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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-25] British Columbia. Supreme Court Apr 25, 1990

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 25227  Submissions by Mr. Grant  1 SMITHERS, B.C.  2 APRIL 25, 1990  3  4 (PROCEEDINGS RECONVENED AT 9:00 A.M.)  5  6 THE REGISTRAR:  Order in court.  Supreme Court of British  7 Columbia, this 25th day of April, 1990.  Delgamuukw  8 versus Her Majesty the Queen at bar, my lord.  9 THE COURT:  Thank you.  Mr. Grant, before you start, I would  10 like to make one last attempt to make sure that we are  11 understanding each other and, hopefully, that I might  12 understand the fullness of your submissions.  13 I start with the proposition that your clients  14 have exercised their rights as citizens of Canada and  15 they have brought their claim in this court and have  16 sought to have their rights determined according to  17 Canadian law.  It seems to me that the case, as  18 presently being advanced, constitutes a clear clash or  19 conflict between law and culture, and we have to try  20 and accommodate those considerations as best we can,  21 but that we must always remain within the law.  22 It seems to me that -- and please sit down if you  23 wish, Mr. Grant.  I won't be long but I'm going to  24 soliloquize here for a moment.  25 It seems to me that as long as the potential  26 exists for any Gitksan or Wet'suwet'en person to opt  27 out of the authority or jurisdiction of the chiefs --  28 and by that I mean opt out in the sense that he cannot  29 be compelled to accept their authority if he chooses  30 not to -- then it follows from that that the authority  31 and jurisdiction of the chiefs, however well  32 established it may be and however well recognized it  33 may be within the general aboriginal community, must  34 be regarded in law as voluntary or consensual.  35 Now if this is so, then it seems to me that -- at  36 least as presently advised -- that this court could  37 not make any order which would impose a cultural  38 authority or a jurisdiction upon such persons.  39 Particularly, but without limiting the generality of  40 what I've just said, but particularly in their absence  41 in this action as defendants, and in the absence of  42 specific pleadings and, for example, guardians  43 appointed to represent infants and such other legal  44 niceties that Canadian law insists upon.  45 And, of course, without presuming to pass on the  46 question, any such action would have to withstand the  47 Charter scrutiny.  Could a court make an order that 2522?  Submissions by Mr. Grant  1 imposes an authority or a jurisdiction of a chief upon  2 an aboriginal person against his will or against the  3 possibility of it being against his will?  And in the  4 face of that, it seems to me that evidence of the  5 jurisdiction or authority of the chiefs as understood  6 within the culture, can only be relevant to issues  7 relating, as I said last night, to the identity of the  8 plaintiffs as proper plaintiffs, or as evidence  9 relating to the social organization of the Gitksan and  10 Wet'suwet'en at the time of contact or at the time of  11 the Crown's assertion of sovereignty or at whatever  12 relevant date or time is fixed.  Or, specifically, to  13 issues which relate -- which are related directly to  14 land.  15 Now, that's the way I understand the pleadings in  16 the course of the action and the permissible extent of  17 the claim that's being advanced.  And while I am  18 perfectly happy to have your submissions on that  19 separately from your argument, and I would be glad to  20 hear from you now or at some other time if you think I  21 have unduly confined the issues.  It's my present view  22 that I should hear what you have prepared for your  23 argument in relation to what I might call -- and I  24 don't say this critically -- the minutiae of the  25 chiefs' authority and jurisdiction or the social  26 organization of the Gitksan and Wet'suwet'en.  But  27 that as presently advised and subject to being  28 persuaded otherwise or reaching a different conclusion  29 upon giving the matter the careful consideration I  30 shall attempt at the end of argument, I -- I will be  31 receiving your argument within that general framework.  32 And I pass that along to you for whatever benefit  33 or assistance it may be to you in the presentation of  34 your -- of your arguments.  I don't really expect you  35 to respond to that at this moment unless you wish to  36 do so.  And of course in -- ultimately, I hope that I  37 might hear from the defendants, if they disagree with  38 any of what I have just said.  If I could just have a moment?  Yes, certainly.  I want to say, my lord, that I appreciate your  42 elucidation of that perception, and I think it's of  43 assistance so that -- to try to meet the issue which  44 I've tried to grapple with last evening.  And it was  45 our intent after questions you raised yesterday  46 afternoon, since the commencement, actually, of the  47 issue -- the area of argument relating to jurisdiction  3 9    MR. GRANT  4 0    THE COURT  41    MR. GRANT 25229  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  and the system of authority, those series of questions  you've raised which all -- which certainly are focused  in this -- in what you've stated now.  And we intend to come back and -- to this. But I  appreciate -- I'm sure you appreciate we would like to  have some time to consider these comments.  :  Yes, certainly.  :  And having said that, in this respect in this area  that I'm now focusing on of international relations,  the authority of the chiefs that I am arguing are  demonstrated is here probably covers a number of the  points that you've raised in terms of the nature of a  social organization.  But the focus of it is that this  authority relates to issues which are related to the  land, and that's the intent of this evidence and this  area of argument.  And that the issues related to the  land here, this argument -- or this evidence will  demonstrate that it is not a -- that there is a  context within which now, this morning, the  Wet'suwet'en exercise authority with respect to the  land.  I am on page 215 and I'll proceed with my  argument from there, my lord.  :  Thank you.  :  I intend to complete this section and then Ms.  Mandell will return to the section that she left off  last evening to commence a new section.  :  Thank you.  :  Firstly, my lord, I am dealing here now with the  Wet'suwet'en and their relations with other nations.  And by "other nations" I mean other aboriginal  peoples.  And of course, of particular relevance, is  their neighbours.  The All Clans Feast, and there were two of them,  one of which I've referred to in the context of the  Gitksan and David Gunanoot in Burns Lake, but this is  the one in 1986 at Moricetown.  And the -- the purpose  of the feast was explained by Gisdaywa in his  evidence.  He said:  It was our traditional way --  This was in cross-examination by Mr. Goldie:  It was our traditional way of solving matters  like that, by a gathering where all  Wet'suwet'en were present, and there was 25230  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  witnesses to everything that happened there and  that we had already lost quite a few of our  rights and by gathering there, we weren't there  to challenge anyone, but to inform them that  there was a little misunderstanding in the  boundaries and that we knew that it wasn't --  it wasn't done by maybe some young people  without consultation.  I think that should be, "it was done by some young  people without consultation," my lord.  That was the  context.  :  Yes.  Whatever we did was always done by the chiefs  and the elders.  [Now] there was a dispute about the boundaries  and there's had been talk about it, but not at  a gathering like that so they (the Carrier  Sekani) were invited down and were told...where  our traditional boundaries were...by each  Wet'suwet'en chief.  Now once again, if I may pause, the system of  authority that's demonstrated by this -- and of course  these boundaries -- and I go on to describe or refer  to what some chiefs said.  And that's not to prove, of  course, the truth of the boundaries, because they've  been proven in the evidence independently, we say.  But the process -- and I say "process" cautiously  because I think that word is a general word.  The  system, the -- the authority of the chiefs to make the  decisions and Mr. Joseph, Gisdaywa, was making that  clear in his evidence, that that was how it was dealt  with, and that's what was consistent with the  Wet'suwet'en system.  Now, one year later there was an All Clans Feast  held in Burns Lake hosted by the Carrier-Sekani  chiefs, and once again, Gisdaywa attended.  There were  about 400 people present at this feast.  And the  purpose of this feast was to clarify the boundaries on  the eastern boundary of the Wet'suwet'en.  And  actually, I should focus -- as I recall, it would be  to focus on the area that we've all heard of at  Chapman Lake area, up in -- up in this area here and  then down in this area here, towards Burns Lake, my 25231  Submissions by Mr. Grant  1 lord.  2 Now, Alfred Joseph explained that at the first  3 feast in Moricetown it was difficult for the  4 Wet'suwet'en chiefs because they were dealing with  5 elected officials from the Carrier-Sekani rather than  6 the Carrier-Sekani hereditary chiefs.  7 In other words, my lord, what's happened and  8 what's demonstrated in the evidence, is that the band  9 councillors or chief councillors attended at  10 Moricetown rather than the hereditary chiefs of the  11 Carrier-Sekani.  12 And Ms. Wilson-Kenni explained two systems in  13 operation at the feast:  14  15 And the Gitksan and Wet'suwet'en were using the  16 system of the clans and the Houses and the  17 ownership of the territories through the clans  18 and the Houses, but the Carrier Sekani were  19 using the DIA boundaries, you know, and how the  20 districts were, and a lot of the speakers were  21 chief counsellors for bands, that's why I --  22 that's why I came to that conclusion that  23 there's two different systems there.  And there  24 were a few that realized what we were saying  25 and they realized that some of them were  26 members of Houses and Wet'suwet'en, for  27 instance.  28  29 She stated that the apparent confusion over the  30 boundaries -- this was her evidence.  I say it's of  31 the opinion, but she stated that the apparent  32 confusion over the boundaries was as a result of the  33 band system being superimposed on the hereditary  34 chiefs system.  For example, John Thomas, the Chief  35 Councillor of Neetah Buhn, is actually a Wet'suwet'en  36 person from the House of Goohlaht.  He resides at  37 Nee-teh Ben within the Goohlaht territory.  That's --  38 there is a typo there, my lord.  This -- there should  39 be a period after "territory".  This is entirely  40 consistent with Wet'suwet'en law.  41 Now, if I may pause here, my lord.  This  42 certainly is an issue between the plaintiffs and the  43 provincial defendants.  The provincial defendants,  44 when they talk about village and when Mr. Willms says  45 yesterday, bands or whatever, they are focusing your  46 lordship on the Indian Act system of band membership  47 as the focus.  Once you get into that, as Ms. 25232  Submissions by Mr. Grant  1 Wilson-Kenni said, you have the two different systems  2 in clash, in conflict.  It's not, of course,  3 necessary, in this action, for you to -- and it's not  4 even sought, for you to make any order that the Band  5 membership under the Indian Act doesn't necessarily --  6 doesn't apply to the plaintiffs.  That's not the  7 issue.  The issue is that the plaintiffs are not band  8 members, the plaintiffs are not status Indians or  9 non-status Indians.  It's none of that.  They are the  10 members of the Houses and it's the only way the  11 formulation applies.  12 When that's applied, then it becomes clear who  13 John Thomas is, who Rita George is, who Sophie Ogden  14 is.  Sophie Ogden, you remember, much was made of her  15 from the Broman Lake Band.  These are people who are  16 Gitksan or Wet'suwet'en people.  In the case of Sophie  17 Ogden, as I recall, I think she is -- well, Rita  18 George is adopted into Gisdaywa's House and Sophie  19 Ogden in Spookw's House.  These are people who have --  20 are represented in this action.  21 Now you may recall, my lord, of course you viewed  22 this area down south, the Cheslatta area.  You will  23 recall though that the evidence of Mr. Mclntyre and  24 Mr. Shelford, two defence witnesses, that the  25 Cheslatta people were moved in the early 1950's from  26 their traditional territory around Cheslatta Lake up  27 into the territory of Goohlaht among the Wet'suwet'en.  28 And the Cheslatta Reserve as shown on the Indian  29 Act -- the federal map of reserves, the Cheslatta  30 Reserve is nothing more than a whole bunch of district  31 lots spread over a wide, wide area because of this  32 move.  In effect, a diaspora, I would say.  33 A certain amount of the confusion with respect to  34 the Indian Act system as opposed to the hereditary  35 chief system, was created by the fact that the  36 Cheslatta were given farm lands on widely separated  37 pieces of land within the Goohlaht territory.  The  38 creation of this diaspora for the Cheslatta within the  39 Wet'suwet'en territory has led to confusion among  40 Indian agents and those among the Cheslatta and  41 Nuu'tsenii who are not familiar with the hereditary  42 system.  And I think that Mr. Mclntyre, the Indian  43 agent from Burns Lake, was quite open about that, that  44 he saw that confusion in his working.  And we are  45 talking here, of course, of these series of reserves  46 in this southern area, my lord.  And there is a large  47 number of them, they are all called one reserve but 25233  Submissions by Mr. Grant  1 they are all over the place.  2 And I believe Mr. Mclntyre also led -- gave  3 evidence with respect to the social problems in that  4 area at the time that he was there.  And of course the  5 Cheslatta are not parties, they are not Wet'suwet'en.  6 As Dan Michell explained in his evidence during  7 cross-examination, the confusion over the boundary was  8 a result of the division of Indians Affairs into two  9 administrative districts.  Now I focused on one aspect  10 of the confusion, which feeds into the province's  11 argument.  The second -- that is the Cheslatta  12 dispersal.  The second aspect of it is the -- is the  13 two administrative districts.  The Nuu'tsenii chiefs  14 told the Wet'suwet'en that this was not "an overlap"  15 but was as a result of the creation of the Indian  16 Affairs district.  So now you see even the Nuu'tsenii  17 chiefs, not just the Wet'suwet'en, stated that.  Now  18 that -- all I'm saying there is that is some or all of  19 any reputation but it is not a question of -- it's the  20 fact of what they said, of course.  21 And here, of course, you have a division which  22 cuts into this area -- it's on the other map, but it  23 cuts into -- here is Babine and you recall it sort of  24 chops this piece out.  So this section is in that  25 Prince George section of Indian Affairs, the rest of  26 the Wet'suwet'en is in the Gitksan -- Gitksan-  27 Wet'suwet'en district which now is part of the Terrace  28 district.  29 Now Dr. Mills, in her opinion report, gave a  30 description of what occurred at the feast.  And there  31 was a transcription of the 1986 All Clans Feast in  32 Moricetown from which she took extracts, and that  33 transcript is in evidence.  Now, I'm only referring to  34 this in the context of what happened, and as I say,  35 the -- the evidence of what the chiefs said as to  36 their boundaries, of course, isn't put in to prove  37 those boundaries.  We've done that independently.  38 She stated -- she described the seating and you  39 can see in this seating description what she observed,  40 and she was present: that the -- the chiefs sat as  41 chiefs -- as clans in the feast hall.  And then Mary  42 George, the late Mary George, she was a chief who  43 died, I believe, after the writ was issued but before  44 evidence was led.  And she said -- she explained the  45 relation between the seating of the chiefs and I refer  46 you to that.  47 And she -- then Tonia Mills goes on and she says: 25234  Submissions by Mr. Grant  All the clans gathered together, then, make up  four whole salmon, of which the head chiefs are  the inner, richer meat.  The Wet'suwet'en do  not seat people from different communities  separately.  The clan members from each of the  Wet'suwet'en and Babine and Gitksan and Carrier  communities makes up the "whole salmon".  9 I'm on page 219, my lord.  10 THE COURT:  Yes, 219.  11 MR. GRANT:  Yes.  The second paragraph.  12 And that's what Dr. Mills observed in her  13 attendance at these feasts.  14 Now, my lord, when one keeps in mind that this  15 feast was specifically to resolve apparent differences  16 over the boundaries of the Wet'suwet'en territories,  17 it's my submission that the treatment of the guests of  18 honour is indicative of a system of diplomacy  19 undertaken by the Wet'suwet'en.  And such diplomacy, I  20 say, parallels the diplomacy that you heard Mr.  21 Jackson refer to between the first European settlers  22 and the aboriginal nations on the eastern seaboard.  23 In other words, the aboriginal system is implemented  24 to resolve these issues.  25 And the description of what happens is set out:  26 The guests were fed.  After they were fed, the  27 Wet'suwet'en chiefs hosting it were -- spoke.  And in  28 the course of their speeches, they demonstrated  29 ownership and jurisdiction based on the principles  30 within their laws.  The speeches also demonstrated the  31 strength of the Wet'suwet'en chiefs to settle matters  32 with their neighbours.  33 Once again, you see in the recording of the  34 speeches, the -- a practice -- and again, it's not one  35 person, it's a number of chiefs, and the first of them  36 being Gisdaywa, who -- who wears his robe as Dr. Mills  37 said, and it was:  38  39 ...a large frontal bear worked in mother of  40 pearl buttons on a dark blue background trimmed  41 in red.  42  43 So he is wearing his regalia which is his  44 authority and which is reflective of his territory.  45 And then he spoke about his territory.  46 After their speeches, Gisdaywa and Smogelgem  47 talked about the boundaries of their territory.  They 25235  Submissions by Mr. Grant  1 verbally walked the assembled nations around the  2 periphery of their territory, naming several  3 landmarks.  Alfred Joseph testified about what he said  4 at this feast in his evidence.  5 Now once again, I'm not suggesting this proves the  6 boundary of Gisdaywa.  We've done that in evidence.  7 He was here before the court and cross-examined on it.  8 What this shows is how Gisdaywa and the other  9 Wet'suwet'en chiefs deal with their neighbours, what  10 is the foundation when they are working with their  11 neighbours on the clarification of boundaries.  And of  12 course in the face of their neighbours, some of the  13 younger people being confused as to the foundation for  14 the claim.  15 Now then, I refer you to Dr. Mills' report where  16 Smogelgem spoke.  And again, I ask you to refer to  17 that.  I'm not going to read that over, but once  18 again, it's demonstrative of how they deal with the  19 protection of their territory, their authority over  20 the territory when dealing with non-Wet'suwet'en  21 people.  22 On page 222 I refer you to Charles Austin  23 speaking on behalf of the Laksilyu chiefs, and I -- he  24 talked about the succession of the Laksilyu chiefs  25 that held and still hold territory around Burns Lake.  26 Now my lord, one of the most powerful speakers of  27 the feast was Maxlaxlex, Johnny David.  And I'm glad  2 8 you had the opportunity to see Johnny David who was  29 cross-examined in this court on his affidavit, and of  30 course gave extensive commission evidence.  31 Doctor -- as Dr. Mills reports, he -- Johnny  32 David, as you may recall, is a very small -- elderly  33 but very small man.  34  35 He donned his robe and then spoke about the  36 people who had spoken before, and how they had  37 been trained by their grandparents in the way  38 of the feasts.  He spoke about how  39 Gitdumskanees got the robe and the song that  40 went with the name long ago, and how he had  41 witnessed this.  42  43 And then she quotes from the transcript, which is in  44 evidence, as to what he said.  45 Now, Mr. Rush is going to refer to the territories  46 of the Wet'suwet'en in argument, but of course you may  47 recall that the Gitdumskanees lines concerned, would 25236  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  be talking about this area, my lord, the Hagwilnegh  area that encompasses Burns Lake and actually is the  furthest east protrusion.  Not quite.  Well, almost.  In the Wet'suwet'en area.  Yes, in the Wet'suwet'en area.  And then Dan Michell, another witness you saw, spoke  on behalf of the Tsayu or Beaver clan, and he had been  asked by Kweese, Florence Hall, to speak on their  behalf.  He spoke about the Tsayu territory at Goosly  Lake and the importance of recognizing the  Wet'suwet'en system.  Again, his speech reflects the  way of dealing, training, and long-standing ability to  enter into discussions, to enter into diplomacy with  other aboriginal peoples.  Now, a number of the Carrier-Sekani chiefs -- I'm  on page 234 -- 224, I'm sorry.  A number of the  Carrier-Sekani chiefs reflected that the Indian  government is in the feast hall.  And Ed John, the  Carrier-Sekani chief stated -- and this is from the  transcript although it's cited from Dr. Mills:  Our chiefs --  That is the Nuu'tsenii.  -- have said the proper way to settle this is  the feast hall.  We are committed to work with  each other.  The potlatch, that's the way we  have to settle it.  Like Charlie said last  summer, he said, "If we want to settle we have  to bring the game warden into the feast hall."  We don't have to bring the game warden into the  feast hall.  What we are talking about, kayo,  territory, every Chief, you too understand.  When you are chief you own that land.  Little  chief and high chief, you all understand as  well as I do.  I know too.  (In English) We are  not talking about the white man's trapline.  (In Nutseni) I know what I am talking about:  Kayo wadnenee, our peoples' territory.  We will  call you back in our feast hall, the same way  you did today.  We will call you back to a  feast, a potlatch, in the summer.  THE COURT:  Is "potlatch" an Indian word or is it an English  word? 25237  Submissions by Mr. Grant  1  MR.  GRANT  2  THE  COURT  3  MR.  GRANT  4  5  THE  COURT  6  MR.  GRANT  7  8  9  10  11  12  13  THE  COURT  14  MR.  GRANT  15  16  17  18  19  20  21  22  23  24  25  THE  COURT  26  MR.  GRANT  27  THE  COURT  28  MR.  GRANT  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  English.  Is it?  A Chinook word, I understand.  It was used by the  traders, I believe, my lord.  Thank you.  And I think in the -- I think it's fair to say that  the way it's come to be used, it's a popular word  like -- in some senses like Mr. John speaks.  But it's  come to be used to talk about the coastal potlatching,  and Dr. Daly talked about the distinction between that  and the feasting, although there is a lot of  similarities.  Is it an offensive word?  No, I don't think so.  But it's a word not used by  the Gitksan or the Wet'suwet'en generally.  They use  the word "feast".  Of course they use the word in  their own language, but it's translated as "feast".  And I think -- I may say this, my lord, because I  was trying to, when I was going to talk to you about  the feast and I couldn't locate it in the evidence,  but the words of the Wet'suwet'en and Gitksan which we  translate as "feast", I think probably has a bigger --  you know, it may not literally translate as "feast".  That's the closest proximity we can come to it.  Potlatch?  Feast.  Oh, sorry.  Feast.  Yes, all right.  And when the anthropologists refer, of course, to  the potlatching, they are referring generally to the  coastal potlatching.  Now, it's significant that the feast at  Moricetown did not end with the sprinkling of eagle  down.  The Wet'suwet'en chiefs realized that for the  Nuu'tsenii from the east it was time to consider what  they were told about the territories.  The Nuu'tsenii  did invite the Wet'suwet'en to a feast to be held in  the future, and the discussions between chiefs had not  ended.  But what's significant, my lord, and -- at  that feast, is that both sides, the Nuu'tsenii and the  Wet'suwet'en, agreed that the foundation for the  territory was the responsibility of the hereditary  chiefs and not the responsibility of elected chief  councillors to resolve that issue.  That -- in other  words, there is a parallel system between -- with the  Nuu'tsenii and the Wet'suwet'en on that.  I say, my lord, in exercising their jurisdiction  or system of authority to settle boundary disputes 2523?  Submissions by Mr. Grant  1 with the Carrier-Sekani, both nations acknowledged the  2 feast as the forum of resolution and they relied as  3 well on proof of ownership based on crests and  4 matrilineality to support their resolution.  It is  5 significant that when the Wet'suwet'en faced the  6 problem that the Carrier-Sekani appeared to be  7 claiming ownership to land based on principles other  8 than crests and matrilineal descent, there was no  9 common basis for the Wet'suwet'en chiefs to recognize  10 the Carrier-Sekani claims.  11 In other words, you -- and I think this goes to  12 the issue you've raised even this morning, and this is  13 the difficulty we face, similarly with the Nuu'tsenii  14 and the Wet'suwet'en.  If one says, "Well, we've got  15 bands and reserve lands here," and then that's --  16 that's it, of course all post-contact creations, the  17 Indian reserves.  And the other said, "No, it's based  18 on our matrilineality and crests," you are missing --  19 there is no commonality because you are talking  20 different languages, you may say.  And that's why it's  21 important to realize that both sides recognize the  22 foundations of the territoriality in the crest and the  23 matrilineal descent.  24 I am now going to take you back in time in terms  25 of the Wet'suwet'en relations to an incident with the  26 Nishga that happened over a hundred years ago.  And  27 this was described by Johnny David in his evidence, in  28 his commission evidence, and it was the killing of a  29 Wet'suwet'en person who had taken down the stone  30 marker of one of the Nishga chiefs on the boundary.  31 As a result of this killing there was a settlement in  32 Kitsegukla in which the name Samaxsam was given to the  33 Wet'suwet'en as compensation.  No Nishga territory was  34 given in compensation in the case.  Johnny David  35 described the incident in his evidence.  36 THE COURT:  You say this is a hundred years ago from now?  37 MR. GRANT:  This is over -- his evidence was -- yeah, his  38 evidence was in '86, and he said that this was over a  39 hundred years ago, yes.  4 0    THE COURT:  Thank you.  41 MR. GRANT:  42 Half way between Kitwancool and the Nass River  43 there was a grave marker of old Samaxsam who  44 was the size of this table --  45  46 That was -- in the commission video you would see  47 it would be a standard kitchen table that we were at, 25239  Submissions by Mr. Grant  1 my lord.  2 -- and on this big log was a big stone and that  3 was knocked over.  When the two people had come  4 to this grave marker they were playing around  5 on it and it tipped over and Samaxsam avenged  6 this by killing one of the Wet'suwet'en and it  7 was not old Tiljoe's brother that knocked this  8 rock over but some one else.  There was  9 Samaxsam's uncle whose grave was marked with  10 this big tree and this rock...  11  12 Now, this is this same rock and the same boundary  13 that -- and the spelling is different, but it's --  14 that's the Wet'suwet'en way to spell the word -- it's  15 the same one as you heard me talk about last night,  16 that Stanley Williams referred to in the -- in the  17 Nishga feast.  18  19 A  It was during the time when old Tiljoe  20 was alive.  Old Tiljoe and Jimmy Michell  21 went to Kitsegukla.  22 Q  Who gave the name Samaxsam to them?  23 A  There is a chief from Nass River who is  24 in Kitsegukla when Old Tiljoe and Jimmy  25 Michell went to Kitsegukla and that was  2 6 when the name was given to them.  27  28 If I may just pause there, my lord.  You may  29 recall last week when I talked about trade, that I  30 focused on the trails.  And the trails -- there is a  31 recognized trail from the Nass to Kitsegukla and then  32 there is that route going through from Moricetown up  33 through the MacDonald Lake area to Kitsegukla.  And  34 those are recognized trade routes that Dr. George  35 MacDonald referred to.  36 So you have this meeting at Kitsegukla:  37  38 Q  Had there been a dispute or killing of a  39 Wet'suwet'en by someone from the Nass?  40 A  Old Tiljoe's brother was killed in the  41 Nass and Old Tiljoe went to avenge the  42 death of his brother.  This was when he  43 was given the name.  Jimmy Michell ran  44 through the village [this is Kitsegukla]  45 on a pair of snow shoes and Samaxsam was  46 notified that Jimmy Michell was in town  47 to avenge the -- his death -- to avenge 25240  Submissions by Mr. Grant  1 Old Tiljoe's brother's death.  2  3 The reference to the running through the village  4 was the knowledge of -- he was making it clear that he  5 was going to avenge the death.  6  7 When Samaxsam found out that Old Tiljoe  8 and Jimmy Michell were in town he [that's  9 Samaxsam] called a feast, and Old Tiljoe  10 and Jimmy Michell were also invited,  11 where a song and a head-dress was given  12 to Old Tiljoe.  The head-dress was  13 painted red, red cedar bark.  The song he  14 sung is Samaxsam that was given to Old  15 Tiljoe along with the name.  16  17 Mr. David in his commission, Maxlaxlex, then sang  18 the song.  And he said:  19  20 A  That song that I just sung, it is sung in  21 the language of the Nass River people.  22  23 And then he was asked:  24  25 Q  I would like to move back.  You said that  26 the name was given because Old Tiljoe's  27 brother was killed; who killed him and  2 8 why?  29  30 And he said:  31  32 Q  You said there were two Wet'suwet'en, was  33 one of these Wet'suwet'en that was around  34 the marked Old Tiljoe's brother?  35  36 And he was pointing in the direction, and he said:  37  38 A  ...the people from there they have gone  39 back and Old Tiljoe's brother was coming  40 through that area and he was the last  41 person going through and he was killed.  42  43 And on the commissions he was pointing up towards the  44 Nass area from Moricetown.  And he was then asked:  45  46 Q  Can you describe this marker?  Was it a  47 rock on top of a log or was it a rock 25241  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  with some wooden markers on it?  A  It was a big rock similar to what you see  in the graveyards today.  Q  Did it have wooden markers in it?  He didn't know, but he said it was over 100 years ago.  Q  You said that some people from "over  there" knocked this rock over, were they  from the Babine?  A  These people from this area and my father  has seen the rock and that was how he  described it to me.  THE INTERPRETER:  His father had seen the  rock when he was a young man.  He had  told Johnny, that is what he is telling  us now.  So this was passed on by his father to Johnny  David that his father had actually seen the rock.  So  Johnny's father who died in 1908 -- and as I recall,  he was -- and Johnny David's evidence is that he was  about 45 years of age, that would give you a time  frame for this happening, my lord.  :  What do you say this proves?  :  Well, what this particular -- what this goes to, my  lord, is the Wet'suwet'en relations with the Nishga  and the utilization of feasts to settle disputes in  that time period.  And it's a time period when there  certainly was contact.  If we look to the 1820's -- it  appears that it was certainly would have been after  the 1820's, but that the feasting occurred with  respect to dispute resolution independent, independent  of contact.  And it is the utilization of the passage  of names, the tsiisxw and the settlements occurring  between the Wet'suwet'en and the Nishga just as  between the Gitksan and the Tahltan.  :  All right.  :  What is also interesting and distinctive about this,  though, as opposed to the Kliiyem lax haa dispute, is  that, as I say on page 227, that there was a direct  interaction and engagement in settlement feast.  Now,  one of these names among the Wet'suwet'en, Samaxsam,  was transferred from the Nishga to the Wet'suwet'en.  