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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-13] British Columbia. Supreme Court Jun 13, 1990

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 28369  Submissions by Mr. Goldie        1  Vancouver, B. C.  2 June 13, 1990.  3  4 THE REGISTRAR:  In the Supreme Court of British Columbia, this  5 13th day of June, 1990.  Delgamuukw versus Her Majesty  6 the Queen at bar, my lord.  7 THE COURT:  Before you start, I have to apologize and say when I  8 spoke yesterday I did so too quickly.  I had forgotten  9 completely that I had arranged for a meeting with my  10 court at 4 o'clock this afternoon.  I won't be able to  11 sit beyond 4 o'clock today.  I can sit until six  12 tomorrow and you will want to talk to Mr. Macaulay  13 about that, Mr. Wolf.  I regret this, but it's a  14 matter that needs attention and there is no other time  15 to do it so I had arranged it for 4 o'clock today.  16 MR. GOLDIE:  My lord, I was at page 275 of part ten, and I had  17 been referring to Mr. McKenna's long letter to the --  18 Sir Richard McBride.  And, my lord, I am not going to  19 refer to the actual document, but I note in paragraph  20 46 that McKenna traced through the way in which the  21 colonial government had operated, he noted the events  22 which occurred after the 1875-76 Joint Indian  23 Commission and when he turned to consider the origin  24 of the reversionary interest clause, he had something  25 to say about Mr. Duncan, and that's found at the top  26 of page 276.  He says:  27  28 "Duncan had clear cut ideas respecting Indians.  29 He was not obsessed by any large conception of  30 Indian title to the lands of the province.  The  31 terms of the union affected not his view.  His  32 vision was not troubled with tribal divisions.  33 These he would ignore.  Nor did he give thought  34 to the individualistic tendencies even then  35 evidenced by many natives.  His plan was to  36 gather together, nolens, volens, Indians of the  37 numerous, divergent, and much differing tribes  38 of each of the comparatively few and widely  39 dispersed nations or linguistic stocks, on  40 reserves to be set apart for each such nation,  41 reserves embracing vast stretches of  42 countryside, and including lakes and rivers,  43 valleys and hills.  On these large and isolated  44 reserves he would secure them from contact with  45 white settlement.  Mr. Duncan's plan was  4 6 approved but not followed..."  47 28370  Submissions by Mr. Goldie        1 I emphasize those  words, my lord,  2  3 "...and all we have of it now is its  4 reversionary tail, which still wags in the way  5 of effective administration."  6  7 My lord, those were strong words to say to a  8 province which had been selling reversionary interests  9 in the reserves.  But Mr. McKenna, in my submission,  10 took the long view and his entire letter is deserving  11 of the closest attention.  12 He also reviewed Mr. Sproat's long and unpublished  13 1876 memorandum to the Minister of the Interior in  14 which Sproat had observed that the Indian policy of  15 British Columbia "...naturally had been the same as  16 the Home Government's, the country having been mainly  17 governed from England."  And he noted Sproat's view  18 "...that the best course to pursue will be to secure  19 to all the Indian tribes their old summer and winter  20 village sites..."  and so on.  He observed, and I  21 quote:  22  23 "It is clear that Sproat did not regard Mr.  24 Duncan's scheme as feasible but favoured the  25 practice of the British Columbia government as  26 to alloting reserves to anyone familiar with  27 the Indian conditions east and west of the  28 mountains.  It is obvious that the Indians of  29 British Columbia would, at any stage, have most  30 strenuously objected to being gathered on a few  31 large general reservations, and confined  32 thereon under regulations prohibiting them as  33 in Alberta and Saskatchewan from going outside  34 the bounds without passes from the Indian  35 agent."  36  37 He continued:  38  39 "The records of the Reserve Commission prove  40 that the policy of the Thirteenth Article of  41 the Terms of Union, and not that of the  42 agreement of 1875-76, was followed in allotting  43 reserves.  The wishes of the Indians were  44 consulted as they had been in the days before  45 the union; their village sites and enclosed  46 fields and fishing places, were, as had always  47 been the practice, secured to them.  Their 28371  Submissions by Mr. Goldie        1 reasonable  wishes and ascertained requirements  2 formed, as it had thereto formed, the measure  3 of the further land alloted."  4  5 McKenna's observations are supported by the  6 historical documents.  And I may interject here that  7 he took, in my submission, a very long view and  8 generally a correct view.  He saw what the province  9 was obliged to do under term 13, he saw the false note  10 injected by Duncan and he saw that Sproat, the Indian  11 Reserve Commissioner, had also spotted the fallacy of  12 Duncan's suggestions, which apparently has been  13 accepted by both governments and had followed the old  14 line of reserves preserving settlements instead of  15 setting up reservations.  16 Continuing, the policy followed by the Indian  17 Reserve Commissioners, beginning with Sproat, closely  18 conformed with the policy followed by the Colonial  19 Government so far it is discoverable through the  20 relevant documents, and as it was described by Trutch  21 in 1870, '71, and '72 and by Douglas in 1874.  22 Then I go on to make reference to that, and I give  23 a particular example of the application of this policy  24 by the Indian Reserve Commissioners in the record of  25 interviews between O'Reilly and the Nass Indians in  26 1888.  27 McKenna's view in July of 1912 was that it was  28 unnecessary to constitute another commission to adjust  29 reserves in British Columbia.  And rather he thought  30 that in order, "to sustain in British Columbia the  31 reputation of Canada for just and humane dealing with  32 the aboriginal inhabitants of the country, to admit of  33 the Government discharging satisfactorily as to the  34 Indians of this province what Lord Dufferin designated  35 'one of its most sacred and important functions', and  36 to honourably fulfil the obligation assumed by the  37 Province at the union..."  it was only necessary for  38 the province to convey the Indian reserves to the  39 Dominion and remove a statutory bar to the  40 registration of their title in right of the Dominion.  41 Unless this was done, however, there would exist a  42 disagreement warranting a reference for the decision  43 of the Secretary of State for the colonies under the  44 provisions of term 13.  45 THE COURT:  Is he talking about the reserves?  46 MR. GOLDIE:  No, he is talking there, my lord -- is your  47 lordship referring -- 28372  Submissions by Mr. Goldie        1  THE COURT:  Well, the  disagreement.  2 MR. GOLDIE:  Oh, the disagreement.  If there was a disagreement,  3 and he is in fact talking about the reversionary  4 interest, he said that would warrant a reference to  5 the Secretary of State under the second clause of term  6 13.  7 THE COURT:  Whereas if the reserves were conveyed, I suppose he  8 said --  9 MR. GOLDIE:  He said, that's it.  He was saying that term 13 had  10 been fulfilled and in my submission, my lord, he is  11 articulating the proposition that that was the full  12 extent of British Columbia's obligation.  13 THE COURT:  What was the other side of the argument to the  14 province's argument on reversion, assuming that there  15 is a reserve that isn't or part of a reserve that is  16 no longer required for Indians, what's the other side  17 of the argument, it goes to Canada?  18 MR. GOLDIE:  The other side of the argument was that the -- even  19 though it was no longer required for the Indians, it  2 0            had become Indian land and the Government of Canada  21 was the appropriate authority of disposing of that  22 interest.  23 THE COURT:  And Canada could sell it privately if it wished or  24 do what it wanted with it?  25 MR. GOLDIE:  No, I think that Duncan's view, and I think the  26 view of Canada, was that the proceeds or the use of  27 it, would be available for relief of Indians  28 generally.  29 THE COURT:  Indian purposes?  30 MR. GOLDIE:  Yes.  31 THE COURT:  I see.  All right.  32 MR. GOLDIE:  And then I note on page 71, appendix B of McKenna's  33 letter is a schedule of reserves so far alloted and  34 confirmed in the Babine Agency.  35 His letter was dated July 29th.  By September 24th,  36 McKenna had changed his mind.  On that day he signed  37 an agreement with Premier McBride which provided for  38 the institution of a five member commission, empowered  39 "to adjust the acreage of Indian reserves in British  40 Columbia."  The agreement's preamble suggests that it  41 had a wider scope than is apparent from the terms of  42 the agreement itself.  It provided -- now, my lord, I  43 have read to your lordship that preamble before, I  44 have gone through the terms of the agreement for the  45 purpose of demonstrating that the terms of the  46 agreement appear to be confined to the question of  47 reserves.  The preamble itself introduces the 28373  Submissions by Mr. Goldie 1            proposition that upon  the -- agreed upon the following  2 proposals as a final adjustment of all matters  3 relating to Indian affairs in the Province of British  4 Columbia.  5 Now I note, my lord, that there is no reference in  6 the agreement to term 13 but as your lordship has  7 seen, term 13 was referred to by Mr. McKenna in the  8 course of his letter, of his report, and it is again  9 referred to in his report to the minister.  10 I say at paragraph 55, the terms of the agreement  11 are directed solely to establishing a mechanism and  12 framework for the adjustment of Indian reserves in  13 British Columbia.  It provided, amongst other things,  14 for the enlargement or diminution of existing  15 reserves, the withholding of Crown lands from  16 pre-emption or sale pending the Commission's  17 deliberations, and the eventual conveyance of the  18 reserves to the Dominion with full power to the  19 Dominion to deal with the reserves in the Indian's  20 interests.  McKenna reported the results of his  21 negotiations with McBride to the Minister for the  22 Interior and Superintendent general of Indian Affairs.  23 I am going to refer to that document, my lord, it's  24 under tab 56 and it's dated October 26th, 1912.  He  25 says:  26  27 "During intervals in the negotiations, he  28 visited..."  29  30 That is to say McKenna,  31  32 "...visited different parts of the province and  33 met many representive Indians.  His  34 investivations confirmed the opinion, which he  35 had formed from a study of the records, that  36 the great source of Indian dissatisfaction was  37 the Provincial interest in lands reserved for  38 Indians, recognized by the joint agreement of  39 1875-6, and, as the country developed and  40 Indian reserves in certain districts increased  41 enormously in value, asserted more clearly and  42 largely by the Province through legislative  43 acts and otherwise.  That agreement was the  44 outcome of discussion respecting Article  45 Thirteen of the Terms of Union, which  46 determines the respective obligations of the  47 Dominion and the Province of British Columbia." 28374  Submissions by Mr. Goldie        1 And then he states  in the second -- towards the end  2 of the first paragraph that the Indians having --  3  4 "The Indians, as they advanced in knowledge of  5 affairs, became aware that they were not  6 regarded as having the same right in reserve  7 lands as Indians in other parts of Canada were  8 recognized as having in lands set apart for  9 them; and, without clearly understanding the  10 situation, became, in the measure of their  11 advancement, disaffected by the consequences of  12 the unsatisfactory nature of the Dominion's  13 tenure of their reserve."  14  15 And he goes on to say in the beginning of the last  16 paragraph:  17  18 "The undersigned considers the agreement to be  19 in the best interests of the Indians of British  20 Columbia as well as to the public advantage."  21  22 And I quoted part of that.  23 THE COURT:  The agreement he is talking about there is the one  24 he signed with the premier?  25 MR. GOLDIE:  Yes, with McKenna-McBride which provided for the  26 Royal Commission and which reflected the fact that the  27 reversionary interest was done away with.  28 And he did remark upon the very striking inequality  29 of the allotment, which ranged from two acres per  30 capita to more than 184.  31 Paragraph 57.  The governor-in-council adopted the  32 agreement on the advice of the Minister of Justice,  33 with an added provision that the Commission's  34 proceedings be subject to the approval of both  35 governments, that the governments agreed to consider  36 the reports, the Commission's reports favourably and  37 "to take all such steps and proceedings as may be  38 reasonably necessary with the object of carrying into  39 execution the settlement provided for in the agreement  40 in accordance with its true intent and purpose."  41 The McKenna McKenna-McBride agreement was approved  42 by the Governor in Council, despite the opposition of  43 "The Conference of Friends on the Indians of British  44 Columbia" which urged its rejection because the  45 agreement ignored the Indian title question and dealt  46 only with term 13 and the allotment of reserves.  47 Now, I mention this, my lord, because the agreement 28375  Submissions by Mr. Goldie        1 itself became, of  course, public knowledge.  And under  2 tab 58 is the memorial of the Conference of Friends of  3 the Indians of British Columbia to the governor  4 general in council and speak on the first page of the  5 Royal Proclamation, Laird's memorandum and the order  6 in council of 3rd of November, 1874 and then on the  7 next page, the reference to the McKenna-McBride  8 agreement is referred to, and in that last paragraph,  9 the memorandum states, and I quote:  10  11 "With regard to this announcement we desire to  12 point out and strongly emphasize that the whole  13 effort of the government of the province to  14 secure the making of a so-called settlement  15 under the provisions of Article 13 of the Terms  16 of Union is based upon the view advocated by  17 that government that the Indians have no  18 aboriginal rights.  We trust that the  19 Government of Canada will, without hesitation,  20 refuse to approve any such settlement for we  21 are convinced that real settlement of the  22 Indian land question will never be brought  23 about by any such arrangement."  24  25 So Canada was put on notice even before the  26 approval of the McKenna-McBride agreement with its  27 ensuing commission, that the -- an influential body of  28 opinion that was supporting the title position was  29 opposed to the agreement.  30 I turn now, my lord, to section nine, the Royal  31 Commission on Indian Affairs in British Columbia.  32 Much of what is in here was covered in part eight in  33 which I dealt with aboriginal rights in post-  34 Confederation British Columbia and, therefore, I will  35 be summarizing it in part at any rate.  36 Your lordship may recall that this will take us  37 through P. C. 751 of the 20th of June, 1914, the  38 Indians' reaction to that order-in-council and the  39 Dominion's reaffirmation of it in 1915, as well as  40 dealing with the Royal Commission.  41 The Dominion order-in-council appointing four  42 members of the Royal Commission on Indian Affairs,  43 referred to the McKenna-McBride agreement as  44 contemplating that the commission will adjust all  45 matters relating to Indian affairs in the province.  46 As I noted, the preamble might reflect that but it did  47 not reflect accurately the agreement's terms, which 28376  Submissions by Mr. Goldie        1 related only to Indian  reserves.  So there was a  2 clarifying order-in-council that was issued which I  3 have referred to, and I say at the top of page 284, it  4 is implicit in the Dominion's clarification that  5 claims of Indian title was a matter outside the scope  6 of the McKenna-McBride agreement and were not one of  7 the "matters affecting Indians lands which require  8 adjustment between the parties."  That quotation is  9 from the Dominion order-in-council.  10 Now in January, 1913, and at this point the order,  11 the order-in-council approving the McKenna-McBride  12 agreement was December 18, 1912.  So in January, 1913,  13 the Nishga adopted a statement asserting that  14 notwithstanding British Columbia's contention "that  15 under the terms of union the Dominion of Canada is  16 responsible for making treaties with the Indian tribes  17 in settlement of their claims..." they intended to  18 persist in making a claim against the province because  19 that route afforded, in their eyes, the only means by  20 which they could get compensation for past alienations  21 and gain control over other unalienated portions of  22 Crown lands.  That statement is found in the yellow  23 binder but I won't refer to it further.  24 The same day the statement above was adopted on  25 the 22nd of January, the Nishga authorized a petition  26 to the Imperial Privy Council.  The petitioners  27 claimed exclusive possession, occupation and use of  28 occupancy over certain lands in British Columbia.  The  29 relied on the Royal Proclamation of 1763, they alleged  30 that alienation of parts of the claimed territory to  31 third parties violated the Royal Proclamation, and  32 were made "without competent authority", and so on.  33 They were aware of term 13 of the Terms of Union and  34 of the McKenna-McBride agreement "...relating to the  35 matter of the so-called reserves" and stated in the  36 petition "...that nothing contained in either of the  37 said two agreements does or can take away any of the  38 rights which they claim."  And the petitioner is  39 claiming to hold a tribal title to the whole of the  40 said territory, both by aboriginal right and by Royal  41 Proclamation, and believing that they had "no other  42 recourse for securing justice" they appealed to the  43 Privy Council.  44 The Nishga petition was lodged with the Privy  45 Council in May of 1913 and eventually found its way  46 into the hands of the Minister of Justice in Ottawa.  47 And he was asked by the Minister of the Interior for 28377  Submissions by Mr. Goldie 1            an opinion as to the  right of the Indians to present  2 the petition as to what effect the support of the  3 Dominion would have on the legal questions involved.  