rights granted to  3 Indians in the hunting reserve by virtue of the Royal  4 Proclamation.  5 Now, the provision -- the savings clause oddly  6 enough is in the preceding section, but it's the last  7 paragraph, and it states, and I quote:  8  9 "Provided always, and be it enacted, that  10 nothing in this act contained shall extend or  11 be construed to extend to make void or to vary  12 or alter any right, title or possession derived  13 under any grant, conveyance or otherwise  14 howsoever of or to any lands within the said  15 province or the provinces thereto adjoining but  16 that the same shall remain and be in force and  17 have effect as if this act had never been  18 made."  19  20 Now, I say what is the result of that?  21 Point 'D' I say this.  In the result, pre-1774  22 Indian rights in the hunting reserve were left intact,  23 and those parts of the post-1774 Quebec to which they  24 applied, namely, the lands west, south and north of  25 the 1763 Colony of Quebec.  26 Does your lordship follow me?  We start with the  27 old colony being exempt, the new colony is extended  28 into lands which comprise the hunting reserve, the  29 Royal Proclamation is annulled, but there is a savings  30 clause.  31 THE COURT:  Existing aboriginal rights are preserved?  32 MR. GOLDIE:  Yes.  33 THE COURT:  We have heard that before somewhere.  34 MR. GOLDIE:  If there were any.  And I say, there were by virtue  35 of the Royal Proclamation.  3 6 THE COURT:  Yes.  37 MR. GOLDIE:  So I say by virtue of the Treaty of Paris of 1783  38 terminating the American Revolution Quebec's southern  39 boundary became the 49th parallel.  The territories  40 north of that line remained British.  When I say the  41 49th parallel, I am not talking about the 49th  42 parallel west of the area that we are talking about,  43 but it's -- the statement is accurate enough for the  44 purposes of this analysis.  I say the --  45 THE COURT:  I'm sorry, that doesn't somehow sound right to me.  46 It seems to me that the southern boundary of Canada  47 west of the Great Lakes was well south of the 49th 28103  Submissions by Mr. Goldie  1 parallel.  2 MR. GOLDIE:  South of the Great Lakes.  3 THE COURT:  Well, I'm sorry, east of the Great Lakes.  4 MR. GOLDIE:  That's correct.  No, that's correct.  5 THE COURT:  So —  6 MR. GOLDIE:  I should have traced through the boundary --  7 well --  8 THE COURT:  This paragraph should probably say something like by  9 virtue -- I'm sorry, the Treaty of Paris of 1783 fixed  10 Quebec's southern boundary?  11 MR. GOLDIE:  Yes.  And I'll leave it at that.  12 MR. RUSH:  You mean 1763 there don't you?  13 MR. GOLDIE:  No.  This is the one that finished the American  14 Revolution, and it too is negotiated in Paris.  15 MR. GOLDIE:  Treaty of Versaille.  16 THE COURT:  I thought one was the Treaty of Paris and the peace  17 of Paris, but it doesn't matter.  18 MR. GOLDIE:  In any event, there are different people at the  19 negotiating table.  20 THE COURT:  Yes.  Different parties.  21 MR. GOLDIE:  The territories north of, and I'll say the southern  22 boundary, remain British, and in my submission  23 continued to be subject to the hunting reserve as to  24 those who obtained rights therein prior to the  25 revocation of the Royal Proclamation.  26 Now, I refer to tab 5, which is the situation that  27 pertained after the old province of Quebec was divided  28 into Upper and Lower Canada.  The boundaries are the  2 9 s ame.  3 0 THE COURT:  Yes.  31 MR. GOLDIE:  Now, I say this was recognized, and when I say  32 this, I mean the proposition that I put in the  33 preceding paragraph, I say this was recognized in St.  34 Catherine's Milling by Lord Watson where he said, and  35 I quote:  36  37 "The territory in dispute has been in Indian  38 occupation since 1763."  39  40 And I say the significance of that is that His  41 Lordship was identifying and fixing people who had an  42 interest prior to the Quebec Act of 1774, and to the  43 same effect, when His Lordship said:  44  45 "... there has been no change since the year  46 1763 in the character of the interest in which  47 its Indian inhabitants had in the lands 28104  Submissions by Mr. Goldie  1 surrendered by the treaty."  2  3 Again the significance of 1763 is that we are  4 outside of the old province of Quebec, inside 1774  5 Quebec, and the interest is -- stems from a period  6 before the revocation of the Royal Proclamation in  7 that area in 1774.  And I have also noted his  8 lordship's statement.  9  10 "Their possession, such as it was, can only be  11 ascribed to the general provisions made by the  12 Royal Proclamation in favour of all Indian  13 tribes then living under the sovereignty and  14 protection of the British Crown."  15  16 And I emphasize the word "then".  17 Point 'G'.  The effect of the saving clause in the  18 Quebec Act of 1774 was expressly noted by Mr. Justice  19 Taschereau in the Supreme Court in the St.  20 Catherine's Milling case at SCR page 648.  21 And I wish to quote a little before what I have in  22 my summary.  And beginning at page 647 His Lordship  23 analyzes the Indian provisions of the Royal  24 Proclamation, and he says on that page, he says the  25 words "for the present" in this, and that's the  26 presiding clause.  And the next clause which is 'V:  27  28 "Are equivalent to a reservation by a King of  29 his Right thereafter or at any time to grant  30 these lands when he think it proper to do so.  31 He reserves for the present for the use of the  32 Indians all the lands in Canada outside of the  33 limits of the Province of Quebec as then  34 constituted."  35  36 Now, His Lordship is addressing the situation that  37 pertained at that time, and when he's not considering  38 the Indian country as it was south of the border he  39 says:  40  41 "Is that, in law, granting to these Indians a  42 full title to the soil, a title to these lands?  43 Did the sovereign thereby divest himself of the  44 ownership of this territory?  I cannot adopt  45 that conclusion, nor can I see anything in that  46 proclamation that gives to the Indians forever  47 the right in law to the possession of any lands 28105  Submissions by Mr. Goldie  1 as against the Crown.  