And as Dr. Kari said about the Wet'suwet'en and  Gitksan language, what you find here is the song that 25242  Submissions by Mr. Grant  1 was given as well is a Nishga song.  It's a song that  2 Johnny David could not translate because it was in the  3 Nishga language, but he knew it, the song, and the  4 passage of that song is a demonstration of this  5 settlement.  6 Now, Stanley Williams -- I put in the reference  7 from Stanley Williams in which he describes the same  8 item.  Now I just want to correct something there, my  9 lord.  That parenthetical remark at the bottom of 227,  10 the "chief in Luutkudziwus House".  11 THE COURT:  Yes.  12 MR. GRANT:  That shouldn't be there, my lord.  The reference  13 there to Txim Xsaan is to the Nishga chief and it's  14 not to a chief in the House of Luutkudziwus.  And that  15 wasn't in the transcript, that was put in as an insert  16 inadvertently.  17 Now, as explained by Stanley Williams and also by  18 Solomon Marsden who also referred to it -- and I've  19 given you the reference -- the same issue and the same  20 dispute was referred to by them between the  21 Wet'suwet'en and the Nishga -- that this incident did  22 not, of course, change the boundary, and no territory  23 was given to the Wet'suwet'en as a result of this  24 settlement.  25 This also is indicative of how the -- it isn't a  26 trespass in the same way, but what Ms. Mandell  27 referred you to yesterday, that there had to be  28 this -- there always has to be a balancing, and I  29 think she was talking about that in the context of the  30 divorce feast.  31 Basically, what happens is the Wet'suwet'en  32 person -- and by the way, when Mr. Williams refers to  33 Hagwilget, he is referring to the Wet'suwet'en  34 generally, that's -- he often would refer to the  35 Wet'suwet'en as the people from Hagwilget.  But the  36 Wet'suwet'en person knocks the pole down -- knocks the  37 rock off the marker, insults the Nishga chief.  The  38 Nishga chief kills a Wet'suwet'en, but that can't end  39 it.  There must be a settlement, otherwise, as in any  40 kinship society, you -- matters escalate.  The threat  41 by Jimmy Michell and Old Tiljoe to avenge that death  42 is resolved through the feast and the passage of the  43 name and the crest which has been carried on to this  44 day.  It also demonstrates the close -- the  45 interconnections between the Wet'suwet'en and the  46 Nishga.  47 Now, the final section on the international 25243  Submissions by Mr. Grant  1 relations, and I submit, is an important section, and  2 that is the relation between the Gitksan and the  3 Wet'suwet'en.  I'm on the bottom of page 228, my lord.  4 THE COURT:  Yes.  So am I.  5 MR. GRANT:  The relationship between the Gitksan and  6 Wet'suwet'en themselves speaks much of the authority  7 and power between them.  Although there are deep  8 similarities and affinities between these two peoples,  9 they remain two peoples with differences.  10 The relationship between the Gitksan and the  11 Wet'suwet'en was described in the following way by Dr.  12 Daly:  13  14 The frontier between Gitksan and Wet'suwet'en  15 has been remarkably peaceful over a very long  16 period.  17  18 You don't have the situation like you had with the  19 Nishga and the Wet'suwet'en.  20  21 In many ways this testifies to the balanced  22 nature of trade within the region.  Both  23 peoples utilize similar ecological niches; both  24 occupy choice positions vis-a-vis coast and  25 inland trade, and while both peoples share the  26 salmon resources of the upper Skeena system,  27 their respective hunting territories fan out  28 from the mainstem rivers in opposite  29 directions.  Thus, when the people complete  30 their salmon harvest and processing, and turn  31 to their hunting grounds, the possibility of  32 conflicts developing over access to land are  33 minimized.  Both peoples have followed similar  34 annual harvest schedules which required the  35 appropriate seasonal access to river sites,  36 valley and mountain tops for the taking of  37 similar plants, animals, fish and fowl.  Both  38 peoples are blessed with many of the same  39 resources, and those items which happen to be  40 scarce among one or other people have long been  41 the objects of trade and gift-giving between  42 the Gitksan and the Wet'suwet'en.  43  44 And I just wanted to pause here if I could, my  45 lord.  46 My lord, I take you back to Exhibit 358-2, and  47 the wall-size map of 1052-2, and refer you back again 25244  Submissions by Mr. Grant  1 to what Dr. Daly is referring to with the Hazelton  2 variant.  This yellowed area on this -- and I think  3 it's a light green on the Exhibit 358.  And then you  4 seen this distinctive territory of the Wet'suwet'en  5 with its different resource base.  And I say a  6 different resource base, based on the different  7 environmental matters -- environmental and ecological  8 zones.  9 But remember that the Wet'suwet'en incorporates  10 in this line here, incorporates some of that Hazelton  11 variant.  So you do have with the Wet'suwet'en, you do  12 have some of this unique ecological zone that Ms.  13 Haussler and Dr. Daly have referred to.  So -- but you  14 also have this type of environment which encourages  15 that interrelationship.  So there is a -- very much of  16 a mutual -- and this -- and this among the Gitksan is  17 a much, much more widespread utilization of the  18 Hazelton variant.  19 So you have very much a mutual advantage in this  20 exchange and a good, positive relationship between the  21 two peoples.  And of course you have the riverine  22 valley utilization of the salmon fishery which is also  23 important by both peoples, and that's what Dr. Daly is  24 referring to.  25 It's my submission, my lord, that the boundary  26 between Canada and the United States espoused as one  27 of the longest peaceful boundaries, both  28 geographically and timewise, between nation states, is  29 a very short time span of peaceful relations when  30 compared to the Gitksan and Wet'suwet'en boundary.  31 It's a hundred -- I gather a hundred and eighty years  32 old, that peaceful relationship between Canada and the  33 U.S.  The longevity of peaceful relations between the  34 Gitksan and different nations has been referred to  35 furthre in the arguments on the origins of the two  36 peoples where I discussed that before.  37 Dr. Mills tabled a diagram between the clans, the  38 Wet'suwet'en clans and the Gitksan equivalent, and  39 it's something that's referred to by Dr. Kari.  And  40 you see there, the Wet'suwet'en Gilserhyu, Gitksan  41 Ganada.  Wet'suwet'en Laksilyu, Gitksan Laxsel.  Now  42 remember, my lord, that from the Wet'suwet'en  43 perspective, Gilserhyu and Laksilyu are separate from  44 the Gitksan respect of Ganada and Laxsel are the same  45 clan.  And you have really four clans among the  46 Gitksan and not five.  But the term -- the word is  47 what she is looking at here.  And then Wolf: 25245  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Gitdumden and Laxgibu.  And Laksamshu and Gisk'ast --  and that should -- that's a misspelling there.  It  should be G-I-S-K-A-'-A-S-T.  And then Tsayu and  Laxski'k.  Now, Dr. Kari pointed out --  Sorry, what was that spelling again for Giska'ast?  G-I-S-K-A-'-A-S-T.  Instead of the "R".  Yes, thank you.  Yes.  That's the Fireweed.  It was Dr. Kari's opinion that the similarity of  names of clans and Houses between the Gitksan and  Wet'suwet'en indicated a contact on a millennial  scale; where ideas and peoples travelled back and  forth.  He explained the similar clan names by  identifying how two different peoples may have one or  many words for geographic place names.  He said:  There's a multilingual culture.  Multilingualism must be dealt with in a  sophisticated way...We find that -- words like  Lexts'amishyu [Laksamshu] --  Now that's the second from the bottom of the  Wet'suwet'en for Fireweed.  And of course he is using  his lexicon, my lord, that linguists seem to spell  things differently than what I've seen them otherwise,  and certainly in this case:  I explained those are blends ... It's not that  one slavishly borrowed from the other.  They  have been communicating in a multilingual zone  in the area.  The boundary is not as rigid as  people want to say and people can see things.  Do you know what intervisible means, like  intervisible geographic features?  It's  possible to stand at different points in the  country and see mountains in different areas...  it's possible to see the mountains up at Bear  Lake from Takla Lake, for example, and the same  mountain might have three or four different  place names and it might be in somebody's  territory and outside of somebody's territory.  And of course we say it is.  Are there dual name land, triple names and 25246  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  quadruple names for the same intervisible  features?  And so what you see here is Dr. Kari, in his  evidence, is referring to the fact that you have a  place, and if you go to any place on the territory  such as we went to Cutsene (ph) Mountain, for example,  in the viewing, and you look around and you can see  places.  But from -- and they have a Gitksan name.  From a different perspective, that is, from the  Wet'suwet'en territory, the same place is visible and  it would have a Wet'suwet'en name.  The interconnection between the Wet'suwet'en and  Gitksan was addressed by Dr. Mills with reference to  Barbeau's description of Axtii Hiikw.  And she  discussed this in her report:  Barbeau relates that the Gitksan of Kitwanga  trace ancestry to the Wet'suwet'en chief Woos.  His account gives testimony to the immense time  depth of Chief Woos and the interconnections of  the Gitksan and Tsimshiam.  He says:  And this is a quote from Barbeau.  I believe this  is -- yes, this would be Totem-Poles of the Gitksan,  my lord, the red book I think as you've seen.  :  Yes.  :  "The clan of which" -- and I'm going to pronounce  these as they are.  This is Barbeau's spelling which,  again, is a little confusing.  "The clan of which Arhteeh [Axtii Hiikw] is a  member may be termed Gitrhandakhl  [Gitlaxandek], from the name of the village at  the headwaters of Kalem River, where his  ancestors lived long ago.  And of course this is what Mr.  his evidence.  Matthews described in  "The Nass, to the north seems to have been the  birthplace of this clan.  The family of  Ness-yawqt, at Gitlarhdamks [Gitlaxdamx], may  belong to the ancestral stock:  its crests and  other privileges being considered analogous.  The headwaters of the Kalem, besides, are  situated close to the Nass, and the names of 25247  Submissions by Mr. Grant  their geographic features are said to be in the  Nisrae [Nishga] dialect.  "The two Wolf Households under Wudiwiyae --  That's a Nishga chief as I recall -- sorry, a  Kitsumkalum chief.  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "-- of the Gitsemraelem [Kitsumkalum] tribe,  along the Skeena River Tsimsyan [Tsimshian], on  their ancient territories.  So what Barbeau is here referring to is the  source at Gitlaxandek.  He also theorizes -- and I  say -- emphasize theorizes, and we are not relying on  this to accept that, because you've heard the evidence  of Tenimgyet and he was cross-examined on this.  But  that the Nass may have been the birthplace of this  clan.  But Laxandek and the -- was certainly a place  where those who became the Kitsumkalum, those who  ended up in the Nass, the Nishga and the Gitksan such  as Tenimgyet.  THE COURT:  What are you saying is the equivalent for this word  "Gitsemraelem"?  MR. GRANT:  That's Kitsumkalum, K-I-T-S-U-M-K-A-L-U-M.  That's  in the second last paragraph, my lord?  THE COURT:  Yes.  MR. GRANT:  So he is there showing the connections between the  Nishga, the Gitksan and the Kitsumkalum all rooted at  Laxandek, being the place on Kitsumkalum Lake.  Now then he goes on to say:  "The three Wolf families immediately under  Arhteeh [Axtii Hiikx] at Kitwanga are those of  Hrrpeeharhae [Bii Lax ha], Tenemgyet, and  Hlawts [H'loots]; the name of Arhteeh [Axtii  Hiikw] at the front being only of recent date.  So that is consistent with Mr. Matthews' evidence  that Axtii Hiikw, if this is -- this is being written  in 1929, and the -- based on interviews from 19 --  well, the very earliest, 1915, Beynon's first  interviews, probably more like the early 20's when  they did these series of interviews.  But this is --  that Axtii Hiikw was -- took the name, the head chief  name being at the front only recently as a result of  the reduction in the members of the House.  He says: 2524?  Submissions by Mr. Grant  1 Although their three Households belong to the  2 same clan, their separation seems to have taken  3 place long ago, according to traditional  4 accounts.  5  6 Again, this is consistent with Tenimgyet's  7 evidence that they originally were three houses, and  8 of course he talks about the H'loots account and the  9 starvation adaawk I referred you to the other day.  10  11 In the course of an ancient migration,  12 Hrpeeharae [Bii Lax ha] is said to have met  13 Tenemgyet at a place known as Roundbluff  14 Island.  15  16 Now that was a strange spelling but that is Bii  17 Lax ha and it's the name, of course, that Charlie  18 Smith took and that's the name that Charlie Matthews,  19 Art Matthews' brother presently holds, and that's in  2 0 the evidence.  21 But at a point known as Roundbluff Island,  22 Gwihikstaat, on the Skeena.  Now that is --  23 Gwihikstaat, you will see that on Exhibit 349, my  24 lord, that's in the region of Wilson Creek.  25  26 Their families amalgamated, and from that  27 moment passed out of the Tsimsyan nation into  28 that of the Gitksan.  29  30 That is -- he is here referring to Bii Lax ha.  31  32 Kalagwaw, of their family, went out to his  33 former home on the Kalem River [and], at a  34 later date, killed a relative named Weehlawts  35 [Wii 'Hloots], and conquered the hunting  36 grounds and other possessions.  The name of  37 Weehlawts [Wii 'Hloots] also passed to his  38 family, thereafter to become that of a  39 Household chief among the Gitksan.  40  41 So you see that's referring to the Galaa'uu who  42 killed Wii 'Hloots, and I referred you to that in  43 another context about the defined boundaries.  44 "The close relationship" -- this is what's  45 relevant for the Gitksan-Wet'suwet'en relationship:  46  47 The close relationship between Arhteeh [Axtii 25249  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Hiikw] on the one hand, and the other 'Waws  [Woos] and Kurhwawq [Goohwawq], two chiefs of  the Carriers at Hagwelget --  Now of course, again, as Mr. Williams refers to  the Wet'suwet'en as the Hagwilget, so in this context  does Barbeau.  And I don't think you should take that  literally to mean that they were only living at  Hagwilget, but that's what they referred to the  Carriers of Hagwilget -- Moricetown Hagwilget Carriers  were referred to that way by Barbeau.  -- throws further light on the history of this  clan.  Arhteeh [Axtii Hiikw's] family, taken as  a  whole, is believed, at Kitwanga, to be a  branch of that of 'Waws [Woos], and to have  come from the neighbouring Carriers... It seems,  from the traditional accounts that a part of  the Gitrhandakhl [Gitlaxandek] Wolves migrated  in the first place from upper Kalem River to  what is now the country of the Carriers on  [the] Bulkley River, there to establish in  permanence two Households under the  chieftainship of 'Waws [Woos] and Gurhwawq, and  at a subsequent date, another --  I'm sorry, that Gurhwawq should be Goohlaht.  -- and at a subsequent date --  Not Goohlaht, I'm sorry.  I'll leave it, my lord,  because I am -- it would be Gurhwawq, it's a chief in  the House.  THE COURT:  It's a quotation from a published text, I can find  it.  MR. GRANT:  Yes.  -- and at a subsequent date another among the  Gitksan of Kunekstaet [Gwihikstaat] (the name  of a tribe that later became Kitwanga).  Now, Gwihikstaat there he is referring to is, of  course, where that downstream village, the Anjok,  A-N-J-O-K, which was referred to by Mr. Matthews.  These Households of Tenemgyet and Hlawts  [H'loots] in particular are believed to have  issued from that of 'Waws [Woos]. 25250  Submissions by Mr. Grant  1 In other words, he is describing there the  2 connection between Woos and Tenimgyet and Axtii Hiikw.  3 Then he concludes:  4  5 "Thus we find that the Gitlaxandek clan of the  6 Wolf phratry at the present day consists of  7 seven families:  two in the Gitsemraelem  8 [Kitsumkalum] Tribe, of the Tsimsyan; two,  9 among the Carriers of Hagwelget or Moricetown;  10 and three, in the Kitwanga tribe of the  11 Gitksan."  12  13 Now, my lord, what Barbeau -- and Dr. Mills is  14 referring to Barbeau there -- is to show the  15 connection between the two.  And of course that was  16 demonstrated as well in the evidence of Tenimgyet.  17 Now, in the modern context, you actually saw the  18 living personification of what I say is a tremendously  19 long interconnection between the Gitksan and the  20 Wet'suwet'en.  And that living presentation was in the  21 person -- was personified by Ms. Wilson-Kenni.  She is  22 a chief in the House of Spookw, holding the name  23 Yaga'lahl.  Spookw's territory borders on the  24 Wet'suwet'en territory.  Wet'suwet'en people live at  25 Hagwilget in Spookw's territory.  And Alfred Joseph  26 explained the move of the Wet'suwet'en into Spookw's  27 territory.  28  29 It happens that one spring in Moricetown  30 there was no fish, no fish came, people  31 went fishing every day and they couldn't  32 catch anything.  So they sent out young  33 people, patrol, to find out what was  34 wrong down the river.  So they were gone  35 for awhile, then came back and said that  36 there was a -- they told the people in  37 Moricetown that there was a slide at  38 Hagwilget.  And that's why the fish  39 weren't let through.  So the people all,  40 all the people in Moricetown, all the  41 Wet'suwet'en people went down there and  42 started clearing away rocks so that the  43 fish could get by again.  So it must have  44 taken them a little while to clear, make  45 a passageway for the fish to get through.  4 6 That's why they moved to Hagwilget.  47 .... 25251  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  A  Q  A  Q  A  Now, the place where that is located, is  that a Gitksan or Wet'suwet'en territory?  It's in Gitksan.  And were the Wet'suwet'en people who  moved to Hagwilget permitted to stay  there by the Gitksan?  Yes.  And was there or were you told by your  uncle Joseph Nahloochs and your  grandmother, Mrs. Felix George, who it  was that gave permission to the  Hagwilget, the people who moved to  Hagwilget, to stay there?  Yes, it was in Spookw's hunting territory  and they always had dealings with Spookw,  and they knew him very well and he was an  uncle to most of the people, related to  most of the people that moved there.  So  there wasn't too much -- they just moved  in there and he told them it was fine for  them to be there.  Not all stayed, not  all stayed, when the clearing --  That should be "the", my lord.  -- when the clearing was finished, fish  could get up the river again, some moved  back to Moricetown.  And of course that's demonstrative of the whole issue  of Hotset and Moricetown, and it wasn't the people  abandoned it -- sorry, I was going to make a reference  on the map.  I believe that you recall, of course, that  Spookw's territory on the map encompasses where  Hagwilget is.  :  And it's agreed, pretty well, this is 1820, isn't  it?  Yes.  That is the move up.  Yes.  If I could just have a moment.  Now, Ms. Wilson-Kenni explained that Spookw had  close connections to the Wet'suwet'en Houses.  She  explained there is a close connection between  Gisdaywa's House, that's a Wet'suwet'en Wolf House,  and Spookw, a Gitksan Wolf House.  For example, Dora's  mother is -- Mrs. Margaret Austin is a member of the 25252  Submissions by Mr. Grant  1 House of Spookw, but she also has been given a  2 Wet'suwet'en name.  3 It's been strengthened, this interconnection,  4 between Gisdaywa and Spookw through adoptions.  For  5 example, Dora's own son, Abraham, was given a name in  6 Gisdaywa's House.  Spookw adopted Ida Austin back into  7 the House of Spookw from Gisdaywa's House.  8 Dora Wilson-Kenni herself had been adopted into  9 the House of Gisdaywa at a time when that was -- that  10 House was low in numbers.  In 1975 she was taken back  11 into the House of Spookw and given her present chief's  12 name, which is a subchief in the House.  13 Cecilia George, Alfred Joseph's grandmother held  14 a seat in the Gitksan feast.  She contributed to the  15 feasts of Spookw and he gave her a seat and allowed  16 her to hunt and trap on his territory in exchange.  17 This crossover of assistance has gone on in this  18 connection, as Ms. Wilson-Kenni explained, for  19 hundreds of years.  20 The two Houses help each other at feasts and have  21 held combined feasts.  I refer you, my lord, to  22 Exhibit 317, which is a feast book regarding a  23 combined feast of Spookw and Gisdaywa.  It's  24 remarkable, my lord, that it's not like an All Clans  25 Feast at all.  That is a feast that was held of both  26 Houses -- of both Houses of both the Gitksan and the  27 Wet'suwet'en.  And it reflects the distinctions  28 between the two peoples, but the fact that they still  29 can join to that extent and how closely they are.  30 The citations I give for the next part under  31 "Crests" are to Sheila Robinson, and those citations  32 are not necessary because the references are from the  33 Exhibit 119-39, which were put to her.  34 And this is -- of course, Ms. Robinson didn't  35 know who these people were but -- I'm sorry, Dr.  36 Robinson didn't know who these people were.  But  37 Barbeau, in his Totem Poles of the Gitksan referred to  38 a crest obtained by Hanamuxw from Goohlaht.  Hanamuxw,  39 you may remember, is that Gitksan chief, of course,  40 from Kitsegukla, Joan Ryan.  And Goohlaht is Lucy  41 Namox, the chief from Moricetown.  And once again it's  42 interesting how you see these connections when you  43 look at the territory relationships.  44 Hanamuxw is fairly close and again you have the  45 trail going through -- this is the Hanamuxw territory.  46 And Goohlaht on the other hand is quite disparate but  47 it's quite -- it's down in this area.  But Goohlaht, 25253  Submissions by Mr. Grant  1 of course, has fishing sites at Moricetown.  2 And what Dr. -- or what Barbeau has said in his  3 text:  4  5 The Hanging-across emblem, with head down, was  6 ceded to Hanamuk by Gurhlaet [Goohlaht], a  7 chief of the neighbouring Carrier village of  8 Hagwelget, as compensation for the murder of a  9 member of Hanamuk's family.  Gurhlaet  10 [Goohlaht] himself seems to have obtained it  11 from the neighbouring Gitksan --  12  13 And this is theoretical, but he suggests:  14  15 -- possibly from Weemenawzek [Wii Minosik] of  16 the Larhsail phratry at Qaldo.  17  18 And that's, of course, the Frog clan, my lord.  You  19 see these words "phratry" and "clan".  20  21 -- And from Kisgagas, who also owns it as part  22 of his family traditions, had it painted on his  23 House-front and boxes, and carved on a totem  24 pole...  25  26 Now, the second aspect of that is Barbeau's  27 effort to try to figure out why Wii Minosik and  28 Hanamuxw would have it.  But the significance of it is  29 that what's consistent with his account here is that  30 Johnny David himself went to feasts at Kisgagas.  31 There is a connection of the Wet'suwet'en to the  32 Kisgagas.  On the other hand, there is a connection of  33 the Wet'suwet'en to Kitsegukla and that's also  34 demonstrated by the Nishga feast.  35 Barbeau also referred to the fact that Guxsan --  36 you remember Guxsan is the chief who has the territory  37 around Kitsegukla Lake or Guxsan Lake.  He has as his  38 kinsman Smogelgem, a chief of Hagwilget.  39 Dr. Robinson did not know if any of these people  40 were Gitksan or Wet'suwet'en, but she did not disagree  41 that the access of the crest by Hanamuxw from Goohlaht  42 could have happened in pre-contact times.  43 Alfred Joseph explained his connection with the  44 Gitksan Houses as follows:  45  46 While my wife being from the Gitksan area and  47 her mother is from Kispiox, and she holds a 25254  Submissions by Mr. Grant  1 seat at the feast hall at Wiiseeks' table so  2 that whenever they are having a feast I have to  3 go, I am invited to go and whenever other clans  4 put up feasts she goes and I have to take her  5 and at times I am sitting in.  So I am very  6 much involved with the Gitksan feast system, as  7 well as the Wet'suwet'en system.  8  9 And this was, of course, on cross-examination.  10 He also explained that he was commissioned by  11 Pete Muldoe to carve a pole for the Gitksan.  12 Now, his wife is the present Waiget, succeeding  13 to Elsie Morrison who died.  And of course the reason  14 why he is commissioned by Pete Muldoe to carve a pole,  15 you will remember that Gitludahl, Pete Muldoe, was  16 originally from Wii seeks' House and Wii seeks and  17 Waiget are the same wilnadaahl, the same House group.  18 Pete Muldoe was adopted into Gitludahl's House to take  19 that name because of the House -- the House has no  20 surviving members, and he -- but he still is connected  21 to Wii seeks' House.  22 I wonder, my lord, just for your own planning,  23 when do we plan for the break?  24 THE COURT:  I thought we should finish the section.  We have  25 only three pages.  26 MR. GRANT:  I have no problem.  Do you intend there be one break  27 in the morning?  No.  We'll take a break.  But one break in the morning?  No, there will be another one around 12:45 or  31 something.  32 MR. GRANT:  That's fine.  I just wanted a sense.  33 The language between the Gitksan and the  34 Wet'suwet'en.  35 Now, while the Gitksan and Wet'suwet'en language  36 are of entirely different linguistic origins, there  37 are a substantial number of loan words which shows a  38 long-standing relationship between the Nations.  And I  39 say there, my lord -- and I use, by the way, the word  40 "nations" and "peoples" interchangeably in my  41 argument, although often in this section it's  42 "nations".  I don't want you to get the impression  43 that when I use the word "nations" that these are  44 hierarchical nation states because they are not, and  45 that's why I sometimes use the word "peoples".  46 Because, of course, I've already explained the kinship  47 basis and it shouldn't be misleading to your lordship  2 8    THE COURT  2 9    MR. GRANT  3 0    THE COURT 25255  Submissions by Mr. Grant  1 that there are, of course, nation states of hierarchy  2 in the separate systems as Canada, for example, or  3 other nation states.  4 But the evidence -- but they are distinct peoples  5 and in that sense they can be defined as nations with  6 a definable territory and definable people and  7 definable language as referred to in the Apache case  8 and in some cases you will be referred to later.  The  9 International Court of Justice of what a peoples of a  10 nation is.  11 The Gitksan and Wet'suwet'en borders, my lord,  12 this is one of the most fascinating pieces of evidence  13 of connection between the Gitksan and Wet'suwet'en, I  14 would submit.  It's Mrs. McKenzie's evidence relating  15 to her husband, and his grandmother who held the name  16 Luutkudziiwus.  You recall, of course, that Ben  17 McKenzie himself held the name.  So this is his  18 maternal grandmother that we are talking about.  19 She -- that is, Ben McKenzie's grandmother married  20 David McKenzie who was a Wet'suwet'en and the uncle of  21 Johnny David.  And Johnny David described David  22 McKenzie as sometimes "Old McKenzie".  23 And David McKenzie, of course, took the name  24 Smogelgem.  And this is the David McKenzie who, at the  25 death of Johnny's father, took that name and Johnny  26 was the one who buried his father and got rights of  27 access to the western Smogelgem territory.  28 But Mrs. McKenzie described the interconnection  29 as follows:  30  31 Now, across the river, the Suskwa River, is a  32 territory of old McKenzie David McKenzie, and  33 he did the trapping there while Ben's  34 grandmother did the trapping on Luutkudziiwus'  35 trapline, so they always met, so this is how  36 they got married, is knowing each other from  37 the territory.  So that it made it a big area  38 for both of them to do the trapping because  39 they were joined together.  This Suskwa River  40 just divided the territory between them.  So  41 they have a big territory.  So they either go  42 to the Lax See'l territory --  43  44 That's the Gitksan Luutkudziwus territory.  45  46 -- they go Gisk'aast, and this territory  47 belongs to the Wet'suwet'en people...Smogelgem. 25256  Submissions by Mr. Grant  1 Now that's the territory -- the Fireweed is the  2 territory of Smogelgem, and that's, of course, the  3 Laksamshu.  4 Now, Mrs. McKenzie died, this is the grandmother:  5  6 ...that left Ben to trap on their line.  Now,  7 he would go, his grandfather would tell him to  8 go on his trapline when -- he was getting old  9 and he couldn't travel, couldn't do anymore  10 trapping, so he sent Ben out to his trapline.  11  12 And so Ben worked both sides of the river.  13  14 And what Ben made out of that trapline, he  15 would give it to his grandfather, and then what  16 he got from his own trapline, he kept for  17 himself.  Now, when David McKenzie died, Ben  18 never set foot again on that territory because  19 it belonged to his grandfather and it is a  20 Wet'suwet'en territory, so he kept to his own  21 part, Luutkudziiwus' trapline territory.  22  23 Now here, my lord, you see that Ben McKenzie's  24 grandparents made an alliance through marriage which  25 enlarged the territory to which they each had access.  26 This alliance connected Smogelgem on the northeast of  27 the Wet'suwet'en territories with Luutkudziiwus on the  28 southeast of the Gitksan territories.  And I just do  29 wish to refer you to this, because I think it's a  30 dramatic demonstration, granted in more recent times,  31 of this connection.  32 And you see here, the Luutkudziiwus, the Gitksan  33 territory, and then the Smogelgem territory here, and  34 that's the connection between the two.  There is a  35 small strip of Gyetm galdoo territory in there, but  36 generally those are the two major territories that are  37 there.  38 So they utilized -- here you have a Gitksan, Ben  39 McKenzie, certainly Gitksan.  If my friends' theory  40 worked, you say, "Well, it's someone from Moricetown  41 and someone from Gitanmaax."  But he is a Gitksan from  42 Luutkudziiwus' House.  He gets rights to his father's  43 -- his grandfather's territory with his grandfather's  44 permission, and then he has to stop using it.  He can  45 only go back to his own territory, Luutkudziiwus.  His  46 grandfather allowed him to use the south side of the  47 trapping ground, but Ben could no longer go there 25257  Submissions by Mr. Grant  1 after his grandfather died.  2 It's my submission, my lord, in conclusion, that  3 the summary of international relations demonstrates a  4 number of significant features regarding this aspect  5 of the jurisdiction as I have defined it already, or  6 as Mr. Jackson more properly defined it, being the  7 system of authority exercised within a set of  8 institutions and laws in the context of an organized  9 society extending over a defined territory.  And I'm  10 referring to page 3 of this section of the argument.  11 It demonstrates the Gitksan and Wet'suwet'en  12 chiefs have the authority to enter into international  13 relation with non-Gitksan and non-Wet'suwet'en  14 peoples.  15 It demonstrates, my lord, that the Gitksan and the  16 Wet'suwet'en have extensive experience in exercising  17 that authority through conflicts, through peace  18 settlements, and through joint feasts with their  19 aboriginal neighbours.  20 It also demonstrates, my lord, that  21 notwithstanding any disputes -- and it's not a  22 pristine society, it's natural there will be  23 disputes -- but there is no dispute by either the  24 Gitksan or the Wet'suwet'en or their Nishga, Tahltan,  25 Carrier-Sekani neighbours, or Kitsumkalum neighbours,  26 that the -- that the authority of the Gitksan and the  27 Wet'suwet'en people rests in the hereditary chiefs,  28 and the institution among the Gitksan and Wet'suwet'en  29 for the resolution of disputes is the feast, and this  30 is also the resolution mechanism of their neighbours  31 to the extent that they agreed they should deal with  32 them through the feast.  33 It also demonstrates, my lord, that the Gitksan  34 and the Wet'suwet'en are distinct nations, they are  35 distinct peoples.  