4 The Minister of Justice, my lord, Mr. Doherty, was of  5 the view that it was unlikely that the Imperial  6 government would initiate proceedings to determine the  7 Nishga claim if proceedings could be taken in the  8 local court.  He saw no impediment to a domestic  9 proceeding should the government decide to act.  He  10 pointed out that the 1911 amendment to the Indian Act  11 had been made for that very purpose.  And he did point  12 out that -- and I am now referring to the long  13 quotation at page 287 of my summary -- he did point  14 out that the McKenna-McBride agreement had been  15 entered into after the Indian Act was amended and he  16 said to that agreement:  17  18 "It is recited in the preamble that it is  19 desirable to settle all differences between the  20 governments... and upon this recital the  21 stipulations or proposals of the agreement are  22 said to be agreed upon as a final adjustment of  23 all matters relating to Indian affairs in the  24 province.  The agreement, while it provides for  25 the ascertainment of the various Indian  26 reserves and the disposal thereof or  27 confirmation of the title in the manner therein  28 provided, makes no reference to the aboriginal  29 title, and it may be considered that it would  30 be incompatible with the intention of the  31 agreement that the Dominion should maintain the  32 cause of the Indians in respect of the  33 aboriginal title seeing that this title is  34 ignored by the agreement and that the proposals  35 or stipulations of the agreement are declared  36 to have been agreed upon as a final adjustment  37 of all matters relating to Indian affairs in  38 the province."  39  40 In my submission, he has put his finger on the  41 very point that is ultimately of -- the very point  42 that is the genesis of Privy Council order-in-council  43 751.  And he said a policy decision had to be made.  44 And he left it on that basis.  45 Now on March 11, 1914, after considering the Nishga  46 petition and similar claims from other Indians in  47 British Columbia, the Deputy Superintendent General of 28378  Submissions by Mr. Goldie        1 Indian Affairs, Mr.  Scott, who had been appointed to  2 that position in October of 1913, addressed a  3 memorandum on the question to the Superintendent  4 General of Indian Affairs.  And that memorandum was in  5 fact adopted by the governor in council under P. C.  6 751, and it provided for, as your lordship has been --  7 as has been submitted to your lordship, it provided  8 for a resolution of the title question.  9 And I go down to paragraph 15, in Scott's analysis  10 in his memorandum of March 11th, there were two main  11 difficulties with submitting the Nishga claim to the  12 courts.  And in this sense he is addressing the policy  13 question that Mr. Doherty raised.  He said, "The first  14 difficulty is the refusal of British Columbia to  15 consent to a stated case which would include any  16 reference to the Indian title."  Now in that, of  17 course, he is harking back to the old business of a  18 joint reference.  And he is not taking into  19 consideration the fact that the reference to the  20 courts or the proceedings in the courts could take  21 place under the amendment to the Indian Act of 1911  22 without the consent of the province.  23 His second concern was "uncertainty as to the  24 extent of compensation which might be demanded by the  25 Indians if they were successful before the courts, and  26 if the Crown found it good policy to extinguish the  27 title of the Indians."  As for the first difficulty,  28 Scott proposed:  29  30 "That it be held that British Columbia has fully  31 discharged its obligation to the natives by  32 granting from the public domain of the Province  33 reserve lands to be administered exclusively  34 for their benefit and that if the Indian claim  35 is found valid by the court or the Privy  36 Council and if it is thought advisable to offer  37 anything further for extinguishment of title,  38 the Dominion should assume the burden and  39 compensate the Indians according to the past  40 usage in such arrangements as had been made by  41 the goodwill of the Crown with the aborigines."  42  43 Now Scott dealt with the second difficulty, the  44 extent of compensation, at some length, noting that  45 the Dominion should not assume "the undetermined  46 liability which might arise if the Indians' claims  47 were upheld by the courts."  And he asserted the -- 28379  Submissions by Mr. Goldie 1            that the Nishga had an  erroneous view of the nature of  2 aboriginal title which went far beyond anything  3 recognized previously by the Dominion.  As I have  4 noted, the statement of the Nishga adopted on January  5 22nd, 1913, set out their claims and copies had been  6 sent to all who had a possible interest, the Secretary  7 of State for the Colonies and so on, and Scott  8 attached a copy of it to his memorandum.  Describing  9 the Nishga claims as "fancies", he said:  10  11 "The Privy Council, to which the Nishga Nation  12 desire to appeal, has already pronounced upon  13 the nature of the Indian title, describing it  14 as 'a personal and usufructuary right dependent  15 upon the goodwill of the Sovereign'."  16  17 That, of course, is a quotation from St.  18 Catherine's Milling.  19  20 "It follows that Indian title, when acknowledged  21 by the Crown, cannot be separated from what the  22 Crown elects to grant."  23  24 And I may interject there, it seems clear, in my  25 submission, that his view was that the nature of the  26 tenure, as well as its duration, was dependent on the  27 goodwill of the sovereign.  28 Now, my lord, it doesn't matter whether he was  29 right or wrong, because his memorandum was adopted by  30 the government in P. C. 751.  And at the end of the  31 quotation that I have in my summary he said:  32  33 "It is optional when, if at all, the Crown may  34 proceed to extinguish the Indian title, and,  35 therefore, if it is decided that the Indians of  36 British Columbia have a title of this nature,  37 there can be no claim for deferred benefit from  3 8 the Crown."  39  40  41 What he is saying there is rejecting the  42 proposition that compensation for Indian title can be  43 increased as a result of the enhanced value of land  44 resulting from the passage of time.  So he set out  45 four conditions that -- upon which the Nishga claim  46 myth be referred to the Exchequer Court with the right  47 of appeal to the Imperial Privy Council.  The first is 28380  Submissions by Mr. Goldie 1            one which your lordship  is aware of, that they agreed,  2 if they have title, to surrender it for extinguishment  3 in accordance with past usage of the Crown and  4 satisfying the Indian claim in unsurrendered  5 territories and to accept the finding of the Royal  6 Commission "...as approved by the governments of the  7 Dominion and Province as a full allotment of their  8 lands to be administered for their benefit as part of  9 the compensation."  10 Two, "that the Province of British Columbia by  11 granting the said reserves as approved shall be held  12 to have satisfied all claims of the Indians against  13 the Province."  And then that -- and that "the  14 remaining consideration shall be provided and the  15 costs thereof be borne by the Government of the  16 Dominion of Canada."  17 Now, my lord, I ask your lordship simply to note  18 here that I tendered an argument to your lordship a  19 transcript 351 --  20 THE COURT:  I am sorry, volume 351?  21 MR. GOLDIE:  Volume 351 at page 27912, line 32 to page 27914,  22 line 13.  And at that point I submitted to your  23 lordship that the Dominion was the only  24 constitutionally appropriate authority to provide an  25 instrument of discharge to the Province in respect of  26 the alleged liability of Indian title.  The Province  27 couldn't deal with the Indians directly, the Province  28 had no power of extinguishment itself, and the finding  29 of an existing title would result in the Province  30 being saddled with a liability about which it could do  31 nothing.  So the instrument of discharged to come from  32 the Dominion.  And this is how it was to be done.  33 Now, my lord, continuing.  It is, of course, clear  34 that the second of Scott's conditions was simply a  35 statement which acknowledged the constitutional  36 arrangement between British Columbia and Canada  37 provided for and embodied in term 13 of the Terms of  38 Union, and of course reflected the constitutional  39 arrangement of head 24 of Section 91.  It would -- it  40 reflected the situation which would obtain whether or  41 not the Indians of British Columbia agree.  42 Now, no one, in my submission, suggests that Canada  43 could not have acted unilaterally, although some parts  44 of my friends' argument would suggest that not even  45 Canada had the power to act without the consent of the  46 Indians.  But their agreement, however, was sought as  47 a condition precedent to any court reference. 28381  Submissions by Mr. Goldie        1 Now, the  Superintendent General of Indian  2 Affairs —  3 THE COURT:  I am sorry, that last line, their agreement --  4 MR. GOLDIE:  That's the agreement of the natives.  5 THE COURT:  Thank you.  6 MR. GOLDIE:  The Dominion was not going to take the matter into  7 court without that agreement.  8 The Superintendent General approved of Scott's  9 memorandum, sent it to the prime minister for  10 consideration, he noted that British Columbia could  11 have no objection to the reference, and that Scott's  12 other suggestions would avoid the Dominion being  13 embarrassed by extravagant claims, as the Nishga  14 thought "the disposal of the provincial lands would be  15 in their hands" if the case were decided in their  16 favour by the courts."  And the governor-in-council  17 approved Scott's proposals by P. C. 751.  The policy  18 and conditions set out in P. C. 751 were adhered to by  19 the Dominion government thereafter, both formally, by  20 Order in Council in 1915, and otherwise, and then I  21 set forward, my lord, and I am not going to deal with  22 them individually, the documents that I rely upon to  23 support that statement.  24 I say that P. C. 751 which reflected the  25 government's policy was stated emphatically by the  26 Minister of Justice, Mr. Doherty, to counsel for the  27 Nishga in 1914.  That document is another one that I  28 have had occasion to refer to, my lord, and Mr.  29 Doherty was very explicit that the only way -- that  30 the -- there would be no recourse to the Privy Council  31 without first going through the Canadian courts and  32 that the route, so far as Canada was concerned, was  33 through P. C. 751.  Now, I bear -- I ask your lordship  34 to bear in mind that the Indians had statutory  35 authority at any time to go into the courts and this  36 whole question is whether it would be taken in under  37 the sponsorship of Canada.  The quotations in  38 paragraph 28 are from Mr. Doherty's letter, as in  39 paragraph 29, and the -- I note that Mr. Scott  40 received a copy of Mr. Doherty's letter to O'Meara.  41 Now the Nishga formal answer to the proposals in  42 P.C. 751 was presented to the Dominion Government at  43 a meeting between their representatives and the  44 ministers of justice and interior on February 3rd,  45 1915.  I emphasize here that throughout the piece  46 there was petitions and representations and meetings  47 between the people affected, the Indian peoples 28382  Submissions by Mr. Goldie        1 affected and the  government.  2 THE COURT:  Were these the meetings in Victoria that the  3 province refused to attend?  4 MR. GOLDIE:  No, those came later in 1923, my lord.  This time  5 it was wholly between the native peoples and Ottawa.  6 Now, they informed the Dominion that for reasons  7 set out in a prepared statement, they could not accept  8 the proposals in P. C. 751 and submitted counter  9 proposals.  And in a series of meetings from February  10 to April 27th, 1915, the Indian objections to P.C. 751  11 and their counter-proposals were discussed and  12 considered.  The record of much of what transpired was  13 published in a pamphlet by the Conference of the  14 Friends of Indians of British Columbia in July of  15 1915, and I set that out the tab 32, my lord, not all  16 it, all that is set out at tab 32 is the title page  17 and the contents and your lordship will see that there  18 are -- that the interviews are published, typescripts  19 are presented to the public for discussion.  The  20 result of these discussions is reflected in the  21 Dominion's order-in-council of June 19th, 1915.  22 That's P. C. 1422.  The governor in council approved a  23 joint memorandum from the Minister of Justice and the  24 Superintendent General of Indian Affairs which began  25 by noting that ample opportunity for discussion had  26 been afforded the Indians' representatives and that  27 the question was thoroughly debated.  The Minister's  28 memorandum discussed and rejected each of the counter  29 proposals and recommended after due and careful  30 consideration that the terms of the order-in-council  31 of 20th of June, 1914 be not modified or altered.  32 My lord, those interviews were not confined to  33 interviews with the Deputy General, Mr. Scott, they  34 were interviews with the ministers involved and  35 including both Justice and Interior.  And in March,  36 1916, the Superintendent General reiterated the  37 proposals which were in the Indians' best interests  38 and remained open.  39 And I say that -- in paragraph 36, it will be seen  40 that the Indians never consented to the conditions  41 precedent in P. C. 751 and that the 1927 Special Joint  42 Committee, although it find that no claim to  43 aboriginal title had been established, made  44 recommendations which, in my submission, in effect  45 provided compensation as though the Indians had  46 succeeded in the court reference  contemplated by P.  47 C. 751. 28383  Submissions by Mr. Goldie        1 Now, my lord, I go  to sections 10 and 11, adoption  2 of the Royal Commission report by British Columbia and  3 by Canada.  And, again, this has been covered in part  4 eight of my summary, and I will provide your lordship  5 with some transcript references to that.  6 The report was adopted -- well, I read paragraph  7 one, the documents relating to sections 10 and 11 of  8 the counter-claim, will not be dealt with in the same  9 detail as those relating in the preceding sections.  10 The attempt on Canada's part to negotiate a treaty  11 documented in section 10 was unsuccessful and forms  12 but one stage of the relationship between Canada and  13 the Indians of British Columbia rather than the  14 culmination it was intended to be.  The documents in  15 part 11 provide yet further perspective and lead  16 toward what Canada intended to be a culmination of the  17 title question.  British Columbia had little to do  18 directly with these events.  And I have made my  19 submissions under part eight.  The relevant events  20 which followed P. C. 751 of 1914 were summarized by  21 the Deputy Superintendent General of Indian affairs in  22 his reports of July 14th, 1925 and March 30th, 1927.  23 And in those memoranda, what he did was to go through  24 the events which followed the report of the Royal  25 Commission, the review of its findings, the Ditchburn-  26 Clark procedures which led to variations in it, and  27 the agreement thereto, the attempts in 1923 to reach a  28 treaty, the treaty negotiations and all of this  29 against the background of the Indian objections to  30 adoption of the Royal Commission's report because of  31 the words "full and final settlement."  32 Now, I have made comments on the August, 1923  33 meetings at transcript volume 351 at page 27893, line  34 38, to page 27904, line 12.  35 THE COURT:  I am sorry, where are you in your text?  36 MR. GOLDIE:  Page 300, my lord.  I note the memoranda of July  37 14th and March 30th, 1927, and then I say another  38 important memorandum written by the Deputy  39 Superintendent General in 1923 relates almost entirely  40 to the Dominion's attempt to find a basis upon which  41 it could negotiate a treaty.  And it's printed as an  42 appendix in the 1927 Joint Committee's report.  43 THE COURT:  That's where you put these references to transcript?  44 MR. GOLDIE:  I put my comments on all of that right at that  45 point, the transcript references.  46 THE COURT:  What were the references again?  47 MR. GOLDIE:  Volume 351, page 27893, line 38, to page 27904, 28384  Submissions by Mr. Goldie        1 line 12.  And that's  where I go through the attempt on  2 the part of the Honourable Charles Stewart, the  3 Dominion ministe, r who came to British Columbia in  4 July of 1922 to initiate an attempt by Canada to  5 negotiate a treaty.  And the negotiations really took  6 place in July and August of 1923.  And I noted on page  7 27894, that on the last day of the negotiations,  8 August 11th, Mr. Kelly, who was the principal  9 spokesman on behalf of the Indian peoples, the allied  10 tribes, Mr. Kelly referred to the words "final  11 adjustment of all matters relating to Indian affairs  12 in the province" as that "fatal phrase".  Now that  13 phrase was in the enabling legislation adopted by both  14 Canada and British Columbia.  By that time it was in  15 the British Columbia order-in-council approving the  16 Royal Commission's report as reviewed, and British  17 Columbia in fact had passed its order-in-council  18 during the negotiations for the treaty, which were  19 taking place, so that it was right in front of them.  20 And the Dominion had not passed its order-in-council  21 and the assertion on the part of the Indian  22 negotiators was that that was the "fatal phrase" and  23 they were urging the Dominion not to adopt an order-  24 in-council accepting the Royal Commission's report.  25 The negotiations concluded and Mr. Scott provided a  26 long report, along with a transcript to his minister,  27 and he concludes by saying that he had hoped that the  28 demands of the Indian peoples would be more moderate,  29 but his expectations were dashed.  And he then went on  30 to say that adoption of the Royal Commission's report  31 was in fact in the best interests of the Indian  32 peoples.  And it was so adopted in P. C. 1265.  33 And I can show that in a little greater --  34 THE COURT:  What's the number again, 12 —  35 MR. GOLDIE:  1265, my lord.  36 THE COURT:  Is it in your text?  37 MR. GOLDIE:  Yes, it is.  38 THE COURT:  Somewhere earlier it is, but is it on that page?  39 MR. GOLDIE:  I just want to pick up one reference.  