Their occupancy under  2 that document has been one by sufferance only.  3 Their possession has been, in law, the  4 possession of the Crown.  At any time before  5 confederation the Crown could have granted  6 these lands, or any of them, by letters patent,  7 and the grant would have transferred to the  8 grantee the plenum et utile dominium, with the  9 right to maintain trespass, without entry,  10 against the Indians.  A grant of land by the  11 Crown is tantamount to conveyance with livery  12 of seisin.  This proclmation of 1763 has not,  13 consequently, in my opinion, created a legal  14 Indian title."  15  16 Then he goes on with what I have in my summary.  17  18 "From this result of my interpretation of it it  19 is unnecessary, for my determination of this  20 case, to consider how far the section is of the  21 Proclamation to which I have alluded, have been  22 affected by the Act of 1774.  I may  23 nevertheless, remark, that any right the  24 Indians might have previously had could not, it  25 seems, have been affected by this Act, as by  26 its 3rd section it is specially provided and  27 enacted that 'nothing in this Act contained  28 shall extend, to make void, or to vary, or  29 later, any right title, or possession derived  30 under any grant, conveyance, or otherwise  31 howsoever, of or to any lands within the sad  32 Province, or the Provinces thereto adjoining'."  33  34 So it was clear his lordship's statement or his  35 lordship's opinion that the savings clause operated to  36 save the rights under the hunting reserve of those  37 whose territories were outside the 1763 colony or  38 province of Quebec, but remain inside Canada after  39 1774.  40 I say on page 27:  The result is that in those  41 parts of Canada which were beyond the limits of 1763  42 Quebec, but within the limits of 1774 Quebec, such  43 rights existed only in respect of those Indian peoples  44 whose ancestors were within the hunting reserve when  45 it was created in 1763.  In present day Canada this is  46 essentially that part of Ontario south of what was  47 Rupert's Land and east of the Quebec Ontario boundary. 28106  Submissions by Mr. Goldie  1 The Treaty of 1873 which figured in St.  2 Catherine's Milling was a surrender by Indian peoples  3 of rights granted to their ancestors in 1763.  4 In the result the only area in Canada in which the  5 hunting reserve in the Royal Proclamation had any  6 continuing effect was in Ontario.  Such effect was  7 extinguished by treaties entered into before and after  8 confederation.  9 Now, I make reference to a photograph or a photocopy  10 of that part of the second map, my lord, which shows  11 the treaties negotiated in -- prior to confederation  12 and after confederation.  13 THE COURT:  Can you excuse us just a moment, Mr. Goldie.  14  15 (REPORTER CHANGE)  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 28107  Submissions by Mr. Goldie  1 (CHANGE OF REPORTERS)  2  3 MR. GOLDIE:  My lord, I'm at paragraph number 2 on page 28.  As  4 the Royal Proclamation and the rights of pre-1763  5 Indians in the Hunting Reserve was a concern only in  6 Ontario or Upper Canada, the extinguishment thereof  7 took place both before and after Confederation.  8 Evidence has been given of that, my lord.  The  9 Robinson Treaties of 1850 figured in the Bear Island  10 case.  In fact, my understanding is that virtually the  11 whole of Ontario was covered by treaties at surrender.  12 Then in paragraph 3 I submit that the Royal  13 Proclamation application to British Columbia was first  14 suggested, and as no more than a suggestion, by Mr.  15 Hewitt Bernard, Deputy Minister of Justice, in his  16 report of January 19th, 1875 recommending disallowance  17 of the 1874 Crown Lands Act of British Columbia, which  18 is referred to under tab 7.  19 Now, if your lordship would look under tab 7, you  20 will find the print of Mr. Bernard's report, which was  21 adopted by the Department of Justice, and in this  22 particular print it was forwarded to the Colonial  23 Office by Lord Dufferin.  And this is part of the  24 Colonial Office confidential print, and the report of  25 the Privy Council reads as follows:  26  27 "The company of the Privy Council had under  28 consideration the report from the Honourable  29 The Minister of Justice to whom was referred  30 with the other Acts passed by legislature of  31 the Province of British Columbia in the 37th  32 year of Her Majesty's reign the following Act,  33 which was ascented to by the  34 Lieutenant-Governor on the 2nd of March, 1874."  35  36 Et cetera.  And they adopt the recommendation of the  37 Minister of Justice.  And there is the following  38 report, one of which -- well, the report is that of  39 Mr. Bernard as seen -- as is apparent from page 52,  40 the last page, and Mr. Fornier simply adds the words  41 "I concur".  So the undersigned, who is reporting, is  42 that of Bernard's report.  And my lord, the -- the  43 basic reason for recommending disallowance is that  44 adequate measures are not taken to protect the  45 interests of the native peoples.  And Mr. -- this came  46 at a time when there was a dispute between British  47 Columbia and the Dominion over reserve allocation. 2810?  Submissions by Mr. Goldie  1 And I say that as far as I'm aware, this is the first  2 time that Mr. -- that anybody has suggested that the  3 Royal Proclamation has an application to British  4 Columbia.  5 Now, this report became, of course, public  6 knowledge, and it became public knowledge right away,  7 because there is annually a report printed of  8 Provincial Acts which have been disallowed and the  9 reasons; therefore, it became public knowledge.  It  10 was widely relied upon by the Indians and their  11 advisers.  And by 1913 the Nishga, in their petition,  12 relied solely upon the Royal Proclamation.  13 Now, Mr. Bernard had been the Indian Department  14 solicitor in the pre-Confederation Province of Canada.  15 And I say as such he provided the Executive Council of  16 that province with a long report on the validity of a  17 lease granted by Indian chiefs in 1778.  