Yet their boundary has been one  36 along which there has been long-standing peace,  37 vis-a-vis each other.  The relationships between the  38 Gitksan and the Wet'suwet'en are based on joint  39 feasting, assistance, reciprocating aid to members of  40 the same clan, inter-marriage and trade.  41 It's remarkable I say, my lord, that when Alfred  42 Joseph carves the pole for Pete Muldoe, Gitludahl,  43 that -- as you recall, the carver himself will be  44 reflected on the bottom of the pole.  This  45 interconnection will be demonstrated to future  46 generations -- or is demonstrated by the crest of  47 Gisdaywa on the pole of Gitludahl. 2525?  Submissions by Mr. Grant  1 A strong example of the peaceful relationship  2 between the Gitksan and the Wet'suwet'en was the  3 inter-marriage between Luutkudziiwus and Smogelgem  4 which allowed Ben McKenzie's grandparents and, for a  5 short period of time, Ben McKenzie himself, to utilize  6 the resources of two contiguous Gitksan and  7 Wet'suwet'en border territories.  8 Now, I say that's only a recent demonstration.  9 The Goohlaht, Hanamuxw crest exchange, Johnny David's  10 participation in the Kisgagas feasts are other  11 examples that that's -- that's something that has been  12 going on for some time, and I say before contact.  13 The interconnections of the Gitksan and  14 Wet'suwet'en is exemplified in the life of Ms.  15 Wilson-Kenni, emphasized that through inter-marriage,  16 feasting together, adoptions, trading and providing  17 mutual assistance on the land and at the feast, the  18 Gitksan and Wet'suwet'en have lived in harmony.  And I  19 am not suggesting pristine harmony, my lord, or a pure  20 absolute harmony, but that they have lived in harmony.  21 Both of them share the concepts of ownership and  22 jurisdiction and yet they continue to respect each  23 other's title and authority over the territory.  24 My submission, my lord, it demonstrates a system  25 of authority with respect to relations with other  26 nations, and that system of authority is a foundation  27 or is an important aspect of the ownership of  28 authority over the land.  2 9    THE COURT:  All right.  Thank you.  We will take the morning  3 0 adjournment.  31    THE REGISTRAR:  Order in court.  Court stands adjourned.  32  33 (PROCEEDINGS ADJOURNED AT 10:15 A.M.)  34  35 I hereby certify the foregoing to be  36 a true and accurate transcript of the  37 proceedings herein transcribed to the  38 best of my skill and ability.  39  40  41  42  43 Toni Kerekes, O.R.  44 United Reporting Service Ltd.  45  46  47 25259  Submissions by Ms. Mandell  1 (PROCEEDINGS RESUMED AFTER BRIEF RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MR. GRANT: Before we commence, I wanted to raise a scheduling  6 matter that's come to my attention.  In light of the  7 schedule, our clients approached me, and they would  8 like to have a dinner for the plaintiffs' counsel, and  9 tomorrow evening is the only evening for that.  So I  10 just wondered if we could --  11 THE COURT:  What's wrong with Friday evening?  12 MR. GRANT:  I think people will be flying away.  That's the  13 difficulty.  14 THE COURT:  Yes.  15 MR. GRANT:  This is what I propose.  It may not be too  16 disruptive.  If we could not have an evening session,  17 but if we could stop a bit earlier and start a bit --  18 THE COURT:  Why don't we start at 9:00 and go to, say, 6:00, and  19 then have your dinner, not have --  20 MR. GRANT:  That would work out, I believe.  I will check with  21 my client.  I think that should be satisfactory in  22 terms of their planning.  They have to make some  23 arrangements.  24 THE COURT:  I am told that we turned out 180 pages of transcript  25 yesterday, which deserves an inclusion in the  26 Guinness Book of World Records.  27 MR. GRANT:  Maybe in one sector of the world.  28 THE COURT:  Well, I think these obligations must be recognized,  29 and I think the 9:00 to 6:00 suggestion is almost  30 equivalent of an evening session.  31 MR. GRANT:  Thank you, my lord.  32 THE COURT:  We should do that.  You will let me know if there is  33 any change from that.  34 MR. GRANT:  Yes, I will let you know.  35 THE COURT:  Ms. Mandell.  36 MS. MANDELL:  Thank you.  My lord, I am going to address you  37 with respect to harvesting, managing and conserving  38 the resources.  It was the piece which was left  39 unspoken from the material which I provided to you  40 yesterday.  41 THE COURT:  What page are you at?  42 MS. MANDELL:  It begins at page 80.  43 THE COURT:  All right.  And it runs to where, Ms. Mandell?  44 MS. MANDELL:  It runs to page 180.  45 THE COURT:  Yes, all right.  Thank you.  46 MS. MANDELL:  I would like to introduce the section, though, by  47 reference to some of the comments which you have been 25260  Submissions by Ms. Mandell  1 making over the last few days.  2 THE COURT:  Yes.  Go ahead.  3 MS. MANDELL:  We have shown that by virtue of the laws which  4 regulates citizenship, marriage and succession, and  5 through the exercise of jurisdiction by the houses  6 collectively, that the house as a unit whose members  7 are determined with precision, a durable unit capable  8 of holding the ownership of the house territory, and  9 of exercising the jurisdiction vested in the high  10 chief to maintain the house's survival.  Also to  11 manage the house territory for the benefit of house  12 members, to grant access rights to non-house members,  13 and to protect against trespass, resolve disputes  14 regarding the territory, internally and with their  15 neighbours.  16 We will submit, and that's what I will begin to  17 touch upon today, that the house and the houses acting  18 together is also a unit of jurisdiction with authority  19 to harvest, manage and conserve the resources of the  20 house territory, both for the benefit of house members  21 and for others of the Gitksan and Wet'suwet'en nations  22 who attend at the feast.  23 While the jurisdiction to harvest, manage and  24 conserve the resources is primarily exercised within  25 the house itself, as with the other areas of  26 jurisdiction the harvest, management and conservation  27 of the territory can involve the collective  28 jurisdiction of the houses acting together at the  29 feast on issues affecting the community as a whole.  30 Now, this section, in response to your comments  31 this morning, my lord, is specifically related to the  32 land, and we are going to address you on it.  But I  33 wanted to just go to one more preliminary point in  34 dealing with this.  You raised yesterday in the  35 transcript and in court, as reflected in the  36 transcript, if we are making a claim for ownership,  37 why do we need jurisdiction anyways.  And I understood  38 your comments to be stating that owners are capable of  39 doing what they like on the land, and -- or perhaps  40 I've unfairly paraphrased you, but in any event don't  41 we get what we want if we get declarations of  42 ownership.  43 THE COURT:  Well, put it the other way.  If your interest in  44 land is ordered, then within that interest surely you  45 can do what you want with it.  46 MS. MANDELL:  That's how I understood you to say that.  4 7    THE COURT:  Yes. 25261  Submissions by Ms. Mandell  1 MS. MANDELL:  The only point that I would like to clarify at  2 this point is that normally owners are still subject  3 to the management regimes of the province with respect  4 to harvesting and other regulations and laws affecting  5 the land, and if your lordship's framework is so,  6 then -- and we were successful in receiving  7 declarations of ownership, that may place the  8 plaintiffs as owners within a management regime which  9 conflicts with the management regime exercised since  10 time immemorial by the chiefs in respect of the  11 harvest management and conservation of the territory,  12 and it's there that we say that ownership is not  13 enough, and that your lordship will bear with us as we  14 move through the proof of the nature of the  15 conservation, harvesting and management regime of the  16 chiefs, and we will be later submitting that there is  17 an operational conflict between that regime and what  18 underpins it, and that which as owners we might  19 otherwise be subjected to, which is the management  20 regime of the province.  21 THE COURT:  I don't think there is anything different in what  22 you said there, from what I said this morning, but  23 there may be on more fulsome consideration, but at the  24 moment I don't think there is.  I think the confusion  25 arises, in my mind, out of the use of this troublesome  26 word "jurisdiction", because "jurisdiction" to me  27 implies use, and that is use or possession or  28 equivalent words are the basis for the aboriginal  2 9 right.  And it seems to me that whatever rights you  30 establish, also establishes what use or possession you  31 are going to enjoy, and I presently find the concept  32 almost circular.  But there may be fine distinctions  33 or subtleties that haven't yet presented themself to  34 me, or I haven't developed them sufficiently to  35 recognize the distinction between ownership and  36 jurisdiction, but that may become clear as we proceed.  37 I do have a problem -- your friends haven't mentioned  38 it -- is there any pleading that supports a claim for  39 collective preservation of the territory as opposed to  40 house or chiefs --  41 MS. MANDELL:  Yes, the plaintiffs plead that each house, the  42 chiefs of the house are suing on behalf of themselves,  43 and so forth, and then they plead that they  44 collectively do.  So the collective --  45 THE COURT:  Collective pleading?  4 6    MS. MANDELL:  Yes.  47 My lord, if I could just pursue with you for 25262  Submissions by Ms. Mandell  1 another minute this question of ownership and  2 jurisdiction.  3 I move into the analogy of my own backyard, and I  4 as a fee simple holder will have certain rights of  5 jurisdiction, if you will, certain authority over my  6 lands which flow from my right of ownership, but I  7 butt up against the city when I attempt to do  8 something on my land which is contrary to a zoning  9 bylaw, and I think that in this case the analogy,  10 although not perfect, is that even if the plaintiffs  11 were to have declared to their members rights in  12 ownership to the territory, when they butt up against  13 the management regimes of the province, there is there  14 too the same kind of operational conflict, as when I  15 want to do something on my territory or my property  16 which is precluded by city regulation.  17 What we're saying, when we are talking about  18 jurisdiction in this context, is that to the extent  19 that the plaintiffs have since before contact and  20 continued today -- to today exercised authority  21 governed by specific laws which regulate how they are  22 to behave and their members at that point where the  23 provincial laws intrusive.  We say that the  24 jurisdiction of the plaintiffs is thereby part of the  25 aboriginal rights which are being sought after and  26 included within Section 35, and beyond the authority  27 of the province to abrogate.  And this is where the  28 issues of ownership and jurisdiction, if you will,  29 will begin to impress upon each other as issues which  30 aren't exactly severable.  And it is different from  31 the right in the land to use it.  You eventually get  32 into the question as to who decides what will go on  33 that land and under what management regime will that  34 occur.  And that's the specific area that I wish to  35 address you on at this point.  36 THE COURT:  Well, I have no difficulty with that.  It seems to  37 me that your backyard difficulties are deficiencies  38 flowing from the nature of your title.  39 MS. MANDELL:  That's right.  4 0    THE COURT:  And to the same extent it seems to me that the  41 aboriginal interests, to whatever extent they are  42 found to be, will include some deficiencies.  We know  43 of one, that they can't sell it to anyone but the  44 Crown.  There may be others that will, as I presently  45 perceive the matter, other deficiencies that will  46 likewise be incidents of the nature of the interest to  47 which they may be found entitled.  I see no 25263  Submissions by Ms. Mandell  1 distinction -- I see no difference in the aboriginal  2 interest concept and your backyard difficulties under  3 a fee simple title.  It seems to me they are both  4 deficiencies of the particular kind of title or  5 impediments or restraints or burdens to the kind of  6 title or interest you have.  7 MS. MANDELL:  We are now going to try and persuade you that the  8 jurisdiction to harvest, manage and conserve falls  9 within the backyard of the Indian people's title, and  10 is not a deficiency or limitation on the title as we  11 have earlier and just now discussed.  12 THE COURT:  Well, I have throughout this entire dialogue  13 reserved as a live issue cultural matters that relate  14 to land.  It was the non-land issues, non-land  15 cultural issues that have caused me all the difficulty  16 that I have in understanding the plaintiffs' case, but  17 the land issues have not caused me difficulties at  18 all.  19 MS. MANDELL:  I am going to proceed then.  20 THE COURT:  I think at the bottom, as the English say, this case  21 is about land.  22 MS. MANDELL:  It is.  It is also about authority as to who  23 governs the land, and that's where this part of the  24 argument is directed.  25 THE COURT:  That's a good line upon which to start a judgment,  26 isn't it, this case is about land.  27 MS. MANDELL:  And authority.  28 THE COURT:  I think that — I think one subsumes the other.  29 MS. MANDELL:  As long as it's included.  30 THE COURT:  Which subsumes which, yes.  All right.  Thank you,  31 Ms. Mandell.  32 MS. MANDELL:  All right.  Thank you.  If I could ask you to turn  33 to page 80.  34 THE COURT:  Yes, I have it.  Thank you.  35 MS. MANDELL:  I don't intend to read throughout this piece.  I  36 am going to direct your lordship to specific points  37 which I would like to highlight.  38 The antiquity of the concept of jurisdiction to  39 harvest, manage and conserve the resources of the  40 territory for the Gitksan and Wet'suwet'en is  41 reflected in the language.  42 There are words in the Wet'suwet'en language to  43 describe managing and conserving the resources.  Dan  44 Michell testified that the two words for conserve and  45 harvest are old words in the Wet'suwet'en language.  4 6              And he put it:  47 25264  Submissions by Ms. Mandell  1 "Yes, when the Creator created, he had given us  2 those words way back."  3  4 The first area that I would like to address you on  5 is the authority in the head chief to manage and  6 conserve the resources.  7 THE COURT:  Can I stop you for a moment, Ms. Mandell, and just  8 say to Mr. Jackson that one of the random thoughts  9 that I have come across since his submission related  10 to this idea of frozen aboriginal interests.  And he  11 contended very strongly for -- against the concept of  12 a frozen concept of aboriginal rights, and suggested  13 that we shouldn't feel tied in to what happened at the  14 time of contact or pre-contact or at the time of the  15 claim to sovereignty, and that the rights could agree  16 and expand this through possession and use after that  17 time.  18 I would like you to some time, Mr. Jackson, to  19 tell me whether that submission on his part would  20 include the converse or obverse, perhaps, of that  21 proposition, could aboriginal rights be lessened after  22 that time, if they are not frozen.  Perhaps, Mr.  23 Jackson, you can find a few minutes of your time or  24 someone else's time or his own time during the course  25 of the remaining period of defendants' argument to let  26 me have his views on that question.  Thank you.  27 MS. MANDELL:  Thank you.  The first proposition which I am  28 directing to your lordship is a general proposition  29 that the head chief has the authority to manage and  30 conserve the resources of the territory.  This is an  31 incident of ownership which passed to the chief with  32 the passage of the chiefly name.  33 I am going to explain that through the witnesses.  34 Solomon Marsden was asked who in the house has the  35 power, and is responsible for all of the territories  36 and fish sites, and he says:  37  38 "It is always the first chief, the head chief to  39 be responsible to have power and authority over  40 these matters."  41  42 And he says that when the head chief's name is  43 passed:  44  45 "When the decision has been made for the  46 successor of the former chief, then the name is  47 put on this new chief, and the power and the 25265  Submissions by Ms. Mandell  1 authority is put on this chief to make  2 decisions on the territory."  3  4 And this parallels the law of access with respect  5 to the granting of rights to non-house members, which  6 you have heard about earlier.  7 As to who in the house has authorities to make  8 decisions regarding the management of Gitludahl's  9 territory, Pete Muldoe said:  10  11 "After Gitludahl passed on and the name is  12 passed on to me, and I have the full authority  13 to look after the place or to give permission  14 to anyone that wanted to go there."  15  16 Mary MacKenzie said:  17  18 "There is a Gitksan word for the authority of  19 the chief to make decisions regarding  20 territory.  The word is dax gyet which means  21 giving the authority."  22  23 And I wonder if I could here pause and remind your  24 lordship of the submissions made by Mr. Grant on dax  25 gyet, where he submitted that dax gyet springs from  26 the ownership in the land, and in using the same word  27 dax gyet to describe the authority of the chiefs to  28 make decisions regarding the territory, under the  29 Gitksan system there is a marriage between the  30 authority or jurisdiction to harvest, manage and  31 conserve the resources and the ownership of the land.  32 And we say that within the system the authority to  33 harvest and manage, according to the words used,  34 appears to spring from the ownership in the land.  35 THE COURT:  Now, you have got me troubled there, Ms. Mandell,  36 because I have understood throughout that we were all  37 agreed that dax gyet meant power.  38 MS. MANDELL:  Power.  It is a power.  39 THE COURT:  And Mrs. MacKenzie says dax gyet means giving the  40 authority.  41 MS. MANDELL:  That's right.  That's right.  42 THE COURT:  I guess she means delegating the power, does she?  43 MS. MANDELL:  It's part of the power which the chief has passed  44 to him or her upon the receipt of the high name, is  45 the power to make decisions regarding the territory.  46 And your lordship will recall that dax gyet is a power  47 which originally flows from the land, it's carried in 25266  Submissions by Ms. Mandell  1 the crests, it's carried in the adaawk, and it's  2 carried and made stronger or weaker with the exercise  3 of the authority of each chief during his or her  4 lifetime as chief.  And it's that same word which is  5 used in the language to describe the power to make  6 decisions regarding the territory.  7 THE COURT:  So you would say that it includes the power or  8 authority delegated by the chief to someone else?  9 MS. MANDELL:  If the chief uses his power in that way, then the  10 delegate would possess the power so delegated.  11 THE COURT:  Thank you.  12 MS. MANDELL:  Glen Williams at page 82 also used the word dax  13 gyet.  14  15 "Q   And is there a Gitksan term or phrase that your  16 grandfather would use in explaining that  17 authority over the territory?"  18  19 And he used the word "dax gyet".  20 My lord, we will be dealing later in this argument  21 with the way in which the authority is exercised  22 within the house.  I am not going to here deal with  23 that portion of the argument.  I would like to  24 continue with some general principles and speak about  25 the nature of the authority which passed to the high  26 chief in order to harvest and manage and conserve the  27 resources.  28 We say that the authority which the chief has to  29 do this is not absolute, in the sense that a fee  30 simple owner might do what he pleases or she pleases  31 with personal property, but the authority is governed  32 by laws and practises flowing from the intimate  33 knowledge and spiritual connection with the territory.  34 And this governing of the dax gyet or the power in the  35 chief was testified to by many chiefs who spoke about  36 the power they understood they received with the  37 passage of the name as it related to what they felt  38 they could do with respect to the management of the  39 territory.  And if I could take you to Gisdaywa's  40 quote, which is repeated at the bottom of 82:  41  42 "When the name Gisdaywa was conferred, that  43 carried with it the ownership and  44 responsibilities of the territory and this is  45 so with respect to other Wet'suwet'en chiefs  46 who hold the name of the territory."  47 25267  Submissions by Ms. Mandell  1 And he testified to the nature of the chief's  2 jurisdiction, the power which he was passed at the top  3 of page 83.  He says:  4  5 "When the house chief takes a name, they take on  6 the responsibilities that go with the name.  7 One of them will be to make sure that the  8 territory you have taken to protect is to see  9 that the people that are using it make sure  10 that there is no pollution and no area that the  11 animals that are using the game trails, beaver  12 dams and fishing sites are free of any  13 obstructions, and you have to make sure that  14 people that are using it doesn't clear out the  15 animals that are there."  16  17 And he goes on, and he says:  18  19 "Head chiefs when he takes a name, like I said,  20 the territory goes with it and you have to see  21 that the rest of the sub-chiefs and other - see  22 that all the clan members are using the  23 territory, have a place to go ..."  24  25 And if I could just back out of the quote and  26 explain what in our submission Alfred Joseph was  27 talking about.  Is that when he received the name, he  28 was under an obligation to protect the territory, to  29 make sure that people were using the land, to make  30 sure that he protected the land, and this is what he  31 is speaking about when he talks about no pollution.  32 Make sure that he as steward makes the land  33 comfortable for the animals within it.  And this is  34 what he is talking about, that the animals are free  35 from obstruction, and finally he says to protect the  36 animals for the next generation.  And that's to  37 develop a framework within which the harvesting will  38 happen and the animals will continue.  39 And finally he says that he has to make sure that  40 those in his clan or his house have a place to go.  41 And so he's going to be directing the movement of  42 people within his house who have rights to the land  43 and make sure that there is room for them.  44 I am not going to ask you at this time to listen  45 to my recitation of Dan Michell's testimony with  46 respect to how he understood his jurisdiction passing  47 to him, but I say that it's similar to that which was 2526?  Submissions by Ms. Mandell  1 already mentioned by Alfred Joseph.  But he mentions  2 one other factor, which is not mentioned by Mr.  3 Joseph, and that's when he speaks about the fact that  4 there is also at the same time to protect the land, he  5 mentions that the women, the young girls when they  6 reach puberty are constrained by the operation of the  7 Wet'suwet'en law, and he thinks this is also part of  8 what he must do.  9 If I could just here remind you of what was stated  10 in -- by Mr. Grant again in organized society.  And  11 that is that unlike our system, the Gitksan and the  12 Wet'suwet'en also regulate relations with the  13 spiritual world.  And this is one example which is  14 provided in the quote by Mr. Michell.  15 Now, I've set out in the next section what we've  16 called the philosophy of conservation.  It's not truly  17 speaking the law, but it is the attitude or policy or  18 philosophy which overall is part of how the chiefs  19 look at their management of the territory.  And Dr.  20 Daly pointed out that the harvesting of various  21 species is carried out under the chief's direction  22 according to what he called a sustained yield policy.  23 And he described that policy at page 84.  24 It was Dr. Daly's opinion that the Gitksan  25 philosophy of conservation is based upon active  26 pursuit and harvest of the useful species.  Without  27 pursuing them regularly and with sustained intensity,  28 the Gitksan and Wet'suwet'enm say that a species will  29 either abandon an area, or its numbers will fall to  30 such an extent that the remaining population would not  31 remain viable if any hunting were to be carried out.  32 And Art Mathews Junior put that philosophy into his  33 own words, and I ask you to turn to page 85.  This is  34 a quote -- this should be a quote by Art Mathews  35 Junior, and not attributed to Dr. Daly.  I will give  36 you the proper reference to it:  37  38 "We look after our land by using it.  If you  39 don't hunt and fish your territories the  40 salmon, the mountain goats, the beaver and  41 ground-hog won't stay around.  If you're not  42 active they just go away.  We've always taken  43 just what we needed, and then we protect the  44 life cycle of the rest.  We have always limited  45 our hunting to the fall and winter, when the  46 young are no longer dependent on their mothers.  47 We guarded the spawning beds, we burned the 25269  Submissions by Ms. Mandell  1 berry patches to keep them healthy and  2 productive.  We even used controlled burning to  3 get rid of the insects which kill off the  4 trees - it was more effective than  5 insecticides - at least we did in the 1936 when  6 they started charging us with being arsonists  7 on our own land."  8  9 And I might here stress that this policy of  10 sustained yield or active pursuit which was referred  11 to by both Dr. Daly and by Art Mathews is a policy  12 which isn't, if you will, completely compatible with  13 the enviromental movement.  It's not a case of save  14 this area and protect it, preserve it and don't do  15 anything in it.  The policy is to competitively and  16 actively pursue the animals which are in the area,  17 while at the same time not being dominant over the  18 animals, and at the same time protecting the life  19 cycle of those that are there and those that will  2 0 remain.  21 It was Dr. Daly's opinion that sustained yield  22 harvesting was in existence at the time of contact.  23 And he relied on a letter by William Brown by the --  24 who is a Hudson's Bay factor, which was put into  25 evidence, who described the chiefs' control of  26 resources and labour, and the use of the house  27 resources to validate the authority of the head chief.  28 And Brown in his letter wrote:  29  30 "...there are twenty chiefs of different  31 gradations and sixty-seven married men whom  32 they dominate as being heads of families and  33 possessors of lands",  34  35 And among the Babine Carrier, the Bulkley Carrier,  36 who were the Wet'suwet'en and Gitksan, they strictly  37 controlled their people's access to beaver harvesting.  38 Mr. Brown noted, and this is, as I put from his  39 perspective, that the chiefs allowed only twenty or  40 thirty beavers to be taken each year, and then he  41 makes a comment as to what use these beavers were to  42 be put.  43 And this is consistent with the general view that  44 you don't over harvest, but you do harvest, and that  45 you protect those that remain.  46 It's not a romantic philosophy.  It's very much  47 related to survival.  And this is what was the subject 25270  Submissions by Ms. Mandell  1 of testimony by both Stanley Williams and James  2 Morrison.  3 Stanley Williams described -- he didn't describe  4 the sustained yield policy, he testified, and I am  5 saying that it fits into the analysis of Dr. Daly.  He  6 described it as a way of living and how we survive.  7 And I won't take you right into the quote, but I want  8 you just to notice it and emphasize.  9  10 "... and we do not waste anything that we kill,  11 we always looked after it because this is the  12 survival of our people."  13  14 And there is an equation within the philosophy of  15 management that the survival of the animals and the  16 survival of the people are the same.  And that's what  17 Stanley Williams was referring to.  18 James Morrison emphasized that the policy is based  19 on survival and the economic well-being of the people  20 and the animals.  And he says:  21  22 "Well, the purpose of that trapping is to  23 conservation, and for the fur that they caught,  24 and not only the profit but also the other  25 things that you taken off the territory which  26 to make your clothing, and also make your  27 boots.  Anything you can make on the fur or any  28 animals that you took out of the territory.  29 It's just not the profit of trapping that you  30 can make money with.  You make other things in  31 your territory.  That's why the territory  32 divided between the Indian people earlier,  33 thousands of years ago.  That's how its been  34 divided, uses for clothing.  Now it's used for  35 trapping.  Before that the territory used for  36 the food, also used for the berries, used for  37 anything, used for anything, used for medicine,  38 used for other things where you have to be  39 looking onto the territory.  That's what the  40 territory is all about."  41  42 Now, I want to here remind your lordship that we  43 have illustrated through the membership laws and  44 through the trespass laws and the access laws that  45 laws exist, and they are basically taught by the house  46 through the oral tradition, and enforced through the  47 house and with the houses acting collectively.  And we 25271  Submissions by Ms. Mandell  1 say that the evidence discloses that there are hunting  2 laws too which are applicable to all the houses in the  3 management of their house territory.  It is in the  4 management of all of the territories by the head  5 chiefs in accordance with the hunting laws that the  6 whole of the Gitksan and Wet'suwet'en territories are  7 properly managed under the collective jurisdiction of  8 the chiefs.  9 And just to bring your lordship into a general  10 appreciation of the laws, I wanted to refer you to the  11 goat hunting laws which were testified to by Art  12 Mathews.  And he summarized some of these laws which  13 permit, we say, a sustained yield.  He describes his  14 goat hunting two years ago with his two sons, Clark,  15 age nine, and Michael, age seven, Phillip Daniels and  16 Glen Williams.  17 I am going to take you to some of the highlights  18 of the way that the goat hunting laws were described,  19 because we say that these laws and the way they are  20 described here rebound throughout the system.  And  21 we'll illustrate that in time.  22 First of all he was asked whether or not there is  23 laws of the goat hunt.  24  25 "A   And we hunt goats here ... when we hunt, we are  26 reminded of specific hunting laws we have to go  27 through, and the remainder comes from my dad,  28 that we should go through these laws or rules  29 of hunting, you might say, the laws of the goat  3 0 hunt.  31 Q   Were you taught this by anyone besides your  32 father?  33 A   Yes, by my three grandfather."  34  35 And he mentions the name of Geoffrey, Jack  36 (Morgan) and Wallace.  37 And I just want to here pause and emphasize that  38 this isn't keeping with how we say all the laws are  39 permeated.  And that is it is through the oral  40 tradition, there is specific people in the house who  41 will be teaching according to that tradition the laws  42 of those that will be using them.  And here we got an  43 example in the evidence of Art Mathews as to who his  44 instructors were.  45 Then he goes into the law.  46  47 "A   The first one is we -- depending on the hunting 25272  Submissions by Ms. Mandell  1 group, we know we have to decide, and then we  2 don't over kill."  3  4 And this is the same point which was mentioned by  5 Alfred Joseph in the earlier quote that you heard,  6 where he said the same thing, that we don't over kill.  7  8 "A   The second one is the real dressing that has to  9 be done.  The raven was always there, as I  10 pointed out through the adaawk, Biis hoon.  So  11 the second step is never forget to feed the  12 raven that are always around."  13  14 And this is a spiritual law which I will be  15 returning to.  The next one is:  16  17 "A   Yes.  The  other one is -- these are real top  18 one.  The next one I would say is never kill a  19 mother sheep with young ones."  20  21 And this is another law which we will be referring  22 to which has to do with selectively harvesting so as  23 to not to kill those animals where the mother is  24 calving.  