40 Before turning to the text of 1265, my lord, I  41 would like to refer you to tab 4 of the yellow binder.  42 This is Mr. Scott's memorandum of October 29th, 1923,  43 and the first part is a photocopy of what is in the  44 archives but fortunately it was reprinted in the Joint  45 Committee's report, and if your lordship will look  46 under the blue divider sheet --  47 THE COURT:  Of tab 4? 28385  Submissions by Mr. Goldie        1  MR. GOLDIE:  Tab, it's Roman x,  stroke ten, plus 11, tab 4,  2 towards the end of the yellow binder.  It's only three  3 tabs from the end, my lord.  4 THE COURT:  All right.  Ten/ten.  5 MR. GOLDIE:  Ten/ten-four.  6 THE COURT:  All right.  7 MR. GOLDIE:  Now, under that tab is the transcript reference --  8 not the transcript reference, but the part of the  9 transcript of the meetings in Victoria.  But I would  10 like to refer to the print of his memorandum of  11 October 29th, 1923, which starts immediately following  12 the first blue sheet.  It's page 12 in the lower right  13 hand corner.  14 THE COURT:  Yes.  15 MR. GOLDIE:  And it's appendix H.  16 THE COURT:  Yes.  17 MR. GOLDIE:  The memorandum starts:  18  19 "I have the honour to transmit herewith a  20 stenographic report of the meetings with the  21 executive council of the Allied Tribes of  22 British Columbia in Vancouver and Victoria.  As  23 you are aware, the meetings in Vancouver were  24 preliminary to the more detailed discussion  25 which took place in Victoria.  As you thought  26 if advisible that some representative of the  27 British Columbia government should be present  28 at the round table conference with the Indians,  29 I wrote to the honourable Mr. Oliver as  30 follows."  31  32 Then sets out his invitation, the response he got,  33 and then on page -- the next page:  34  35 "The meetings in Victoria opened on Tuesday  36 morning, August 7th.  The Executive Committee  37 of the Allied Tribes was present with Mr.  38 O'Meara, their counsel.  There was some  39 preliminary discussion as to what procedure  40 should be followed..."  41  42 And then so on.  43  44 "Mr. O'Meara made a general statement which will  45 be found at pages 34 to 56 of the typewritten  46 report. Mr. Kelly, the chairman of the  47 Executive Committee, asked me to explain the 28386  Submissions by Mr. Goldie        1 true meaning and  intent of the statute which  2 was passed to enable us to confirm the report  3 of the Royal Commission, and the effect of the  4 passage of orders-in-council under that statute  5 and similar legislation by the Province of  6 British Columbia.  This I attempted to do and  7 probably succeeded.  There is a lack of  8 distinctness in the stenographic report of this  9 passage, but I believe the committee finally  10 understood the matter."  11  12 Then after, he goes on to discuss the proceedings  13 and they get down to what it is that the Indian  14 peoples of British Columbia are seeking.  And on page,  15 the next page, the top of the page, he says:  16  17 "The committee then fell back on a statement  18 which had been made in a pamphlet prepared by  19 the British Columbia government in 1920, and as  20 the discussion developed it became clear that  21 the Indians intended to rely on the claims made  22 by that pamphlet and in the end it will be  23 found that all the claims made there, with one  24 important addition, are now made for the  25 cession of the Indian title.  I think it well  26 therefore to place with the report a copy of  27 this pamphlet."  28  29 And then he discusses the various conditions which  30 were in the pamphlet and which were the subject matter  31 of the negotiations in Victoria in 1923.  And he makes  32 reference to the stenographic transcript, and under  33 the headings fishing rights, hunting, timber, funded  34 monies, palagic sealing, education, medical attendance  35 and hospitals, and he goes on to discuss that at some  36 length.  And, then at the end he says, in the last  37 page, the first complete paragraph:  38  39 "With reference to the question of litigation,  40 they wish  to be considered as willing to have  41 a settlement out of court, but if it seems  42 impossible to get a fair and equitable  43 settlement, they wish to 'press on to the  44 Judicial Committee of the Privy Council.'.  45 In spite of this vigorous protest from the  46 Indians as to the acceptance of the report of  47 the Royal Commission..." 28387  Submissions by Mr. Goldie 1  2 I interject there, my lord, in the transcript  3 reference I gave you in my previous submissions, I  4 made particular reference to the particular page in  5 the transcript to Mr. Kelly's comments on the "fatal  6 phrase."  Continuing:  7  8 "I cannot, with a due sense of responsibility  9 and having the best interests of these people  10 at heart, recommend any other action but the  11 adoption of the report.  The Indians will  12 receive in the aggregate a large acreage of  13 reserve lands free from any vaxatious claims of  14 the Province such as the so-called reversionary  15 interests as has been in the past..."  16  17 And so on. Then he continues:  18  19 "If our government refuses to further consider  20 the report of the Royal Commission and fails to  21 use the statutory power to confirm the report,  22 I am afraid the future welfare of the British  23 Columbia Indians will be jeopardized.  The  24 report is the outcome of long negotiations  25 between the Governments, of an examination into  26 the needs of the Indians on the ground, during  27 which the evidence of the Indians was taken and  28 their advice and cooperation sought, and  29 finally, there was a resurvey of the whole  30 report by officers of the Governments and  31 representatives of the Indians.  I would  32 recommend that the 'cut offs' in the Railway  33 Belt be cancelled..."  34  35 They could do that because the Dominion had  36 title to those.  37  38 "...and the reserves as originally set apart  39 from the Railway Belt be confirmed.  With the  40 reserve question finally disposed of I had  41 expected that the Indians would realize that  42 their aboriginal title was in part already  43 annually compensated for by the generous grants  44 that the Dominion parliament is making on their  45 behalf, and would wish to add to those  46 obligations of the Dominion an extension of the  47 educational system and some better provision 283?  Submissions by Mr. Goldie  and medical attendance.  Such is  1  for hospitals  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. GOLDIE  THE COURT:  MR. GOLDIE:  not the case, and I have to submit the facts  for your consideration."  Now that was followed, my lord, by further efforts  on the part of the minister to find some ground for --  well, I should say that P. C. 1265 was adopted in 1924  but that in turn was followed by efforts on the part  of the federal government to find some common ground  of settlement.  And I refer briefly to that in the  next section, my lord.  That will bring me, my lord, to --  I take it these discussions then with -- these took  place in 1923?  Yes.  And P. C. 1265 was in 1924.  :   Do you have a reference for -- I have seen it, just  so that I can make a note where I can quickly find P.  C. 1265.  Yes.  It's in several places and I wanted to make  sure I got it.  THE COURT:  I am sure I will find it in your section eight and  in your friends' submissions.  MR. GOLDIE:  The exhibit number to the order-in-council, and  it's appendices, is Exhibit 1203-12, section 11, tab  14.  THE COURT:  Thank you.  MR. GOLDIE:  Now, my lord, if I could go to section ten --  THE COURT:  Before you leave that, could I just say that  sometime I would be grateful if I could have, if it's  conveniently available, some indication of what was  the result of the McKenna-McBride, on the ground  that -- that is, what additional reserves and acreage  were alloted within the province or within the Claim  Area, particularly the latter, if any.  MR. GOLDIE:  Yes, I think there were some in the Claim Area and  the numbers are available.  I don't have them right to  hand.  THE COURT:  Well, I will leave it to Mr. Wolf to struggle with.  MR. GOLDIE:  My lord, could I turn to the next section, which is  sections Roman XII and XIII, and it's the report of  the joint committee of the Senate and House of  Commons, and I say it was shown in part eight of the  Province's summary of argument that P. C. 1265  operated to discharge British Columbia from any  further obligations respecting Indians in British  Columbia.  The oral argument is found in transcript  351, volume 351, page 27905, line 27, to page 27910, 28389  Submissions by Mr. Goldie        1 line 32.  And in that I  briefly touched on the point  2 raised by your lordship about two parties affecting  3 the rights of a third.  And I will be submitting that  4 the Sparrow case confirms the authority of the  5 Dominion to bind the native peoples.  6 Now, if that's the case, there is an absolute  7 discharge of British Columbia.  If that is not the  8 case, and the Dominion did not have the power to bind,  9 then the Dominion becomes the indemnity, the means of  10 indemnifying the province of any claim made against  11 it.  But I will be submitting that Sparrow confirms  12 that the Dominion has the power to bind the Indians.  13 And of course your lordship will have seen that all  14 this was done in the full light of Indian objections,  15 at every step of the way there were objections:  First  16 to the McKenna-McBride agreement; second to the  17 adoption of that agreement; thirdly, in some  18 instances, to the proceedings of the Royal Commission.  19 The refusal of the terms of P. C. 751, the very  20 strenuous objections to the adoption of the Royal  21 Commission report.  All of these were fought step by  22 step and so it's not a question of the Dominion doing  23 anything behind anybody's back.  24 Now, I turn now to the page 302 of our summary.  I  25 say in Province, paragraph 2, having expressly  26 accepted in P. C. 751 that the extinguishment of  27 Indian title, if any existed, was not within the  28 province's power or sphere of responsibility.  The  29 Dominion attempted to achieve that objective through  30 the negotiations of 1923.  31 And the -- I have repeated in here the interviews  32 that took place after the order-in-council had been  33 adopted.  I say the Dominion, in the second paragraph  34 under number 20 page 302, the Dominion continued to  35 receive representations on the title questions and it  36 eventually agreed to consider the matter further.  37 Under the second -- under the first blue separating  38 sheet there is a report of an interview with the prime  39 minister.  4 0 THE COURT:  Are you in a new book now?  41 MR. GOLDIE:  I am in the new book, yes.  I am sorry.  42 THE COURT:  And which tab?  43 MR. GOLDIE:  Tab dash two.  4 4 THE COURT:  Yes.  45 MR. GOLDIE:  And this is the Lands Committee, Land Committee of  46 the Nishga accompanied by Mr. O'Meara, interviewing  47 the prime minister at Prince Rupert on the 13th of 28390  Submissions by Mr. Goldie        1 October, 1924.  And  they go through the entire history  2 to date including the promises made by Sir Wilfrid  3 Laurier.  4 THE COURT:  The prime minister at this time is?  5 MR. GOLDIE:  McKenzie King, my lord.  6 And eventually there was attempts made to  7 reconsider the matter and your lordship will find  8 under that tab a number of newspaper articles all  9 referring to the representations.  But a petition was  10 filed with parliament in June of 1926, and following  11 that the special Joint Committee was constituted to  12 consider the matter.  The government of British  13 Columbia declined to be represented.  And the  14 committee, although it found that no claim to  15 aboriginal title had been established by the Indians  16 who appeared before it, the special Joint Committee  17 recommended that $100,000 should be spent annually for  18 various purposes to benefit Indians in British  19 Columbia in lieu of an annuity.  20 And that, my lord, is taken straight from the Joint  21 Committee's report.  And I had quoted to your lordship  22 the words from that report that the matter was to be  23 considered as finally closed.  24 THE COURT:  What's the date of the Joint Committee report?  25 MR. GOLDIE:  The Joint Committee's report is April of 1927.  2 6 THE COURT:  Yes.  Thank you.  27 MR. GOLDIE:  I say that this result, that is to say, that the  28 payment, the annual payment is in lieu of an annuity,  29 is consistent with and flows logically from the  30 provisions of P. C. 751, and from the failed attempts  31 by the Dominion to negotiate a treaty in 1923  32 following P. C. 1265 otherwise to find a solution to  33 the question of aboriginal title.  The Joint  34 Committee's report and its recommendation respecting  35 an annual payment in lieu of annuities was considered  36 by the Dominion government to be a final pronouncement  37 on the question.  Whether this resulted in  38 extinguishment is not a question for these proceedings  39 but the implementation by parliament of the Joint  40 Committee's recommendation and the Indians' acceptance  41 of funds so appropriated operated - in a manner  42 analogous to the to the payment and acceptance of  43 Treaty monies - to confirm that the province was  44 discharged from all obligations in respect of  45 aboriginal title and that the Indian peoples were  46 bound by that discharge.  The Joint Committees report,  47 although not adopted by both houses -- 28391  Submissions by Mr. Goldie        1  THE COURT:   Although not  adopted?  2 MR. GOLDIE:  I am sorry, although adopted by both houses, is not  3 a legislative Act of Parliament.  But the -- under tab  4 8, my lord, is the adoption documents in Hansard,  5 April —  6 THE COURT:  Eight?  Yes.  7 MR. GOLDIE:  April 8th — I am sorry, April 12th, 1927, the  8 second page of the first is the adoption by the House  9 of Commons that the second and final report of the  10 special committee appointed to inquire into the claims  11 of the Allied Indian Tribes be concurred in.  Motion  12 agreed to.  Then under the second binder is the  13 senate, down at the lower right hand corner of the  14 second column, and this is April 14th, Mr. McClennan  15 moved concurrence in the report of the Special  16 Committee appointed in respect to the claim of the  17 Allied Indian Tribes of British Columbia.  And then he  18 went on to say something about the excellence of the  19 material supplied to the committee, its hard work and  20 the impression that he found it to be an excellent  21 piece of work.  And he recommended to the House the  22 adoption of the report and the motion was agreed to.  23 So both houses of parliament, without dissent, adopted  24 the report.  25 I say, back at page 305, the subsequent and  26 continuing appropriations of monies by parliament were  27 Acts of Parliament and as such they endorsed the Joint  2 8 Committee's recommendations.  And under tab 9, my  29 lord, is an example of an Appropriation Act, under  30 vote 201:  31  32 "To provide for expenses connected with the  33 administration of Indian Affairs..."  34  35 And so on.  36  37 "And a grant of $100,000 approved by parliament  38 in the session of 1926-27."  39  40 That approval, of course, refers to the adoption of  41 the report.  An example, that's the example referred  42 to in paragraph 9.  These appropriations were  43 represented to the Treasury Board, the department of  44 government responsible for approving expenditures, not  45 only as being paid "in lieu of treaty" but as having  46 the same force and effect of the treaties made with  47 the Indians in central and western Canada.  That 28392  Submissions by Mr. Goldie        1 letter is from the  Department of Indian Affairs to the  2 Indian Commissioner for British Columbia and makes  3 reference to the representations made to the Treasury  4 Board.  And he is quoting the explanation given to the  5 Treasury Board of the vote.  6 The same explanation was prepared as an answer to  7 a question raised by a member of parliament in 1963.  8 The provision of $100,000 per annum was made in liew  9 of treaty as has the same force and effect as the  10 treaties made with the Indians of central and western  11 Canada.  And another member of parliament was informed  12 to the same effect.  13 Then I say, at page 307, that the Dominion viewed  14 P. C. 1265 as a complete discharge of British Columbia  15 from all further obligations towards Indians.  It is  16 clear from the fact that after July 19th, 1924, the  17 date that P. C. 1265 was approved, it purchased from  18 the province additional lands required for Indian  19 reserves.  In some cases these lands were purchased  20 with B. C. Special funds and at least in one instance  21 the Department of Indian Affairs approved the use of  22 B. C. Special funds for purchase of reserves in the  23 Claim Area for the Francois Lake Band.  That's -- all  24 of these documents are in the yellow binder, my lord.  25 Paragraph 15, the Government of Canada and the  26 Department of Indian Affairs represented the Joint  27 Committee's report as a final determination of the  28 Indian title question in British Columbia to the  29 general public, to Indians, to Indian agents, to other  30 government departments and to the government of the  31 United Kingdom.  And each of these documents will be  32 found in the yellow binder.  And I say in paragraph  33 16, to consider one of these documents by way of  34 illustration, the penultimate item listed above is a  35 letter from the Indian Commissioner for British  36 Columbia to G. C. Mortimer, the Indian agent at  37 Hazelton.  38 It was written in response to one of the  39 continuing series of petitions from the Kitwancool  40 people who alone among the Gitksan continued to assert  41 a claim to aboriginal title.  Mortimer was instructed,  42  43 "...any question relating to Indian lands in  44 British Columbia was dealt with by parliament  45 as a result of an investigation made by a  46 Special Joint Committee of the Senate and House  47 of Commons appointed to enquire into the claims 28393  Submissions by Mr. Goldie        1 of the Allied  Indian Tribes of British Columbia  2 as set forth in their petition  submitted to  3 parliament in June, 1926.  4 The report and evidence of the Special  5 Joint Committee submitted to parliament was  6 printed by Order of Parliament by the King's  7 Printer in 1927 and copies were subsequently  8 sent to all Indian agents and to all leading  9 Indians in British Columbia wherever these were  10 found to have shown an interest in the  11 proceedings reported on.  