His  18 conclusion of invalidity was based in part on the fact  19 that the lease did not conform to the surrender  20 provisions of the Royal Proclamation.  Now, he was  21 also of the view that the Quebec Act 1774 repealed the  22 Royal Proclamation in only a limited sense, and, my  23 lord, I should say that there is -- there is an  24 academic dispute, if I may put it that way, some say  25 the revocation of the Royal Proclamation in Quebec  26 extended over to government and the administration of  27 justice.  I say that whatever may be the case, it was  28 treated in St. Catherines' Milling as extending to the  29 Royal Proclamation.  Bernard was also of the view that  30 the Quebec Act -- well, I've read that.  Although the  31 lease was considered invalid, the Indian title  32 subsisted until cession.  That was his conclusion.  33 Now, his report, which the Plaintiffs put in  34 evidence, is found under tab 8.  I think it was one of  35 Mr. Morrison's exhibits.  So Mr. Bernard was a person  36 who, if I may say so, was steeped in the Royal  37 Proclamation and its application in what, in my  38 submission, was the only area in Canada in which the  39 rights granted under the Hunting Reserve provisions  40 subsisted after 1774.  41 Now, I submit, my lord, in paragraph 5, that no  42 foundation exists in fact or law for concluding that  43 the Royal Proclamation applies to British Columbia.  44 The suggestion in 1874 -- now, I just want to check  45 that year, my lord, just if I may.  I think -- yes, I  46 think Mr. Bernard's report was '75, so if your  47 lordship could change that.  The suggestion in 1875 28109  Submissions by Mr. Goldie  1 that it might apply by a Dominion official whose  2 background was clearly in Proclamation country --  3 whether directly or through legislation -- does not  4 occur until 12 years after Confederation.  It comes  5 when the Province and the Dominion were engaged in a  6 serious dispute over reserve land allocations.  How  7 little Bernard himself regarded the proposition is  8 indicated by the fact that virtually identical B.C.  9 legislation was allowed to operate in the next year,  10 1875.  The sole difference was the agreement of the  11 governments, the two governments, to set up the Indian  12 Reserve Commission, a body which did not deal with  13 title.  If the Royal Proclamation applied in 1875, it  14 applied no less than in respect of the later  15 legislation of that year.  16 My lord, that constitutes my answer to your  17 lordship's question.  In my submission, your lordship  18 is free to make whatever use of the -- of the aides  19 memoire which are attached to my submission and which  20 are tabs 1, 2, 3, 4, and 6.  21 THE COURT:  Mr. Goldie, what do you say about the next  22 paragraph?  Well, sorry, you didn't read it, but after  23 quoting I think from the Proclamation on page 50 of  24 your tab 7 --  25 MR. GOLDIE:  Yes.  2 6 THE COURT:  Mr. Bernard says:  27  28 "It's not necessary to...(read in)...the term of  29 that policy has been followed to the present  30 time except in the British Columbia."  31  32 MR. GOLDIE:  Well, he was wrong, my lord, just simply factually  33 wrong.  There was nothing in the old Province of  34 Quebec, there's nothing in the Province of Nova  35 Scotia, nothing in the Province of New Brunswick,  36 nothing in the Province of Newfoundland.  37 THE COURT:  Nothing?  38 MR. GOLDIE:  Of what he's talking about.  39 THE COURT:  Nothing -- no acquisition of Indian territorial  40 rights?  41 MR. GOLDIE:  That's correct.  42 THE COURT:  Well, the treaties in Ontario were under the  43 acquisition.  44 MR. GOLDIE:  That's west of the Quebec boundary.  45 THE COURT:  I see.  46 MR. GOLDIE:  As Mr. Mackenzie said, he said there are no  47 treaties of surrender, or more accurately, treaties of 28110  Submissions by Mr. Goldie  1 significance, not surrender, treaties of cession, east  2 of about the 80th parallel, which, roughly speaking,  3 is the Quebec-Ontario boundary.  That statement by Mr.  4 Bernard, of course, has been picked up and has been  5 repeated ever since as if British Columbia in some  6 strange way was a unique animal.  The very -- the  7 Dominion itself west of the Rockies didn't acquire  8 lands in the Yukon by treaties of cession.  It wasn't  9 unique to British Columbia, it was what happened west  10 of the Rockies.  11 THE COURT:  You say there were no treaties east of --  12 MR. GOLDIE:  The Quebec-Ontario boundary.  13 THE COURT:  That is Newfoundland, Laborador, Quebec, Rupert's  14 Land, and --  15 MR. GOLDIE:  The Maritime —  16 THE COURT:  The Maritimes.  17 MR. GOLDIE:  Yes.  Nova Scotia, New Brunswick, Prince Edward  18 Island.  19 THE COURT:  Yes, all right.  Thank you.  20 MR. GOLDIE:  Your lordship may recall that I asked Dr. Lane if  21 she could produce any treaties in what is today  22 Canada, west of Ontario, and she was unable to.  23 THE COURT:  And you say that need for treaties in -- west of the  24 Quebec-Ontario border arose because of the Royal  25 Proclamation?  26 MR. GOLDIE:  It arose in that remnant of the post-1774 Colony of  27 Quebec, and the boundary of that Colony was a straight  28 line -- or I'm sorry -- a line from the junction of  29 the Ohio and the Mississippi to the point where it  30 intersected with Rupert's Land.  And I say the rights  31 in that area was, roughly speaking, lay west of the  32 Ontario-Quebec boundary and east of the -- what was  33 determined to be the boundary between Manitoba and  34 Ontario.  I say those rights arose by reason of the  35 savings clause in the Quebec Act of 1774 in favour of  36 people who had been there whose ancestors had been  37 there in 1763.  38 THE COURT:  Whose ancestors were in place.  39 MR. GOLDIE:  In the Hunting Reserve, and who were the  40 beneficiaries of the Hunting Reserve.  41 THE COURT:  And they were in place in the Hunting Reserve in or  42 before 1763?  43 MR. GOLDIE:  Yes, that's right.  As Lord Watson said of the  44 people who made the surrender in 1873, he put it:  45  46 "The territory in dispute has been in Indian  47 occupation since 1763.  