25  26 "A   The next one is that we, after field dressing,  27 the cuts, the hide, whatever that we do not  28 need has to be burned.  So our system that --  29 this is a must.  We have to burn all these  30 lefts, for our belief in reincarnation.  This  31 is Biis hoon, like I said in the adaawk, Biis  32 hoon."  33  34 And this is another spiritual aspect of the  35 huntings, which I will be returning to.  36  37 "A   The fifth one would be the actual roasting of  38 the head of -- the goat.  And it would be  39 pointed at directions within our territory to  40 show thanks or appreciation."  41  42 That's another spiritual law which I will be  43 returning to.  And then at the bottom of the page:  44  45 "A   And after the drying takes place and when we  46 are ready to go home, my dad would then divide  47 the meat in different piles.  The rulings all 25273  Submissions by Ms. Mandell  1 the time that the elderly divides equally.  2 When you shoot a goat, you do not fight over  3 it, it's all done in a lump sum.  When you are  4 ready to go home, then you subdivide equally,  5 so nobody gets less or more than others.  6 After we get back to the village of  7 Gitwangax, we would then share it with the  8 elders that cannot get around, that stays home,  9 that have no access.  Then the sharing would  10 take place.  11 This is what we call in our language  12 sharing ... and what all that means is helping  13 each other, helping.  That's the very rule, the  14 very existence of Gitksans, are helping each  15 other."  16  17 And I'm going to here stress the fact that there  18 is part of the hunt and the laws related to hunting  19 that there be sharing within the community, and we'll  20 be running in more depth to that too.  But if I could  21 here go back to the point, his second law of don't  22 forget to feed the raven, his fourth law about burning  23 what's left for our belief in reincarnation, and the  24 fifth law of roasting the head of the goat and  25 pointing it at the directions within the territory to  26 show thanks and appreciation.  And I wanted to say  27 about it, that unlike the hunting laws that we're  28 accustomed to reading in the statutes of the province,  29 the hunting laws which are described by Art Mathews  30 and other witnesses reflect an obvious long standing  31 spiritual connection between the people, the land and  32 the animals.  33 The spiritual basis of the hunting laws was  34 addressed by many witnesses, and there was a wonderful  35 account by Stanley Williams, who testified to his  36 method of hunting for bears, and in so doing revealed  37 his spiritual connections for the life cycles within  38 which he was playing his part.  And I am reading at  39 the bottom of page 89.  Stanley Williams was talking  40 about what he does when he gets a bear.  And this is  41 how it is:  42  43 "If I was to kill a bear, what I would do first,  44 I would stand there and I would sing the song  45 of the bear.  I would pick up this bear and  4 6 then I would put it on my shoulder and I would  47 walk toward the village.  As I get closer to 25274  Submissions by Ms. Mandell  1 the village, I would start singing the song of  2 the bear again and the people in the village  3 will know that I have killed this bear because  4 they -- they've heard the song of the bear  5 being sung.  6 After the bear has been cleaned nothing is  7 wasted.  What they do is they even use the -  8 the intestines of the bear.  They clean the  9 intestines and then they twist it and dry it  10 and this was used for your bow and arrows.  11 After they've -- they've cooked the meat and  12 eaten it and the bones are left, what they do  13 they return the bones in the fire and they --  14 they pray.  They burn these bones in the fire  15 and they -- and they would ask if this bear  16 would be returned or they would get another  17 bear like the one that the bones that they  18 throw into the fire.  They -- they do this to  19 all the different animals that they caught.  20 It's not only the bear, it's all the different  21 animals that they caught that they just don't  22 leave the bones lying or the insides lying  23 around, they always make sure and burn these.  24 Q   You've referred to this with reference to the  25 bear.  Is the same kind of thing done if it's  26 mountain goat in terms of burning the bones?  27 A   Yes, all the animals.  It's the same with the  28 fish.  What they do is they -- they put back --  29 if you're not going to use the head, then you  30 put it back into the river.  Also the insides  31 of the fishing, if you're not going to use that  32 then you put it back into the river.  33 Q   And do you still carry on these practises  34 today?  35 A   Yes, we still do these things."  36  37 We are not here, my lord, to persuade you to  38 believe in the spirituality which impresses the  39 hunting practise of the chiefs, but we do impress upon  40 you that in the harvesting practises and the laws,  41 which I will now be referring, woven into the laws and  42 the teaching and the practises is a deep spirituality  43 which guides the behaviour of the hunters, which is at  44 the root of the laws, and also is because of the  45 belief in the spirituality it provokes the ability of  46 the hunters on the land to remain learning on the  47 spiritual level and interact with their territories to 25275  Submissions by Ms. Mandell  1 learn and discover new things.  And it's a very  2 dynamic and a very exciting thing for those that are  3 specialists on the land to be able to hunt according  4 to the law and stay open to the spiritual connections  5 which their ancestors have taught them of and which  6 they continue to practise.  7 Now, I would like to go into the more specific  8 laws.  I have given you a fairly general overview, and  9 I would like to contend now with the laws which,  10 according to the evidence of the chiefs, have been  11 referred to, and as they are described very generally  12 throughout the evidence, we state that they are laws  13 of general and universal application which are applied  14 within each of the house territories.  And the first  15 one is selectively harvesting.  16 Many chiefs described particular hunting laws  17 practised by them to take enough but not too many fish  18 or game.  Their resource use was, and is, geared at  19 taking what is needed on the basis of a long-term view  20 of conservation.  21 And Joan Ryan, when she was talking about what  22 responsibilities passed to her with her chiefly name,  23 she mentioned that:  24  25 "...You're encouraged to protect the species of  26 the fish, that you don't take more than what  27 you require so that the cycle continues and  28 that you will continue to obtain the fish from  29 the river in the future.  We are told that we  30 must never at any time destroy the stock."  31  32 And I am going to render this point by way of  33 reference to a number of the different animals which  34 were taken.  The goat hunters, you will recall that  35 the method which the goat hunters used, which was  36 described by a number of the witnesses, that there are  37 certain places in the territory which lend themselves  38 to the hunters climbing up onto the mountains and a  39 number of the hunters staying below the mountain, and  40 the hunters below scare the goats, who then run up the  41 mountain, and they are trapped by those that are on  42 the top of the mountain.  And Alfred Joseph and Alfred  43 Mitchell and a number of the other witnesses spoke  44 about that.  45 Alfred Mitchell spoke about the fact that this  46 method was used before the non-Indian people arrived,  47 and he did that by reference to the -- his testimony 25276  Submissions by Ms. Mandell  1 about the gear that was used, and I'll just read it at  2 the bottom.  3  4 "...Our ancestor, they used C'en C'aa...all the  5 clans would leave the village, go up the  6 mountain and what they would do was to chase  7 the goats up the mountain.  The rest of them  8 will be waiting up on top on the trails of the  9 goats and these people as they were chasing  10 them up the ones up on top would kill the goats  11 with these sling-shot contraptions since in  12 those days there were no guns."  13  14 And then he says it's bow and arrow.  15  16 "Once the guns were introduced the Wet'suwet'en  17 continued to practise this method of ambushing  18 goats."  19  20 But they had to learn to use the gun, and:  21  22 "There's nothing but hair above the shoulder ...  23 you miss them all the time."  24  25 So he was trained to aim at the elbow.  And this  26 is -- this method permitted and still permits the  27 Wet'suwet'en goat hunters to decide how many of the  28 goats they are going to take, and select the number  29 accordingly.  And in the testimony of Henry Alfred he  30 described goat hunting with Dan Michell in his  31 territory just above Porphry Creek, and he said that  32 they took three goats.  33  34 "We ran into a big herd of goat and Dan was down  35 below and he told us to go around that mountain  36 and get up on top and we did.  And we waited  37 and Dan chased them up to us.  And he said  38 'either one of you hear shot three times quit  39 there.  No more' and we did we got three."  40  41 And he said that they limited themselves to three  42 goats.  43  44 "there is four people went up there and that's  45 good pack going back home.  We want to leave  46 some for next year."  47 25277  Submissions by Ms. Mandell  1 And this business of deliberately reducing the  2 number of animals which were taken of goats was spoken  3 to by Dora Wilson-Kenni when she was describing the  4 men hunting goats on Spookw's territory around Blue  5 Lake Area.  6  7 "at that time there used to be a lot of mountain  8 goats and my uncle used to be one of the ones  9 that used to go and he would have a group of  10 guys with him and men from the village and the  11 only thing is even though there was a lot of  12 mountain goat they only took what they could  13 carry.  They weren't out there just to kill off  14 mountain goats.  They were there just to get  15 ... what they could carry ..."  16  17 And Bazil Michell said the same thing, and I won't  18 read his words, but he mentioned the same thing of  19 people shooting only what they can carry, and no more.  20 This is also -- also this rule of selectively taking  21 only the numbers that can be carried and which are  22 needed was testified to by James Morrison and also by  23 other witnesses.  And I am not going to read you the  24 quote of Mr. Morrison, but I would certainly ask you  25 to read it yourself.  It's very much the same as what  26 the other witnesses were describing.  27 James Morrison on the top of page 94, though,  28 makes a point which we'll be returning to.  And that  29 is that in practising the laws of the Gitksan and  30 Wet'suwet'en regarding hunting, one of the very  31 important things which is taught is which places to go  32 to.  And he says that:  33  34 "You have to learn all those places in order to  35 hunt or trap, and you have to learn how to  36 catch the animals.  And concern of the people  37 now is the population of the animal."  38  39 Now, the same method of selectively trapping  40 beaver in order to take only the desired number was  41 spoken to by a number of witnesses, and again Alfred  42 Mitchell spoke about the fact that the methods which  43 are used to trap beaver are old methods which pre-date  44 the coming of the technology of the non-Indian person.  45 He says:  46  47 "...they used snares and deadfall.  Also in the 2527?  Submissions by Ms. Mandell  1 winter when the lakes or creeks froze over they  2 would make snares with cedar bark rope which  3 they would lower in the water and they knew  4 when they caught a beaver.  They would pull it  5 up and hit the beaver on the head to kill it.  6 That's some of the methods they used before the  7 traps were introduced."  8  9 The principle, though, that you take what you  10 can -- you take what you need, was testified to by Dan  11 Michell.  And he added, with respect to beaver,  12 another aspect of selectively hunting, which is to  13 select the mature animal species and not kill randomly  14 for the small ones.  And he was talking about this  15 with beaver.  16  17 "Well, we look after it by experience and that's  18 been handed down to us by our grandfathers and  19 our father ... we know by the size of the  20 beaver house.  And if there is smaller house  21 then we know that there is maybe 4 beaver in  22 there.  And the way we are taught to trap them  23 is that we have to set traps further away  24 normally and the beaver dam below the house ...  25 that's where you catch the bigger ones.  If you  26 set it too close to the beaver house you  27 normally catch the smaller one."  28  29 That's what they say, so we don't do that.  30 And Florence Hall was testifying to the -- you  31 will recall that her family went into the Burnie Lake  32 territory.  She was still speaking at the time when  33 they travelled there after the summer fishing, and the  34 Burnie Lake territory is quite a ways away.  They  35 spent their whole winter there.  And she was asked how  36 many beaver skins the family would normally take out  37 of the area.  38  39 "We don't take all that many out.  Maybe out of  4 0 one beaver dam we would take two in order to  41 conserve and if there is quite a few of us go  42 out there one season we bring about 40 out."  43  44 And the same kind of discussion occurs with  45 respect to bears.  I am not going to draw you into it,  46 but only to advise you that the evidence was that  47 people learned of the bear dens, and they normally 25279  Submissions by Ms. Mandell  1 would trap -- hunt bears within the dens, so they  2 could select the number that was taken.  If I could  3 ask you to turn to page 96.  4 A further method of selection was testified to by  5 the witnesses, and that is that they testified to  6 killing mature animals, and to trap and hunt within  7 certain seasons of the year and not to harvest when  8 the animals are calving.  9 And if I could take you to the testimony of James  10 Morrison, which is at the top of pages 97:  11  12 "but sometimes when there is spring and there is  13 young ones starts to -- like early in spring,  14 and to be careful on that, but sometimes they  15 have to shoot to stay alive ... they know they  16 have to abide on the law that what created what  17 give at that time, not to abuse that.  That's  18 why they have certain method and there is  19 hunting at that time and they are still using  20 it today."  21  22 And he's speaking about the rule practised under  23 the law of selectively harvesting, that the hunters  24 shouldn't shoot animals.  As he said, sometimes you  25 have to to stay alive, but you are restrained from  26 shooting calving animals.  27 I here wanted to remind your lordship of the  28 testimony of Art Mathews' goat hunt, which you heard  29 earlier, where law number three he said was never kill  30 a mother sheep with a young one.  31 I might here mention, before moving onto the  32 second major area of law, which I will be contending  33 for, is that the hunting laws of the Gitksan and the  34 Wet'suwet'en, as you can see as it was illustrated  35 through the testimony of the chiefs, is dependent on a  36 knowledge of places within the territory, a knowledge  37 of the animals, a good capability with harvesting  38 methods, and it is by in large, and we'll be showing  39 this in more detail, carried on by specialists who are  40 trained and -- trained in very specific ways to be  41 able to go out into the land and to be able to know  42 where to go, and hunt selectively for the animals  43 according to their maturity and according to the  44 amount which they can carry out and to their  45 locations.  46 A second general law, which was testified to by  47 the evidence of the chiefs, and we say the 25280  Submissions by Ms. Mandell  1 pervasiveness of the testimony in this area shows that  2 this is a practise which is practised house to house,  3 and is a general law among the Gitksan and  4 Wet'suwet'en, and that is the rotation of harvesting  5 areas.  6 I wonder, my lord, if you could be handed Exhibit  7 164 again.  8 THE COURT: Wah Tah Keg'ht's territory?  9 MS. MANDELL:  Yes.  10 THE COURT:  Thank you.  11 MS. MANDELL:  Do you have that?  12 THE COURT:  Yes.  13 MS. MANDELL:  I am going to first take you to the bottom of page  14 97.  I think Alfred Joseph stated the law well.  15  16 "You don't use one area like all winter.  You go  17 into one valley and you use that for awhile and  18 then you move to another area."  19  20 And he testified that he, for example, has given  21 permission to James George, Christine Holland, Ronald  22 George to use Gisdayway's territory, and to Leonard  23 George to trap on the territory, and he told them  24 where to trap.  25  26 "As long as they don't keep going back to the  27 same place every year."  28  29 Now, if I could ask you to look at the map which  30 was tendered in evidence by the plaintiffs during  31 Henry Alfred's evidence, and you will see that on the  32 map in the territory controlled by Henry Alfred and  33 not by Bazil Michell that there is five lines that are  34 marked in red which Henry identified as being the  35 trapping lines, the areas where those in his house  36 trapped.  And you will see that some of the lines now  37 goes through the areas which have been logged, and you  38 will recall that the areas in the middle of the  39 territory demonstrate the areas which were logged.  4 0 And this was taken from a map provided by the  41 province.  42 Now, the evidence demonstrates that at least in  43 the House of Wah Tah Keg'ht, and I am going to say  44 others too, that four generations of people testified  45 to your lordship that they rotated the trapping lines.  46 Madeline Alfred testified to the practise.  She said  47 that: 25281  Submissions by Ms. Mandell  1  2 "We take care of the land and respect it as well  3 as the animals.  You don't use one area over  4 and over again and deplete one area.  You  5 always take care to go to the other areas."  6  7 And if I could turn you to page 98 at the bottom.  8 When Henry Alfred went out with his grandmother to  9 trap, his grandmother rotated the areas where she  10 trapped.  She went to a trapline one winter, and the  11 next winter she went somewhere else.  12  13 "What I mean rotating is she got two little  14 lines.  She used one side one winter and then  15 moved onto the other."  16  17 And I believe that she was using, according to his  18 evidence, if you look at line one on the map, there is  19 two forked out parts to it, and I think Henry is  20 talking here that she would use one part in one winter  21 and then move off to the next.  22 THE COURT:  Is it convenient to take the next adjournment?  23 MS. MANDELL:  Sure.  24 THE REGISTRAR:  Order in court.  Court stands adjourned.  25  26 I HEREBY CERTIFY THE FOREGOING TO BE  27 A TRUE AND ACCURATE TRANSCRIPT OF THE  2 8 PROCEEDINGS HEREIN TO THE BEST OF MY  29 SKILL AND ABILITY.  30  31    32 LORI OXLEY  33 OFFICIAL REPORTER  34 UNITED REPORTING SERVICE LTD.  35  36  37  38  39  40  41  42  43  44  45  46  47 25282  Submissions by Ms. Mandell,  1 (Proceedings resumed following short recess)  2  3 MS. MANDELL:  My lord, I was at the bottom of page 98, the top  4 of page 99 and the point that I was in the midst of  5 demonstrating was that in the house of Wah Tah Keg'ht,  6 you heard evidence of four generations that rotated a  7 line, and the first person whose line was testified to  8 was Lucy Pius, and I showed you how she testified how  9 she rotated line one.  10 And I am going to -- I am now at page 99, the  11 advice to rotate the lines passed with the name in the  12 case of Henry Alfred.  This isn't literally at the  13 feast, it was when Peter Basil introduced Henry in  14 1963 that Henry was Peter's choice as successor.  You  15 will recall the testimony that they travelled along  16 line three, which is marked on the map, and they went  17 up a ways and at that time Peter Basil told Henry to  18 use the line but said "don't over use one line, there  19 is two, three more lines beside this.  Go onto the  2 0 next one."  21 Now, at page 98, Madeline Alfred described setting  22 her traps at different places on the territory, she  23 said:  24  25 "Every year we use a different line so as we can  26 re-populate the different lines."  27  28 She talks with Henry and her son Cecil and  29 other members of the house:  30  31 "Where to set traps, where to hunt and where  32 better places, lots of good places are to allow  33 the animals to re-populate."  34  35 I just wanted to remind your lordship that she  36 spoke about her and her son Cecil primarily rotating  37 between line four and also now she is presently more  38 commonly using line one, which is closer to home, and  39 she is following upon the footsteps of her mother.  40 And at page 99 Henry Alfred testified that he  41 rotates the places where he does beaver trapping in  42 the territory and also rotates the lines where he  43 traps for marten.  And his trapping occurred,  44 according to his testimony, primarily on lines two,  45 three and four.  And he testified that the deer  46 hunting that he and his brother would be on line five.  47 And he -- you will see the dotted lines are where he 25283  Submissions by Ms. Mandell,  1 is continuing to push the trails out and his plan, his  2 management plan, is to eventually make the trails link  3 up and as they were once in the past.  4 Now, the same evidence occurred with respect to  5 Namox's territory, and if I could take you back to  6 page 97, many chiefs testified to how they rotate the  7 areas in the lines used for trapping.  Alfred Mitchell  8 talked about how he and his father would alternate  9 setting traps on short and long lines on Namox's  10 territory.  So this is -- Alfred Mitchell passed away  11 and his father has.  12 At page 99, Dan Michell, who is the present  13 caretaker of Namox's territory, testified that he  14 continues to manage the Namox territory by rotating  15 the lines.  And he testified that Billy Michell has  16 been directed to the southern part of Namox's  17 territory, and when Dan came to Vancouver to testify,  18 he directed him there, he said, "because the area  19 wasn't trapped for a couple of years."  20 Dan, the caretaker of Namox's territory, explained  21 his decision to move Billy this way:  22  23 "He's out there trapping every winter for the  24 last few years.  And he's out there trapping  25 right now...  26 He's been trapping on the north side since  27 before Christmas.  When I was back home...  2 8 about two weeks ago and I went and seen him to  29 find out how he was doing and he only got nine  30 marten so far that year.  That is discounting  31 the bigger animals.  He got some squirrels and  32 weasels.  Don't count them. So I told him to  33 move back to the south side and see how he's  34 going to make out in that area."  35  36  37 Now, Basil Michell, who I drew your attention to  38 this evidence yesterday, also testifies that they set  39 traps and move and the the same evidence was pervasive  40 amongst the Gitksan witnesses.  James Morrison  41 described the conservation practices of rotation this  42 way.  He said:  43  44 "We trapped in some areas and we moved back and  45 forth in the areas, especially a large area  46 where we are and the same with the others.  We  47 have to trap in one area and move to the other 25284  Submissions by Ms. Mandell,  1 area to thin the animals there.  Whatever you  2 can get out of that.  And that's one of the  3 things, the method of trapping or hunting you  4 don't stay in one place to hunt, in one corner  5 of your territory, you got to move around.  6 That's still used today and still use that  7 method today how to hunt and to trap.  Trapping  8 was not the same in those days but also they  9 have the method of trapping today fur-bearing  10 animals, you know where you should go to trap  11 and you should be know when to move and you  12 know when to start and you know when it's  13 ended.  So you go back and forth on the  14 territory in order to cover the whole  15 territory."  16  17  18 And Pete Muldoe testified that his authority is --  19 extends to the resources of the territory and he  20 exercises that authority by rotating the lines and  21 limiting the catch.  22  23 "If I give anyone permission or they come to me  24 and ask me if they want to go there, I will be  25 showing them where to go and where to trap and  26 where to hunt beaver or anything like that.  We  27 don't always go into the same place at the same  28 year.  We always move into different territory,  29 because we want to preserve some of the game,  30 so we don't clean them right out once we get in  31 there.  We just have to preserve them so if the  32 place is getting low and species of animals or  33 marten or beaver or anything like that we go to  34 another territory."  35  36  37 What he said regarding trapping also applies to  38 hunting.  39 If I could just pause here and express with respect  40 to the law which has been practised throughout the  41 territories of rotating lines and moving your hunting  42 locations, in order to effectively manage within the  43 rubric of this law, the chiefs require knowledge of  44 who is out there, they require knowledge of what's  45 being caught, they require knowledge of where it is  46 that people are doing their trapping, and it also is,  47 in the case of Henry Alfred, it's required that there 25285  Submissions by Ms. Mandell,  1 be some maintenance of the lines over time, some  2 cutting and planning and maintaining the territory in  3 order to effectively trap.  And we say that this is  4 the kind of knowledge which is part of the body of  5 knowledge required by the chief or those that are  6 caretaking in order to manage the territories as they  7 will according to their laws involving trapping.  8 Now, the third law which appeared on the evidence  9 to be pervasive throughout was the law which created  10 an obligation to respect the animals and prohibited  11 against waste.  And this law is part of the spiritual  12 concerns which were originally spoken about by Art  13 Mathews in the goat hunt and the manifestations of the  14 law required the respect of the animals, exhibitted  15 itself in a number of different ways in the testimony.  16 Stanley Williams testified that the Gitksan do not  17 waste the animal parts and treat the unused parts with  18 respect.  The practice of caring for the unused animal  19 parts in this manner has its roots in ancient times,  20 in telling of the adaawk of Biis Hoont, Tenimgyet's  21 sister Mary, Art Mathews junior testified to the  22 spiritual teachings which underpin this practice.  I  23 will just ask your lordship to read that in  24 considering this issue.  The adaawk speaks very  25 clearly to what will happen if there is not respect  26 paid to all of the parts of the animal.  27 Stanley Williams described the burning of the  28 bones after the hunting of the goats.  29  30 "Our ancestors looked after everything that  31 concerns the animals.  If we just leave the  32 bones around, then these animals will see and  33 will never return back again.  In the olden  34 days, my ancestors killed an animal, what they  35 do is they talk to this animal and they praise  36 the animal to tell them it was right of them to  37 give themselves to the people.  This practice  38 continues today."  39  40 And this is all tied back to the spiritual view of  41 the people, as you were explained it by Mr. Grant,  42 that all of the creatures of the world, the animals  43 and the plants and the people, are all existing as a  44 spiritual community and they are not dependent -- they  45 are not inter-dependent upon each other but they are  46 dependent upon each other.  47 Respect in this context is shown by sometimes 25286  Submissions by Ms. Mandell,  1 deliberately leaving food to feed the animals.  Art  2 Mathews testified that according to the adaawk of his  3 house, the bear gave spiritual power to his ancestors.  4 Art provides food for the bears today.  When fish are  5 caught at Wilson Creek the fish are put on the beach  6 further above the smoke house to feed the bear.  7 And this I believe is also referred to and is the  8 underpinning for the law which was spoken about by Art  9 Mathews concerning the goats, where he was saying that  10 the second step is never forget to feed the raven that  11 are always around.  This is part of the adaawk of his  12 house which he connects respect for the raven in the  13 ability of he and his house members as hunters to  14 carry out their hunting.  And this respect is paid  15 back in the paying for it through food.  16 Dr. Mills observed:  17  18 "Treating the salmon and the game correctly  19 means not wasting it or allowing any to rot, by  2 0 'working on the salmon' and the meat and  21 opening them up and hanging them to dry.  It  22 means keeping the flesh clean, it means using  23 every part and not wasting anything..."  24  25 Emma Michell explained that all parts of the  26 animals must be used:  27  28 "We treat all animals with respect.  We use  2 9 everything."  30  31 And the witnesses, and one example of which is  32 Henry Alfred, testified that respect is shown by him  33 in hanging out the carcass of the marten:  34  35 "We would hang it up out of the reach of dogs or  36 other predators so it would deteriorate on its  37 own."  38  39 And your lordship will see that as to how it is  40 that the different remains of animals are left  41 respectfully and not wasted or treated as garbage.  42 This is done differently in the different houses.  43 Some of the witnesses talked about burning it, some of  44 them talked about hanging it, but the general and  45 pervading reach of the evidence is that people didn't  46 trash it, didn't treat it as garbage but respectfully  47 handled the parts of the animal which were not used. 25287  Submissions by Ms. Mandell,  1 I am going to ask your lordship to turn to page  2 105, between my two quotes I have just given you a  3 number of examples of the ways the different witnesses  4 expressed the law of caring for the parts of the  5 animals unused.  The respect which is spoken about in  6 this law of not wasting and respecting the animals  7 also extends to hunting practices.  And it's in this  8 sense that there is a pragmatic aspect too, there is  9 no point in wounding an animal and then leaving them  10 there.  But the testimony of the chiefs was that  11 the -- when there was an animal which was wounded,  12 rather than risk wasting their lives, they were taught  13 the practices of the animal and ways to shoot the  14 animal to avoid that risk.  And the two examples I  15 have provided, although there were others, was Alfred  16 Mitchell, who was taught never to shoot beaver in fast  17 moving water.  He said:  18  19 "Just behind the beaver dam where you can get  20 him so you don't lose him."  21  22 Also he was taught the habits of the bear which,  23 if wounded, the bear was likely to find a swamp or a  24 water pool to keep his wound cool and he was taught  25 where to find the bear and then to track him down.  26  27 "Any wounded bear would go to a swamp or water  28 pond to keep keep his wound cold.  That's where  29 they are."  30  31 Finally, the respect which is taught to the animals  32 extends to the preparation of the animals for food and  33 hides.  And the methods which are were used and are  34 used to prepare the animal for food and for hides,  35 maximizes the use which will be made of each of the  36 animal parts.  And this is part of, again, the  37 pragmatics of hunting and also it's part of the  38 respect which the people show to make use of what they  39 then got.  And I am not going to take you into all of  40 the evidence involving this.  I would ask you to refer  41 to the way that Alfred Mitchell described the  42 preparation of goat meat and the preparation of beaver  43 meat, all of which is reflective of deep and long-  44 standing traditions and teachings of how to prepare  45 this meat properly to maximize its use.  46 And I would draw your attention to some of the uses  47 made by other of the animal parts which are less 252?  Submissions by Ms. Mandell,  1 common within our framework, and only to state that  2 this is part of the respect and the pragmatics of  3 using as much of the animal as possible.  4 Madeline Alfred, on page 107, testified to using  5 the moose hide for making snow shoes:  6  7 "We make small webbing and a big webbing string  8 for snow shoes."  9  10 Alfred Mitchell's father showed him how to use the  11 muscle from the back of the moose to make thread which  12 is used for making moccasins, and also part of the  13 moose hide for making snow shoes.  