Each Indian agent was  12 requested by the late commissioner to make  13 known to the Indians the contents of this  14 report and explained to the Indian who received  15 copies anything therein which might seem to be  16 ambiguous or calling for explanation.  I have  17 no record as to whether or not the late agent  18 carried out the instructions but in reply to  19 the present enquiry I would refer you as well  20 as the Kitwancool Indians, to the report above  21 mentioned, and would state that so far as this  22 office may be concerned, the Indian Land  23 Question, so called has been finally disposed  24 of by legislation in the Parliament of Canada  25 as a result of the Report of the Joint  26 Committee, such action having been taken by  27 Parliament under the authority vested in the  28 Parliament by virtue of its powers under the  29 British North America Act."  30  31 And the actions taken by the Dominion in the face  32 of the Kitwancool Band's resistance to the survey of  33 reserves allotted to it by the Royal Commission and  34 the Dominion's subsequent actions confirm the finality  35 of the Joint Committee's Report.  And these documents  36 are listed and an explanation -- and a brief report is  37 given of the controversy which arose between the  38 Kitwancool and the surveyors and I describe that.  39 THE COURT:  I am sorry, I don't see that passage just read about  40 the finality of the report.  I am looking at page 310.  41 MR. GOLDIE:  Yes, my lord.  42 THE COURT:  Where is that?  43 MR. GOLDIE:  That will be found under tab 16.  44 THE COURT:  I am sorry, you are reading from the document and I  45 am rading from your text.  16.  46 MR. GOLDIE:  Yes.  If your lordship would look on the first  47 page -- 28394  Submissions by Mr. Goldie        1  THE COURT:  Tab 16?  2 MR. GOLDIE:  Yes.  Yes, that's correct.  It's the paragraph, the  3 third paragraph, about two-thirds of the way:  4  5 "...but in reply to the present enquiry I would  6 refer you, as well as the Kitwancool Indians,  7 to the report above mentioned and would state  8 that so far as this office may be concerned the  9 Indian Land Question so-called has been finally  10 disposed of by legislation of the Parliament of  11 Canada."  12  13 THE COURT:  I thought I heard you read something about  14 resistance to surveys.  15 MR. GOLDIE:  Well, that's the next part, my lord.  I had gone on  16 a little quickly, and the -- paragraph 17 of my  17 summary,  18 THE COURT:  Yes, there it is.  I see.  19 MR. GOLDIE:  And if your lordship would look under tab 17 in the  20 yellow binder, you will find a great collection of  21 documents which support the summary of and tells the  22 story of the Kitwancool resistance to surveyors and  23 the actions taken by the Dominion in the face of that  24 resistance.  And these matters were all, I note at the  25 bottom of page 18 or page 311, the prosecution of the  26 members of the bands who interfered with the survey  27 was undertaken under instructions from the Department  28 of Justice and Indian Affairs by counsel who was paid  2 9 by the Dominion government.  The province was not  30 called in in the matter at all.  And one of the RCMP  31 reported that, I believe it was Mr. Richard Douse, who  32 had a copy of the 1927 report in his possession.  And  33 I say at page 313, it is not unreasonable to conclude  34 that some or all of the plaintiffs or their  35 predecessors, knew about the events at Kitwancool in  36 1927 and thereafter, if they weren't personally  37 familiar with the Joint Report itself, which was  38 distributed throughout British Columbia.  39 I say in paragraph 20, any doubt about whether the  40 Joint Committee's report was in fact distributed in  41 the Babine Agency is removed by the RCMP patrol report  42 of 1928 in which it was noted that a Kitwancool Indian  43 had a copy of the Committee Report in his possession.  44 I say the presumption that an Indian Agent would  45 follow his instructions is thus seen to be confirmed.  46 Instructions and information respecting the  47 distribution of the report were sent by headquarters 28395  Submissions by Mr. Goldie 1            in Ottawa to the Indian  Commissioner for British  2 Columbia in November, 1927.  In 1926, '27 and 1978,  3 '79 parliament appropriated $100,000 per year in  4 pursuance of the policy recommended by the Special  5 Joint Committee.  The amount was increased to $200,000  6 in '79-'80 and to $300,000 the next year.  7 And then, my lord, I collect evidence of the role  8 of the Department of Indian Affairs and later  9 participation of the Indian peoples themselves and  10 continuing administration, allocation and expenditures  11 of the B. C. Special Fund is found in the documents  12 under tab 24.  Again, there is a very substantial  13 collection of documents, including, as will be seen, a  14 whole series of exhibits in the case.  15 I say in paragraph 25, it is submitted that in  16 light of the course of conduct pursued by the  17 Government of Canada since 1871 -- and I interject  18 there -- in my submission, consistent with only minor  19 deviations, such as the letter by Mr. Mills, in light  20 of the origin of the B. C. Special Grant and in light  21 of representations made to Parliament and the Treasury  22 Board respecting its purpose and effect, parliament's  23 continuing annual appropriation of funds for the B. C.  24 Special Grant amount to a clear and plain affirmation  25 that claims of aboriginal title could not be  26 maintained against the province.  I say whatever their  27 effect is between Canada and the plaintiffs.  It is  28 submitted that the Joint Committes report and its  29 implementation, including the payment and acceptance  30 of the B. C. Special Grant operates as against the  31 plaintiffs and Canada to confirm that the public lands  32 of the province are free of aboriginal interests.  And  33 I interject here to confirm P. C. 1265, in discharging  34 Her Majesty the Queen in right of the Province of  35 British Columbia from any liability respecting claims  36 of aboriginal title to lands in the province which are  37 the subject of the jurisdiction of the province.  38 My lord, the collection of documents in section 14,  39 I don't propose commenting on.  They illustrate the  40 views taken from time to time by Canada of its  41 responsibilities to and powers over the Indian peoples  42 of British Columbia.  43 THE COURT:  I don't think I have a collection of documents for  44 section 14.  45 MR. GOLDIE:  It's not in the binder, my lord, it's in the  46 section 14 of the exhibit.  47 THE COURT:  I see.  And what exhibit number is that? 28396  Submissions by Mr. Goldie        1  MR. GOLDIE:  The exhibit number  will be 1203-13.  2 THE COURT:  I should amend your text from that section to  3 1203-13, should I?  4 MR. GOLDIE:  I will just confirm that.  I am told it's 1203-10  5 is the volume number.  And it consists of a collection  6 of documents extending in time from 1876 through to  7 1928.  But I will be submitting, my lord, that all of  8 that is largely clarified by the Sparrow case, about  9 which I wish to speak at the present.  And if I could  10 turn to tab Roman XI, the pink tab, and hand up to  11 your lordship the concluding submission.  12 Does your lordship have that?  13 THE COURT: Yes.  14 MR. GOLDIE:  I say of the three judgments delivered by the  15 Supreme Court of Canada in May, one has a direct  16 bearing on the outcome of this case.  Reference has  17 already been made to Sparrow and the Queen in respect  18 to the province's submission on the meaning and effect  19 of section 35 of the Constitution Act.  However, in my  20 submission the importance of Sparrow extends beyond  21 section 35.  It is authority for the proposition that  22 the claims of ownership and jurisdiction in the case  23 at bar must fail, that the plaintiffs are not the  24 proper parties to maintain an action in respect of  25 aboriginal rights and that damages of the nature  26 claimed cannot be awarded against the province.  27 First I wish to deal with ownership and  28 jurisdiction.  I say the true character of the  29 plaintiffs' claim is revealed by the declarations  30 sought in the prayer for relief, in Mr. Sterritt's  31 evidence at transcript 134 and 142 and in the closing  32 submissions of plaintiffs' counsel on May 12th of this  33 year.  Despite Mr. Jackson's earlier disclaimer with  34 respect to traffic laws, Mr. Grant's final submission  35 on May 12th came down to one basic point:  The laws of  36 the province must give way in an overall sense to the  37 plaintiffs' full exclusive enjoyment and possession of  38 lands and resources.  I pause there to turn to the  39 tabs which contain the references to the transcript  4 0 that I have.  41 Under the first tab is Mr. Sterritt's cross-  42 examination at transcript volume 134, page 8286.  The  43 question was put to him -- well, he gave answer at  44 line 18.  45 "The Gitksan and Wet'suwet'en have aboriginal  46 title and jurisdiction over their territory.  47 Neither Canada nor the province have 28397  Submissions by Mr. Goldie 1                   sovereignty  within that territory until such  2 time as these matters have been dealt with  3 properly, either in court or in negotiation.  4 Q   Well, if I understand you correctly, you're  5 saying that if you are asking this court to  6 declare that neither Canada nor British  7 Columbia has sovereignty in the full and  8 complete sense of the word or over these lands  9 that are presently the subject matter of the  10 litigation?  11 A   Yes, I think that would be correct."  12  13  14 And then there is another question which was  15 objected to.  16 Then under the blue divider sheet is Mr. Sterritt's  17 re-examination at transcript volume 142, and Mr. Rush  18 put this question to him at line 17 of page 8987:  19  20  21 "Q   All right.  Just let me reframe the question  22 again for you, Mr. Sterritt.  You indicated in  23 your evidence that you hadn't thought about the  24 question of whether the province could make  25 laws in respect of the resources of the Gitksan  26 people and then as you have just heard me  27 relate you indicated that Canada and British  28 Columbia do not have sovereignty in the Gitksan  29 and Wet'suwet'en area.  My question is:  Can  30 you explain what you meant by the two  31 statements?  32 A   The Gitksan and the Wet'suwet'en have  33 sovereignty within that territory, within their  34 territory.  The Gitksan-Wet'suwet'en have their  35 laws within those territories and the power to  36 make laws within those territories.  And --  37 excuse me -- the Gitksan and Wet'suwet'en laws  38 prevail over the laws of the province within  39 that territory, within those territories.  40 Q   Is that what you meant by sovereignty or is  41 that what you mean by sovereignty?  42 A   Yes."  43  44 Then under the next blue divider sheet Mr. Jackson  45 made the observation at line 31 in relation to lands  46 outside of the reserves:  47 28398  Submissions by Mr. Goldie 1           "I don't think the  plaintiffs have ever voiced and  2 objection to the trapping laws of the province, my  3 lord."  4  5 And then at the next sheet, which is transcript  6 volume 337, page 26414, line 31:  7  8 "Well, my lord, at the bottom of that paragraph  9 I refer, after that declaration I refer to  10 the -- that the court should make a declaration  11 that the Gitksan Houses have a right of  12 ownership over the territory delineated in  13 Exhibit 646 9-A.  14 THE COURT:  So then you would say you would want a  15 separate declaration for each chief and each  16 House as to ownership?  17 MR. GRANT:  Yes, as to ownership but I say it can  18 be dealt with as two declarations, one for the  19 Gitksan and one for the Wet'suwet'en and the  20 delineation of the Houses as set out in 646 9 A  21 and B. I think I mentioned to you that's  22 houses, not chiefs."  23  24 Then at the next page or page 26421, which is not  25 the next page but it's the next page under the tab,  26 line 21:  27  28 "Now here on page 19 I would like to return to  29 the principal challenge in this case to  30 provincial laws applicable to the plaintiffs at  31 this time are those laws which purport to deal  32 with harvest, management, conservation and  33 ownership of the land and resources.  Those  34 laws to the effect that they purport to impinge  35 upon the aboriginal rights of the plaintiffs in  36 the exercise of ownership and authority over  37 the territory and the resources therein are of  38 no force and effect as of the date of the  39 judgment in action in favour of the plaintiffs.  40 Now we are saying that the provincial laws do  41 not apply to the plaintiffs on that land only  42 insofar as they are inconsistent or repugnant  43 with the ownership and jurisdiction of the  44 plaintiffs.  The laws of the Province do apply  45 to non-Indians within the territory insofar as  46 they are not inconsistent with the plaintiffs'  47 ownership and jurisdiction." 28399  Submissions by Mr. Goldie 1  2 An now, my lord, the pleadings, of course, have  3 been -- the declarations sought in the pleadings have  4 been referred to your lordship on a number of  5 occasions.  And they are referred to again under --  6 and I refer to them again because they purport to set  7 aside the province's laws in the territory generally  8 with only exceptions.  In other words, the general  9 proposition is that the province has no jurisdiction,  10 and the exceptions are those as recognized by the  11 plaintiffs.  And that, in my submission, is made clear  12 in Mr. Grant's next submission at page 26423, under  13 tab 5.  14  15  16 "THE COURT:  Well, what you're really saying is you want  17 jurisdiction over matter of a private nature,  18 civil rights and the matters of a private  19 nature within the territories.  You want the  20 same rights within the territory the Province  21 has under Section 92, don't you?  22 MR. GRANT: Vis-a-vis the plaintiffs, not vis-a-vis  23 non-Indian people in the territory.  The  24 provincial loss would still apply to  25 non-Indians."  26  27 Going back to my submission, I quote that at the  28 bottom of page 2 and I say the foregoing propositions,  29 this is page 3, paragraph 4 in my submission, wholly  30 denied by the statement of the court in Sparrow at  31 reasons page 19 and 20.  32  33 "It is worth recalling that while British policy  34 towards the native population was based on  35 respect for their right to occupy their  36 traditional lands, a proposition to which the  37 Royal Proclamation bears witness, there was  38 from the outset never any doubt that  39 sovereignty and legislative powers, and indeed  40 the underlying title to such lands vested in  41 the Crown."  42  43 Followed by citations.  Now, I say that the premise  44 of the judgment in Sparrow is that sovereignty and  45 legislative powers are wholly distributed between  46 Canada and the Provinces by virtue of the Constitution  47 Act of 1867 and amendments.  In my submission, Sparrow 28400  Submissions by Mr. Goldie 1            disposes of the  plaintiffs' claim as pleaded and as  2 argued.  The ownership and jurisdiction of the  3 province outside the reserve lands vested in the Crown  4 in right of Canada is confirmed by Sparrow and the  5 onus is on the plaintiffs to demonstrate that there  6 are specific unextinguished aboriginal rights which  7 existed on April 17th, 1982.  8 Umbrella declarations of the kind sought by the  9 plaintiffs are inconsistent with the justificatory  10 process called for under Sparrow.  Now that's a  11 reference to the process which the court has mandated  12 is to be followed where there is a specific aboriginal  13 right established and a claim is made that specific  14 legislation interferes with that right.  15 The plaintiffs have made no claims with respect to  16 any specific provincial statute.  And I contrasted Mr.  17 Jackson's comment about traffic legislation with the  18 general statements made by Mr. Grant.  Mr. Grant is  19 far closer to the mark when one examines the pleadings  20 of the plaintiffs.  I say -- I repeat, the plaintiffs  21 have made no claims with respect to any specific  22 provincial statute and the characterization of the  23 plaintiffs' claim as made by the court at transcript  24 337 and follows the part that I read, is precisely  25 what the court in Sparrow rejected.  Now any doubt  26 about this is resolved bit court's reference to  27 Canadian Pacific Limited versus Paul in the sentence  28 immediately following the extract from the reasons  29 first quoted.  And I should perhaps read to your  30 lordship the particular section in Sparrow that I am  31 referring to.  I read that part which began with the  32 words "It is worth recalling that while British policy  33 towards the native population..." but then in the same  34 paragraph, there comes these words:  35  36 "And there can be no doubt that over the years  37 the rights of the Indians were often honoured  38 in the breach for one instance in a recent case  39 in this court see Canadian Pacific Limited  40 versus Paul."  41  42 Now, in Paul -- and I should refer your lordship to  43 the reference to Paul.  Is it in -- it's in the  44 plaintiffs' authorities, volume three, tab 43.  45 Perhaps if that could be handed up.  4 6  THE COURT:  Yes.  47  MR. GOLDIE:  In Paul the court upheld a pre-Confederation grant 28401  Submissions by Mr. Goldie 1            of an easement to a  predecessor of the Canadian  2 Pacific Railway in respect of lands which had  3 previously been set aside as an Indian reserve.  4 Now the page 675, 676, the court, right at the  5 bottom of the page, said:  6  7 "In our opinion, the Woodstock Railway  8 Company..."  9  10 That was the predecessor in interest to the  11 Canadian Pacific,  12  13 "...did all it was required to do in order to  14 obtain its interest in the lands comprising the  15 eastern crossing."  16  17 That crossing was within the reserve and the  18 Woodstock Company had been granted an easement by New  19 Brunswick prior to Confederation.  20  21 "That interest was obtained prior to  22 Confederation and so was subject only to the  23 legislation of New Brunswick.  Whether the  24 government of the day carried out its  25 obligations to the band is a separate question  26 which does not, in our view, affect the  27 proprietory interests of the CP in the land."  28  29 I say, my lord, the implication is obvious, for  30 the Woodstock Railway Company to have acquired  31 proprietory rights in reserve lands in New Brunswick,  32 New Brunswick must have been competent to grant such  33 rights without the consent of the Indians.  