No change since the 28111  Submissions by Mr. Goldie  1 year 1763 in the character of the interest  2 which Indian inhabitants had in the land is  3 surrendered by the treaty."  4  5 THE COURT:  But what about all the treaties on the Prairies?  6 MR. GOLDIE:  Those were made, my lord, and I will be coming to  7 this in the counter-claim, as a result of the  8 surrender of Rupert's Land to the Imperial Government  9 and the union with Canada of Rupert's Land and the  10 northwestern territories.  And I will be dealing with  11 that on -- hopefully on Monday.  12 THE COURT:  All right.  13 MR. GOLDIE:  My lord, under tab Roman IX of this volume is my  14 submission with respect to another question that your  15 lordship put, and the question is found under tab  16 IX-2, when your lordship said to Mr. Willms:  17  18 "I have been considering his argument last week,  19 that it was never British colonial policy to  20 recognize aboriginal rights outside village  21 sites and cultivated fields that he referred to  22 the Select Committee of the House of Commons  23 relating to the New Zealand question, he cited  24 some Privy Council authorities.  And I'd like  25 to have his assistance on this specific  26 question of whether that view is consistent or  27 inconsistent with the events that Mr. Jackson  28 described relating to either British colonial  29 activity policy or at least activities in the  30 North American colonies prior to the Royal  31 Proclamation."  32  33 That is what I propose addressing at this point,  34 my lord.  And I'm at page 1 of the document headed  35 "Addendum" under tab Roman IX.  36 I say the Province has submitted that the common  37 law of England recognizes no interest in lands other  38 than one derived from the Crown.  And I quote Chief  39 Justice Robinson in the Ontario 1852 case, where his  40 lordship said:  41  42 "We cannot recognize any peculiar law of real  43 property applying to the Indians - the common  44 law is not part savage and part civilized."  45  46 And then I refer to the question your lordship raised,  47 and then I say on page 2 "Pre-1763".  Now, what I am 28112  Submissions by Mr. Goldie  1 endeavouring to do here is to define further what in  2 my submission was the law at or around the Royal  3 Proclamation of 1763, and I make reference here to  4 Chalmers' treatise published in 1780 entitled  5 "Political Annals of the Present United Colonies, From  6 Their Settlement to the Peace of 1763".  And the  7 learned author suggests that the interest of James I  8 in planting colonies in North America probably  9 emulated that of the Spanish Crown "to share in the  10 gold and silver which were expected from mines".  11 Henry Wheaton's own "Elements of International Law",  12 published in 1836 when he was the resident minister  13 from the United States of America to the Court of  14 Berlin states at pages 138 to 139:  15  16 "The title of almost all the nations of Europe  17 to the territory now possessed by them in that  18 quarter of the world" --  19  20 Which was the Americas:  21  22 "-- was originally derived from conquest, which  23 has been subsequently confirmed by  24 international compacts to which all European  25 states have successively become parties.  26 The Spaniards and Portuguese took the lead  27 among the nations of Europe...  28 the heathen nations of the other quarters of  29 the globe were the lawful spoil and prey of  30 their civilized conquerors, and as between the  31 Christian powers themselves, Sovereign Pontiff  32 was the supreme arbiter of conflicting claims.  33 Hence the famous Bill issued by Pope Alexander  34 VI in 1493. . .Independent of this —"  35  36 Your lordship will appreciate that this is a  37 condensation, and the document itself is found under  38 tab IX-4.  Mr. Wheaton says:  39  40 "Independent of this papal grant, the right of  41 prior discovery was the foundation upon which  42 the different European nations, by whom  43 conquests and settlements were successively  44 made on the American continent, rested their  45 respective claims exclusive use of each  46 nation....On the other hand, Great Britain,  47 France, and Holland disregarded the pretended 28113  Submissions by Mr. Goldie  1 authority of the papalcy, and pushed their  2 discoveries ... But there was one thing in which  3 they all agreed, that of almost entirely  4 disregarding the right of the native  5 inhabitants of these regions .... In the same  6 manner the grant from Queen Elizabeth to Sir  7 Humphrey Gilbert empowers him to 'discover such  8 remote heathen and barbarous lands, countries,  9 and territories, not actually possessed of any  10 Christian prince or people, and to hold, occupy  11 and enjoy the same with all their commodoties,  12 jurisdiction and royalties'.  It thus became a  13 maxim of policy and of law that the right of  14 the native Indians was subordinate to that of  15 the first Christian discoverer, whose paramount  16 claim excluded that of every other civilized  17 nation, and gradually extinguished that of the  18 natives."  19  20 Now, your lordship will see there a hint of the  21 contrast between the alleged religious qualification  22 of the Christian princes and the alleged  23 disqualification of the native peoples.  24 I say in paragraph 4 the early basis in English  25 law for disregarding native title, in my submission,  26 was stated in Calvin's Case of 1608, where Sir Edward  27 Coke, in reporting the views of the Judges of England,  28 summarized the character in law a person may assume:  29 Alien born or subject born?  If the former:  Alien  30 friend or alien enemy?  If the latter, whether  31 temporary or perpetual?  And at page 397, he said  32 this:  33  34 "All infidels are in law...perpetual  35 enemies..for between them, as with the devils,  36 whose subjects they be, and the Christian,  37 there is perpetual hostility."  38  39 Now, that, I say, is what appears to be a  40 rationalization for the proposition that the interests  41 of the inhabitants can be disregarded.  And I note the  42 juxtaposition and date.  