And Alfred  14 Mitchell's testimony was that the moose hides are  15 still used today to make the big weave of the snow  16 shoe and the deer hides are used to make the smaller  17 weave.  18 Dora Wilson-Kenni testified that this sinew from  19 the moose is taken apart, dried and used for sewing.  20 The fat from moose is dried in sheets over the stove  21 and used for cooking and can then be used as bait for  22 trapping.  23 Dr. Daly reported that the groundhog fat was  24 stuffed into the stomach of the groundhog and hung to  25 dry, sometimes smoked over the fire.  The mountain  26 goat fat was rendered down and preserved, the meat  27 would be cut into thin strips, smoked and put away  28 into cache houses with the salmon and steelhead  29 strips.  30 Henry Alfred testified that goat skins are still  31 used today for floor rugs.  32 Dora Wilson-Kenni testified of learning how to  33 make Chilchat Blankets from goat hairs, and she spoke  34 about how that's done.  35 And James Morrison, finally, testified to the very  36 many clothing and utility items made from goat, bear  37 and groundhog skins.  And he spoke about the shoes,  38 the blankets, the boots, the sleeping bags, mattresses  39 and hats from prairie dog skin.  40 And we say that the law of respect and the  41 prohibition against waste is manifest throughout the  42 community and in the practice of it.  It teaches not  43 only the respect for the animals but also for the  44 hunters to see their place within the cycles of  45 nature, competitive but not dominant.  And this is the  46 essential balance which the conservation and  47 management regimes of the Gitksan and Wet'suwet'en are 25289  Submissions by Ms. Mandell,  1 marked by.  2 I would next like to address some specific cases of  3 management.  This is more in the nature of stationary  4 resources, not the ones that are as mobile as the  5 beaver and the moose and the animals which are  6 migratory.  The first is the burning of the berry  7 patches.  Many witnesses described the practice of  8 both the Gitksan and Wet'suwet'en chiefs to direct the  9 burning of berry patches to produce berries desirable  10 in taste and quantity.  And this is in response to Mr.  11 Willms, who yesterday asked whether or not common  12 areas are also within the jurisdiction of the owning  13 chief houses to manage.  The evidence is that the  14 owners also control access to the patches, and this is  15 so even if the berry patches may be within an area  16 used in common to pick berries.  17 Now, I would like to ask you to turn to page 110,  18 and I have set out there two -- three examples, of  19 Gitksan and Wet'suwet'en examples, from the evidence  20 of witnesses who testified to the burning of berry  21 patches.  And I might here mention, my lord, the  22 obvious, that this is not a practice which can be done  23 in -- by the generation today without moving in  24 violation of provincial law.  But Martha Brown and Art  25 Mathews and Alfred Joseph and others testified to its  26 practice and to its antiquity.  27 Martha Brown testified:  28  29 "That's what they used to do in the old days.  30 Whenever there's not a good crop of berries on  31 one side of the river grandfather (Paul  32 Xhliimlaxha) used to burn and it's the same on  33 the other side of the river.  If there's a poor  34 crop they will burn and just move over, to and  35 fro.  36 They go by the crop of the berry patch.  If  37 you don't see your footprints amongst the  38 berries."  39  40  41 Art Mathews' mother, Kathleen Mathews, has the  42 permission of the chief to manage the berry patch in  43 Tenimgyet's territory.  And you will recall the  44 evidence that it's a very productive and very popular  45 berry patch.  The berry grounds are managed to "ensure  46 continual production of berries":  47 25290  Submissions by Ms. Mandell,  1 "These berry patches, I said that the berries  2 only grow where it was burnt, so what they did  3 every time there was a growth, like every six  4 to seven years, they would burn these over  5 again so that they maintain the taste.  If you  6 leave it too long these berries will begin to  7 lose their taste and sweetness...  8 ...the women who do the actual job (would  9 decide  when it was time to burn) and they knew  10 the very taste they want and the texture and as  11 soon as that began to lose the taste they would  12 tell the men that it's time to re-burn the  13 area."  14  15  16 And Alfred Joseph testified that "the traditional  17 way of clearing grounds for berries was to burn it  18 over."  19 Dr. Daly noted that hunting societies, and he here  20 included the Gitksan and Wet'suwet'en, have engaged in  21 conservation practices to alter the natural cycles of  22 growth for thousands of years.  They work the face of  23 the land to make the vegetational cycles more  24 bountiful and sustained for human use.  And he  25 contrasted the Gitksan and Wet'suwet'en practice of  26 berry patch burning to what was and is done by the  27 aboriginal hunters of Australia, who:  28  29 "...for example, are said to have created the  30 Australian outback landscape over the last  31 several thousand years during which they  32 practised controlled burning.  This regular  33 burning was done in order to perpetuate serai  34 growth of the vegetation.  It was this serai  35 phase rather than the mature phase, rather than  36 the mature growth, which most benefitted the  37 people economically.  Controlled burning  38 created a system of fire breaks which  39 efficiently contained lightning blazes."  40  41 And he noted that -- I won't finish reading the  42 quote -- but that this practice of burning the berry  43 patches is one which is -- has been reported to have  44 existed among other of the aboriginal peoples for a  45 very long time.  4 6 Another one of the management regimes, while it  47 does involve a migratory resource, it also involves 25291  Submissions by Ms. Mandell,  1 everybody staying at one place at one time, and that's  2 why it's been included in the section dealing with the  3 management regimes.  I am not going to deal with it at  4 length, Mr. Grant will deal with the whole issue of  5 harvesting salmon later in the argument on  6 jurisdiction.  But I would draw to your attention, at  7 the bottom of page 112, the nature of the control  8 which the chiefs exercise with respect to the salmon  9 fishery.  10 Richard Benson testified how his grandfather  11 controlled and directed the fish weir at Kitwancool  12 when Richard was a child.  Each house would take fish  13 in turn, and the chief in charge of their weir would  14 direct the young men to open the gates from time to  15 time and let a specified number of the waiting salmon  16 to continue upstream towards the spawning beds.  17 Now, my lord, the next section which I wish to  18 address you on is, although among the laws, it's  19 different than the general laws which I have referred  20 you to thusfar, because it's laws which have evolved  21 within each of the houses, based upon each house's  22 lessons and knowledge learned and treasured, which  23 they have gleaned from their own experience on their  24 territories, and which they teach to the next  25 generation to harness spirit power to manage the house  26 territories.  And I am not going to dwell on the  27 practices of the houses, nor am I going to explain  28 this in depth, but it is an aspect of the harvest and  29 the management and the conservation of the territories  30 which is very much a part of how the people do gain  31 knowledge and do apply it in the harvesting of  32 resources on the territory.  And to that extent, I am  33 going to explain the laws of Sestaxw and hodl'stat.  34 Both of them are using the words of the Gitksan and  35 the Wet'suwet'en respectively.  36 You will recall that Dr. Daly spoke about the fact  37 that, and I did earlier, that the Gitksan and  38 Wet'suwet'en, unlike us, do manage laws dealing with  39 the relationship of people with their spiritual power.  40 And this is where those laws are primarily found and  41 how they are exercised.  42 I am going to read from the bottom of page 113 and  43 114.  44 Laws and practices have developed called Sestaxw  45 in Gitksan and encompassed by the terms, one of them  46 is called hodl'stat in Wet'suwet'en which embody the  47 lessons learned and treasured by each house and which 25292  Submissions by Ms. Mandell,  1 will be taught to the next generation to enable them  2 to harness spirit power to manage the house  3 territories.  These laws and practices, while  4 practised by many houses, arise from the experience on  5 each house territory and will vary from house to  6 house.  7 And Art Mathews explained that these laws are part  8 and parcel of spiritual beliefs and lessons which are  9 both carefully protected and taught within each house.  10 He stated:  11  12 "When we refer to Sestaxw it is the spiritual  13 belief and it is the purification of the very  14 physical and spiritual, the very soul of you.  15 So all other houses have sestaxw and is  16 performed or done differently from other  17 houses.  This particular one that I am speaking  18 of is from our house."  19  20  21 Now, Dr. Daly provided two explanations as he  22 understood it of these laws, and I am going to refer  23 you to them.  The first is at page 114 under Art  24 Mathews' quote, and he says:  25  26 "The laws of Sestaxw constitute one facet of  27 management; that is, he who follows the rules  28 and demonstrates how the territory is to be  29 used and cared for, this view is expressed by  30 Gitksan Chief James Morrison:  They followed  31 the law.  That's why Indian people always knew  32 what was deep inside the animals, where they  33 came from, where they were going and when they  34 were killed.  These hunting laws are all about  35 your ownership."  36  37  38 And I think what Dr. Daly is referring to when he  39 says it's about your ownership is that these laws flow  40 from the unique experience of each house operating  41 within his or her territories, and it's in that way  42 that it's a unique experience applied to the next  43 generation, those lessons which have been learned on  44 that house territory by the generation before.  45 If I could ask you to turn to page 129, there is a  46 fairly good summary of the laws and practices which  47 are included in this heading.  Dr. Daly again 25293  Submissions by Ms. Mandell,  1 observed:  2  3 "These procedures..."  4  5 And he called them procedures at this point,  6  7 "...viewed as practical preparations for  8 success in all major serious endeavours, are  9 composed of both objective and subjective  10 practices.  The objective feature include  11 technical skils, practical workmanship,  12 knowledge of the terrain, of the life cycles,  13 habits of the target species, and a regimen of  14 self denial and personal discipline considered  15 essential for successfully achieving the  16 target.  Part  of the discipline involves  17 sexual abstinence and the physical cleansing of  18 the body.  The subjective features are equally  19 involved with self discipline and knowledge of  20 the terrain.  And this is the subjective  21 features, this is the aim of the training.  22 They include elimination of thoughts from the  23 mind which can divert attention psychic focus  24 from the task at hand.  They may involve  25 excursions into altered states of  26 consciousness, journeys to that portion of the  27 subconscious where the human and natural life  28 forces come closest to fusing with one another.  29 By combining these objective and subjective  30 preparations, the hunter  consolidates his  31 skill and power and focuses his forces upon a  32 target without violating the basic principles  33 of respect and sharing."  34  35  36 And that's really the, if you will, the aim of the  37 exercise is to know enough about the land and enough  38 about the animals and enough about the discipline of  39 focusing your attention on one thing, mustering your  40 forces and the forces of nature, and then going out  41 and targeting the hunt.  That's what these laws are  42 all about.  43 If I could ask you to return to page 114 to 115.  44 My lord, I don't intend to lead you into all the  45 evidence about Sestaxw and about hodl'stat, but I just  46 wanted to take you briefly into Stanley Williams'  47 explanation, only for this purpose: The laws of 25294  Submissions by Ms. Mandell,  1 Sestaxw and hodl'stat, like the adaawk, we only saw in  2 the court case just a glimpse of the body of knowledge  3 which was there.  It involves, just as the adaawk was  4 spoken, probably a fraction of the adaawk were told,  5 both the time it would take to tell a full adaawk and  6 the number that are out there, similarly with Sestaxw,  7 we just got a mere glimpse of what it was about.  And  8 Stanley Williams did a little bit of it.  I am just  9 going to take you through it to try and familiarize  10 you with the nature of the exercise.  11 And he says at page 115, "I will tell you just a  12 short one" and he is just speaking of a short little  13 exercise:  14  15 "If a young person, and single person, when he  16 goes through the Sestaxw what he does, he  17 bathes for four days.  As he finishes -- each  18 time he finishes taking a bath, they have a  19 ring of the -- they make a ring of the devil's  20 club, and he would go through this each time he  21 takes a bath.  Each time this young person,  22 single person would take a bath he would go  23 through the ring of the devil's club, and each  24 time you would do this four days, then he would  25 go to...bed but he would sleep the other way:  26 where his head was his feet will be.  And each  27 time he would eat about three inches ... from the  28 plant, the -- under the bark, he would eat the  29 plant of the devil's club. That's under the  30 bark of the devil's club.  31 It is the same with a married man but what  32 he does after four days, he would lie on one  33 side and then after four days he would lie on  34 the other side of his wife.  After the four  35 days is over, after he has taken a bath for  36 four days, he would move away from his wife and  37 he would sleep alone for four days.  After four  38 days by himself then he would sleep with his  39 wife again and they keep doing this until about  4 0 a month.  41 The person that is going through the  42 Sestaxw has to be always busy and what he does  43 he is usually goes on his territories just to  44 keep busy.  And if he doesn't do that then the  45 Sestaxw won't turn out the way he want it to."  46  47 This is describing an exercise, I really want to 25295  Submissions by Ms. Mandell,  1 leave it to your lordship to simply reflect on the  2 fact that there are practices done by the people,  3 exercise and disciplines, which relate to the  4 teachings within the house and the forming of the mind  5 set for the hunt, and Stanley described a very brief  6 and short exercise which the hunters are put through.  7 Another aspect of it, and I will leave you with  8 Sestaxw at this, was described by Stanley Williams at  9 page 118 and 119.  10 The reason I chose these two examples is that they  11 appear to reflect two different ways in which Sestaxw  12 is practised.  One is through the discipline of  13 actually performing rituals or discipline such as  14 Stanley Williams talked about; and a second has to do  15 with training involving repeated contact with the  16 elements of nature, designed to toughen the will and  17 discipline the mind.  Other techniques were designed  18 to harness the animal spirit power to enhance the  19 quality of the hunter's ability to proceed in the  20 animal world.  And on this respect Stanley told us  21 that his uncle, Chief Ambrose Derrick, who trained  22 him, he said "he threw me in the water..."  23  24 "The first one he threw me in the water in my  25 sleep...and after that he caught a beaver and  26 warmed the tail in the fire, take all my  27 clothes off, and hit my back with that beaver  28 tail when it's still hot.  29 Q   Did he explain to you why he was doing this?  30 A   He said I was going to be strong and the reason  31 he threw me in the water was that I would be an  32 early riser every morning."  33 And he was asked what time of the year it was and  34 he said it was about March, he was about 16 years old.  35 He then goes on to say that Ambrose was one of the  36 people that knew all about the territories, all the  37 things that he knows about the territories and he  38 trained Stanley.  39 And then Stanley testified later, this is his  40 training to be strong, that he and one other man  41 packed seven goats from the village to the -- from the  42 territory to the village on their back.  I just added  43 that because Stanley connected his ability and his  44 great strength with the teaching which he had from his  45 uncle.  46 And just to guide your reading, I am not going to  47 take you to it, he then sets out how he was taught to 25296  Submissions by Ms. Mandell,  1 learn how not to be afraid of grizzly bears and that  2 teaching is set out at page 120, and then on page 120  3 to 124, he tells how he successfully went tow to toe  4 with a grizzly bear and came out the better.  And he  5 attributes that to his training, and I am sure it was  6 related.  7 If I could ask you to turn to page 134, I wanted to  8 here draw your attention to the evidence of James  9 Morrison, who also spoke about the practices which had  10 been taught to him, and he stated that it took years  11 in order to learn that.  And he stated that he was  12 taught how to be clean, how to be lucky and he said  13 "but you have to study that."  14 And then I am not going to read to you the training  15 which he received but I would ask your lordship to  16 review his very brief glimpse at some of this  17 discipline which he sets out at page 135.  And he  18 stated, James Morrison, and I have paraphrased it,  19 that the preparation is complete when the hunter is  20 clean and clear of all vestiges of his non-hunting  21 life. At this point the spirit of the game animals can  22 sense the hunter's purpose.  23 This, by the way, relates to the sexual abstinence,  24 which is part of the practice of getting all of your  25 non-hunting life out of your consciousness and moving  26 more clearly into your task.  27 Alfred Joseph testified how a hunter prepares to  2 8 go hunting:  29  30 "A hunter always prepares himself for hunts and  31 they are instructed to create your own luck by  32 preparation.  They are told to have respect and  33 they have to prepare themselves that when they  34 go out in the wilderness that they have to be  35 pure and they are told that when they do go out  36 in the wilderness that they have no other  37 thoughts but of the hunt.  And they have to be  38 careful, analyze every move they make..."  39  40 Special preparation will occur if a close relative  41 is going through her first menstrual cycle.  This is  42 another case where in looking at the discipline which  43 is imposed upon the young women when they first  44 menstruate and then for every month thereafter, it's  45 another example of the laws dealing with the  46 relationship of people to the spiritual world.  And  47 the evidence which I have set out at page 129 to 134, 25297  Submissions by Ms. Mandell,  1 and I will just ask your lordship not to turn to it,  2 but to refer to it when you do, sets out the  3 preparation and the discipline which a young girl will  4 go through and the underlying belief in putting the  5 young women through that discipline is a belief that  6 the life cycles of a woman are tied to the forces of  7 nature and that the power possessed by a young woman  8 when she first menstruates could damage the growing  9 cycles in nature, if they are not governed according  10 to society.  11 And Dora Kenni in her evidence takes the court  12 through a very full example of what happened to her  13 when when she turned 13, and I wanted to also stress  14 at this point that the practice has its roots in  15 antiquity.  When Olive Ryan told the adaawk, she began  16 by mentioning a young woman who was isolated as going  17 through her puberty discipline as part of the adaawk.  18 But returning to page 136, Dora Kenni described that  19 her uncle did special preparation for hunting while  20 she, Dora, was going through this period.  21  22 "There is a sort of cleansing period that he  23 would go through not only of his personal self  24 but also of his equipment.  And then he would  25 have certain plants that he had picked in the  26 mountains that he would have burning.  He used  27 to use it to clean all of his equipment and  28 while he doing that he would have this plant,  29 it would be sort of like smouldering  30 cigarette...1 had to be away from him when he  31 was doing this.  This is a ritual that the  32 hunters themselves do...the plant is called  33 C'unyee."  34  35 Probably said it wrong.  36  37 "This is a Wet'suwet'en word.  The cleansing of  38 himself and the rifles would take about a week  39 so the animals wouldn't catch the scent."  40  41 Stanley Williams testified that he practised  42 Sestaxw when he went trapping with 'Niitsxw on the  43 territory of Xsu Wii luu Negwit.  Stanley attributes  44 his success at hunting on Sestaxw.  45 Finally, Dr. Daly on page 137 noted that until the  46 coming of the missionaries among the Wet'suwet'en, the  47 practice was done openly in the community.  It began 2529?  Submissions by Ms. Mandell,  1 every year when the fish drying racks were put away in  2 late August and it would be observed through the  3 winter for approximately six months.  During this time  4 the chiefs acquainted the young men in the past with  5 the many laws which governed the hunt.  These laws  6 would tell the hunter what he must and must not do to  7 be successful on a certain territory.  They instructed  8 him to study the terrain, the plant life, the game  9 trails, the seasonal, annual and biennial movements of  10 the animal.  There are rules for finding the animals,  11 for killing and butchering them, showing respect to  12 their spirits, for utilizing the whole carcass, for  13 distributing it to the fellow villagers and for  14 disposing of waste portions.  There are laws governing  15 the preparation of the state of mind and body of the  16 hunter.  And it was Dr. Daly's details opinion that  17 "today the instruction of the youth continues but with  18 varying degrees of rigour."  19 THE COURT:  Do you want to start a new section or adjourn?  20 MS. MANDELL:  I think so, yes.  I could start a new section.  I  21 am there.  22 THE COURT:  You mean you think we should adjourn?  23 MS. MANDELL:  I think we should adjourn, yes.  24  25 (PROCEEDINGS ADJOURNED UNTIL 2 O'CLOCK P.M.)  26  27 I hereby certify the foregoing to be  28 a true and accurate transcript of the  29 proceedings herein to the best of my  30 skill and ability.  31  32  33  34 Wilf Roy  35 Official Reporter  36  37  38  39  40  41  42  43  44  45  46  47 25299  Submissions by Ms. Mandell  1 (PROCEEDINGS RECOMMENCED AFTER LUNCHEON RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Ms. Mandell, I have spoken to our reporters, and  5 subject to the views of counsel, I thought we would  6 sit in three forty minute segments this afternoon, and  7 take a break only between the second and third.  All  8 right.  Thank you.  9 MS. MANDELL:  My lord, I am at page 124.  10 THE COURT:  124.  Thank you.  11 MS. MANDELL:  Just by way of continuity, I am summarizing from  12 this morning's session, and I am at the bottom of page  13 124.  14 A hunter is trained by the exposure to the  15 harvesting laws, the experience of hunting on the  16 territory which is managed according to the laws and  17 the disciplines imposed on him by the laws of  18 Sisatxw/lhah'aha.  19 The testimony of James Morrison reveals the depth  20 of knowledge and management capability achieved by a  21 Gitksan chief who has been properly trained to manage  22 the territory.  23 And I would like to take you through Mr.  24 Morrison's testimony in this respect highlighting the  25 aspects of the training which he reveals, which is  26 concerning the harvesting of the resources in  27 accordance with the Gitksan laws and spiritual  28 practises.  He begins by saying:  29  30 "They taught me how to hunt and to trap, and  31 certain places where I can go to hunt, and  32 certain time of the year, and how to learn to  33 use the territory, not to abuse it.  Or  34 whatever the animals that we need that we have  35 to learn in all of these animals be survived in  36 population."  37  38 And he is repeating two aspects, which we stress.  39 And one is the aspect of the training of these laws  40 through the oral history, and the second is the  41 philosophy which we earlier referred to of how to use  42 the territory and not to abuse it.  43  44 "...There is someplaces where you can get like  45 goat and caribou on those days.  They told me  46 certain mountains better place than other  47 place, so you have to really study there.  A 25300  Submissions by Ms. Mandell  1 person can't just go hunt."  2  3 And then at the bottom of that paragraph, the  4 fourth line up:  5  6 "And you have to learn all those places in order  7 to hunt or trap and you have to learn how to  8 catch the animals.  And concern of the people  9 now is the population of the animals.  10 ...That's why we have names in every territory  11 that they sent you where you going, and you  12 know where you're going when they tell you  13 where to go that place.  The name of that place  14 for instance here ..."  15  16 And he mentions the place where he hunts.  And the  17 point that we are here emphasizing, which James  18 Morrison is testifying to, is that part of the  19 training for a hunter is to learn the places where you  20 hunt and you trap, and as he says, that's why the  21 places have names.  And that ties directly into the  22 very many place names, and how it is that the  23 witnesses know about them, as you have heard  24 throughout the evidence of the plaintiffs.  25 And then he says:  26  27 "...like if my father were to hunt beaver you go  28 where these beaver dams and the river is.  29 That's the best place to go at certain time of  30 year.  This is where you go.  And the goat, and  31 further up on the second camp that's where you  32 go for goat.  And they call the name of that  33 place, and it shows up -- further up where the  34 prairie dogs is.  That's example what they say  35 to you before you go.  You sit down and listen  36 to what he has to say.  I'm sitting down and  37 listen what he has to say to me where I'm going  3 8 and what to do."  39  40 And I just wanted to stress here not only is he  41 referring to the fact that the different resources  42 will be taken from different places which he's taught,  43 but in the course of explaining this he is also  44 talking about the fact that the hunting isn't random  45 either, and when the hunters are sent out, the oral  46 history requires, and he's explaining that somebody,  47 as he says, tells him, and he listens, and then he 25301  Submissions by Ms. Mandell  1 goes and does what he is going to do.  2  3 "...well, they say moose in someplace they call  4 Lax stanaast.  Where the natural place is open.  5 And that's where you hunt moose, because moose  6 is not too many in that time.  Or anywhere  7 where your hunting ground is it's hard to  8 locate them, but the only place is natural  9 place.  Where you can hunt is natural opening  10 there.  11 ...S-T-A-N-A-A-S-T is a natural open place.  12 That means nothing growing there except the  13 food of the animals.  (This) is a good place to  14 hunt moose ... moved around same as the moose  15 in the early 1900 ... (Caribou) ... that's when  16 the moose arrived the head of the Skeena."  17  18 And he then explains the reason this is a good  19 place to hunt moose is because it's a natural open  20 place, which is the moose habitat, and he goes on to  21 explain that there you also find wild banana, which is  22 a root.  And he says down in the middle of the quote:  23  24 "...And you can tell the moose meat and the fat  25 are yellow just like feeding on these other  26 things, like all those willows and cottonwood,  27 and all different kinds of foods there, and the  28 balance of their diet there, and that's  29 excellent.  30 ...(I was taught to hunt moose where they can  31 feed to have a balanced diet.  If the moose  32 doesn't have a balanced diet) It doesn't taste  33 very good on some of those things they're  34 feeding with.  But like the feeding on this you  35 can taste it.  People -- or older or people  36 today will still know where it's feeding from.  37 If they fed on those willows, red willows,  38 you know, because you taste the meat.  It's a  39 little different than the other.  All those  40 people today that still do, myself, I'm still  41 taste those meat wherever - should be balanced  42 with feed (of) the other willows and the  43 cottonwood.  (this knowledge was acquired)  44 mainly by my father, because I was with him all  45 the time.  And he always taught me all those  46 things how to hunt and how to be not abusing  47 the territory." 25302  Submissions by Ms. Mandell  1  2 And if I can just stop here and emphasize that  3 part of the management to the hunt and part of the  4 knowledge which is taught to the hunters has to do  5 with being able to look after the area, the vegetation  6 upon which the animals themselves feed from.  And what  7 Mr. Morrison is here talking about is that you can  8 taste in the meat where -- what kind of diet it is  9 that the animals had, and he talked about the moose  10 needing a balanced diet of a certain amount of willows  11 and also balanced with cottonwood.  12 And then he says, and I am reading at the middle  13 of the quote:  14  15 "...Well for beaver for instance, an example  16 when you trap beaver a certain way you can set  17 your traps, use snares in certain places.  The  18 beaver, male beaver and female beaver and the  19 young one are in that pond wherever in the  20 river.  And there is a house there, beaver  21 house.  And also the female hanging around  22 close to the house to save the young ones or to  23 protect the young ones, or to protect herself  24 too.  That's where they hanging around, closer  25 to the house.  But the male, it travel far away  26 from -- from the house.  Or when the creeks run  27 into the beaver pond that's where, or about a  28 hundred yards away from the house, and that's  29 how we learn how to trap in order to save some  30 of those -- those female.  But sometimes you  31 catch them if you can't help it, an accident or  32 whatever they call it, and then you catch  33 them."  34  35 And here he is speaking about the knowledge of  36 learning the habits of the animals which are being  37 caught and trapped, in order that they can selectively  38 catch the male animals or the larger ones and leave  39 behind and not accept, unless its been an accident,  40 catch the females or the young ones.  41 "I learn how to smoke and to dress (these  42 animals).  That's the main thing, 'cause you  43 can use this -- as I say, you can use this skin  44 for anything your clothing.  You can use it in  45 the other thing, that's why you have to be  46 careful how to skin it.  You learn how to skin  47 it, and you must do a good job.  And they have 25303  Submissions by Ms. Mandell  1 to watch you as you're do doing it."  2  3 And this is Jim Morrison -- James Morrison talking  4 about the techniques which are learnt and taught in  5 order to use the skin in the animals and to use every  6 part of it.  7 At the bottom of the page:  8  9 "...Well, in someplace, you know, when the  10 animals are starting to go down, and that's why  11 you have to move around, and you know what  12 animals you taken out of there, and you have to  13 learn not to abuse it because they will never  14 come back.  And after you're not leaving the  15 meat out in the bush, or whatever, where you're  16 hunting that we clean it."  17  18 And this is a reference by Mr. Morrison to what  19 you have already referred to about the hunters knowing  20 what animals have been taken, and conserving the  21 animal population by rotating their harvesting  22 practises.  23  24 "I was taught not to abuse the animals ... if  25 you shot any animals  ..."  26  27 THE COURT:  Haven't you given me that already, Ms. Mandell,  28 several times?  Not that particular quote, but that  29 same subject.  You may read it if you wish, but it  30 seems to me to be highly repetitious by the factor or  31 the power of three or four.  32 MS. MANDELL:  Well, I am just going to take your lordship's  33 thoughts into mind, and refer you only to the very  34 bottom of the quote, which I wanted to stress, and  35 that is, beginning from the middle of the paragraph:  36  37 "When you go out, a person once they go out in  38 the bush and they want fresh meat, any kind of  39 meat, you go out and shot one and then you eat  40 it then you know what territory you're on at  41 that time and you feel better when you eat that  42 meat.  