This, in  34 my submission, puts an end to the plaintiffs'  35 contention that the Crown's proprietory interest in  36 unsurrendered lands in pre-Confederation British  37 Columbia was limited to a bear right of pre-emption.  38 The proposition that lands can only be dealt with  39 with the consent of the Indian peoples is completely  40 negated by the reference that I read your lordship to  41 from Sparrow incorporating, as it does, the situation  42 in CP and Paul, where the grant was made without  43 consent.  And the proprietary interest was confirmed  44 in the grantee.  45 Standing of the plaintiffs.  Sparrow also raises  46 the question of the plaintiffs' standing to maintain  47 this action.  The premise of the fiduciary 28402  Submissions by Mr. Goldie 1            relationship is stated  as page 24 of the reasons to  2 be, and I quote:  3  4 "The government has the responsibility to act in  5 a fiduciary capacity with respect to aboriginal  6 peoples."  7  8 And speaking of section 35(1) of the Constitution  9 Act at page 25 the court said:  10  11 "We find that the words 'recognition and  12 affirmation' incorporate the fiduciary  13 relationship referred to earlier and so import  14 some restraint on the exercise of sovereign  15 power."  16  17 I emphasize the words "so import some restraint on  18 the exercise of the sovereign power."  It is not total  19 restraint, it is some restraint.  20  21 "Rights that are recognized and affirmed are not  22 absolute."  23  24 I emphasize that sentence.  25  26 "Federal legislative powers continue, including,  27 of course, the right to legislate with respect  28 to Indians pursuant to Section 91(24) of the  29 Constitution Act.  These powers must, however,  30 now be read together with section 35.  In other  31 words, federal power must be reconciled with  32 federal duty..."  33  34 An important -- interjecting here, my lord, an  35 important aspect of Sparrow is that it casts a  36 fiduciary relationship -- I am sorry, casts  a  37 fiduciary character over the relationship of the  38 parties, one of whom enjoys the sovereign power of  39 legislation and the other the object of such  40 legislation.  And I seek to put that in short form  41 when I say, this relationship then arises out of the  42 over-riding nature of the sovereign power under head  43 24 of Section 91.  And as stated in Guerin, the  44 resultant dependence of the native peoples in the face  45 of the discretion of that sovereign power.  As to the  46 latter, it was said by Mr. Justice Dickson, as he then  47 was, in Guerin, and I quote: 28403  Submissions by Mr. Goldie        1  2 "This discretion on the part of the Crown..."  3  4 If I may interject, in Guerin it was the  5 discretion given by the statutes to deal with  6 surrendered reserve lands.  7  8 "This discretion on the part of the Crown, far  9 in ousting, as the Crown contends, the  10 jurisdiction of the courts to regulate the  11 relationship between the Crown and the Indians,  12 has the effect of transforming the Crown's  13 obligation into a fiduciary one.  Professor  14 Ernest Weinrib maintains in his article 'The  15 fiduciary Obligation' that 'the hallmark of a  16 fiduciary relation is that the relative legal  17 positions are such that one party is at the  18 mercy of the other's discretion...'"  19  20 A fiduciary relationship requires identification of  21 the two parties occupying of roles of the trustee and  22 beneficiary respectively or, to use Professor  23 Weintrib's phrase, the one party which is at the mercy  24 of the other's discretion.  25 Now the evidence in the case at bar shows that the  26 named named plaintiffs are the heads of quasi family-  27 like groups known as houses, although the biological  28 link will be broken where a living member is not  29 thought to be suitable by non-biological members of a  30 house, and the example I give is the House of Haalus.  31 And I am not going to read the transcript reference  32 but it makes it clear that a house is not in its  33 entirety a biological family.  These houses are  34 complex and in many instances are uncertain, but it is  35 clear that non-Indians may become members and Indians  36 may lose their membership.  A fiduciary relationship  37 cannot arise out of internal regulations of this sort.  38 In my submission, it is clear that the court in  39 Sparrow is referring to the ascertainable relationship  40 recognized by the Indian Act, that is between the  41 Crown in right of Canada and the successors of tribes  42 known and defined as bands, and between the Crown and  43 those recognized as Indians under that act.  Houses as  44 constituted and defined in the case at bar are not  45 representative of the beneficiary class.  Only bands  46 collectively or Indians as recognized and defined  47 under the Indian Act fit both the justificatory 28404  Submissions by Mr. Goldie        1 process under Section  35 and the general fiduciary  2 relationship.  3 Now, my lord, the Crown in right of the  4 Province --  5 THE COURT:  I am sorry, Mr. Goldie, are you going to be finished  6 shortly or should we take an adjournment now?  7 MR. GOLDIE:  I will be finished, hopefully, my lord, in about  8 eight minutes.  9 THE COURT:  All right.  Will you be unduly pressed if we hold  10 you to that?  11 MR. GOLDIE:  No.  12 THE COURT:  All right.  13 MR. GOLDIE:  I am on borrowed time now.  14 THE COURT:  All right.  Go ahead.  15 MR. GOLDIE:  The Crowns in Right of the Province lacks Canada's  16 constitutional authority to exercise a discretion in  17 respect of Indians except as to laws referentially  18 incorporated under Section 88 of the Indian Act or of  19 those of general application applicable ex proprio  20 vigore.  All such laws, if determined to affect an  21 unextinguished aboriginal right, must be specifically  22 challenged in order to apply the justificatory process  23 under Section 35.  No individual law of the province  24 is challenged in this action.  A provincial attempt to  25 exercise either a discretion or a legislative power  26 affecting Indians as Indians, would be struck down  27 before Section 35 was even reached.  28 In other words, my lord, the province, any  29 province, lacks that element of legislative authority  30 upon which the court relies in discerning the  31 fiduciary relationship.  If a province sought to  32 legislate with respect to Indians as Indians, the  33 jurisprudence would find that legislation ultra vires.  34 I say that it will be recalled that in Guerin the  35 obnoxious lease was not set aside - the Indian peoples  36 were compensated for Canada's failure to measure up to  37 the standards on one who acts as a fiduciary.  38 I say that Sparrow supports the province in the  39 case at bar.  If the court finds there were  40 unextinguished aboriginal interests as of April, 1982,  41 the position of the province is analogous to that of  42 the railroad in CP and Paul.  A "discretion", that is  43 to say a discretion vested in Canada by virtue of head  44 24 of Section 91, was exercised by the trustee, that  45 is to say Canada, in the form of order-in-council  46 P. C. 1265, which confirmed that the province's  47 "interest" in its public lands was free of any 28405  Submissions by Mr. Goldie        1 aboriginal or residual  interest.  There were, I  2 interject, if it confirmed that there were no other  3 interests than that of the province under Section 91  4 of the Constitution Act, 1867.  Now, whether that  5 constituted an act for which the plaintiffs, or more  6 accurately, the relevant bands, are entitled to relief  7 against Canada is not a question that has to be  8 decided here.  All that is necessary to decide is that  9 if the plaintiffs or those who may properly represent  10 them have any claim it is against Canada and not the  11 province.  12 Damages.  In their final submissions the  13 plaintiffs claim damages for breach of aboriginal  14 rights.  No such cause of action is known to the law.  15 Nor is it necessary to create such a cause of action  16 when, in the circumstances of the case at bar, an  17 action in trespass provides sufficient remedy.  More  18 to the point, however, no such cause of action has  19 been pleaded.  20 The plaintiffs also argue that "actual damages  21 need not be proven in order to establish entitlement."  22 While true of actions in trespass, this proposition  23 does not survive the judgment in Sparrow, which  24 emphasizes the importance of indentifying actual  25 interference with aboriginal rights as the  26 precondition to the "justificatory process".  By  27 analogy, the cause of action pleaded in the case at  28 bar for "wrongful appropriation and utilization"  29 requires proof of actual interference with existing  30 rights.  Once again, however, the main answer to the  31 Plaintiffs' submission is simply that in paragraph 77  32 of their statement of claim they have pleaded actual  33 loss and damage.  This case has been tried and argued  34 on the assumption that the cause of action pleaded is  35 the cause of action assumes the requirement of proof  36 of actual damage, and in my submission there is none.  37 Then I have a submission with respect to clear and  38 plain intention, my lord.  Sparrow holds that the  39 Sovereign's intention to extinguish an aboriginal  40 right must be "clear and plain."  This adopts the  41 approach taken by Mr. Justice Hall in Calder who in  42 turn adopted the words of the U.S. Court of Claims in  43 Lipan Apache v. United States.  The court of claims in  44 turn cited as authority the language of Mr. Justice  45 Douglas in the Santa Fe case and the words "clear and  4 6 plain" come from that judgment.  The extended relevant  47 quotation from Lipan Apache in Calder is found in 28406  Submissions by Mr. Goldie        1 Supreme Court Reports  page 392 and includes the  2 following:  3  4 "While the selection of a means is a  5 governmental prerogative, the actual act (or  6 acts)...must be plain and unambiguous..."  7  8 Such intention need not be manifested by an act of  9 the legislature.  This is apparent from Sparrow  10 itself, which contemplates that such an intention by  11 be gleaned from the regulations under an Act.  12 Moreover, Sparrow does not purport to disapprove  13 of CP v. Paul where it was said, and then there is a  14 discussion which is obiter, in CP and Paul, about  15 extinguishment.  16 And, it appears to approve both tests.  But in  17 paragraph 20 I say nor does Sparrow resolve this  18 "difficult question", the difficult question being  19 that stated in Paul, on either of the Calder tests  20 could it be said that aboriginal fishing rights had  21 been extinguished?  And the answer, in my submission,  22 is no.  But in the case at bar, the result is  23 different.  Under either test can it be said that any  24 aboriginal interest in the lands of British Columbia  25 outside the Indian settlements and adjacent fields  26 withdrawn from settlement survive the assertion of  27 sovereignty in the years from 1858 to 1871.  To say  28 so, in my submission, is to introduce the third level  29 of sovereignty expressly denied in Sparrow.  30 My lord, that concludes my submission, and the only  31 other comment I have is with respect to the nature of  32 the order sought, and I hand up a replacement page for  33 that.  It's under tab 11 part two.  34 That this action be dismissed and the that the  35 defendant province is entitled to a declaration that  36 the plaintiffs, however represented, and in respect of  37 whatever claims, have no right, title or interest in  38 and to the Claim Area, as from time to time defined,  39 and the resources thereon, thereunder or thereover  40 save in respect to reserve lands.  41 In the alternative,  that if any aspect of the  42 plaintiffs' claim succeeds, that the plaintiffs' cause  43 of action and judgment pursuant thereto in respect of  44 their aboriginal title, right or interest in and to  45 the Claim Area and the resource thereof, thereunder or  46 thereover is against Canada.  47 I don't characterize what that cause of action 28407  Submissions by Mr. Goldie        1 might be, but I say  that in view of the documents that  2 have been laid before your lordship, and in view of  3 the true interpretation that must be accorded P. C.  4 1265, that that would be the appropriate order.  5 THE COURT:  I am not sure I understand how your second claim  6 would arise if you succeed on the first one.  7 MR. GOLDIE:  It will not.  8 THE COURT:  All right.  If you don't succeed on the first one,  9 then similarly the second one couldn't arise, could  10 it?  11 MR. GOLDIE:  If your lordship finds that the plaintiffs have the  12 standing to maintain a claim to aboriginal right and  13 sufficiently specific to come within the rights of  14 Sparrow, such that a judgment can be given against the  15 province, then I say that any -- that the action must  16 be dismissed on the basis that any such claim must be  17 made against Canada in the Federal Court of Canada. Or  18 if your lordship finds that it can be indeed made  19 against the province, it's still -- oh, well, we may  20 have to establish that in separate proceedings.  But  21 in my submission, in my submission, the appropriate  22 disposition, in light of your lordship finding any  23 aboriginal interest surviving as of April, 1982 is  24 such that such a claim, in whatever form it takes,  25 must be made against Canada in the Federal Court of  26 Canada, of course.  27 THE COURT:  Just seems to me at first impression that if I were  28 to find that the only proper claim would be against  29 Canada then the action would have to be dismissed as  30 against the province.  31 MR. GOLDIE:  Yes.  That is correct, as against the province.  32 THE COURT:  Yes.  That being so you never need number two.  33 MR. GOLDIE:  It would be evident from your lordship's reasons.  34 THE COURT:  You are not pursuing the suggestion that whatever  35 burden there may remain against the title is a  36 liability of Canada, that was assumed by the terms of  37 union?  38 MR. GOLDIE:  I can't -- let me put it this way, if your lordship  39 does not find that P. C. 1265 puts British Columbia  40 completely out of the picture, if your lordship says  41 that I am going to find a liability against British  42 Columbia, then I have to go into another court and  43 seek to establish Canada's indemnity.  44 THE COURT:  That's a liability then assumed by Canada?  45 MR. GOLDIE:  Yes, and would I sue Canada directly.  But one of  46 the major reasons for having Canada joined is that  47 Canada would be bound by your lordship's finding. 28408  Submissions by Mr. Goldie        1  THE COURT:  All right.  2 MR. GOLDIE:  My lord, I believe I am correct in my understanding  3 that the submissions to be made tomorrow morning at  4 9:00, if your lordship is available, will be Mr.  5 Willms and Mr. Rush, but subject to that, I am  6 concluded.  7 THE COURT:  All right.  Thank you, Mr. Goldie.  We will take the  8 mornings adjournment now.  9  10 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  11  12  13  14  15  16 I hereby certify the foregoing to be  17 a true and accurate transcript of the  18 proceedings herein to the best of my  19 skill and ability.  20  21  22  23  24 Wilf Roy  25 Official Reporter  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28409  Submissions by Mr. Macaulay 1            (PROCEEDINGS  RECOMMENCED AFTER BRIEF RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Macaulay.  5 MR. MACAULAY:  May it please your lordship, the outline or  6 summary of the argument made on behalf of the Attorney  7 General of Canada is as set out in the book that was  8 delivered on April 12th of 1990.  That's exclusive, of  9 course, of the counter-claim that was delivered later.  10 The submissions will cover all the subjects  11 mentioned on the first page, and as your lordship may  12 know from our opening statement on the case for the  13 Attorney General of Canada was presented, the evidence  14 presented, we will be submitting that the plaintiffs'  15 claim is for the use and occupation, and we will be  16 submitting that aboriginal rights mean that, and we  17 will be relying on the jurisprudence, not only the  18 jurisprudence that's been drawn to your lordship's  19 attention, but also the recent judgments, three of  20 them, of the Supreme Court of Canada that have been  21 handed down in the last two or three weeks.  22 Because of those latter judgments, I do not intend  23 to even to outline the submissions on the law that we  24 will be making later this week, but our submissions,  25 because they are submissions regarding use and  26 occupation, and because of the -- also because of the  27 judgments of the Supreme Court of Canada in the most  28 recent cases, we propose to draw to your lordship's  29 attention the facts and circumstances relating to this  30 particular -- these particular bands of Indians, and  31 we are making this claim, that is the Gitksan and the  32 Wet'suwet'en.  33 We have already submitted in our summary that we  34 take the position there has never been a blanket  35 extinguishment of aboriginal rights, and we have  36 already submitted, and we submit again that there  37 is -- that aboriginal rights never did and do embrace  38 any concept of sovereignty or jurisdiction or  39 ownership or title analagous to the concept of  40 ownership and fee simple of common law.  41 The rights of aboriginal peoples, and particularly  42 the plaintiffs, are, we say, a bundle of separate and  43 distinct rights, each of which must be individually  44 established by the plaintiffs, and each of which may  45 have different territorial limits.  And we submit that  46 these aboriginal rights were and are usufructuary in  47 character.  They comprise such things as village 28410  Submissions by Mr. Macaulay        1 sites, food fishing,  trapping, hunting and berry  2 picking.  3 We will be making submissions on the doctrine and  4 the facts that are supporting the doctrine in this  5 case of extinguishment.  We will be submitting as a  6 really sub-topic of the question of extinguishment,  7 the question that arises in this case, and I will be  8 dealing with the facts by way of background of that  9 today.  The question of abandonment and how that  10 affects aboriginal rights once held.  11 The timing, the schedule of our submissions  12 necessarily had to be altered.  