The second or definitive  43 Charter of the Colony of Virginia was granted by James  44 I in 1609, and in 1624 it became a Royal Colony  45 instead of a Charter Colony.  46 Now, Chalmers, referring once again to the view in  47 1780 of the pre-1763 period, said at page 676 of tab 28114  Submissions by Mr. Goldie  1 3, my lord, which has the title page, and the part I'm  2 quoting from is at page 676, and I'm starting on the  3 second paragraph:  4  5 "The American emigrants settled in a region  6 which was regarded by them as a territory of  7 the English empire, because it had been first  8 discovered and first occupied by virtue Of  9 commissions under the great seal of England.  10 The validity of this title had been recognized  11 by the approbation and practise of the European  12 world.  And it had been confirmed by the law of  13 nations which sternly disregarded the  14 possession of the aborigines, because they had  15 not been admitted into the society of nations."  16  17 And at page 677:  18  19 "It instantly became a fundamental principle of  20 Colonial jurisprudence, that, in order to form  21 a valid title to any portion of the general  22 dominion it was necessary to show a grant  23 either immediately or directly from English  24 monarchs.  And this suggests the principal  25 cause of the general solicitude to procure  26 patents from the sovereigns of England at every  27 period, because in them the whole was supposed  28 to be invested."  29  30 Now, he's speaking about the situation prior to  31 1763, and then noted how the common law of England was  32 adapted to Colonial purposes.  And this is at page  33 677:  34  35 "The jurisprudence of England became that of the  36 colonies, as far as was applicable to the  37 situation at which they had newly arrived;  38 because they were Englishmen, residing within a  39 distant territory of the empire.  And we have  40 beheld the wisest of the emigrants, who had  41 been born within the realm, whose affections  42 were yet warm, enforcing, by positive acts this  43 salutory principle of the common law.  When the  44 legislative energy of these declarations had  45 ceased, even Colonial lawyers were often  46 perplexed to decide what part of the laws of  47 England extended to the colonies, what remained 28115  Submissions by Mr. Goldie  1 a dead letter, what judicatories they should  2 apply to for a solution of their difficulties.  3 But have not English lawyers often differed in  4 opinion with regard to a precept of the common  5 law; have they not constantly appealed to the  6 courts of justice, because these form the great  7 depository of the laws?  In the same manner the  8 provincial tribunals decided, in the first  9 instance, which of the laws were suitable to  10 their circumstances; which were, therefore, to  11 be considered as a rule of action:  And their  12 former decisions and daily practice are  13 authoritative evidence by which all are  14 concluded.  Hence, we may infer, in different  15 provinces, a different rule may prevail."  16  17 And that, as I say, is taken from Chalmers' under tab  18 3.  19 And then I make reference to Blackstone under tab  20 6, the Laws of England.  In 1765 Blackstone, in his  21 "Commentaries On The Laws Of England", Book I at page  22 104 to 105, treated a settled law that plantations or  23 colonies are either such:  24  25 "-- where the lands are claimed by right of  26 occupancy only, by finding them deserted and  27 uncultivated, and peopling them from the mother  28 country; or where, when already cultivated,  29 they have been gained by conquest or ceded to  30 us by treaty."  31  32 Both these, he stated, are founded upon the law of  33 nature, or at least upon that of nations.  34 The difference between the two species of colonies  35 lay in the automatic introduction of English law in  36 the case of settled colonies, while in conquered or  37 ceded colonies, the law there remained that of the  38 conquered sovereign until supplanted by the King.  He  39 stated that the American plantations were principally  40 of the latter sort:  41  42 "...being obtained in the last century either by  43 right of conquest and driving out the natives  44 (with what natural justice I shall not at  45 present enquire) or by treaties."  46  47 Now, the view taken by colonial lawyers is 28116  Submissions by Mr. Goldie  1 illustrated by "Councells Opinions Concerning Colonel  2 Nicholls Pattent and Indian Purchases" given in 1675.  3 The second question put to Councell was whether a  4 grant from the Indians would be sufficient to any  5 planter without a grant from the King or his assigns.  6 In answer it was stated by the eight signatories to  7 the opinion, and I'm not going to try and put in all  8 the "ye's.  9 THE COURT:  Yes.  10 MR. GOLDIE:  11 "by the Law of Nations if any people make  12 Discovery of any Country of Barbarians the  13 Prince of the people who make the Discovery  14 have the right of the Soyle and Government of  15 the place and no people can plant there without  16 the concept of the Prince."  17  18 Now, if I may say so, that is -- that echoes Calvin's  19 Case.  20  21 "Though it has been and still is the Usual  22 Practice of all Proprietors to give their  23 Indians some Recompence for their Lands and So  24 Seems to Purchase it of them yet it is not done  25 for want of Sufficient Title from the King...  26 but out of Prudence and Christian Charity Least  27 otherwise the Indians might have destroyed the  28 first planters ... or refuse all Commerce and  29 Conversations with the planters and thereby all  30 hopes of Converting them to the Christian faith  31 would be Lost in this the Common Law of England  32 and the Civil Law doth agree...and therefore  33 tho some Planters have purchased from the  34 Indians yett having done So without the Consent  35 of the Proprietors for the time being the title  36 is good against the Indians but not against the  37 Proprietor without a Confirmation from them  38 upon the usual terms of Other Plantations."  39  40 This opinion is found in "Documents Relating to  41 the Colonial History of the State of New York", which  42 is -- the extract is found under tab 7.  