It's not -- that's why -- I'm not saying  43 not based on the wealth and the other things  44 when you eat that meat and you know where it  45 comes from."  46  47 And the reason I wanted to take you finally into 25304  Submissions by Ms. Mandell  1 Mr. Morrison's observation at that point is to  2 underscore the fact that the harvest and management of  3 the animals is based very much, as is the practises of  4 Sestaxw hodl'stat, on the proper caring for each of  5 the house territories.  And what he is here speaking  6 about is that there is a form of ownership or a pride  7 in ownership which arises when a hunter or somebody  8 who is familiar with the taste of how the different  9 animals are from the various territories eats the  10 animal and appreciates where the animal is from.  11 And in some senses this is a parallel or a marrying  12 with the procedure at the feast where the food is  13 announced which territory it is from, and it's part of  14 the affirmation of ownership of the territories which  15 occurs at the feast.  16 I mention that Mr. Morrison's said that it's  17 common for other Gitksan people to be taught the  18 practises and laws and rules which were taught to him  19 by his father.  20  21 "They are taught the same practise laws and  22 rules today."  23  24 And lastly that Mr. Morrison has recently  25 succeeded to a high chief's name.  26 Now, I would ask your lordship to turn to page  27 139.  I believe that I have covered -- I have  28 highlighted what I wished to do in the pages in  29 between, and most of it relates to Hodl'stat and  30 Sestaxw, and I would ask that your lordship read it at  31 your own convenience.  32 The next section that I would like to address is  33 the question of the management process.  And you will  34 recall at the beginning of the argument I identified  35 that while the chief was passed the power to do the  36 management, and that the authority or the final buck  37 rests with the chief in terms of the overall  38 management of the territory, there is a process which  39 occurs within the houses and at the feast, and with  40 respect to how the territory is managed and decisions  41 are made, and I would like to now address that  42 process.  43 And I'm on page 139.  44 The house is the major unit for decision-making  45 about the territory.  46 Alfred Joseph explained that the management of  47 each house territory depends on special knowledge 25305  Submissions by Ms. Mandell  1 about the unique features of that land.  2 And he says:  3  4 "A   Yes.  There is different -- a difference in the  5 animals that are in each territory.  Some  6 territories are -- further out into the  7 headwaters and some territories are closer to  8 the main big valleys where they are lower down.  9 So -- they have to trap each area different --  10 ..."  11  12 Chiefs testified to exercising of their  13 jurisdiction to harvest, manage and conserve the  14 resources in consultation with the sub-chiefs of their  15 house.  By this consultation the chiefs are able to  16 keep themselves informed of the state of resources and  17 to make informed decisions concerning the rotation of  18 lines.  In some cases sub-chiefs are delegated to  19 caretake a portion of a large territory.  20 And on that point of delegation, I would like to  21 refer you to page 145.  And this is a statement made  22 by James Morrison, and it's in the middle of the page,  23 and he is speaking about a chief who may not know  24 history if a successor chief has not been on the land.  25 In order to learn about the land and management of  26 land he or she must take steps to become informed of  27 the territory.  And he testified:  28  29 "...they have to take somebody else and send  30 them out there of their own clan.  That's one  31 of the laws of Indian people, they have to  32 choose one of themselves, or anyone that knows  33 the area to learn themselves and have to send  34 out one to the territory,"  35  36 And he mentions history.  37  38 "...and come back and report back to the Chiefs  39 so that they know what to report from that  40 person, the ones that give permission.  And  41 when they came back they give him report and  42 they know what's in that area.  That's the  43 start of this learning on this territory."  44  45 And what the chiefs then testified to, and I am  46 going to lead you through the evidence, is that within  47 the house there will be a general management unit, and 25306  Submissions by Ms. Mandell  1 it may not always be that it's the head chief who  2 himself or herself is the person that will possess the  3 knowledge to entirely manage the house territories,  4 and in that case sub-chiefs and others will be either  5 delegated to that, or will be part of the consultative  6 process.  7 At the bottom of page 139 Alfred Joseph testified:  8  9 "it's always about the House of Kaiyexweniits  10 that meet about whatever is happening on the  11 territory."  12  13 And he testified that he with the advice, and  14 after consulting with the members of the house, may  15 decide who can go on the territory of Gisdaywa.  16 Now, many chiefs testified to the consultative  17 process within the house regarding the harvesting and  18 managing and conserving of the resources.  I am going  19 to take you to some examples and ask you to  20 independently read others.  On page 140 and 141 the  21 evidence with respect to the management of Wah Tah  22 Keg'ht's House, some of it is set out.  When asked  23 whether Madeline Alfred has permission to take care of  24 the berries on Wah Tah Keg'ht's territory, Henry  25 Alfred the chief testified:  26  27 "we always have meetings amongst our family ...  28 and it's just like permission, yes."  29  30 In Wah Tah Keg'ht's House they have meetings to  31 talk about the beaver hunting.  Henry would tell his  32 mother where he went and how many beaver he caught,  33 and other members of the house report in meetings  34 about where they trapped beaver and the size of their  35 catch.  And Henry said:  36  37 "we always get together and we know where it  38 comes from."  39  40 And this is very much important to the second law  41 that we spoke about, which is having the knowledge  42 inherent in the house and within the management unit  43 to be able to rotate lines and know how to do that.  44 Henry mentioned that his house would meet  45 regularly to discuss the trapping on the territory.  46 People who trap tell him where they are going to go  47 trapping and where they had been.  And Henry says: 25307  Submissions by Ms. Mandell  1  2 "And if I feel they have trapped there already I  3 instruct them to use different area or the  4 other side."  5  6 And it was Henry Alfred's view that the right  7 number of people are today using the territory.  8  9 "If we had more than what we have now ... you  10 would have over harvesting and there won't be  11 no animals left."  12  13 And Henry Alfred also testified that when he was  14 working outside of the territory, and the territory  15 was primarily used by his brother Cecil and his mother  16 and his brother Andrew, he would come back on  17 weekends:  18  19 "we had meetings and they would inform me as to  20 what animals had been taken."  21  22 And he in his testimony was aware of the other  23 hunters and trappers from the next generation who are  24 available to use the territory, and he identified the  25 names of those people in his evidence.  26 The management of Wah Tah Keg'ht's territory  27 functioned slightly differently than that which was  28 testified to by Mary MacKenzie for the House of  29 Gyolugyet.  And I am at the bottom of page 141.  Each  30 of the chiefs in the House of Gyolugyet have a portion  31 of the territory allocated to each of them.  And she  32 said "for our traplines", but that the whole territory  33 is considered to be Gyolugyets, and "no one is put out  34 of not sharing that territory."  35 Alfred Joseph testified that a sub-chief can be  36 given authority over a part of a territory.  37  38 "They are told to look after certain parts of  39 the territory.  If there is a big territory and  40 then there is two or three valleys in it each  41 person - each Chief is told to take care of  42 different areas."  43  44 And this is actually the way that the territory of  45 Namox was testified to having been managed.  46 Dan Michell described the decision-making process  47 concerning management of Namox's territory, which you 2530?  Submissions by Ms. Mandell  1 will recall Dan Michell participates as a caretaker.  2  3 "like now for example that I am left in charge  4 of it ... our Chief knows my ability to look  5 after the territory so when I manage the  6 territory I do it without having to run back to  7 her all the time that she would have confidence  8 in me to take care of it.  And then we sort of  9 divide the responsibilities as have always been  10 done in our area ... on the north side ...",  11  12 And he names it.  13  14 "... in the south side  ... so in the past in  15 my experience Alfred Mitchell used to look  16 after the (south) side.  North side, Alfred  17 Michell and Big Tommy Michell looked after it.  18 When Alex Tiljoe to ok over he looked after  19 south side."  20  21 "It's a big territory 'so we divide the  22 responsibility to look after it'."  23  24 There was a meeting among house members about who  25 should look after the north side and south side in  26 recent times regarding the decision that was reached  27 that Alfred Mitchell and Victor Jim should look after  28 the north part and Dan Michell the south.  29  30 "We talked it over with our Chiefs and we  31 decided that that's how it was done before our  32 time and so we felt that was the right way to  33 go about it.  That's how we set it up again.  34 We continue it on how it was taken care of."  35  36 And you have already heard about Dan Michell's  37 decision to move Billy to the south part of the  38 territory.  39 And finally in describing how Namox's House makes  40 its decision, Dan Michell testified:  41  42 "Well it's an ongoing thing with all our clans  43 and especially the ones that hold the names,  44 the chiefs names.  We get together and we all  45 have meetings and discuss what we're going to  46 do.  Like for the use of it, and how it's going  47 to be arranged, whose going to look after each 25309  Submissions by Ms. Mandell  1 area of the territory and how it's to be used."  2  3 And I just wanted to remind your lordship that in  4 the discussion of ownership found at page 181 and 182,  5 it was there mentioned by Solomon Marsden that the  6 caretakers of the territory, even those that are  7 caretaking internally into the house, those caretakers  8 will be announced at feasts.  And he mentioned that  9 they would be announced at the headstone feast to the  10 pole raising feast where territory was the subject of  11 the feast.  12 Now, the next area of the management process  13 involves the management by the chiefs of the resources  14 to fulfill the obligations of the house both  15 internally to the house members and also to provide  16 for the house's obligations at the feast.  And this is  17 part of the management process.  It's part of the  18 decision-making which the chief and the house members  19 must go through, and it's also -- it dictates the  20 management decisions which are made on a year by year  21 basis with respect to the harvesting of certain  22 resources.  23 If I could begin with the testimony of Joan Ryan.  24 THE COURT:  Haven't you read that passage?  25 MS. MANDELL: No.  No, we haven't.  26 THE COURT:  If you say you haven't -- it sure sounds familiar.  27 MS. MANDELL: No, we have not read this one.  She is testifying  28 to the responsibility of the head chief to manage the  29 territory in keeping with a management plan to know  30 the quantity of resources harvested by house members.  31 In response to the question "What do you mean by  32 taking care of the resources?" she responded:  33  34 "I guess one way to get at that particular  35 question is to say that we have a management  36 plan as to how we take care of our resources,  37 and one definite example that I can give you  38 here is that when you look at your inventory  39 you know approximately how many dried fish you  40 need within a year, how many cans you use  41 within a year, how many are frozen, how many  42 are half smoked, and based on that inventory  43 when you start to process again in the spring,  44 and during the summer you go to the river and  45 you only take from the river what you need.  46 Included in that list has to do with trading as  47 well." 25310  Submissions by Ms. Mandell  1  2 Now, in order to arrive at the inventory which is  3 taken by the chief, the chiefs must know the fertility  4 and population growth rates of the different species  5 in the different regions.  As Dr. Daly identified, the  6 harsher higher elevation basins tended to regenerate  7 more slowly than lower valley bottoms, and harvesting  8 methods conform to those varying conditions so as to  9 use but not deplete the balances of life therein.  10 Now, we heard evidence, my lord, and I am going to  11 draw to your attention chiefs who based on the --  12 their understanding of the population growth rates,  13 the state of the animals and their habitats, in the  14 interest of conservation restricted the harvesting of  15 species and animals in order to accomplish  16 regeneration.  And this was testified to by Florence  17 Hall.  She described the decision of her house not to  18 harvest beaver in the Burnie Lake territory based on  19 her information and belief that the beaver population  20 growth rate was in rapid decline.  And she described a  21 trip which she made into the territory in 1962.  She  22 noticed the beaver:  23  24 "at that time what few beaver they did catch  25 they were very scarce and what few they did  26 catch was lean and they look liked they were  27 starving.  And that's what Alex said that it  28 looked like there was no feed for them in the  29 area.  There was a lot of jackpine growing in  30 the area but beavers don't eat jackpine ...  31 they usually eat alder and willows and there  32 was...no sign of...any of them trees that were  33 around at that time."  34  35 And she described how her family made a decision  36 about how to deal with the obvious decline in the  37 beaver population.  38  39 "...the family discussed the situation of what  40 beaver population and during the discussion I  41 myself advised them that now that beaver  42 population is low we should leave it alone for  43 awhile, until such a time as when the beaver  44 population builds up again."  45  46 And by 1962 she had already acceded to the name  47 Chief Kweese. 25311  Submissions by Ms. Mandell  1 Now, she authorized Alex Dennis, James Dennis  2 Michael Alfred and Alfred Michell, her brothers and  3 others of her house, to look after the territory.  It  4 is her belief that these people went to the territory  5 within the last few years, and that the beaver  6 population is still poor.  And based on this belief  7 she continues to prohibit beaver trapping.  And she  8 testifies to that.  That's an area in the Burnie Lake  9 area where there was and has been, in spite of the  10 advantage to the house in having access to beaver,  11 there's been no beaver harvested since 1962.  12 Alfred Joseph testified that another aspect of the  13 watching of the animal population is to keep a  14 watchful eye out for the animal trails, and he  15 testified to this as part of the function which passed  16 to him upon receiving the chiefly name:  17  18 "We have to make sure that the animal trails are  19 not disturbed; like it is - what's been  20 happening with the clear cutting is it just  21 wipes out the animal trails and that makes it  22 very difficult for any animal trails.  They  23 also have boundaries.  A wolf has a boundary; a  24 bear has a boundary and when that's wiped out,  25 it really disturbs the animal population.  All  26 living creatures have boundaries and once you  27 disturb that, it just makes it really hard for  28 all living things.  There is a conflict ... I  29 know my uncle or grandfather all talked about  30 seeing animals that trespass into another's  31 territory and there's always a fight there."  32  33 Now, in terms of being able to keep abreast of the  34 changes and the fluxes in the animals' population and  35 in maintaining the trails and carrying out the  36 function in that respect, and I'm going to take you to  37 148, several chiefs who were not in the area  38 constantly spoke about the way in which they continued  39 to keep abreast of the state of the animal population.  40 Alfred Joseph testified that in the 1950's, where  41 he was primarily logging and doing construction work,  42 during that time he knew that his Uncle Thomas George,  43 Gisdaywa, was using the territories and his son was  44 using it, and whenever they visited him they said:  45  46 "They always talk about the territory so there  47 is no need for us to go in while he is there 25312  Submissions by Ms. Mandell  1 and we are working."  2  3 And I am going to only refer you to the section,  4 but in our submission Alfred Joseph's testimony  5 demonstrates that a chief whose not primarily the  6 hunter on the land, is not a specialist in that  7 respect.  8 If you review Alfred Joseph's testimony, in our  9 submission what it demonstrates is that he has  10 continued to keep himself informed about the  11 happenings on the territory, how the territory has  12 been used by the users, Andrew George, Leonard George,  13 and Jimmy George before he passed away, who Alfred  14 says have always been in the area, and Andrew would  15 tell Alfred what's happening on the territory.  16 Similarly Mary MacKenzie, whose basically a  17 non-user of the Gyolugyet territory, but others of her  18 house are, she testified that house members continue  19 to inform the chiefs regarding the territory to permit  20 decisions about conservation and management.  She  21 testifies that those who she authorizes to use her  22 territory report to her, and she mentioned that her  23 husband made a trip and told her mother and her what  24 happened.  25 And similarly Mary Ann Jack, Gwamoon, reported to  26 her that the beavers had a disease on her territory  27 and were dying, and as a result Mary MacKenzie  28 directed Mary Ann not trap for a few years, and then  29 later that she directed her husband to check the  30 territories subsequently, and the beaver were  31 plentiful there.  32 Now, my lord, you will recall the discussion  33 yesterday where we demonstrated the guiding ethic of  34 management for the owning house as directed by the  35 chief as the ability to feed others.  And when this  36 ethic is implemented and reciprocated, the whole  37 community benefits.  Where this can't be done, it can  38 ultimately affect the ownership of the house  39 territory, and for final failure to be able to fulfill  40 feast obligations and pay for funerals, the house  41 territory can be forfeited.  42 And the next section which we are going to deal  43 with on the management question is the management and  44 harvesting of the resources to fulfill the feast  45 obligations of the house.  46 If a chief properly manages the territory and  47 fufills the obligations of the house to the father's 25313  Submissions by Ms. Mandell  1 and spouse's side on the land and at the feast, the  2 wealth of the territory and the strength of the  3 kinship relations will feed the name of the chief at  4 the feast.  5 THE COURT:  Is that what that's supposed to say?  6 MS. MANDELL:  Yes.  Actually, you know, a better -- a more -- a  7 less poetic and more literal way to say it is it would  8 feed the dax gyet of the chief at the feast.  9 As Alfred Joseph says:  10  11 "head Chiefs when he takes a name, like I said,  12 the territory goes with it and you have to see  13 that the rest of the sub-chiefs and other - see  14 that all the clan members are using the  15 territory, have a place to go, and the more  16 people that go out to use the territory, that  17 means the head of each house has more power and  18 wealth to distribute or pay for anything, that  19 is any services that have been performed by  20 other clans, especially on the father's side."  21  22 And you will recall the discussion in organized  23 society where it was urged upon you that a chief has  24 more wealth, the more he or she is in a position to  25 give, which is a contrast to how we in our society  26 define wealth more so in terms of accumulation.  27 Johnny David described the relationship between  28 the authority of the chiefs, the rights of house  29 members to use the territory and the contribution at  30 the feast.  And I thought he said it quite succinctly:  31  32 "...the different members of the house or the  33 clan are allowed to use the territory with the  34 permission of the head chief and the person who  35 is given permission to use the territory at a  36 feast redistributes the meat or the money to  37 members of the house and this is our Indian law  38 and it is not the white man's law."  39  40 A significant aspect of the jurisdiction of the  41 chief in managing the harvest from the territories is  42 to ensure that the circulation of goods and services  43 available to the house are available to fulfill the  44 house's responsibility to host or contribute to the  45 hosting of feasts to which the chief and house members  46 have obligations.  47 And Dr. Daly sets out the way in which he's 25314  Submissions by Ms. Mandell  1 observed the chiefs accumulating in order to fulfill  2 this obligation.  3  4 "Until quite recently the chief had to know what  5 each senior matron had put by for the winter in  6 storage pits, root cellars and meat caches.  7 In the pits they stored boxes of oolichan  8 grease, cooking oil rendered from salmon heads  9 and game animals, berry cakes, hemlock sap  10 cakes, berries preserved in oil, bulbs and  11 nuts.  In raised cache houses they kept most of  12 the smoke-dried strips of salmon, steelhead and  13 and game.  In both types of storage the items  14 of top quality were piled on one side for feast  15 use, and the items for every day use were piled  16 on the other side.  Today, when the medium of  17 exchange is cash, and is no longer limited to  18 tanned hides, salmon strips and berry cakes,  19 many houses in Gitksan and Wet'suwet'en  20 villages have at least a wall, if not several  21 chests or a whole room, devoted to the  22 accumulation of goods to be used in future  23 feasts.  The chief has to assess these piles of  24 commodities in the homes of his or her house  25 members and know the general state of the  26 domestic economy and the bank balances of house  27 members so as to be able to assess the house's  28 ability to acquit itself well, when called upon  29 to support a relative's feast.  30 ...The chief must also oversee the storage of  31 gifts and payments which he has received, such  32 as those received for allowing others to borrow  33 a net or a fishing site.  Most of such items  34 would be expended later in the course of  35 feasting.  In the course of managing the  36 economic round, the chief has to bear in mind  37 need to attract and hold as large a hard  38 working a group of people as possible, whose  39 day-to-day endeavors will eventually contribute  40 to the house's ability to engage in feasting,  41 and thereby pay for its ownership rights in  42 society.  At the same time, he must settle its  43 business and pay its debts to other houses in  44 the community."  45  46 Now, this managing of the resources and the  47 harvest in order to satisfy feast obligations is the 25315  Submissions by Ms. Mandell  1 economy of the people, which is in some senses the  2 guide post or the reason for much of the harvesting.  3 And this was testified to by Glen Williams, where he  4 called the feast economy, and he said to you:  5  6 "It's a redistribution of the wealth.  Certain  7 individuals are commissioned, like -- from your  8 father's side are commissioned to undertake  9 certain tasks, and whatever wealth that you  10 have is transfered or given over to your  11 father's side ... whatever money or gifts that  12 you have got in, that is given back to your  13 father's side.  And also the food that you  14 bring to the feast is given out to all the  15 other guests in the feast hall.  There is  16 usually more than enough food that is given  17 out, redistributed, and at the end there is  18 money that is given out as well to the high  19 ranking chiefs to your father's side or whoever  20 you have asked to do certain things for that  21 main house group."  22  23 And then he talks about the witnessing, and he was  24 asked at the top of page 152:  25  26 "Q   Is there a name for that accumulation of the  27 food goods that are brought in and accumulated  28 at the door?"  29  30 And he mentioned a Gitksan name.  And he was asked:  31  32  33 "Q   And what does that mean?"  34  35 He says:  36  37 "A   it means all the gifts and all the food that is  38 in your possession, and what it represents is  39 the wealth of a particular house.  The more  40 food you have, it indicates the wealth of that  41 particular chief in that house group."  42  43 Now, Dr. Daly pointed out that while it's true  44 that the feast is part of the economic exchange and  45 distribution of the house among the other of the  46 houses, he mentions that the feast performs other  47 functions as well, and that at this time not to be 25316  Submissions by Ms. Mandell  1 considered only a medium of economic exchange.  And  2 this relates to the arguments which were addressed to  3 your lordship yesterday about the very many functions  4 of the feast celebrating at one in the same time the  5 transfer of the ownership in land in some cases, the  6 affirmation of the territory, the display of crests,  7 the assertion of authority by the chiefs, and the  8 various other demonstrations of political process and  9 ranking which the feast also does.  But then Dr. Daly  10 says at the same time behind the scenes so-to-speak:  11  12 "Economic transactions are intense as the  13 funding, financing and employment or of labour  14 are mobilized to ensure that the feast is a  15 success.  These activities - mobilizing support  16 of kin, taking loans, calling in loans from  17 others, insuring credits from the father's side  18 and/or spouse's side activate the real riches  19 of the host:  his or her social network of  20 support, which is manifested in terms of  21 produce, handicrafts and other goods and  22 services rendered to ensure the feast's  23 success."  24  25 THE COURT:  Excuse me, Ms. Mandell.  We are going to change  26 reporters now.  27  2 8 (CHANGE OF REPORTER)  29  30 I HEREBY CERTIFY THE FOREGOING TO BE  31 A TRUE AND ACCURATE TRANSCRIPT OF THE  32 PROCEEDINGS HEREIN TO THE BEST OF MY  33 SKILL AND ABILITY.  34  35    3 6 LORI OXLEY  37 OFFICIAL REPORTER  38 UNITED REPORTING SERVICE LTD.  39  40  41  42  43  44  45  46  47 25317  Submissions by Ms. Mandell  1 THE COURT:  Thank you, Miss Mandell.  2 MS. MANDELL:  3  4 ...In other words, the surplus of the fruits of  5 production can be invested in feast-giving  6 internally and barter externally.  Investing  7 House surplus in such ways signals the good  8 management of the House leadership, the hard  9 work of its members and affines, and the good  10 citizenship of the whole group which, in this  11 manner, "pays its dues" for the continued right  12 to enjoy ownership of land.  13  14 In this way it is submitted that the management  15 of resources and their distribution at a feast  16 constitute the exercise of jurisdiction and in so  17 doing affirms the rights of ownership of the House.  18 And we say that all of this needs to be managed  19 for and that the wealth of the House to participate in  20 this economy is founded in the interaction -- useful  21 interaction between the House members with the  22 resources of the territory and the benefits of the  23 labour which are brought into the feast as the wealth  24 of this House.  25 THE COURT:  Well, how do you say that relates or operates now  26 due to the fact that what they are distributing at the  27 feasts are volumes of commercial sugar and money.  28 MS. MANDELL:  Well, the Wet'suwet'en do distribute sugar and  29 money is distributed.  30 THE COURT:  Doesn't all come from the land.  31 MS. MANDELL:  Well, though it doesn't all come from land, it's  32 true.  But the land is still -- and must be still used  33 in order to bring forward the wealth of the territory  34 for the feast.  And while you have heard yesterday  35 talk of the announcement of the food which comes from  36 the territory and is announced at the feast -- and  37 I'll be getting into that in more detail, and that is  38 an essential component of the feast -- you can't  39 distribute money instead of providing the food for the  40 guests.  41 There is also -- and we will be referring later to  42 the fact that some of the ability of the chiefs to  43 continue to provide wealth from their land has been  44 truncated by the inaccessibility to them of resources  45 which are now in the hands of other people.  And  46 people have continued to survive and continue to do  47 what they can.  But the principle which we are urging 2531?  Submissions by Ms. Mandell  1 upon your lordship is the fact that the territory is,  2 and the membership in the House together is ultimately  3 the wealth of the House as it's to be redistributed at  4 the feast.  And that's --  5 THE COURT:  But if the chief earns wages lobbying on some other  6 chief's land, for example, taking an extreme example,  7 and distributes that wealth at the feast, it doesn't  8 come from his House's land at all.  9 MS. MANDELL:  The —  10 THE COURT:  What -- what do you -- no.  You give me your answer,  11 rather, before I lead you into one.  12 MS. MANDELL:  The territory is the source of the chief's wealth  13 together with the labour of the House.  14 THE COURT:  Not if he is working on some other chief's land.  15 MS. MANDELL:  Well, we do not -- at the moment -- and we will be  16 addressing you on this later.  17 THE COURT:  Yes.  18 MS. MANDELL:  We don't have control fully of the territory, and  19 there has been -- and this is part of the lis of the  20 case.  And so there has been forced alterations to the  21 ability of the chief to manage the resources of the  22 territory to benefit himself and the House members.  23 And I can, for example, refer your lordship to a  24 statement made by Mary McKenzie which is found at page  25 168 and 169 of this submission, where she testified  26 that -- sorry, she testified that in the past, tanned  27 skins of animals were used for distribution at the  28 feast; this eventually gave way to guns and blankets,  2 9              now money.  30 And then at page 169 she states:  31  32 the reason why moose and deer was used and the  33 ground hog, the Gitksan people killed these  34 animals off their territory, and there was a  35 season that at prime time when these first  36 are -- and these pelts are of prime sort that  37 they -- this is why they -- it took them many  38 years probably, or a few months to get all  39 these.  Now, their season is open for the  40 hunting, it's not -- although they're limited,  41 the kill, but still with every wil 'na t'ahl  42 and every House of a Gitksan would have these  43 prepared for a feasting, so this comes from the  44 territory, like the ground hog, the beaver, the  45 moose, and the deer, but today we were not able  46 to do that because the seasons are set now for  47 the people to do their hunting and trapping, so 25319  Submissions by Ms. Mandell  1 we don't use those anymore in our feasting, so  2 we use cash, but the food is there, we still  3 use the food off of the territory today.  We  4 don't use the hide."  5  6 And I think what she is addressing -- which I'll  7 leave to Mr. Grant to address you on further -- is the  8 atrophication (sic) or the inability of the chiefs to  9 completely today rely upon the wealth of their  10 territory.  But if this case were, hopefully, decided  11 in a way which gives the chiefs control again over  12 their territory and the resources, the same feasting  13 principles, the people from the House and the wealth  14 of the territory is what will feed and continues to  15 feed today, although in different ways, the name of  16 the Chief at the feast.  