I have in mind the  13 date and time which we are starting, and also your  14 lordship's direction that this trial be ended by the  15 end of this month, and that before the end of this  16 month the plaintiffs have three days for reply.  And I  17 take it, and we are planning accordingly, I take it we  18 have that time in which to make our submissions.  19 THE COURT:  Yes.  20 MR. MACAULAY:  That requires focus on certain of the many  21 general topics outlined in our summary.  There is no  22 time to go through, as the province led through, page  23 by page, line by line the whole history of this area  24 from time of Columbus on.  I will be referring as  25 little as possible to the material covered by the  26 plaintiffs in so exhaustive a manner, the defendant  27 province rather so exhaustive a manner.  There are  28 subjects on which we will be making no oral  29 submissions.  For instance, the submissions on the  30 Royal Proclamation.  But we will adopt the submissions  31 in that case made by Mr. Goldie on behalf of the  32 province.  33 There are other submissions that we will adopt  34 either in part or in whole, but clearly on the  35 question of the definition of aboriginal rights and  36 the question of the existence of aboriginal rights, we  37 have our own separate submissions to make, because  38 they do not conform with the submissions made by the  39 province.  40 THE COURT:  Mr. Macaulay, I am not intending to speak against  41 interest here, but I have accommodated the wishes of  42 of counsel up to now by sitting extra hours, some  43 evenings and Saturdays, and of course I will be glad  44 to extend the same accommodation to you if you think  45 it necessary.  46 MR. MACAULAY:  As we go along, we may ask for that indulgence.  4 7 THE COURT:  Thank you. 28411  Submissions by Mr. Macaulay        1  MR. MACAULAY:  But I have  reorganized -- we have reorganized our  2 submissions to take account of the fact that we do not  3 have six weeks or endless time or an indefinite period  4 of time, and we hope because this is, I think, the  5 357th day of the trial --  6 THE COURT:  Don't forget the 56 days, whatever it was, of  7 commission evidence as well.  8 MR. MACAULAY:  And that —  9 THE COURT:  As if you could.  10 MR. MACAULAY:  Everybody's endurance has a limit, and it would  11 not serve the Attorney General of Canada's interests  12 or Canada's interests or perhaps any party's interests  13 if we were to go on and on and on.  May I turn, my  14 lord -- if you notice in our summary at page 104 to  15 112 of Part 10.  Part 10, pages 104 to 112.  16 THE COURT:  I'm sorry, I'm not familiar with your book.  Is that  17 in this first book I have?  18 MR. MACAULAY:  The first book.  I might say about that first  19 book, we will be handing up, and I hope to have it  20 this morning, but it will be around shortly, a book  21 with tabs in it, and divided in a way that makes  22 things easier to find.  23 THE COURT:  All right.  24 MS. MANDELL:  My lord, if I could interject here.  I was seeking  25 both my friends and perhaps the court's assistance.  26 If there is going to be material provided by the  27 Attorney General of Canada other than what has already  28 been delivered in the summary, by way of further  29 argument or planned argument, whether there could be  30 some efforts, direction or order that we receive it no  31 later than Monday, because it's very hard to meet the  32 schedule of reply if it's to finish by the end of the  33 month without any time whatsoever between the  34 arguments to prepare for it.  And I don't know whether  35 or not this would be possible, but from our point of  36 view we are seeking some assistance in making this  37 available to us by that time.  38 MR. MACAULAY:  Well, I don't think that's a proper subject of an  39 order, my lord.  We will do our best to comply with my  40 friend's request insofar as the -- we do not intend to  41 hand up a lot of extra material.  I have handed to my  42 friends just now and am handing up a few pages of  43 notes of oral argument on the subject of a particular  44 set of exhibits.  45 THE COURT:  Yes.  All right.  46 MR. MACAULAY:  There will be likewise in connection with the  47 wills, there will be separate pages easily absorbed by 28412  Submissions by Mr. Macaulay        1 the counsel for the  plaintiffs.  2 The submissions on the law, of course, having  3 regard to the recent jurisprudence, had to be revamped  4 to take account of what the law is now, not what the  5 law was a month ago.  And we will -- we hope to have  6 that available on Monday too.  And so I'll keep in  7 mind what Ms. Mandell says, and expect we will be able  8 to accommodate that request.  9 My lord, at page 104 of Part 10 under the  10 heading -- general heading "Social Concomitant of the  11 Post-1865 Economic Diversification in the Upper  12 Skeena".  13 THE COURT:  I am lost already, because 104 doesn't have that  14 heading on my copy.  I found Part 10 starting at page  15 75.  Then I have Part 2 on page 76, "economic change".  16 MR. MACAULAY:  Well, 166, perhaps.  17 THE COURT:  Was your heading the "Social Concomitant of the post  18 1865" --  on page 166.  19 MR. MACAULAY:  Well, I won't be reading particularly from it.  20 In fact this morning I won't be reading from it at  21 all, since I have a different copy.  What I had to say  22 about that -- have to say about that is that a great  23 deal of the -- that page and the succeeding pages rely  24 on the Loring reports, and I've handed up, my lord, a  25 blue -- yes, that blue book.  2 6 THE COURT:  Yes.  27 MR. MACAULAY:  That deals with the Loring reports.  There were  28 11 volumes of exhibits.  1209-A to E and 1209-1 to 5,  29 a second series.  30 THE COURT:  1209-A to E.  31 MR. MACAULAY:  A to, E and 1209-1 to 5.  Those are these red  32 volumes, eleven in all.  33 What I have done here is to refer to a variety of  34 the reports, and if your lordship will turn to the  35 second page of this, you will see there is Tab 1, Tab  36 2 and so on.  37 THE COURT:  Yes.  38 MR. MACAULAY:  To Tab 90.  Those tabs refer to the books that  39 have been handed up to your lordship, the light blue  40 books to your lordship's left.  The first volume are  41 tabs 1 to 50, and the second volume tabs 51 to 89.  42 Now, those tabs are -- refer only to the tabs in  43 those volumes.  They serve somewhat the same purpose  44 as the yellow volumes that the defendant province  45 used.  And when I refer to a report or four reports in  46 some cases in support of a statement, they will be  47 found in that tab. 28413  Submissions by Mr. Macaulay        1 The original  volumes, of course, had a photostat  2 of the handwritten Loring report.  Those volumes are  3 the transcriptions only up to 1904.  And then of  4 course after 1904 back to -- they were typewritten, so  5 the transcriptions, except in one case where there was  6 a very bad copy, transcriptions weren't necessary.  7 The first tab, for instance, is a request by the  8 Lieutenant-Governor and Council addressed to the  9 Dominion Government for the appointment of an Indian  10 Agent, appointment of Mr. R.E. Loring as Indian Agent  11 on the Upper Skeena.  Almost every other document in  12 these volumes is a report by Loring himself.  And I  13 have sidelined in each case that portion of the report  14 that I'll be relying on for any particular fact.  15 Occasionally the same report is -- because it may  16 cover five different topics, may be looked at in  17 different contexts three or four times.  Where I have  18 done that, the -- the report appears the second to  19 third or a fourth or a fifth time, so that we are  20 not -- we don't have to keep turning back to an  21 earlier tab in the sequence.  22 Now, my lord, these reports were made by the  23 Indian Agent, R.E. Loring, to his superior officer,  24 usually Mr. Vowell, but on occasion to others, and  25 they were all made in the course of duty.  They were  26 all made from personal knowledge and observation,  27 except in one or two instances where the Indian Agent,  28 after having had vast experience in the claim area,  29 expresses some opinions.  30 The collection also includes the annual reports  31 that were included in the sessional papers, and the  32 annual reports continue through most of the time that  33 Mr. Loring was in Hazelton.  That's where he was based  34 from 1889 to 1920, to December 1920.  He arrived in  35 September, 1889, and he continued in his post until  36 December 1920.  That's the date of his last month of  37 which he made his last report.  38 Mr. Loring -- and I haven't included this  39 particular reference in these -- this collection, but  40 Mr. Loring's wife was the widow of the first white  41 settler, Margaret Hankin.  She was the daughter of a  42 Hudson's Bay employee named Macaulay, and Indian lady.  43 She apparently conducted the first school for Indian  44 children, but that was before Loring's time.  That was  45 the school established by the Reverend Mr. Field, the  46 Anglican Missionary at Hazelton in 1896.  During the  47 time in question she was the -- she was the 28414  Submissions by Mr. Macaulay        1 interpreter for her  husband, and she -- your lordship  2 may recall she was the interpreter at the meeting held  3 between Superintendent Roycraft and Magistrate  4 Fitzstubbs and the chiefs of the Gitksan and  5 Wet'suwet'en villages in August 1888, when Fitzstubbs  6 and Roycraft asserted the paramountcy of law.  She was  7 the reporter on that occasion as well.  8 And of course that was a considerable advantage to  9 Mr. Loring.  We have no reason to believe that he  10 spoke either the Gitksan or the Wet'suwet'en language.  11 He had been in the claim area.  He was one of the  12 detachment of five constables who were sent up the  13 river in 1788 to arrest Kitwancool Jim to take him  14 down for trial for the murder of another Indian that  15 he apparently had killed.  16 Mr. Loring was not one of the ones present at  17 Kitwancool's shooting and death, but he was in that  18 detachment that had been sent up the river.  So that  19 his first personal knowledge of the claim area and of  20 the Indians went back a little farther than in 1889.  21 He had been in the spring of 1888 --  22 THE COURT:  That's when he arrested Kitwancool Jim, was it?  23 MR. MACAULAY:  Kitwancool Jim was shot, but one of the others.  24 THE COURT:  I'm sorry?  25 MR. MACAULAY:  He was up there for that purpose.  26 THE COURT:  Of arresting him in 1888?  2 7 MR. MACAULAY:  1888.  2 8 THE COURT:  Yes.  29 MR. MACAULAY:  In the spring of 1888.  Then, unfortunately,  30 another Constable named Green shot Kitwancool Jim at  31 Kitwanga, and presumably that detachment went down the  32 river then, their mission having not been  33 accomplished.  34 My lord, I will be starting on the first page of  35 my notes of oral argument, the series of reports.  And  36 we are starting in an inauspicious way, a typo on the  37 first line.  It should be October 1889 to December  38 1920.  That is the whole Exhibit 1209 covers the  39 period in which local government was first established  40 in the claim area, and during which modern  41 communications, that is steam boats, roads and  42 railroad opened the Gitksan and Wet'suwet'en country  43 for settlement and economic development.  44 A variety of subjects dealt with extensively in  45 the Loring reports are not mentioned in the following  46 summary, although they are part of the context in  47 which the Gitksan and Wet'suwet'en lived and worked 28415  Submissions by Mr. Macaulay 1            during those years,  and must have had an effect on how  2 the Indians reacted to economic development that was  3 going on around them and among them, these subjects  4 may be considered as peripheral for the purposees of  5 this particular submission.  6 The subjects not summarized include agriculture,  7 schools, and there was schools in every village  8 ultimately, except for the northern -- well, including  9 one northern village in Kisgegas, the medical service  10 and hospitals, the band councils, law enforcement,  11 which was a very important aspect of Loring's  12 activities.  He was a magistrate and had an Indian  13 constabulary at his disposal, and unfortunately a  14 Constable, an Indian Dominion Constable, religion,  15 which he makes comments on often in his reports, and  16 cultural matters, such as changes in dress and the  17 changing role of women and the modifications in the  18 potlatch and so on.  19 As a result of the troubles on the Skeena River in  20 1888, the Superintendent General of Indian Affairs  21 appointed Loring as Indian Agent, resident at  22 Hazelton, in 1889.  This appointment was made in the  23 circumstances outlined in a submission made to the  24 Dominion Government by the Executive Council of  25 British Columbia dated June 4th, 1889.  And that's the  26 first tab.  27 You will note that the Lieutenant-Governor in  28 Council referred to Mrs. Hankin's recommendation, and  29 the Lieutenant-Governor in Council appears to have  30 lent some weight to her recommendation from that  31 source.  And I draw your lordship's particular  32 attention to the second page of the -- of this  33 provincial submission.  It says:  34  35 "Mrs. Hankin represents the state of feeling  36 amongst the Indians to be, in a great measure,  37 the same as that indicated by Captain  38 Fitzstubbs, the provincial stipendiary  39 magistrate, namely, that while upon the one  40 hand disposed to have law and order established  41 under Canadian -- the Canadian Indian Act and  42 to recognize police and other officers, there  43 is upon the other hand a feeling to some extent  44 of distrust and discontent owing to the  45 aspersion by certain native missionaries of the  46 white people and the lawfully constituted  47 authorities.  Upon this subject, the executive 28416  Submissions by Mr. Macaulay        1 enclosed with  this minute a copy of a letter  2 from Captain Fitzstubbs dated 23rd April, 1889,  3 and a report forwarded by that officer of  4 meetings of Indians held under the direction of  5 native teachers."  6  7 Captain Fitzstubbs has reported extensively in  8 1889 on the state of affairs that existed in Hazelton,  9 and the questions that he addressed not only in that  10 letter but also in an earlier letter of January 5th,  11 1889, that's Exhibit 1035, Tab 191, that there were  12 debates going on between the various bands, villages  13 of lands through their leaders and Captain Fitzstubbs  14 concerning such matters as law enforcement, the  15 appointment of constables, the potlatch or feast,  16 particularly a kind of feast called the Yuuk, and of  17 course the -- Captain Fitzstubbs had also reported on  18 some religious meetings at which the various strong  19 animosity on the part of the Indians, who spoke at  20 particular feasts at Hazelton against the whites and  21 the white community, were vividly drawn to the  22 government's attention by Captain Fitzstubbs.  Captain  23 Fitzstubbs had sent -- in fact he had sent Margaret  24 Hankin to a particular meeting, religious revival  25 meeting, and she had translated the proceedings and  26 some of the speeches that had been made.  27 Loring reached Hazelton in September of 1889 and  28 made his first report on October 1st.  And that is at  2 9 Tab 2.  30 The first meeting recorded, the first meeting  31 between Loring and members of the village or leaders  32 of the village that is recorded is with the Gitanmaax  33 tribe as he described them, that was held on October  34 5th of 1889.  The subject again was law enforcement  35 and the potlatch.  And a similar meeting was held at  36 Kispiox on October 9th of 1889, and that's referred to  37 in Tab 3.  38 I have sidelined that part of Tab 3 that I want to  39 draw to your attention.  It's very reminiscent of what  40 had been reporteded by -- earlier in the year by  41 Captain Fitzstubbs.  The relevant portions read as  42 follows:  43  44 "I must apprise the Department of the results  45 after having had a council with the Kit-an-max  46 tribe on the evening of the 5th inst.  The  47 feeling amongst them I found to be in the 28417  Submissions by Mr. Macaulay        1 highest degree  in favour of the laws and  2 regulations I laid down in my instructions.  3 They conceded to everything, even to giving up  4 the name of Louis, employed by Capt. Fitzstubbs  5 S.M. as Constable turned the scale in  6 opposition to the abolishing of their old  7 customs.  He spoke before me and all assembled  8 as follows:  9 My uncle is the Head Chief of the  10 Kits-pioux, the same told me, to oppose any new  11 law, that should come to this country.  That  12 they had their own laws and that they wanted no  13 other.  I know the law is against stealing etc.  14 I am an officer of the law myself.  We do not  15 want any one to come to Kits-pioux with any new  16 laws from the Govt.  How would the Government  17 like to have their laws locked up, as they do  18 ours.  Then I told him, it was for those under  19 oath to uphold the law, to help to reform and  20 not obstruct it.  Furthermore, that his remarks  21 were uncallled for, as I was addressing the  22 Kit-an-max tribe and instructed to visit his  23 village in a few days or so.  24 Wednesday the 9th inst. I started for  25 Kits-pioux.  On arriving we were told, that he  26 Ind. Constable Louis had sent them to advise to  27 oppose whatever I should have to say.  28 I assembled the tribe in council, was  29 eagerly listend to, as the presence of my wife  30 inspired them with confidence, despite the  31 alarm given.  They consented to send their  32 children to school, stop eating dogs, and  33 everything else mentioned but, to give up the  34 potlatch they could not, as they were advised  35 by Capt. Fitzstubbs Constable, that the law had  36 no power to punish it as an offence and that  37 they could go on, as they had been doing.  This  38 same constable is kept on under pay, even after  39 Capt. Fitzstubb's departure fom here to the  40 coast."  41  42 And then he goes on to say:  43  44 "The Indians asked me to write to the Gov't, to  45 be allowed to retain the custom of potlatching  46 for a year or so more and I promised to do so."  47 28418  Submissions by Mr. Macaulay        1 As I say, my  lord, that first interview has the  2 flavor of the -- of earlier times.  3 On November 2nd Loring reported he had made  4 arrangements for the distribution of relief to the  5 most helpless and destitute.  And he mentioned that  6 there were many disputes to settle, including disputes  7 about fisheries.  And that is the first reference to  8 something that would occupy him for 30 years.  