And it is the  43 opinion quoted by Chancellor Boyd in his judgment in  44 Regina versus St. Catharine's Milling at page 208.  45 And writing in 1683, a Colonial lawyer, William  46 Fitzhugh of Virginia stated:  47 28117  Submissions by Mr. Goldie  1 "Now as to the comparing of us to Ireland and  2 therefore concluding because Ireland is not  3 bound by any Act of Parliament made in England,  4 unless particularly named, or generally  5 included, we are not neither.  There is great  6 difference between Ireland and us, they having  7 the Kingdom of Conquered Christians, we of  8 Conquered infidels.  They were to be governed  9 by their antiant municipal laws, till an  10 alteration made amongst them, ours if we had  11 any were ipso fact abrogated, because not only  12 against Christianity, but against the law of  13 God and nature."  14  15 This is found in the treatise "William Fitzhugh and  16 His Chesapeake World", et cetera.  17 Paragraph 10.  In the Plaintiffs' Exhibit 1244-11  18 there's an extract of the "Remonstrance of the  19 Ambassadors of the States General to King Charles I".  20 The complete document, including the answer to the  21 Remonstrance of King Charles -- that's the answer to  22 the Remonstrance of the Dutch Ambassadors on behalf of  23 King Charles, is found in "Documents Relative to the  24 Colonial History of the State of New York Procured In  25 Holland, England and France", under tab 9.  The Dutch  26 Ambassadors were protesting the seizure of a vessel  27 belonging to a Dutch trading company which had been  28 forced into Plymouth, England, by reason of weather  29 and was there seized because it had been trading in  30 territory with the Plantation of Virgina, which at  31 that time, my lord, extended a very long way north,  32 and in fact, the trading took place at Manhattan.  In  33 answer to the assertion that Holland had for a long  34 time traded in the River Manathans, which I understand  35 is Manhattan..."having purchased from the native  36 inhabitants and paid for a certain island called also  37 Manathans, where they remain surrounded on all sides  38 by the natives of the country", the English response  3 9 was:  40  41 "It is denied that the Indians were possessores  42 bonae fidei of those countries, so as to be  43 able to dispose of them either by sale or by  44 donation, their residences being unsettled or  45 uncertain, and only being in common."  46  47 Now, my understanding of the Latin phrase is imports 2811?  Submissions by Mr. Goldie  1 one who has a title sufficient to transfer property if  2 unaware of any defects.  3 In the next paragraph of the Answer to the  4 Remonstrance the authors say:  5  6 "The right of His Majesty's subjects have in  7 that country, is justified by first discovery,  8 occupation and the possession which they have  9 taken thereof, and by the concessions and  10 letters patent they have had from our  11 Sovereigns, who were, for the above reasons,  12 the true and legitimate proprietors thereof in  13 those parts."  14  15 And the outcome is recorded in the Calendar of  16 State Papers, which doesn't concern us.  17 So I say in summary, as to the period up to 1763:  18 First, the laws of England recognized no title or  19 interest other than that of the Sovereign or derived  20 from the Sovereign; (b), Religious grounds were  21 advanced in the 17th century as justification for  22 ignoring claims of indigenous peoples; (c), payments  23 made to indigenous peoples as "Recompence" were made  24 for reasons of prudence -- and I characterize prudence  25 as encompassing fear, seeking an ally, et cetera -- or  26 Christian charity, which appears to, and I'm quoting  27 from counsel's opinion, which appears to include  28 encouragement of trade, et cetera, as well as -- as  29 well as proselytizing; (d) occupation perfected by  30 possession was good title on the part of the Sovereign  31 in international law as well as in municipal law as  32 against prior inhabitants.  There was no English  33 acknowledgement of a legal interest which bound the  34 Crown unless so acknowledged by the Crown.  This is  35 consistent with the views expressed by Vattel,  36 probably the most authoritative commentator on matters  37 of international law in England prior to 1763.  He  38 said:  39  40 "There is another celebrated question to which  41 the discovery of the New World has principally  42 given rise.  It is asked whether a nation may  43 lawfully take possession of some part of a vast  44 country in which there are none but erattic  45 nations, whose scanty population is incapable  46 of occupying the whole?  We have already  47 observed, in establishing the obligation to 28119  Submissions by Mr. Goldie  1 cultivate the earth, that these nations cannot  2 exclusively appropriate to themselves more land  3 than they have occasion for or more than they  4 are able to settle and cultivate.  Their  5 unsettled habitation in those immense regions,  6 cannot be accounted a true and legal  7 possession, and the people of Europe...  8 finding land of which the savages stood in no  9 particular need, and of which they made no  10 actual and constant use, were lawfully entitled  11 to take the possession of it and settle it with  12 colonies."  13  14 My lord, that was quoted by the Commissioners of 1844.  15 I included a part of their report, which was one of  16 the Plaintiffs' exhibits, in my introduction.  17 THE COURT:  Which Commissioners are those?  18 MR. GOLDIE:  These were Commissioners appointed to investigate  19 the payment of moneys in Crown lands in Upper Canada.  2 0 THE COURT:  I think it's quoted by the Supreme Court of Canada  21 in St. Catharine's Milling.  22 MR. GOLDIE:  Vatell — Chancellor Boyd quoted it.  23 THE COURT:  Yes, all right, Chancellor Boyd, all right.  24 MR. GOLDIE:  Yes.  Now, Vattel, who died in 1767, nevertheless  25 praised the moderation of the English Puritans who  26 purchased interests from the Indians notwithstanding  27 their Charter.  