17 THE COURT:  So is the answer that I was going to lead you to  18 correct then, that the distribution of nonterritorial  19 wealth at the feast today is at least partly symbolic?  20 MS. MANDELL:  Well, it's not — partly symbolic — it's not  21 symbolic, no.  There is a real distribution of wealth  22 at the feast.  23 THE COURT:  But it's not all from the territory.  24 MS. MANDELL:  It's not all from the territory,  25 THE COURT:  To the extent that it's not from the territory is it  26 symbolic or is it something else?  27 MS. MANDELL:  Oh, it's something else.  28 THE COURT:  What is it?  29 MS. MANDELL:  It's still part of the economy of the people  30 functioning within the feast -- the feasting economy.  31 THE COURT:  So then it's part of another facet of the social  32 organization in the Gitksan?  33 MS. MANDELL:  It certainly is.  It's harnessing the wealth —  34 it's harnessing the support, the services, the labour,  35 the talent, the ability of the House to bring together  36 its combined surplus in order to redistribute that  37 wealth and maintain the strength of the House at the  38 feast.  But you have to put that against what Stanley  39 Williams said when he said that the reason we --  40 remember he was talking about paying in all this money  41 at the feast, and he says that for each feast he pays  42 in $3,000 approximately, and there is many --  43 THE COURT:  Total of 80,000 he said.  44 MS. MANDELL:  Sorry?  45 THE COURT:  Total of 80,000 he says from the House.  46 MS. MANDELL:  Puts in a lot of money.  And he says, "We do that  47 to protect our territories."  So what he is saying is 25320  Submissions by Ms. Mandell  1 that the House is there in its full strength, with its  2 territories behind them, and even if it's money today  3 that's being used and not food or hides from the  4 territory alone, within the system, the economy is  5 based on the fact that the Houses continue to  6 redistribute it at the feast and they do it according  7 to the way that the authority is managed to protect  8 their territories.  And that's what he was speaking  9 about.  It's not symbolic.  10 THE COURT:  Right.  Thank you.  11 MS. MANDELL:  The — actually, the next section, is to deal with  12 the accumulation in the House today of surplus for  13 feasting for use at the feast.  And this is on the  14 point of your lordship where you are asking, "Well,  15 are the territories today still used in the feast?"  16 And this is addressing the management of the  17 territories today, even in its present state, in order  18 to provide for the creation of surplus for Houses for  19 feasting.  20 And I begin with a reference to -- a partial  21 passage of Mary McKenzie which I am not going to read  22 to your lordship, but I refer you to.  What she is --  23 what she is talking about here and goes on further to  24 talk about is that a lot of food is provided to the  25 feast.  That the feast is feeding oftentimes five or  26 600 people, and she is describing that the food is  27 provided by the wil'na t'ahl and is primarily the  28 responsibility of the host house to accumulate.  And  29 while I don't set out the whole quote, I do identify  30 some of the very many types of resources which she  31 identifies is provided for by way of food at the  32 feast.  33 Now, many of the witnesses talked about their  34 harvesting resources from the feast -- for the feast.  35 And I think that the evidence here can generally be  36 summarized that there is two types of management  37 decisions which occur:  One is within the House  38 generally, there is a general putting away of  39 resources for the feast.  And this is without  40 reference to any particular feast, but there is an  41 overall management of the resources of the territory  42 for the purposes of accumulating resources for  43 distribution at the feast.  And the second is where  44 there is a specific feast in the future already  45 targeted for, there is harvesting which is done in a  46 more intensified way in order to provide for a  47 particular feast which is named at a date certain. 25321  Submissions by Ms. Mandell  1 And I'll deal first with the question of the general  2 harvesting over -- over time but without a date fixed  3 for a feast.  And again, I return to the example  4 provided by the House of Wah Tah K'eght, although  5 there were many others, and I just selected this one  6 to demonstrate the point.  7 Madeline Alfred testified that all animals that  8 Henry Alfred and others in the House harvest from the  9 territory, are bought to her house and she prepares  10 and stores the meat at her house:  11  12 they cook it and then small portions are given  13 to each one of the guests that's witnessing the  14 feast.  15  16 Henry Alfred testified to how, on a regular basis,  17 animals, fish and plants are harvested and the food is  18 distributed to meet the needs and feast obligations of  19 his House, whether or not a particular feast of the  20 clan is immediately forthcoming.  21 And I won't read you the quote, but that's what  22 he is talking about.  23 When Henry traps beaver, his mother does all the  24 skinning and prepares the meat for drying.  Henry  25 sells the fur to a fur buyer.  His mother prepares the  26 meat for distribution at the feast.  And Henry said:  27  28 One little square slice in little package and  29 distribute it throughout.  30  31 If we got beaver meat...it's always announced  32 where [the food] came from.  33  34 And that the big chiefs will receive a little more  35 than the other guests.  36 Now, if I could -- he then talks about several  37 feasts which he provided meat for, and I just wanted  38 to refer you to page 156 because it's really the  39 description of the point.  40 In describing the goat hunting trip with Daniel  41 Michell, Cecil Alfred, Henry's brother, and his oldest  42 son Lester Alfred, Henry said that the goats from that  43 particular hunting trip "ended up" at his older  44 brother Andrew's feast.  45 And I just wanted to make a point that I forgot to  46 mention to you this morning, that he was talking about  47 goat hunting -- and Exhibit 164 in the area marked 25322  Submissions by Ms. Mandell  1 "Goats" near the -- I'll just hold up the map and you  2 can see that it's at the section --  3 THE COURT:  Debenture Peak?  4 MS. MANDELL:  Debenture Creek, yes.  5 THE COURT:  Peak.  6 MS. MANDELL:  And I forgot to mention that we were told in  7 evidence that one of the largest goats in the world  8 was taken there in 1949.  It was the largest, sorry.  9 This was a little known fact about a well-known goat  10 hunting area.  I was told not to sit down today until  11 I told you that.  12 I wanted to make the point on page 156 that the  13 food which is harvested for feasts may also be used to  14 support the House members' obligations of feasts  15 hosted by other clans not just their own.  And Henry  16 Alfred testified that steelhead from Wah Tah K'eght's  17 territory had been distributed and announced at the  18 feast of Alec Tiljoe and Annie Michell, both from the  19 Tsayu clan, and this is a feast where he was helping  20 his wife's clan and he contributed fish to that feast.  21 At page 157, we set out some of the evidence to  22 demonstrate that in addition to their general  23 management responsibilities, many chiefs detailed  24 harvesting efforts directed to particular feasts.  25 The most common situation described was that of a  26 successor harvesting for feasts in connection with the  27 passing of a name.  And in describing a naming feast,  28 Johnny David said:  29  30 This person who is going to take over a name he  31 goes out to his hunting territory and a date is  32 set.  When the date is set he brings all the  33 animals that he has killed and this is  34 distributed at the feast.  35  36 And you'll recall Basil Michell who testified to  37 hunting on Hadah K'umah's territory for food when he  38 was getting his name.  And he stated in general:  39  40 between the funeral feast and the headstone  41 feast the people who are going to be taking the  42 name over have to begin trapping for beaver or  43 hunting for various game this meat can be  44 distributed at the feast.  As well they would  45 be buying other food stuff such as tea and  46 sugar.  47 25323  Submissions by Ms. Mandell  1 And he also said that the spouses will be  2 harvesting from their territories, and many of the  3 witnesses talked about this.  4 Henry Alfred said that during a time when he was  5 preparing to take his name:  6  7 that fall I did lots of hunting, beaver  8 trapping and get prepared for the feast.  9  10 And Dan Michell at page 159, testified that the  11 accumulating of food from the territory for  12 distribution at the feast is a feature of his  13 ownership and jurisdiction over the territory.  He  14 answered the question why Namox's territory belongs to  15 him:  16  17 well it's been handed down from generation to  18 generation.  Every time you know like another  19 head Chief passes on...the successor has to  20 bank up material and meat for the feast get  21 ready for the feast to take over the name.  22  23 He says, "It usually takes about three feasts before  24 it's completed."  And he is -- I am referring to the  25 smoke feast and the funeral feast and the headstone  26 feast, and then the feast eventually where the new  27 chief is finally seated.  28 The next section is the preparation and storage  29 of resources for the feast.  30 Today, as in the past, the animals, berries and  31 fish from the House territory are harvested for  32 distribution at the feasts.  Because the harvesting is  33 done to create a surplus which must be stored in  34 preparation for feasts, the Gitksan and Wet'suwet'en  35 have developed methods to preserve their foods to  36 ensure a ready supply of foods for distribution.  37 The chief is ultimately responsible to ensure that  38 the technologies for preserving foods are taught and  39 that his or her House members accumulate the food  40 required to fulfil the House's feast obligations.  41 Much knowledge and labour is required to prepare  42 foods for storage.  The chiefs testified to the  43 preparation required to preserve fish, meat, berries  44 and furs, but we don't say that.  45 My lord, I am not going to take you into, in  46 detail, for all of these various foods, a description  47 about how they are prepared in order to preserve them 25324  Submissions by Ms. Mandell  1 for storage.  Your lordship has heard much testimony  2 about this.  I want to, though, observe that the  3 techniques to do the food preparation and the  4 preparation of hides which are used at feasts are  5 passed from generation to generation, and that there  6 is in the passing of these techniques, a direct link  7 to the past with those who have been there before and  8 to those who are now living.  9 And I also wanted to emphasize that the varied  10 ways in which the food is prepared and the hides are  11 prepared, and the many intricate ways in which these  12 foods are prepared for storage reflect a deep and  13 dynamic interface between the people and the  14 resources.  And that it's not the kind of interface  15 which grows up over a very short period of time, it  16 reflects a very long history with the resources and a  17 deep commitment to the passing on of this knowledge  18 from generation to generation.  19 And what you saw, and I'll lead you to some of it,  20 not all of the evidence, is young people today being  21 taught the same techniques and preserving the food or  22 the hides in the same way as their ancestors clearly  23 had done before them.  And it's not something which  24 was done once and is now part of the oral history,  25 it's something which is continuing to live and  26 continuing to connect one generation to the other, and  27 to connect the people with the resources of the land.  28 Now, I do, though, want to stress that if we were  29 not dealing with a society that could and did  30 accumulate surplus, the whole feast economy would not  31 rest as it does on the redistribution of that surplus  32 at the feast.  And so the fact that the society is one  33 which can and does create surplus, is a fact of  34 management.  The teaching to create the surplus and  35 also the storage and the creation of the surplus goods  36 is something which the chiefs testified to that they  37 were responsible to teach and to do.  38 Now, the first area that I set out is on the  39 area -- is in the area of fish, and that's drying and  40 preparing the fish.  And I am not going to lead you  41 into it in detail because Mr. Grant, in dealing with  42 the area of the jurisdiction of the fisheries, will  43 likely touch upon some of this evidence.  But I do ask  44 you to read the section and, particularly, Alfred  45 Mitchell's description at page 161 of the process  46 where fish were dried and smoked.  47 And one of the factors of it that I wish to draw 25325  Submissions by Ms. Mandell  1 to your attention is the tremendous labour intensity  2 of both the women and the men in doing their roles to  3 get the fish and to dry it, keep the fire right and  4 then to cut the fish in its proper way to smoke it.  5 And I also wish to draw to your attention the  6 observations of Dr. Daly supported by the testimony of  7 Art Matthews from pages 162 to 164, where Dr. Daly was  8 observing the process of the preparation of fish at  9 Gwin'oop, a fish camp at the confluence of the Kispiox  10 River with the Skeena.  And between his observations  11 and that of Art Matthews, you will get a good sense of  12 the type of management activities which occur in order  13 to hang the lots of forty fish which are hung to dry,  14 and the particular identification of the fish as  15 belonging to each House.  16 And if I could, on that last point, draw to your  17 attention, the quote by Art Matthews on page 162.  He  18 is testifying to the fact that once the fish have been  19 dressed and hung and put in the smokehouse, that they  20 are marked.  He says:  21  22 Each House have a distinctive mark -- making  23 the way it is filleted for identification to  24 know where it came from.  This is a strict law  25 in our House where I know it's done.  My mother  26 cut half the fillet and cut two lines this way  27 across the fish.  If that was the head and that  28 was the tail, when they fillet, they cut two  29 slots across like this...And when my wife, I  30 remember I told her -- she was from Kitkatla.  31 She makes two other lines here and I tried to  32 tell her do it this way and she said no, it is  33 my fish, I'll do it the way as my mother taught  34 me as our own distinctive sign.  So each House  35 has its own distinctive sign, identification  36 from where these fish come from.  37  38 And the reason I draw that to your attention is  39 to re-emphasize the point that the identification of  40 the fish allows the House chief to know where the fish  41 are caught and this is announced at the feast when the  42 fish are contributed.  43 Now, on the -- on page 165, we draw to your  44 lordship's attention the fact that storage -- and we  45 say for feasts, has been going on for a very, very  4 6 long time among the Gitksan and the Wet'suwet'en.  47 Sylvia Albright gave evidence of the existence of 25326  Submissions by Ms. Mandell  1 fish storage pits.  She mapped 233 storage pits  2 upstream from Kisgagas village on the north bank of  3 the Babine River.  She also identified a large number  4 of storage pits at Doreen, along the Skeena River near  5 the old village at Gitank'aat.  6 One of the storage pit sites, the one at Kitselas  7 Canyon, just outside the territory downstream on the  8 Skeena to the west, archaeological research shows to  9 have been occupied for at least 5,000 years.  10 Now, your lordship will recall that at all  11 feasts, but particularly the Wet'suwet'en feasts,  12 there is -- where in the Wet'suwet'en feast this is an  13 actual part of the feast procedure which requires the  14 berries be distributed -- that berries are  15 distributed.  That was a very bad sentence.  16 The process to dry berries is very labour  17 intensive, and the organization and production of  18 berries requires management and co-operation of the  19 House and its members.  And you will recall our  20 discussion earlier today about the ladies in  21 Tenimgyet's House that would burn the berry batches to  22 get them to be the right texture and taste.  23 I just like you -- to remind you of Exhibit 210.  24 I've asked Madam Registrar to pull it.  25 THE COURT:  Tab number?  26 MS. MANDELL:  210.  I think it's tab 6.  27 THE COURT:  I see, yes.  They are all separate exhibits, I see.  28 THE REGISTRAR:  Tab 10.  29 MS. MANDELL:  Yes, you have got a picture there of the late  30 Sylvester Williams and his wife Lucy?  31 THE COURT:  Yes.  32 MS. MANDELL:  And this is taken four or five years ago and they  33 are just blowing the leaves and cleaning the berries.  34 And I just wanted to remind you of the tremendous  35 amount of labour it takes to fill up a pail of  36 berries.  37 Olive Ryan testified how the berries were dried,  38 as she has done it herself and observed the process in  39 her lifetime using berries from Hanamuxw's House.  And  40 again, I am not going to lead you into all of the  41 detail of it, but I would ask you to remind yourself  42 of it.  And it's at page 166 and it involves a very  43 complicated and time-consuming process of properly  44 cleaning the rocks and creating the fire and laying  45 the mats out to cover the berries and saving the juice  46 and harvesting skunk cabbage which is required for the  47 layers, and then rolling the berries up properly in 25327  Submissions by Ms. Mandell  1 birch bark and rubbing them and drying them and  2 packing them and eventually putting them in boxes.  3 And this is part of what is required in order to store  4 the berries for the purposes of feasting, and you  5 heard earlier, for trade.  6 And I won't refer to any of the other evidence in  7 this respect, but I would ask you to yourself read it.  8 On the question of hides and feasts, I've already  9 directed to your lordship's attention the fact that in  10 the past tanned skins of animals were used.  And that  11 while this is not now used -- while they are not now  12 used today for money, they're still distributed at the  13 feast and used in the handicrafts which are part of  14 the wealth of the House which is distributed.  15 And you will recall Exhibit 66, which was a  16 photograph of Mr. Joseph holding up the type of  17 mooseskin which he referred to in his evidence as  18 being used in the feast.  And you will also recall the  19 evidence of Dora Wilson-Kenni who testified to the  20 gift of a vest made from moose hide to Stanley  21 Williams in appreciation for his assistance in  22 providing fish to the families.  This was one example  23 of the very many which could be referred to as to the  24 use of hides at the feast.  25 And a number of witnesses described how to create  26 the hides for marten, lynx or beaver, and I won't take  27 you into all of that, but I would ask you to turn to  28 page 171 and to also have reference to Exhibit 320.  29 THE COURT:  What is it, please?  30 MS. MANDELL:  It's the famous five photographs of moose being --  31 moose hide being prepared that Dora Wilson-Kenni  32 introduced  33 THE REGISTRAR:  Is that 483?  34 MS. MANDELL:  320.  35 THE COURT:  Exhibit 320?  36 MS. MANDELL:  I reviewed -- they were in court earlier this  37 morning.  I am going to use words where a picture  38 would do.  39 THE COURT:  It's in one of the books of photographs?  4 0 MS. MANDELL:  I just saw it a moment ago.  41 THE COURT:  Go ahead.  42 MS. MANDELL:  We can just carry on.  43 THE COURT:  Yes.  Thank you.  44 MS. MANDELL:  I — the photographs would have helped illustrate  45 the intensive amount of work and effort, and also  46 community work and effort in preparing the moose hide.  47 And I am not going to take you through Mrs. 2532?  Submissions by Ms. Mandell  1 Wilson-Kenni's description in detail, but you will  2 recall that she moved you through the photographs and  3 showed how the hide is first scraped and then greased  4 and then the grease worked into the hide.  It's washed  5 and then there is that community process of it being  6 twisted to wring out the water.  And then the  7 softening process which takes quite a long time.  And  8 then finally the smoking of the hide.  And it's  9 actually a very a good description of how long it  10 takes and how much value there is in the moose hide,  11 as it then is distributed at the feast and it  12 represents the labour of the household as it was put  13 into making the hide happen.  14 THE COURT:  Yes, we have it.  15 MS. MANDELL:  Okay.  I'll just give you a minute to review the  16 photographs.  17 THE COURT:  Yes, I remember them now.  18 MS. MANDELL:  Right.  And my lord, if I could remind you, we  19 haven't been able to find this Exhibit unfortunately,  20 but I did want you to see it and perhaps you still  21 will have an opportunity before the day is over to  22 look at Exhibit 479 to 483.  23 THE REGISTRAR:  I have those.  24 MS. MANDELL:  Oh, you have it now.  25 THE REGISTRAR:  Yes.  26 MS. MANDELL:  These are, if you will recall, the photographs  27 which were put into evidence by Pete Muldoe who was  28 describing how he stretches marten on Delgamuukw,  29 Kwinageese territory.  And the photographs were  30 describing -- he was showing how:  31  32 If you got a big animal you got to have a big  33 stretcher.  Like fox, coyote, lynx or anything  34 like that.  Wolf, wolverine.  It all depends on  35 the size of an animal.  You got to make a  36 bigger stretcher for each one of them.  37  38 ...on a stretcher you turn the hide on the  39 outside, the fur is against the wood.  40  41 And then he showed photographs of his grandsons on  42 the territory taken in 1988 where he was skinning a  43 marten and his grandsons were learning how to do it.  44 And then a photograph of his grandsons on the  45 territory, the oldest one was stretching a marten, and  46 Pete said:  47 25329  Submissions by Ms. Mandell  1 "Oh, they were catching -- they set a few traps  2 and they catch a marten of their own.  3 ...Well, they learned from me by showing them  4 what to do and how to skin a marten and  5 Irvin -- they can skin a marten and they can  6 stretch a marten.  And even now he can skin a  7 beaver and he shoots a few beaver, too.  8  9 And the last two photographs, one was a photograph  10 showing his grandsons holding marten which the two  11 young boys had caught on Delgamuukw's territory at  12 Kwinageese.  And the two photographs, Pete said in  13 identifying the photograph:  14  15 ...they were catching these marten by  16 themselves.  17  18 And finally, the last photograph was a photograph  19 of fresh marten caught during the trip to the  20 territory in 1988 by Pete and his grandson, and he  21 identified them.  And I'm reading at page 175-176,  22 which review the sequence.  23 And the main points to take, we submit, from the  24 photographs, are both the hard work and also the  25 passing on of the oral tradition as to how to do that.  26 Very recently by Pete to his grandchildren in  27 territories to which they have rights of access.  28 Now, I would like to address you with respect to  29 other resources from the territory, which are  30 distributed at the feast.  And in part --  31 THE COURT:  Where are you now?  32 MS. MANDELL:  At page 177.  33 THE COURT:  Yes, thank you.  34 MS. MANDELL:  This is the distributing of wealth from the  35 territory which is developed by the labour power of  36 the House, and this is wealth circulated at the feast.  37 And this can apply to special resources from the  38 territory.  And Mary McKenzie testified that there is  39 a place on Gyolugyet's territory where the Gitksan  40 obtain red dye.  And this dye is used by the carvers  41 on their totem poles.  42 And the red dye from her territory is used by the  43 Halayt as dye for painting their faces.  44 Mary McKenzie's grandmother gave permission for  45 people to get this red dye from her territory.  In  46 return, her grandmother was gifted in the feast as  47 payment for the red dye. 25330  Submissions by Ms. Mandell  1 And the distribution at the feast includes wealth  2 generated by new economic opportunities.  When Mary  3 McKenzie was small she remembered that the people of  4 Gitanmaax and Kispiox had cattle, some of which they  5 slaughtered for the feasts.  And you will recall her  6 testimony that at Kwamoon's feast in 1942, which is  7 where she took her name, her grandmother who had a  8 herd of cattle, killed three of her cows to use at the  9 feast, and every chief would have a portion of the  10 meat.  11 And finally, I would like to address the  12 management and harvesting of the resources to feed the  13 kinship relations.  And this is outside the feast  14 hall, but as you will see, it also reflects upon the  15 relationships which are important to the proper  16 operation of the collective authority of the chiefs at  17 the feast.  18 Now, you've heard earlier, in describing the  19 first laws of goat hunting by Art Matthews, that when  20 he described the last law, the seventh and last law,  21 he said that the food is divided and he spoke about  22 taking it to the elders and sharing it equally among  23 the hunters.  He also testified to the distribution of  24 all foods from the territory, and he explained that  25 it's done according to kinship relationships.  And he  26 explained how he distributed a large number of goats  27 caught on a hunting trip in the Wilson Creek territory  28 in 1986.  And he said:  29  30 A After we get back to the village of  31 Gitwingax, we would then share it with  32 the elders that cannot get around, that  33 stays home, that have no access.  Then  34 the sharing would take place.  35  36 First he says:  37  38 A And some of these would go to my  39 mother's side.  Her wilxsileks on her  40 side goes to Gitsegukla.  41  42 And he says later:  43  44 A We would do this and so would all the  45 other hunters that came.  I believe when  46 Phillip came with us he would share it  47 with his dad, George Daniels.  Holds the 25331  Submissions by Ms. Mandell  1 name Gasx.  2  3 So he says it goes to first of all to his mother's  4 side then it goes to his father's side.  And then he  5 says in the bottom -- in the middle of page 180 that  6 he gave meat to Fred Johnson and that he is the 'nii  7 dil, the first speaker of the feast.  And you know  8 what the 'nii dil is?  9 THE COURT:  Yes.  The other side.  10    MS. MANDELL:  That's right.  The infamous other side.  11  12 A  This is what we call in our language  13 sharing... and that all that means is  14 sharing, helping each other, helping.  15 That's the very rule, the very existence  16 of Gitksans, are helping each other.  17  18 And then he says:  19  20 A  It depends on how much we got, then we  21 would give more to more elders.  But  22 these are two incidents I can remember  2 3 now.  24  25 And the major point that I wanted here to stress  26 is that the distribution of the wealth of the  27 territory among the House members is not random, that  28 it's done according to kinship relations and that the  29 kinship relationships first are based on a respect for  30 the elders and then after that, the mother's side who,  31 as your lordship will recall, will have rights to the  32 territory, the father's side, and then the 'nii dil  33 who will have a very influential role to play both in  34 the feast and will have access to the territory.  35 Now, my lord, I haven't written out what I now  36 want to say to you, but --  37 THE COURT:  I think we will take the adjournment now.  38 THE REGISTRAR:  Order in court.  Court stands adjourned.  39  40  41  42  43  44  45  46  47 25332  Submissions by Ms. Mandell  1  2 (PROCEEDINGS ADJOURNED AT 3:25 P.M.)  3  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein transcribed to the  8 best of my skill and ability.  9  10  11  12    13 Toni Kerekes, O.R.  14 United Reporting Service Ltd.  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 25333  Submissions by Ms. Mandell  1 (PROCEEDINGS RESUMED AT 3:35 P.M.)  2  3 MS. MANDELL:  My lord, I was corrected at the break by many of  4 the people who said that there certainly wasn't much  5 surplus for feasts, although people do feast with  6 their surplus.  7 I wanted to summarize the conflict which emerges as  8 a result of the evidence presented by the way that the  9 chiefs hunt and manage and conserve, harvest, manage  10 and conserve their territories, as it can be seen  11 factually against the regime of the province.  And I  12 might here advise your lordship that the issue of the  13 operational conflict between the provincial laws will  14 be dealt with later in the argument but because the  15 facts are close at hand I wanted to summarize some of  16 the places where I hope it will be obvious to you that  17 regardless of who owns the territory, regardless of  18 who owns the animals or regardless of whose basic  19 right to the land we are speaking about, on the issue  20 of jurisdiction there is a conflict between the  21 jurisdiction exercised by the chiefs in the area and  22 that by the province.  And if I could just run through  23 some of the places which, in our submission, we say it  24 emerged today, based on the discussion, the first area  25 is on the question of the power or the jurisdiction to  26 harvest, manage and conserve the resources.  27 And your lordship will recall the evidence that the  28 chiefs were passed that jurisdiction or power, as part  29 of the daxgyet when they succeeded to a chiefly name.  30 And as contrasted to the fact that under the  31 jurisdiction exercised by the province, it, the  32 province, assumes jurisdiction in respect of this  33 area.  34 Now, the chiefs testified that in the exercise of  35 their laws involving hunting, and I particularly will  36 here refer you to the law which involves the  37 traplines, where the traplines are rotated and the  38 chiefs are -- decide who is going to go out to the  39 lines and where they are going to go and when, that  40 that requires specialized knowledge and detailed  41 knowledge on the part of the chiefs as to who is in  42 the area, what they are trapping, when and where.  And  43 it's on that basis that the chiefs can make informed  44 decisions about the animals which they are mandated to  45 protect, their life cycle, the life cycle of the  46 animals for the next generation.  And I also refer to  47 you at this point the specialized knowledge and 25334  Submissions by Ms. Mandell  1 training which somebody like James Morrison or Alfred  2 Mitchell brings to the hunting, so that once they are  3 sent out by the house chief to actually do the hunting  4 and trapping, they bring to bear a tremendous amount  5 of knowledge about the animal population and the  6 harvesting, which isn't possible from the territory,  7 in order to hunt and trapping selectively.  And I put  8 that against the regime of the province, where  9 basically anybody with $5 can go and get a permit and  10 go and hunt and trap animals in the territories of the  11 chiefs, and it leaves the chiefs' management regime  12 out of control, because they, the chiefs, have no way  13 of knowing who is taking what animal, when and where,  14 and it's also disruptive to the harvesting practices  15 which, from the chiefs point of view require a much  16 more precise and refined training and instead you have  17 untrained people out in the bush and as many of the  18 witnesses testified to, "we just don't go out when  19 there is open season", because it's not, from their  20 point of view, a safe time to hunt and trap in the  21 area.  22 MR. GOLDIE:  My friend said she was talking about hunting and  23 trapping, I assume she is now referring to hunting.  I  24 don't think people can get a licence to go out and  25 trap wherever they feel like it.  I take it from the  26 description she has just given us that she is  27 describing a provincial regime with respect to  28 hunting?  2 9    THE COURT:  I thought you were talking about trapping when you  30 said the $5 fee, and you get a permit to trap wherever  31 you want.  But now you have added hunting.  32 MS. MANDELL:  I thank my friend and I can make it clear and  33 avoid ambiguity.  With respect to the $5 fee, maybe  34 it's gone up, but it's approximately $5, that is with  35 respect to hunting.  It's a fee which will authorize,  36 it's a system which authorizes non-Indian users into  37 the area by complying with the permit system of the  38 province.  39 THE COURT:  Is there any evidence of this?  40 MS. MANDELL:  We will refer you to the acts when we talk about  41 the operational conflict.  