9 And at Tab 4 I have -- I draw your lordship's  10 attention to the first and last paragraph on the first  11 page.  To no other part of this report at the moment.  12  13 "It has been a busy time with me ever since  14 arrival.  There are Indians streaming in from  15 all directions, day in, day out.  They either  16 come to tell me their grievances, or have  17 disputes to settle.  One about a marten skin,  18 the other about a canoe or fishery.  Sickness  19 and ailments of all descriptions to attend to.  20 Thank God, that I am so far settled down as to  21 be able to give the Indians all my undivided  22 attention."  23  24 You will notice, my lord, comas occur at odd  25 places, but that's how it was in the original.  And at  26 the bottom of the page:  27  28 "To be able to carry on the most necessary work,  29 I opened an account with the Hudson's Bay  30 Company.  These are vouchers 8 and 9, Items 3  31 for the relief of the most ..."  32  33 And I can't make out the next word.  34  35 "... helpless and destitute Indians."  36  37 And November 1889 Loring visited Kitsegukla and  38 Kitwanga, and he noted that destitution was prevalent  39 in all the villages he had visited.  And I will be  40 coming back to that, my lord.  And that's at Tab 5.  41 His report of -- the month end for November.  Just the  42 first two paragraphs.  43  44 "I am glad to state, that everything is going on  45 nicely.  Was very well pleased by having been  46 received at Kitse-gukla and Kit-wan-nagh with  47 the most cordial welcome.  At both villages 28419  Submissions by Mr. Macaulay        1 Heathenism is  becoming very weak.  I found a  2 good many sick and destitute, whom I attended  3 to.  4 Destitution is very prevailing among the  5 Indians of all the villages I have visited.  In  6 some cases actual distress and pitiful to see.  7 I gave relief to the amount of $53.10 ..."  8  9 And then he recites the vouchers.  10 As we will see, the relief took the form of sacks  11 of flour, dried fish and tea and items of that kind.  12 In some exceptional cases there was clothing.  But  13 Loring had to name each person and describe that  14 person's condition or the reason for the relief.  15 Now, the villages he had visited by that time, of  16 course, were Gitanmaax, Kispiox, Kitwanga and  17 Kitsegukla.  18 THE COURT:  Not Glen Vowell then?  19 MR. MACAULAY:  It hadn't been founded.  That was founded as a  20 result of a religious dispute.  21 THE COURT:  That was later?  22 MR. MACAULAY:  That was later.  2 3 MR. MACAULAY:  And there was no Andimaul, but there were other  24 villages.  There were three groups of villages.  They  25 were the central ones, Kispiox and Gitanmaax.  They  26 were the western ones, Kitsegukla, Kitwanga and  27 Kitwancool, and then the northern ones, which were  28 Kisgagas and Kuldoe.  He didn't get to Kisgegas 'til  29 1890, so that the destitution and so on that he saw  30 did not touch the northern villages, or at least the  31 remarks can't be interpreted.  32 There is a description of it, if you turn the page  33 in my notes, my lord.  In December Loring visited  34 Hagwilget.  I am using the modern terms here.  35 Hagwilget, to him, meant what we would call  36 Wet'suwet'en and more.  The Babines and the residents  37 of what's now called Hagwilget, what's now called  38 Moricetown, were all Hagwilgets to him.  But in my  39 notes I am using the modern term wherever I can, and  40 the modern spelling in my notes.  41 So he visited Hagwilget, and he found the  42 population in winter quarters.  There was nobody in  43 Hagwilget at all, and their winter quarters were in a  44 sheltered location near a good supply of firewood.  45 And that was a feature of life which continued right  46 up to 1920, and we don't know how much longer.  47 As you will see as we go through the reports, 28420  Submissions by Mr. Macaulay        1 something that wasn't  mentioned in the plaintiffs'  2 evidence at all, the whole village would leave the  3 village to go into winter shelter, and these winter  4 trips, if you went to the village, you would find, and  5 this happened again shortly, you would find nobody  6 there.  But the old people continued to go into winter  7 shelter, as is described here, up 'til 1920, and who  8 knows how long after that.  9 Now, in January Loring got to Kisgegas, and there  10 again he found everybody had moved into the woods a  11 few miles away, and I reported that the exposed site  12 of the village itself had been chosen for defensive  13 purposes following a massacre of the villagers -- that  14 should be villagers, not villages -- by the Nishga.  15 And that's in — at Tab 7.  Tab 7 is dated.  It's the  16 month end report for January 31st, and this is  17 apparently his first visit to Kisgegas, which must  18 have taken some effort to get to in mid-winter in  19 those days.  He says:  20  21 "I must report after returning from  22 Kiss-ge-gass, that I am highly elated with my  23 reception there.  Rumours have been spread  24 broadcast, through all of the villages so far  25 visited by me, that a government official is to  26 arrive soon to have a look over their land and  27 that the most desirable portion of it is to be  28 staked off and taken from them.  How these  29 contaminating circulated, I am not able to  30 state, but it ought to rest with those, to whom  31 it belongs, for the Indians being for a time  32 back in a state of ferment on the subject  33 mentioned.  34 In all my visits, or when the opportunity  35 permits, I make it an object to have matters  36 touching this point thoroughly explained.  That  37 the surveying of their land is the only  38 security of the same to them, and of the  39 falsity of the malicious rumours propogated.  40 As I was reported to be a collaborator to this  41 proposed scheme, I heard of nothing but  42 obstructions as to my getting to Kiss-ge-gass,  43 even as to the use of the suspension bridge  44 across Babine River.  45 On arrival found, that all the people had  46 left for a few miles distant and were encamped  47 through the woods taking advantage of its 28421  Submissions by Mr. Macaulay        1 shelter and  fuel, as their village is situate  2 on a prominence very much exposed to the  3 cutting winds.  This site had been chosen to  4 enable them to be more on the defensive and  5 less liable to a surprise, since the massacre  6 of most of the inhabitants by the Nass River  7 Indians in the old village, which stands  8 totally deserted on a sheltered plateau nearer  9 to the forks of the Skeena and Babine Rivers."  10  11 And then he goes on to deal with them.  And we  12 will come back to that report or other parts of that  13 report later.  14 My lord, it's 12:30.  15 THE COURT:  All right.  Thank you.  16 THE REGISTRAR:  Order in court.  Court stands adjourned until  17 2:00 o'clock.  18  19 (PROCEEDINGS ADJOURNED FOR LUNCHEON RECESS)  20  21 I HEREBY CERTIFY THE FOREGOING TO BE  22 A TRUE AND ACCURATE TRANSCRIPT OF THE  23 PROCEEDINGS HEREIN TO THE BEST OF MY  24 SKILL AND ABILITY.  25  26  2 7 LORI OXLEY  2 8 OFFICIAL REPORTER  2 9 UNITED REPORTING SERVICE LTD.  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28422  Submissions by Mr. Macaulay 1         (PROCEEDINGS RESUMED  PURSUANT TO LUNCHEON RECESS)  2  3 THE COURT:  Mr. Macaulay.  4 MR. MACAULAY:  My lord, I had been at the point where I was  5 referring to the rumors that had been spread through  6 the villages that government officials would arrive  7 shortly, and to survey and take away the best parts of  8 the Indians' land, and may I make an excursion -- I  9 was going to use the word digression, but it's not a  10 digression -- excursion into our summary of argument  11 at page 193.  That's part ten, page 193.  12 THE COURT:  Yes.  13 MR. MACAULAY:  And I want to refer to other reports at about the  14 same time.  I'm confining myself here to what was  15 happening in the claim area, not outside it.  And what  16 I am saying is on September 10th, 1885 the Reverend  17 Mr. Tomlinson had written to the Kispiox Chiefs, and  18 included this passage in his letter, and I quote.  19  2 0 "Though I cannot see you this Autumn I am  21 working for you with the Government not to let  22 the white men take your hunting and berry  23 grounds."  24  25 And then Mr. Allan Grham, a Justice of the Peace  26 and Stipendiary Magistrate at Lome Creek, which is in  27 the claim area, obtained a copy of this letter and he  28 sent it to the Provincial Secretary.  And in his  29 covering letter he says:  30  31 "... A few of the Kitwingack Indians have been  32 schooled at Metlakahtla and call themselves  33 Duncanites ... The Kitwingak Chief 'Caulk' told  34 me that it was Mr. Tomlinson and Mr. Duncan  35 that were making trouble among them, a letter  36 had come from Metlakahtla stating that the  37 Government wanted to take their lands from them  38 and that the Bishop was the same as the  39 Government.  I wished to see this letter, the  40 Duncanites had it and objected, I told them it  41 was foolish to let any letter trouble them,  42 about their lands, that white men had been on  43 Skeena River for over 20 years - and I wished  44 to know what lands they had lost, they said  45 they had lost none but were afraid; Two of Mr.  46 Tomlinson's teachers were up the river last  47 summer with letters to all the villagers and 28423  Submissions by Mr. Macaulay 1                   interpreted to  them"  2  3 That is the villagers, I guess.  4  5 "... that the Government wanted to take their  6 lands and give to white men.  At Kitseyukla the  7 Chief would not receive the letter.  Also the  8 Kitmax Chief.  The Kispyox Chief has one.  I  9 went up to Kispyox to see it, the Chief brought  10 it to me and I took a copy.  None of the  11 Indians could read it; the interpretation was  12 at variance with the letter.  I told the  13 Indians that the Government protected them as  14 well as the white men ... Enclosed you have a  15 copy of letter"  16  17 And then the Reverend Mr. Stephenson wrote to Dr.  18 Powell, the Indian Commissioner in Victoria, in  19 December 1886 about his experience at Gitwangak.  And  20 he reports:  21  22 "... he"  23  24 And then I put in brackets:  25  26 "... (Edward Stuart, who had testified at the  27 1884 Metlakatla inquiry at Tomlinson's behest)  28 said things which he affirmed Messrs. Duncan  2 9 and Tomlinson had told him which had he known I  30 understood all he said I am sure would not have  31 been uttered in my hearing.  32  33 There is one, confirming what I showed you in a  34 letter in Victoria.  35  36 'Mr. Tomlinson had told him on no account to  37 allow a C.M.S. man to land let alone stay at  38 Kitwangahk; and if white men came, to prevent  39 their landing.'  The emphasis is in the  40 original.  And that government, sticking up for  41 their rights and preventing the surveys the  42 government would finally yield to them."  43  44 And then another paragraph.  45  46 "By the way they told me if I joined Messrs.  47 Duncan and Tomlinson in opposing the government 28424  Submissions by Mr. Macaulay        1 and oppose the  survey here I might stay and  2 they would come to church, etc. etc.."  3  4 Dr. Powell wrote to the Superintendent General,  5 that's the Minister of Indian Affairs, in 1887  6 enclosing a copy of this letter.  And he made the  7 comment:  8  9 "I am of opinion that the long license which  10 both Mr. Tomlinson and Mr. Duncan have had to  11 create a feeling of hostility in the minds of  12 the Indians not only against the Church  13 Missionary Society but against the Government  14 in the immediate vicinity of Metlakahtla, has  15 had a very prejudicial effect upon these more  16 distant and isolated bands".  17  18 Then, my lord, I'll skip the next paragraph, which  19 has to do with Duncan and Metlakatla, except for this,  20 to observe that Tomlinson did go up to the Gitwangak  21 area in 1887 and he found Meanskinisht, which the  22 local people came to call the Holy City.  He wouldn't  23 allow the steamer in the steamboat days to land mail  24 there on Sunday.  And in fact he wouldn't -- his wife  25 had to stay aboard on Sunday and come back down.  He  26 was a man of rigid principle.  He stayed there until  27 1913.  He died in 1913.  This is Mr. Tomlinson.  28 Then when Vowell, that is Loring's superior,  29 visited Hazelton in the latter half of August 1890 he  30 reported to the Deputy Superintendent General of  31 Indian Affairs, the Deputy Minister, that the Indians  32 had been advised not to let surveyors or government  33 officials connected with the Indian Department up the  34 Skeena River, it being stated that when these  35 officials came it would be for the purpose of turning  36 the Indians out of their homes and away from their  37 fisheries, and et cetera.  He refers obliquely to the  38 source of these ideas.  He calls them "persons who  39 should know better".  The Deputy Minister was  40 inquiring to turn of mind, and Vowell was a little  41 more forthcoming where he says in his letter of  42 November 5th:  43  44 "Regarding the falsehoods which I was given to  45 understand were circulated by persons who  46 should have known better and whose duty it  47 should have been to refute rather than 28425  Submissions by Mr. Macaulay 1                   promulgate,  etc, I would state that although  2 convinced that certain parties have been  3 instrumental in spreading such unfounded and  4 wicked reports, yet not having sufficient  5 evidence to prove their guilty, I think it best  6 not to mention any names at present.  I may  7 however state what I have heard on several  8 occasions in reference to the actions of Mr.  9 Tomlinson formerly of the Church Mission  10 Society, who is now established on the Skeena  11 River.  12  13 On the occasion of Mr. Agent Todd's last visit  14 to Victoria he informed me that, without any  15 disguise whatever, Mr. Tomlinson was reported  16 to have expressed himself on many instances to  17 the effect that in the matter of getting a  18 title to the land upon which he has squatted  19 and which he is willing to purchase, he will  20 deal with the Indians only and pay them for the  21 land, as to the and not the Government does the  22 land belong."  23  24 Mr. Tomlinson was settled at Meanskinisht.  He did  25 eventually get a Crown grant.  26 And Marius Barbeau, who of course was writing many  27 years later, reached the following conclusion:  He  28 said:  29  30 "Reverend McCullah and many of his confreres of  31 the Nass and the Skeena (Spencer, Pierce, the  32 Tomlinsons, etc) have constituted themselves as  33 mild agitators in this troublesome matter and  34 are largely responsible for the present  35 situation."  36  37 He was writing of course after 1915.  That is a --  38 the -- the same subject that Loring was reporting on  39 after he had visited the villages, and was set out in  40 his letter of January 31st, 1890, which was at tab 7.  41 Now, on March 31st, 1890 Loring reported that the  42 Indian's supply of dried salmon had run out and that  43 they would starve if not for their caches of potatoes.  44 He reported also on his first visit to Kuldo.  He had  45 been asked to visit that village to settle complaints.  46 that the more fortunate Indians who had fishing  47 stations in the nearby canyon would not allow the less 28426  Submissions by Mr. Macaulay        1 fortunate to fish  there.  2 And that's at tab 8, my lord.  There are two  3 reports here that have a bearing on that.  They're  4 both at tab 8, and I have sidelined them.  The second  5 paragraph of the letter of March 31st he says:  6  7 "My trip to Gal-Doe although very tiersome and  8 rough, I consider highly satisfactory.  Gal-Doe  9 is the farthest habitation of all the  10 Kit-Khsuns on the left bank of the Skeena and  11 the latter in its"  12  13 And I can't make out one of the words.  14  15 "... in its time.  The people in the hunting  16 and trapping season generally range about  17 Gha-lan-gaowt, the headwaters of the Skeena and  18 Nass rivers, and Blackwater Lake."  19  20 That is a description of the -- the far ranging  21 hunting, and presumably trapping, enterprises that the  22 residents of Gal-Doe were undertaking.  23 In the first paragraph, my lord, there's a  24 reference to the Indian's supply of dried fish having  25 run out and they were relying on the potatoes that  26 they had cached.  27 Under that tab the other letter is simply in the  28 earlier expense reports he added vouchers, and this is  29 one of them in which he refers to the same trip.  He  30 says:  31  32 "I had been urgently requested to repair to  33 this latter place ..."  34  35 He's talking about Gal-Doe.  36  37 "... on complaints, that the more fortunate of  38 the Indians their possessing stations in the  39 Canyon, the only available place to fish at  40 this time, were in the habit to withdraw their  41 planks from off their perches in order to  42 prevent others from getting any salmon.  43  44 I have been very successful to bring about the  45 desired effect, that is, to have them act in a  46 more magnanimous spirit towards the less  47 fortunate in the future." 28427  Submissions by Mr. Macaulay        1 So by this time  Loring had been to the major  2 villages, the major Gitksan villages, but has not yet  3 been to Moricetown, which was then called Lar-al-Sop.  4 Now, if you'll turn the page of my notes, my lord,  5 I want to draw your lordship's attention to some  6 statistics.  And I'm going to rely on very few  7 statistics, but these are some interesting ones.  It's  8 his first annual report, and it's dated June 1890, and  9 it shows the population and the number of dwellings in  10 the various villages and also the general occupations.  11 Kitwanga, population 140, occupations freighting,  12 coastal canneries and trapping.  In Kitsegukla he  13 doesn't mention the occupations, but he mentions the  14 move of the younger people to New Kitsegukla, now  15 called Carnaby, several miles away down the river from  16 the Old Kitsegukla was underway then.  41 of the  17 younger people of a total population of 83.  So it was  18 a considerable movement of people.  19 THE COURT:  Where are you getting that 83 figure from?  20 MR. MACAULAY:  Well, Kitsegukla shows a total population of 83  21 with 21 dwellings.  22 THE COURT:  Just a moment.  23 MR. MACAULAY:  It's at tab 9, but page four gives the summary.  24 THE COURT:  Oh, tab 9.  Yes.  25 MR. MACAULAY:  See the report is done village by village for the  26 Gitksan.  27 THE COURT:  I only have three pages in tab 9.  28 MR. MACAULAY:  Yes.  And that's right.  That's his annual  29 report.  30 THE COURT:  All right.  