And tab 10 is the extract from the  28 1844 report quoting Vattel, and that part of that is  29 quoted by Chancellor Boyd.  30 Now, subsequent to 1763 --  31 THE COURT:  I wonder if we shouldn't adjourn, Mr. Goldie.  How  32 are we getting along?  33 MR. GOLDIE:  Well, I would like to finish this, my lord, and  34 that will really complete this part.  35 THE COURT:  How long do you think it will take you to finish?  36 MR. GOLDIE:  I would think about another, oh, 15 minutes.  37 THE COURT:  Oh, all right.  Miss Sigurdson can last, I think.  38 All right, we'll stay then.  39 MR. GOLDIE:  I'm going to deal fairly quickly with the post-1763  40 part.  41 THE COURT:  All right.  42 MR. GOLDIE:  Wheaton, in his 1836 treatise, referred to above,  43 does not indicate any change subsequent to the  44 American Revolution of legal principles from those  45 which he described as applying to discovery and  46 occupation of European nations in North America.  47 Kent's Commentaries, my lord, are referred to in a 28120  Submissions by Mr. Goldie  1 number of prior authorities, one of them being St.  2 Catharine's Milling, first published in 1826.  The  3 12th Edition in 1873 was edited by Oliver Wendell  4 Holmes, and he states the fundamental principle in the  5 English law that the King was the original proprietor  6 was said to be one that had been adopted in the United  7 States and applied to republican governments.  And he  8 said:  9  10 "In New York it was held to be settled rule that  11 the courts could not take notice of any title  12 to land not derived from our own state or  13 colonial government.  This was also a  14 fundamental principle in the Colonial  15 jurisprudence.  All titles to land passed to  16 individuals from the Crown, through the  17 colonial corporations, and the colonial or  18 proprietory authorities.  Even with respect to  19 the Indian reservation lands, of which they  20 still retain the occupancy, the validity of a  21 patent has not hitherto been permitted to be  22 drawn in question in a suit between citizens of  23 the state, under the pretext that the Indian  24 right and title as original lords of the soil  25 had not been extinguished."  26  27 And the section beginning at page 512 headed "Right of  28 Colonization" Kent speaks of the entire Colonial  29 period and after stating that as far as Indian nations  30 had formed themselves into regular organized  31 governments within reasonable and definite limits  32 necessary for the hunter state there would seem also  33 to be no ground to deny the absolute nature of their  34 territorial and political rights.  He goes on to say:  35  36 "But beyond these points are colonial ancestors  37 were not willing to go.  They seem to have  38 deemed it to be unreasonable, and a perversion  39 of the duties and design of the human race, to  40 bar the Europeans."  41  42 Et cetera.  Now, he cites Vattel, who did not place  43 much value in the territorial rights of erratic races  44 or people, et cetera.  He asserts at page 515 that in  45 point of fact the colonists were not satisfied, nor  46 did they deem it expedient to settle the country  47 without the consent of the aborigines, procured by 28121  Submissions by Mr. Goldie  1 fair purchase, under the sanction of the civil  2 authorities.  There is no doubt that Kent regarded  3 this practice as invariable, but he makes no assertion  4 that it was a legal requirement either in the  5 pre-revolutionary period or in the post-revolutionary  6 period except by statute.  7 He quotes Chalmers for the proposition that "the  8 practice of the European world had constituted a law  9 of nations which sternly disregarded the possession of  10 the aborigines, because they had not been permitted  11 into the society of nations".  He was at pains to  12 defend the Indian practice of the American Colonies  13 both before and after the Revolution.  14 THE COURT:  What do you call the Indian practice?  15 MR. GOLDIE:  Of purchase.  16 THE COURT:  Oh.  17 MR. GOLDIE:  It is -- it's very neatly summed up by the  18 Counsell's opinion of 1675.  The only law was the  19 title from the King that prudence of Christian charity  20 dictated that treaties should be entered into, and, my  21 lord, I have submitted in my main summary that you  22 take all of the treaties collected by my friends and  23 they can all be -- come under that heading:  Prudence,  24 to mark the end of a war, alliances; they all mark the  25 fact that these were things which either prudence, or  26 I put it, at that time, commercial development or  27 lands speculation dictated.  28 Then I refer to Regina and Symonds, decided by the  29 Supreme Court of New Zealand in 1847, and Kent's  30 Commentaries are cited in the judgments of both Chief  31 Justice Martin and Mr. Justice Chapman.  It might be  32 said that the two judges drew opposite conclusions.  33 The latter believed that the practice of extinguishing  34 native titles by fair purchase was now a part of the  35 law of the land, while Chief Justice Martin said:  36  37 "Now the general law of England, or rather of  38 the British Colonial Empire, in respect of the  39 acquisition of lands, such as those which are  40 comprised within the claimant's purchase and  41 the defendant's grant, has from very early  42 times said as follows:   Wherever, in any  43 country to which (as between England and the  44 other European nations) England had acquired a  45 prior title by discovery or otherwise, there  46 were found land lying waste and unoccupied and  47 appropriated by subjects of the British Crown, 28122  Submissions by Mr. Goldie  1 it was holden that such subjects did not and  2 could not thereby acquire any legal title to  3 the soils against the Crown.  And this rule was  4 understood to apply equally, whether the  5 country is partially peopled or wholly  6 unpeopled, and whether the settlers entered or  7 obtained possession with or without the consent  8 of the original inhabitants.  Accordingly  9 Colonial titles have uniformly rested upon  10 grants from the Crown.  This was the case in  11 the oldest British colonies in America:  And it  12 is notorious that the same rule has been acted  13 upon without deviation or exception in the more  14 recent colonization of Australia."  