42 THE COURT:  Well, there is a theoretical conflict, clearly, but  43 the evidence is that there is more game now or almost  44 as much game now as there ever was.  45 MS. MANDELL:  There is evidence, and we can certainly draw it to  46 your lordship's attention, of the chiefs stating that  47 they -- they can't continue to hunt and to manage 25335  Submissions by Ms. Mandell  1 their territories as they formerly were able to and  2 would continue to like to be able to, because of the  3 inundation of sports hunters inside their territory.  4 And that evidence is manifest throughout.  5 THE COURT:  There is a lot of evidence of inconvenience or  6 irritation or frustration or annoyance, and a sense of  7 loss, but there isn't any evidence that I can recall  8 that the resource is any less than it ever was, except  9 for timber.  10 MS. MANDELL:  Well, we are not -- there is two points to be made  11 about that, we are not talking only about a depletion  12 of resources, we are talking at that point about a  13 depletion of access to resources which the chiefs  14 otherwise would have.  And this afternoon you have  15 seen the testimony of Mary McKenzie, who said there  16 was a major shift in the procedure of the feast as a  17 result of the constrained access which the chiefs have  18 to the resources under the provincial regime.  But the  19 point which I intended to first make was that the  20 management regime of the chiefs, as you heard it  21 testified to, requires a much greater control over the  22 knowledge of who is out there and who is doing what.  23 And it's that lack of control which has been  24 introduced as a result of the access granted to  25 outsiders without reference to the chiefs.  26 THE COURT:  Ms. Mandell, what is the point of this?  Because if  27 you succeed in your action, you regain the control you  28 say you're complaining about.  If you don't succeed in  29 your action, you don't.  What is the advantage of  30 comparing the two regimes?  They are competing,  31 clearly, and that's a live issue between yourself and  32 the province.  So I am not able to put a legal handle  33 on what you're telling me.  34 MS. MANDELL:  Well, I still don't know whether or not we have  35 persuaded your lordship that there is an area of  36 jurisdiction to harvest, manage and conserve the  37 resource, which may -- especially migratory and  38 renewalable resources -- which may become included  39 should there be a finding of ownership or whether or  40 not the chiefs may, according to law, may end up with  41 ownership to the territory based upon aboriginal  42 rights, but then still be subjected to the  43 jurisdiction or the management of the resources by the  44 province or elsewhere.  And it's that area that I am  45 addressing you.  46 THE COURT:  But surely you get your ownership rights, if any, by  47 history and by what you do, not by what someone else 25336  Submissions by Ms. Mandell  1 has done?  2 MS. MANDELL:  That's right.  3 THE COURT:  So what difference does it make what someone else  4 has done?  If you're right in your basic proposition,  5 well then the provincial Crown, if not a trespasser,  6 is at least breaching or disregarding your aboriginal  7 rights in what they do.  8 MS. MANDELL:  That's correct.  9 THE COURT:  So, I don't think you need to — I think the  10 evidence is pretty clear that the province has assumed  11 an active role in the management and use of the  12 territory.  You don't have to stress that.  I doubt  13 if -- your friend's whole alienation project proves  14 that for you.  So, what is the advantage of the  15 comparison you are giving me?  It wouldn't matter, it  16 seems to me, if your system was better or worse than  17 theirs.  18 MS. MANDELL:  It's not a debate about whose system is better or  19 worse.  20 THE COURT:  So what is the purpose of the comparative analysis  21 that you're now advancing?  22 MS. MANDELL:  Well, if your lordship is of the view that the  23 jurisdiction to harvest, manage and conserve the  24 resource is part and parcel of the incidence of  25 ownership, and that's what you're saying, then you're  26 right, there is no further purpose to the comparison.  27 But if at this point you're not of that view and that  28 you are still of the view that there may be an area of  29 jurisdiction which may remain to the province to  30 harvest, manage or conserve the resources, separate  31 from the question of ownership, and you wish to be --  32 we wish to persuade you that that jurisdiction is in  33 conflict with the jurisdiction exercised by the  34 chiefs, it's only on that point that the comparison is  35 now being addressed.  But if your lordship says that  36 that's unnecessary, then we needn't pursue it.  37 THE COURT:  I am not prepared to say anything is unnecessary  38 now, all I am prepared to do is ask you what does all  39 this mean?  And be assisted by your answer.  I don't  40 see it at the moment.  I think, although I speak  41 subject to correction, I think this subject of  42 jurisdiction is a ghost that's getting in our way  43 here.  Jurisdiction is the result or the conclusion of  44 what else happens.  But that may be too theoretical.  45 But I am looking for a way to -- where I am going to  46 slot this submission, and what I am going to do with  47 it, and what I am to conclude from it.  At the moment 25337  Submissions by Mr. Grant  1 I don't see it.  That's why I am raising it.  2 MS. MANDELL:  Well, my lord, in light of your comments, perhaps  3 the plaintiffs will get on with another aspect of  4 jurisdiction and will consider our position and to the  5 extent that it's necessary we will make this point at  6 a later date.  7 THE COURT:  Within the time that's available to you, I would be  8 glad to hear you at any time.  I should say, with  9 fairness, I have been giving some thought to the  10 scheduling problem we talked about yesterday, and in  11 view of the difficulty of dealing with this, I think  12 that the plaintiffs are going to have to be happy with  13 the extra six days they want the week after next.  It  14 will have to end at 4 o'clock on that Saturday  15 afternoon.  Seems to me the plaintiffs must be  16 finished then.  17 All right, who's next?  18 MS. MANDELL:  Mr. Grant.  19 MR. GRANT  2 0 THE COURT  21 THE COURT  22 MR. GRANT  If you give me a moment I will stand --  Yes.  Where does this go, Mr. Grant?  That would go at the end of the binder, my lord, the  23 binder on ownership and jurisdiction.  24 My lord, here I am going to review the ownership  25 of the fishery with respect to the Gitksan and  26 Wet'suwet'en, and the management or authority of that  27 fishery by the Gitksan and Wet'suwet'en chiefs.  28 I submit that the fishery resource is somewhat  29 unique or different than those other resources which  30 my colleague, Ms. Mandell, dealt with, because it's a  31 resource that of course is migratory within and  32 outside the territory.  That is the first point of  33 distinction.  The second point is that you have heard  34 a wealth of evidence from both the Gitksan and  35 Wet'suwet'en chiefs, from the anthropologists, even I  36 may say -- daresay -- Dr. Robinson conceded this, that  37 the importance and significance of the salmon resource  38 has a major impact on the type of society, and of  39 course Marshall Sallin's book, Tribesmen,  40 distinguishes the northwest coast as one of those few  41 "hunting" societies, which has got tribal components  42 because of a stable resource, and in this case it's  43 the salmon fishery.  44 As I say to start, the salmon resource is one of  45 the most important resources for the Gitksan and  46 Wet'suwet'en.  It's shown in the historical record,  47 and I refer you to Brown, Harmon and Connolly, and the 2533?  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  MS.  MR. GRANT  MR.  THE  use of the management and management of the fishery  itself.  Mr. Morrell mapped this resource on Exhibit  358-20 and 358-23, and his mapping demonstrates the  predominant place of salmon in the territory.  COURT:  I doubt if that's really in dispute, Mr. Grant.  GOLDIE:  I would be delighted to agree that salmon is an  important part of the resource of the Gitksan and  Wet'suwet'en.  KOENIGSBERG:  Not only is there no disagreement, I am sure  there has been mutual evidence on this, and I have  just, in case I might have missed something on the  days I didn't happen to be here, if this is a  submission that is asserting the ownership and  jurisdiction of the fishery under the jurisdiction of  the federal government, then I came into the wrong  courtroom, because I didn't think that was an issue in  this one.  The federal government does not own the fishery in  this province, and that's been settled by the Privy  Council.  So my friend is mixing apples and oranges  there.  This is a lawsuit against the province over  the ownership of the fishery and it's also a component  of the fishery of the Gitksan and Wet'suwet'en how  they, that is the Gitksan and Wet'suwet'en, manage the  fishery.  We have already gone through the debate.  I think you can proceed on the assumption that  everyone agrees that salmon is an important resource  within the claimed territories.  Thank you.  I shouldn't say I think, I know you can proceed on  that assumption.  I have referred you -- and Exhibit 358-20 and 23  are -- the large maps are there as well, I have  referred you to Mr. Morrell's explanation of Exhibit  358-20, in which he demonstrates the significance of  the salmon resource.  And I would like to show you  that because I think it's the reflection of the  different species with respect -- within the  territory, is relevant, and you may recall this map  and that the large scale, the two graphs are the pink  salmon, refer to the pink salmon, the sockeye is the  dark brown areas and then when -- of course when you  move up into the Skeena area, Upper Skeena area I  should say, the watershed, the sockeye is a very  predominant species, and there is the enhanced sockeye  from the Babine, and then the graph demonstrates the  chum, which are very, very small, relatively speaking,  THE COURT  GRANT  COURT  MR. GRANT 25339  Submissions by Mr. Grant  1 there, and you also have the chinook or spring salmon,  2 which is a very significant species for the Gitksan  3 and Wet'suwet'en, and then you have the coho.  And  4 that -- this pie chart map depicts the relative  5 allocation of the resource within the territory and  6 the significance of it.  7 The bottom of the first page, my lord, I have  8 quoted from Mr. Morrell, in which he reflects on those  9 and describes, better than I can, what they symbolize.  10 He says:  11  12 "Within any one segment of the pie chart the  13 more darkly shaded section indicates actual  14 escapments, the average escapment during the  15 period 1980 to 1986, and according to data that  16 were available to me.  The more lightly shaded  17 area represents target escapment.  Those terms  18 are defined just to the left of the pie diagram  19 in the legend section."  20  21  22 Now, what's significant with respect to the Gitksan  23 and Wet'suwet'en territory, the Skeena-Bulkley-Babine,  24 is that you see the actual escapment of sockeye is  25 much larger than the light red line which you  26 probably -- you can hardly see it from this  27 distance -- which shows the target escapment.  It's  28 1.17 million over 944,000, is the target escapment in  29 the average of those years.  Of course that's because  30 of the enhanced sockeye on the Babine runs.  31 Now -- and I refer to that and the numbers, and Mr.  32 Morrell's explanation to your lordship of those  33 numbers on that chart on page 2 of my argument.  34 Now, I would just like to say, my lord, that -- and  35 I don't need to refer to that, I have referred to the  36 example of the upper Skeena pie chart or Mr. Morrell  37 did.  On page 3, I think that the quote should be:  38 "There are situations like sockeye in the Upper Skeena  39 area when you aggregate..."  That should be aggregate,  40 not aggravate.  41 THE COURT:  Are you sure?  42 MR. GRANT:  I am sure Ms. Koenigsberg will agree with me on  43 that.  44 MS. KOENIGSBERG:  Depends who we are talking about.  45 MR. GRANT:  A-G-G-R-E-G-A-T-E.  And all the stocks in the system  46 like the actual escapment exceeds the target.  Now,  47 the Gitksan and Wet'suwet'en houses own specific 25340  Submissions by Mr. Grant  1 fishing sites, and I am going to come back to these,  2 and unfortunately there is not a large exhibit map of  3 that.  I will return to that later.  But the location  4 of the site is dependent on the history of the  5 specific site.  Each of the chiefs has demonstrated  6 that they have a system of ownership and a system of  7 harvesting management, and utilization of fisheries in  8 the territory.  Because the salmon are a moveable  9 resource, the chiefs' exercise of authority over the  10 fishery is more complex than it is over other  11 resources.  12 I would like to briefly refer to the relationship  13 of the history of the fishery and the history of the  14 people.  And, of course, you have heard the argument  15 and evidence of the history of the people.  The  16 history of the fishery, and the fact that specific  17 houses own specific fishing sites is directly  18 connected to the adaawk and the Kungax.  An example of  19 this is the fishing site at Ankii iss, which is  20 described as belonging to the Eagle Clan by several  21 witnesses.  Nevertheless, this was a joint fishery of  22 the Eagles and Wolves at Gitwangak.  This fishing site  23 connects to the history of the migration of the Eagles  24 and the Wolves upstream toward Gitwangak from their  25 former location.  My lord -- and Mr. Matthews  26 described that.  27 I should just give you some other examples.  For  28 example, the fishing site of Wiigyet, across from  29 Kitsegukla on the Skeena River is a fishing site given  30 by Gwis Gyen, Stanley Williams' grandfather, and it  31 was described in evidence and it's shown on the map.  32 Similarly, you the same situation with respect to  33 Wet'suwet'en fishing sites.  Of course the  34 Wet'suwet'en lake fishing sites, as I will come back  35 to, are within the territories of the houses, unlike  36 their river sites in the canyons.  37 Now, with respect to the ownership and authority  38 over the sites, Mr. Morrell, after seven, eight years  39 of work on the Upper Skeena analyzing the fishery and  40 the fishery resources, concluded that:  41 "It was striking that the fishing was widely  42 distributed throughout the system and that  43 particular people fished at particular sites.  44 And in conversation with those people, I  45 learned that there was a reason for that  46 distribution and I learned about the system of  47 site ownership." 25341  Submissions by Mr. Grant  1 Now, this system of ownership, my lord, of  2 specific sites has been described in evidence at  3 length by Mrs. Olive Ryan, who described all of the  4 Kitsegukla and many of the Gitwangak sites; Martha  5 Brown, who described a number of the Kispiox River  6 sites; Madeline Alfred, who described the fishing  7 sites in the Moricetown Canyon as well as on their  8 territory; Johnny David, who described  Moricetown  9 fishing sites;  Stanley Williams, who described the  10 Gitwangak sites; and Florence Hall, who described  11 sites on her territory as well as at the canyon.  And  12 I should add, my lord, Walter Wilson senior who  13 described the Bulkley River sites and some -- and the  14 four mile canyon sites on the Skeena.  I should say  15 the Lower Bulkley River.  16 The fishing sites maps, my lord, specifically show  17 specifically designated house-owned sites.  Exhibit 8  18 shows the fishing sites at Kuldo; Exhibit 29-5 maps  19 the Kitsegukla fishing sites; Exhibit 31 maps the  20 Kitwanga fishing sites; and of course Exhibit 358-22  21 maps a large number of fishing sites throughout the  22 territory, and replicates the first three in part.  I  23 shall -- I don't want to deal with these sites now,  24 because I would like to refer to them in a broader  25 context, and I am going to return to the fishing sites  26 specifically.  As has already been described, there  27 was substantial evidentiary reflected, ultimately  28 reflected in Exhibit 358-2.  29 Now, I now refer to the boundaries on the bottom  30 of page five, and Tenimgyet in his evidence explained  31 the boundaries, and I have already referred you to  32 that, with respect to the fishing site going to the  33 middle of the river.  On page six, though, I was  34 talking about the boundaries of territories and on  35 page six at the top I referred to Mr. Mathews, where  36 he explained that where a house owns a fishing site,  37 but another house owns the territory surrounding that  38 fishing site, the ownership of the site is more  39 distinctive:  40  41 "Our rights only includes these fishing sites,  42 but does not go over the bank.  It belongs to  43 somebody else.  Just our sites I have mentioned  44 belongs to us."  45  46 THE COURT: Mr. Grant, what are you saying in this regard, that  47 the plaintiffs are alleging ownership of sites and 25342  Submissions by Mr. Grant  1  2  MR.  GRANT  3  4  5  6  THE  COURT  7  8  9  10  11  12  MR.  GRANT  13  14  15  16  THE  COURT  17  MR.  GRANT  18  19  20  21  THE  COURT  22  23  MR.  GRANT  24  25  26  THE  COURT  27  28  29  30  31  32  33  MR.  GRANT  34  35  36  THE  COURT  37  38  39  40  MR.  GRANT  41  42  THE  COURT  43  MR.  GRANT  44  45  46  47  THE  COURT  should have a declaration, title to that site?  :  The aboriginal rights of the plaintiffs includes the  right of ownership and authority over their fishery.  And that encompasses the fishery within the boundaries  of the territory.  :  But is that a small enclave of real property?  Or is  it some kind of a licence that you seek from the  owner?  Or do you say you get it in fee simple?  Or  what do you say?  What judgment do you want the court  to pronounce with respect to those fishing sites with  respect to which you succeed in this action?  :  Well, with respect to those sites, my lord, I say  that the cumulative, the cumulation of those sites is  that the Gitksan plaintiffs together have ownership  over the fishing sites within their territory.  :  Of the real property?  :  They have ownership of the place, yes, and they have  ownership of the fishery.  And I think it's in  Saanichton Marina, if I recall rightly, that fishery  is a place as well as a right.  :  That was the construction of a treaty though.  That's a site-specific position.  :  Yes, yes, it's construction of a treaty but, my  lord, in terms of analyzing what a fishery is, the  court found that it was a place as well as a right.  :  Well, I don't have, and I don't want to delay you  and I don't have any trouble with -- well, I do have  some trouble with the real estate because there is no  definition of it.  And I am not sure what you're  suggesting the judgment of the court should be with  respect to that.  I will be glad to wait for your  submission on the fishery aspect of it.  :  Well, I am going to, and I cross-referenced the map  to the evidence to establish the sites for your  lordship.  :  But I don't know whether the sites are an acre, a  half acre, hectare, 20 hectares, I don't know what the  dimensions of these sites are alleged to be.  The  location is made clear by many maps.  :  Right, right.  I am just going to maybe help you  with that.  :  Are they all a uniform size?  I doubt it.  :  No, they are not all a uniform size.  But I hope I  can redirect the focus of your question.  What I say,  my lord, is from here on the Skeena, up to the  headwaters --  :  From the southern boundary of the westerly bulge, 25343  Submissions by Mr. Grant  1  2  MR.  GRANT  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  THE  COURT  20  21  MR.  GRANT  22  THE  COURT  23  24  25  26  27  MR.  GRANT  28  29  THE  COURT  30  31  32  33  MR.  GRANT  34  35  36  THE  COURT  37  MR.  GRANT  38  39  40  THE  COURT  41  42  MR.  GRANT  43  44  45  46  47  THE  COURT  yes, on the Skeena.  :  To the headwaters of the Skeena.  And with respect  to the Wet'suwet'en, from the territory, the boundary  between Djogaslee and Wah Tah Keg'ht, just south of  Beaumont on the Bulkley-Morice system, the Gitksan  chiefs collectively have a right of ownership over the  entire fishery within that territory.  I mean, we have  not -- we have not put a metes and bounds, it was a  dismal effort was made in 1912 to '16 to do that kind  of thing.  It's inappropriate to put a metes and  bounds on the fishery.  In fact, my lord, as I will  come back to later in argument, it's now said that  the -- the federal government says that they never did  protect the fishery.  But in any event -- even on the  reserves -- but in any event, what we say is that the  ownership of the fish, which is within the province  constitutionally, within that territory is part of the  rights of the Gitksan and Wet'suwet'en.  :  I understand you are saying that with respect to the  fish, but what about the sites?  :  As to the house ownership of the sites?  :  Yes.  Or the chief or house ownership of the sites,  yes, what are you asking by way of -- let's postulate  that you fail in this section in every respect but  fishing sites, what judgment would you expect from the  court with respect to the fishing sites?  :  I would ask for a declaration that those sites  depicted on Exhibit 358-22 belong to those houses.  :  What are the dimensions of them or the size?  Are  you asking for a reference to the Registrar?  I have  threatened to do that with respect to the whole case  from time to time.  :  I think one of the things we have asked is or ask  that your lordship keep continuing jurisdiction if  there is problems between the parties for defining it.  :  There is no evidence as to the size of these sites.  :  Yes, there is, I would say.  There is evidence of  the size but not in a metes and bounds, within the  term of an order of metes and bounds.  :  Nothing that would satisfy a surveyor or  conveyencer.  :  I dare say, my lord, that many of these sites, the  evidence of Mr. George and the evidence of Mr.  Morrell, as to the recording of these sites does  depict them fairly accurately with respect to some of  those components.  :  As to location but not as to size. 25344  Submissions by Mr. Grant  1  MR.  GRANT  2  3  4  5  6  7  8  9  THE  COURT  10  11  12  13  14  15  16  17  MR.  GRANT  18  19  20  21  22  23  24  25  26  THE  COURT  27  28  29  MR.  GRANT  30  31  32  33  34  35  36  37  THE  COURT  38  39  40  41  MR.  GRANT  42  THE  COURT  43  MR.  GRANT  44  45  THE  COURT  46  MR.  GRANT  47  Not as to size of the site.  And some sites are a  bay and some sites are a point.  Particularly, of  course, in the canyon.  There's a perfect example.  That's why I say the collective jurisdiction, the  collective ownership of the Wet'suwet'en chiefs to the  Moricetown Canyon is an example.  The Wet'suwet'en  chiefs, the Wet'suwet'en chiefs have delineated the  sites within the Moricetown Canyon.  At great and painstaking length, Mr. Joseph and  Madeline Alfred and others, Henry Alfred, pointed out  what appeared to me to be no more than standing room  locations on the Moricetown Canyon, where they said  "that is our spot."  And I am left uncertain as to  whether it's the space a man can -- a person can stand  on, or whether it's surrounded by some -- it's an  enclave or it's some larger area.  I don't know.  Well, the canyon sites, I mean what you have, of  course, especially such a wealthy site as Moricetown  Canyon, you have a situation there where I say that  that's where we are seeking a declaration that the  Wet'suwet'en together, the Wet'suwet'en chiefs  together, own and exercise authority over that  fishery.  Because otherwise, because the terms of the  order I would be seeking are not that you delineate  each and every point.  I don't think any witness said that he or any chief  claimed or any combination of chiefs claimed the whole  of the Moricetown Canyon.  No.  But what I am saying to you, my lord, is there  are individual sites belong to chiefs.  You see, what  you're coming up with, and I know you don't like the  terminology, but what you're coming up with is the  very concept of the authority of the system of  authority that Ms. Mandell and Mr. Jackson and myself  have been raising with you under the heading of  jurisdiction.  You have been arguing it but all through the  evidence I was led to understand that these were  specific locations which had distinctive names and  were pinpointed on maps.  Yes, that's right.  But not the whole bank.  Well, at Moricetown Canyon there is no space left  except where the fish ladders are.  There is no evidence with regard to that, Mr. Grant.  I will refer you to the map, and I think I can  substantiate that. 25345  Submissions by Mr. Grant  1 MS. KOENIGSBERG:  I wonder if I could just rise in this context,  2 Moricetown Canyon, as far as I know, was always in the  3 land claim, and are my friends now asking this court  4 to make a declaration as to ownership and authority?  5 And if we don't want to worry about authority for the  6 moment, ownership of the fishery within the reserve.  7 Because if that's so, then, in my submission, that's  8 new and it's it not before this court.  9 MR. GRANT:  Well, my friends — I won't say the words.  They go  10 one way and the other.  The federal government, my  11 lord, right now says that the Wet'suwet'en have no  12 fishery at Moricetown, that the ownership of that  13 river bed is in the hands of my learned friends' --  14 not my learned friends' hands, but clients of Mr.  15 Goldie, the provincial defendant.  16 THE COURT:  I don't recall hearing anyone say that.  17 MR. GRANT:  They are before another court saying that.  They are  18 before another court, and I have alluded to that and  19 they are saying that -- they are arguing, they are  20 arguing, and they have made their position clear, that  21 the river bed at Moricetown belongs to the  22 provincial -- the province and that there is no --  23 there is no fishery at Moricetown that is within the  2 4 reserve.  And --  25 THE COURT:  Well, I can only deal with what happens in another  26 lawsuit in response to a specific plea of estoppel or  27 waiver or some recognized legal principle.  28 MR. GRANT:  Well —  29 THE COURT:  What they are saying, or admissions even, which  30 would require evidence, what a party is saying in  31 another lawsuit of which there is no evidence, is not  32 something that I can -- to which I can give any  33 cognizance.  But I am not worried now about the legal  34 question about the fishery, I am merely trying to get  35 a definition from you of what it is that I am  36 expected, in the view of the plaintiff, to do with  37 respect to your claim for fishing sites?  I think -- I  38 don't remember now how you pleaded it, but I think  39 they are pleaded by that name, are they not, fishing  40 sites?  41 MR. GRANT:  Fishery.  42 THE COURT:  Just fishery?  43 MR. GRANT:  As I recall.  I don't have the pleadings right in  44 front of me.  45 THE COURT:  Well, your evidence has all been with respect to  46 individually-named, specific locations which,  47 throughout the evidence, have been called fishing 25346  Submissions by Mr. Grant  1 sites.  2 MR. GRANT:  The evidence is certainly as to the specific fishing  3 sites.  The evidence of the specific fishing sites has  4 been led to demonstrate how the Gitksan, on the one  5 hand, and the Wet'suwet'en on the other hand, exercise  6 authority over the fishery.  What I say, my lord, is  7 that there is nowhere within the territory that the  8 Gitksan on the one hand and the Wet'suwet'en on the  9 other hand, do not have authority over the fishery.  10 THE COURT:  Well, if you're not asking me for a declaration of  11 ownership of fishing sites, then I don't have a  12 problem at the moment.  13 MR. GRANT:  I am asking for declaration of ownership of the  14 fishery.  15 THE COURT:  I don't need to worry about this problem of metes or  16 bounds or legal description or anything of that kind.  17 MR. GRANT:  I don't want you to be misled on the point, my lord,  18 I am not suggesting that the evidence of the fishing  19 sites is not important in terms of the ownership.  20 THE COURT:  I am not able at the moment to strike it out of the  21 record or anything like that.  22 MR. GRANT:  No.  23 THE COURT:  And I am not intended to do so.  I just want to have  24 an understanding of what it is I am being asked in  25 this case to decide, and this is the time that I  26 should find out these things.  And what you have told  27 me now is that I am going to be asked to make a  28 declaration regarding a fishery, and I am not being  29 asked to make a declaration of ownership with respect  30 to certain individually-named locations which have  31 been variously described as fishing sites.  32 MR. GRANT:  Well, you're being asked to make a declaration of  33 ownership of the entire fishery.  34 THE COURT: I can add to what I just stated, except to the extent  35 that the fishery includes fishing sites?  36 MR. GRANT:  Yes, and places.  And that, of course, is an  37 interesting -- an interest in the land.  I mean the  38 fisheries.  39 THE COURT:  There we have the trouble.  If you want an interest  40 it in land, I have got to have dimensions, I think, or  41 some machinery to resolve that, such as a reference to  42 the registrar, appointment of special commissioners or  43 some artful device that the law has resort to when it  44 gets into these kinds of difficulties.  45 MR. GRANT:  I would like to just mull exactly the framework of  46 your question.  I see that point and I am glad you  47 raised it. 25347  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  Thank you.  MR. GRANT:  Mr. Mathews, my lord, explained the distinction  between the river as a boundary where the surrounding  territory goes to the middle of the river, and where  the fishing sites are along the river, the owner of  the fishing site owns that part of the river.  He  described in this exchange with the court that when  the court asked if this applied to the Skeena but not  other rivers, he says:  "If you have fishing sites on both sides,  naturally you own right across.  But when you  just claim one side then just that bank side."  Now, this is the delineation of the framework of  the fishery among the Gitksan.  "Q   Well, in that case where you only claim one  side and another house claims the other side,  is there any -- what Gitksan chief or chiefs  claim the middle?  A  Well, I would claim the middle of it on my bank  and this guy would claim the bank on half of  the river on that side.  Q   So the river would be divided?  A   Yes."  And you asked:  "So there is a difference between river as a  boundary and river as a fishing site?  A   Yes.  THE COURT: In other words, if a river is a boundary  between two houses then the real boundary is in  the middle of the river?  A   If they were opposite banks from each other,  yes . "  THE COURT:  But if you have a fishing site on one side if  a river then you have the river right to the  other bank?  A   Yes."  Now that, my lord, is a framework for the  delineation of the sites on Exhibit 358-22.  THE COURT: That is that the big map?  MR. GRANT:  That — the fishing sites map, yes. 2534?  Submissions by Mr. Grant  1 THE COURT:  The big one.  Because there was one that -- was it  2 Mrs. Johnson or Mrs. Ryan?  3 MR. GRANT:  Both.  358-22 is the one in the map atlas, my lord.  4 I have got to come back to that map and the sites  5 there in the context of the evidence.  6 Now, Mr. Matthews gave an example of the territory  7 across the river from Wilson Creek.  This territory is  8 owned by Gwis Gyen's house.  Art Mathews explained  9 that Gwis Gyen owned the land from the bank up away  10 from the river.  11 This particular fishing site, by the way, my lord,  12 is the one which Henry Wilson has rights, privileged  13 rights of access with the consent of Art Matthews.  14 Mrs. Ryan explained the ownership of the fishing  15 site as with the territories is in the house and the  16 chief.  17 THE COURT:  But that's not a statement that's universally  18 correct, is it, because sometimes, as you have already  19 said, the fishing site is owned by someone from  20 outside of the house in whose territory the fishing  21 site is located.  22 MR. GRANT:  No, there is — what I think I should do is refer  2 3 now to the map.  24 THE COURT:  Well, I think maybe, Mr. Grant, we will have the  25 pleasure of having you do that tomorrow morning.  9  26 o'clock?  Thank you.  27  28 (PROCEEDINGS ADJOURNED TO THURSDAY, APRIL 26, 1990 AT  29 9:00 O'CLOCK A.M.)  30  31  32  33 I hereby certify the foregoing to be  34 a true and accurate transcript of the  35 proceedings herein to the best of my  36 skill and ability.  37  38  39  40 Wilf Roy  41 Official Reporter  42  43  44  45  46  47

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