15  16 This case was decided some seven years after the  17 Treaty of Waitangi and the decision has been taken by  18 the Colonial Secretary -- and the decision had been  19 taken by the Colonial Secretary in 1846 that the Crown  20 was in honour bound to accept the extreme view of its  21 effect.  22 Now, when I say that, I mean that the Colonial  23 Secretary and the Select Committee both believed that  24 the interpretation which had been given the Treaty of  25 Waitangi went beyond what -- went beyond what was  26 called for, but they considered themselves to be  27 honour bound to accept it.  2 8 In law, the views of the two judges in Symonds can  29 be reconciled with colonial law only because of the  30 view taken of the Treaty of Waitangi that it made no  31 distinction between waste lands and those actually  32 occupied by the native inhabitants.  It was the  33 failure to make this distinction that drew the  34 criticism of Lord Grey in his dispatch to the Governor  35 of New Zealand in 1846.  36 Chapman refers to judgments of Colonial courts.  37 One which was referred to in the address of Sir George  38 Gipps, G-i-p-p-s, quoted with approval in the report  39 of the Select Committee, was Martin versus Johnson, a  40 judgment of the Supreme Court of Louisiana, where  41 Judge Derbigny stated, and I set out the quote:  42  43 "The King of Spain, in taking possession of his  44 dominions in America, disregarded the rights of  45 the original lords of the soil, and declared  46 himself the sovereign of the country.  As some  47 compensation, however, for that usurpation, he 28123  Submissions by Mr. Goldie  1 assigned to the former proprietors such extent  2 of land as they wanted; and particularly took  3 care to secure to them, by law, such tracts as  4 he conceived were sufficient for the purposes  5 of cultivation and which pasturage of their  6 cattle."  7  8 From the same jurisdiction is the case of Breaux  9 versus Jones, cited by Mr. Justice Taschereau in St.  10 Catharine's Milling, which qualified Martin versus  11 Johnson and recognized only a right of actual  12 occupancy of village sites.  Breaux and Jones cited  13 Johnson and M'Intosh.  14 And then it has already been submitted that there  15 is language in respect of actual occupancy which is  16 consistent with Breaux and Jones, and I set that out,  17 the right to grant the soil while yet in the  18 possession of the natives.  19 And the top of the page:  20  21 "So far as respect of the authority of the  22 Crown, no distinction was taken between vacant  23 lands occupied by Indians."  24  25 Then I refer to waste lands and to the discussion of  26 waste lands in Milirrupum, where one judicial  27 definition is there quoted, as I quote:  28  29 "In law it has for a long time meant 'lands of  30 the Crown which have not been alienated."  31  32 And I submit that the invariable practice relied  33 upon by Mr. Justice Chapman in Regina versus Symonds  34 and the Plaintiffs in the case at bar was not  35 invariable in the pre-revolution colonies of Nova  36 Scotia and Newfoundland, nor was it regarded as having  37 the force of law in any colony prior to 1763.  The  38 theory that that practice ripened into a rule of law  39 subsequent to 1763 was rejected by the Judicial  40 Committee in St. Catharine's Milling.  That theory, my  41 lord, that quiet practice that ripened into the rule  42 of law, was that adopted by Mr. Justice Strong in the  43 Supreme Court of Canada and was that which counsel for  44 Canada argued for in the Judicial Committee.  45 The treaties and agreements in the  46 pre-revolutionary American colonies cited by the  47 Plaintiffs arose out of a variety of circumstances, 28124  Submissions by Mr. Goldie  1 many of which attest to the wisdom of treating with a  2 powerful neighbour whose land is desired.  But none of  3 these derogate from the principle stated in United  4 States and Santa Fe Railroad:  5  6 "As Johnson v. M'Intosh...'the  7 exclusive right of the United States to  8 extinguish' Indian title has never been  9 doubted.  And whether it be done by treaty, by  10 the sword, by purchase, by the exercise of  11 complete dominion adverse to the right of  12 occupancy, or otherwise, its justness is not  13 open to inquiry in the courts."  14  15 The Plaintiffs' attempts to elevate practice into a  16 law which is binding on the Crown is negated by  17 Sparrow in the Supreme Court of Canada, where it is  18 stated:  19  20 "...there was from the outset never any doubt  21 that sovereignty and legislative power, and  22 indeed the underlying title, to such lands  23 vested in the Crown...."  24  25 It is submitted the Select Committee on New Zealand in  26 1844 correctly concluded, consistently with principles  27 of Colonial law, that only lands actually occupied by  28 native peoples were excepted from the general  29 description of waste lands.  This was the interest  30 that was protected by Douglas.  The need to purchase  31 this interest never arose.  32 That concludes my submission on that, my lord.  33 THE COURT:  All right.  And how is your schedule now, Mr.  34 Goldie?  35 MR. GOLDIE:  Well, I'm anticipating that with the two days which  36 I have on Monday and Tuesday I can complete the  37 counter-claim and make my concluding submission.  38 THE COURT:  All right.  I can't speak beyond Tuesday, but I'm  39 presently engaged both Monday and Tuesday evening, so  40 you weren't planning on any evening sittings?  41 MR. GOLDIE:  No.  42 THE COURT:  All right, thank you.  Then we'll adjourn until 9:30  43 Monday.  Thank you.  44 THE REGISTRAR:  Order in court.  Court stands adjourned until  45 9:30 Monday morning.  46  4 7 (PROCEEDINGS ADJOURNED) 28125  Submissions by Mr. Goldie  1  2 I hereby certify the foregoing to be  3 a true and accurate transcript of the  4 proceedings herein transcribed to the  5 best of my skill and ability  6  7  8  9    10 Graham D. Parker  11 Official Reporter  12 United Reporting Service Ltd.  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


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