They're printed pages.  Yes.  31 MR. MACAULAY:  Yes.  32 THE COURT:  Where do I find these figures?  33 MR. MACAULAY:  Well, for Kitwanga the figures appear — it's  34 highlighted.  35 THE COURT:  Oh, 140.  I see.  36 MR. MACAULAY:  140 and 39 houses.  And then a little farther  37 down in that paragraph --  38 THE COURT:  Oh, yeah.  39 MR. MACAULAY:  They say:  "The young population follows boating  40 on the river".  41 THE COURT:  Oh, yes.  42 MR. MACAULAY:  "And a number are working in the canneries of the  43 coast during the season; they also do some trapping."  44 Boating, my lord, was his word for freighting.  4 5 THE COURT:  Yes.  46 MR. MACAULAY:  It wasn't the modern use of the word then.  47 THE COURT:  I've found it now. 28428  Submissions by Mr. Macaulay        1  MR. MACAULAY:  And then I skip  Kitwancool, because we are not  2 dealing with it.  3 THE COURT:  Yes.  4 MR. MACAULAY:  Which is a small village.  Then he goes to  5 Kitsegukla and he says:  6  7 "This band numbers eighty-three.  There are  8 twenty-one houses.  The old heathen village  9 stands close to the river on stony soil.  10  11 The young population, in order to have  12 comfortable houses and good gardens, move about  13 eight miles up the river, and settled on a  14 stretch of rich bottom land.  15  16 The Methodist Mission has here a nice church."  17  18 And, then the second last line says:  19  20 "This community"  21  22 That's the new one.  23  24 "... numbers forty-one.  There are but few  25 houses built as yet."  26  27 THE COURT:  Where is that again?  28 MR. MACAULAY:  Well, it's in the same paragraph, the second last  29 line under Kitsegukla band.  30 THE COURT:  Oh, yes.  I suppose that 41 is additional to the 83,  31 is it?  You think it's included?  32 MR. MACAULAY:  I think it's included.  If we look later on —  33 THE COURT:  Yes.  34 MR. MACAULAY:  — At numbers of the band —  35 THE COURT:  M'hm.  36 MR. MACAULAY:  — In other annual reports —  37 THE COURT:  M'hm.  38 MR. MACAULAY:  — It would be about the total for that band is  39 under a hundred.  40 MR. GRANT:  In different years?  41 MR. MACAULAY:  Yeah, in different years.  Then he says about  42 Gitanmaax:  43  44 "This band numbers in reality only sixty-nine."  45  4 6 THE COURT:  61 I think.  47 MR. MACAULAY:  61. 28429  Submissions by Mr. Macaulay        1 "With the  addition of members of other bands  2 connected through intermarriage, and others  3 residing here for good, the population is two  4 hundred and thirty-three.  There are fifty-five  5 houses."  6  7 And he gives them their boating, packing, mining,  8 sawing lumber, getting out cordwood, and a number work  9 in the canneries.  10 THE COURT:  Do you apprehend he's using the word houses in terms  11 of dwellings?  12 MR. MACAULAY:  Yes.  I'll come to that, my lord.  Oh, no.  He's  13 using -- that is the total of all kinds.  And we come  14 to later reports where he gives -- he calls them --  15 well, the old ones he tends to start calling rookeries  16 or shacks.  17 THE COURT:  He's not using it in terms of subdivisions or plans?  18 MR. MACAULAY:  No.  No.  Dwellings.  19 THE COURT:  The houses as the chiefs have used them?  20 MR. MACAULAY:  He never uses the word house in that sense.  It  21 didn't ever occur.  And in Kispiox there are 226 and  22 there are 34 houses.  Now, you see there couldn't be  23 possibly 34 houses in the other sense.  24 And then at Kisgegas, which is a -- how will I put  25 it?  We'll see what he finds there in 1896 when he  26 goes back, but that is a much more traditional  27 village, and it continues to be for a generation.  And  28 the band numbers 260.  That's the largest village.  29 There are 23 houses.  23 houses.  Clearly those are  30 the old style houses, because there would be a large  31 number of people living in each house.  32 And then Kuldo is a special case because there are  33 only 33 people with six houses, but he makes the note  34 that they had suffered a terrible loss from measles  35 two years earlier.  And the last two are said of  36 course to follow hunting and trapping, and that  37 continued all along.  38 Oh, yes, my lord, could you turn back to the first  39 page of this tab under Kit-wau-ragh as he calls it.  4 0 Kitwanga.  41 THE COURT:  Yes.  42 MR. MACAULAY:  He starts off by saying:  43  44 "This band numbers one hundred and forty.  45 There are thirty-nine houses (log) and some  46 under construction."  47 28430  Submissions by Mr. Macaulay 1                So that shows  what he means by a house.  2 THE COURT:  Yes.  3 MR. MACAULAY:  The central and western villages, and this was  4 nothing new, were -- had already been freighting from  5 the 1870s.  And that had been referred to by Tomlinson  6 in his report of -- in his report of 1875 he talks  7 about his year at Kispiox in 1874.  That's Exhibit  8 901, tab 21.  And he mentioned that early -- this is  9 Tomlinson talking about employment on the Skeena.  He  10 says:  11  12 "Many changes have taken place here since I  13 visited this place."  14  15 And he's talking about Hazelton two years ago.  16 THE COURT:  Which is the indication — oh, yes.  It was Kuldo  17 that had the serious measles.  18 MR. MACAULAY:  It's page 117, my lord, I was referring to.  I'm  19 sorry.  Yeah.  Page 117.  This is a digression in a  20 way.  I'm saying -- I'm making the comment that  21 freighting and packing had been going on for 20 years,  22 and at page 117 Tomlinson reports on it.  And he  23 reports the ups and downs of it in those earlier days.  24 He says:  25  26 "Then there were five stores and about  27 twenty-five white men; now there are but two  28 stores and four or five white men.  This is  29 owing to the Peace River mines being deserted.  30 I may add here that this has also affected the  31 Indians most seriously.  Many among them who,  32 during the gold excitement, were making their  33 hundreds of dollars by packing, etc., cannot  34 now make their tens.  The result of such sudden  35 reaction has been to make them steal from and  36 browbeat the few white men who come into their  37 neighbourhood."  38  39 I refer to that just to show that packing and  40 freighting had started in the 1870s, not the 1890s.  41 But there were of course the coastal canneries started  42 in the 1880s.  And in the northern villages, Kisgegas  43 and Kuldo, there was still just hunting and trapping,  44 and that's all there was.  45 Hazelton was -- I say at the bottom of page four  46 of my notes, and I'm relying now on another annual  47 report, the next one.  Hazelton was the communications 28431  Submissions by Mr. Macaulay        1 and commercial centre  for the claim area.  It was the  2 terminal for the steamer when it started in the early  3 1890s, and the site of the Hudson's Bay Company  4 trading post.  We saw the arrangements that Loring had  5 already made there for relief supplies.  And in his  6 1891 annual report Loring gave this description, and  7 I'm quoting from the report:  8  9 "The population is swelling by the conflux of  10 members of other bands, who through the  11 inducements of the facilities in finding  12 employment, settled."  13  14 "Indians of the remotest parts of this agency  15 are to be met there."  16  17 And by 1891 there was a Gitanmaax population of  18 237, which was a little large, and 62 dwellings.  In  19 other words, between 1890 and '91 the number of  20 dwellings had risen from 55 to 62.  And I make the  21 comment that in 1871, just under 20 years earlier,  22 there had only been seven Indian dwellings near Thomas  23 Hankin's store.  24 The exhibit I refer to there, and I have that at  25 the tab 11, is one -- is a sketch that Mr. Downey made  26 in 1871 showing the townsite and Indian reserve that  27 he had laid out as surveyor.  And he shows where  28 Hankin's old store is, he shows where the six, seven  29 Indian dwellings are, and all but one of them at a  30 cross-through, the crossing of two paths.  It was  31 Downey, my lord.  Downey.  That is a page of the --  32 attached to the Dewdney's report to his superiors.  33 MR. GRANT:  This is the one at tab 11 in Mr. Macaulay's  34 submission that those squares each represent one  35 house.  3 6  MR. MACAULAY:  Yeah.  37  MR. GRANT:  Sorry.  Is that reflected in the documents with the  3 8 map?  39 MR. MACAULAY:  He doesn't say six houses.  I'm relying on the  40 notations on the map opposite those six of those tabs.  41 It says:  42  43 "Kitanmaax village opposite another is Indian  44 house, and then Hankin's old store".  45  46 That's the best information we have about the size  47 of Hazelton and Gitanmaax in 1871.  There isn't any 28432  Submissions by Mr. Macaulay        1 other.  But now in  1891 there are 62 dwellings.  And  2 of course people from every village were congregateing  3 there.  Very, very few, 61 in 1890, were said to be  4 natives of Gitanmaax proper.  5 Now, the village of Moricetown planned to move as  6 a body to Hazelton in February of 1891.  And Loring  7 made a visit, apparently his first visit, to what he  8 described as Lar-al-Sop.  He later spells it  9 Lak-al-Sop to prevent this migration.  And that's his  10 brief report at tab 12.  11 So that the big smoke or the big apple was  12 having -- it's a very considerable attraction to the  13 Indian population.  14 THE COURT:  The Crosby Mission is at Hazelton, is it?  15 MR. MACAULAY:  Yes.  That's the one that there was a bit of a  16 row about.  It's in the flats by Hazelton.  The very  17 first of the reports that I refer to here deals with  18 the troubles there.  19 THE COURT:  M'hm.  20 MR. MACAULAY:  It was on land that was claimed by Gitanguldo  21 (phonetic), who was the head chief of Hazelton.  And  22 that's apparently where they were heading.  I'm not  23 suggesting any more than that there was a --  24 MR. GRANT:  I think that's in the area of where the hospital  25 would be located now, my lord, above the canyon.  26 THE COURT:  That's what you understand, is it, Mr. Grant?  27 MR. GRANT:  That's what I understand, that the mission ground  28 is -- there's a mission across -- there is mission  29 flats —  30 MR. MACAULAY:  Mission Point.  31 MR. GRANT  32 THE COURT  33 MR. GRANT  Mission Point across the river.  Yes.  And there is also the mission, and my recollection  34 is, because of Crosby's denomination that he was  35 involved in that, up above.  36 THE COURT:  Where the hospital is now?  37 MR. GRANT:  Yeah.  Which is actually above a canyon there.  That  38 was my understanding.  39 THE COURT:  All right.  40 MR. MACAULAY:  Now, Loring visited the Moricetown winter hunting  41 camp at Dam Olp in January of 1891 to settle disputes  42 over hunting grounds.  And this camp was about 35  43 miles east of Hazelton, or east northeast.  And he was  44 there a second time in March of 1895, at the end of  45 the season, when he found 65 Wet'suwet'en drying and  46 smoking 23 cariboo.  47 THE COURT:  Where are you, Mr. — 28433  Submissions by Mr. Macaulay        1  MR. MACAULAY:  I'm at the  bottom of page five of my notes, my  2 lord.  3 THE COURT:  Yes.  4 MR. MACAULAY:  And this is a very considerable Wet'suwet'en  5 winter hunting camp.  And he visited that place  6 several times according to his reports.  The first  7 time was to settle disputes about hunting grounds.  8 And the second time he makes a report that there are  9 65 men and people in camp, and they were drying and  10 smoking 23 cariboo, which was towards the end of the  11 hunting season in March.  The third visit was made in  12 December, and he says it's because of "many  13 complications concerning hunting and trapping  14 grounds".  And then in December of the following year,  15 December 1898, he made another trip to settle hunting  16 and trapping ground disputes.  And on this 1898 trip  17 he referred to two camps, five miles apart.  And he  18 reported that that year there were 58 Wet'suwet'en in  19 camp and that six cariboo had been killed already.  20 This is in the early part of the season.  21 And those are all found at tab 13.  22 THE COURT:  Do we know where Dam Olp is?  23 MR. MACAULAY:  Well, we know he gives a description in March of  24 1895.  He says -- that's the second of the reports.  25 He says:  "The latter is a Hoguel-get winter camp".  2 6 That he means Wet'suwet'en.  2 7 THE COURT:  Yes.  2 8 MR. MACAULAY:  29 "... about thirty-five miles in an E.N.  30 Easterly direction from Hazelton and situate on  31 the left bank"  32  33 And he gives the name of a river.  34  35 "... a left bank tributary of the Bulkley or  36 Hoguel-get River."  37  38 Then in the next report he gives the location as:  39  40 "... an Hoguelguet winter-camp on the Lake of  41 like name and about thirty-seven miles to the  42 east of here."  43  44 And he refers also in this December of 1897 report  45 to "Upper Dam Olp, six miles up the lake".  And he  46 goes up there.  47 And then in the fourth report he doesn't give a 28434  Submissions by Mr. Macaulay        1 location, but he  refers to both camps.  In 1998, over  2 the page, the second page, he says -- he refers to  3 both camps.  He says:  4  5 "Since occupation of the camps" --  6  7 Oh, at the top of the page, "lower camps, five  8 miles apart", and he says:  9  10 "Since occupation of the camps from about the  11 20th of last month the Indians, of both camps,  12 fifty-eight in all, have killed only six  13 cariboo."  14  15 And he.  16 THE COURT:  35 miles east of Hazelton is fairly close to  17 Moricetown.  18 MR. GRANT:  But it's — this is — this is one problem with him,  19 because he says east.  My friend says east.  It's east  20 northeasterly.  Now, when you go -- if you look at the  21 contemporary map you go east northeasterly in the  22 range even it's very hard to determine a lake.  He may  23 be talking about Babine in northeast northeasterly, or  24 he may be, as you say, in the southern range of that.  25 But there's no lake that we could determine on this  26 where he's talking about in that mileage.  So his  27 mileages, I think, must reflect walking and meandering  28 through the forest or something.  29 MR. MACAULAY:  Yeah.  That — unfortunately we can't find his,  30 what he called his travel diary except for one page of  31 it, what must have been hundreds and hundreds of  32 pages, and that page is of no great interest.  But  33 what it shows is the number of miles actually  34 travelled in a day.  It's for financial purposes that  35 he kept this thing.  36 THE COURT:  Okay.  37 MR. MACAULAY:  Because he was -- his expenses were based on per  38 diem and he had to account for the number of miles he  39 travelled.  And so if he went along rivers, and I  40 think that was the way people travelled in the winter,  41 unless there was a good trail, you can't take mileages  42 as the crow flies particularly.  4 3 THE COURT:  No.  44 MR. MACAULAY:  But it's a camp.  In one of these reports he  45 identifies it as a camp of the Moricetown Indian, I  46 believe.  47 THE COURT:  Well, he said he was going to a Hoguel-get winter 28435  Submissions by Mr. Macaulay        1 camp.  2 MR. MACAULAY:  Hagwilget, yeah.  3 THE COURT: So he doesn't — wait a minute.  4  5 "... on the left bank of the Sghaw-ye-toss-gna,  6 a left bank tributary of the Bulkley or  7 Hoguel-get River."  8  9 The left bank.  10 MR. GRANT  11 THE COURT  12 MR. GRANT  I think he also used the banks backwards, my lord.  I think he did.  He knew he was going up river, and when you look at  13 them he's often reversed what we would do.  14 MR. MACAULAY:  I agree with my friend on that.  I think that was  15 the case there.  16 THE COURT:  He's talking about the north or east bank.  All  17 right.  18 MR. MACAULAY:  But in the first ten years of his tenure he went  19 there four times, and it was usually to settle  20 disputes over trapping and hunting grounds.  And  21 that's a theme that re-occurs time and time again.  22 The next trip to this kind of place is in May of  23 1890.  I'm doing it by village rather than by strict  24 chronological order or fishing station.  He went to  25 Ilie-sam-dagh, a Gitksan fishery about 50 miles up the  26 Skeena River from Hazelton.  And he found 19 fishing  27 stations and 11 smoke houses there.  And he says that  28 23 families fished there.  The 1890 visit was made  29 necessary by, and I quote his words, "a friction of  30 factions of two crests sprung up as to possession of a  31 fishery after the death of Nee'ast, a chief of  32 Gal-Doe".  And the Niist -- the House of Niist is  33 indeed originally from Kuldo.  Loring settled the  34 dispute by calling for a vote on that occasion.  He  35 says another visit to the same fishery in October of  36 1896 was made because, and I quote him again, "of late  37 years, many contentions have arisen, after heads of  38 families dying, as to hereditary rights to fishing  39 stations, smoking, or curing houses, implements, etc."  40 That would be a fishing station not that far from  41 Kuldo, although from the number of families he refers  42 to, Kuldo only having a population of 33, and in even  43 1901 there were only 13 families.  And I'm using  44 families in the ordinary sense of the word, my lord.  45 In the 1901 census shows that even then there were  46 only 13 families.  Ilie-sam-dagh was, although the  47 death of a Kuldo chief may have caused a rucus, it was 28436  Submissions by Mr. Macaulay        1 not the fishing place  for only one village.  2 MR. GRANT:  Well, he said -- maybe my friend mistakes this,  3 because I thought one thing he does say Ilie-sam-dagh  4 is this side of Kisgegas, which indicates --  5 THE COURT:  Does he say Hazelton?  6 MR. GRANT:  It says this side of Kisgegas in the first report,  7 my lord.  Not the other side of Kisgagas, which from  8 his vantage point he's writing from Hazelton and one  9 would think he was talking of south from Kisgegas  10 other than between the two villages.  11 MR. MACAULAY:  Again, we don't know how he got there, and that  12 may be the mileage he actually travelled, but -- and  13 I'm not trying to pinpoint on the map, because we have  14 no other record than that of this very considerable  15 fishery.  What I'm saying is that it appears that  16 although Kuldo, people from Kuldo were there  17 otherwise, the death of Niist, a chief of Kuldo,  18 wouldn't have given rise to any dispute.  It couldn't  19 have been only a Kuldo fishery, because 23 families is  20 far beyond the number that were at Kuldo even in 1901.  21 As I say, there were only 13 families in Kuldo.  We  22 have the 1901 census.  That's the one Loring took.  23 And it's easy to count that, the number of families.  24 Lach an dagh was a Gitksan fishing settlement, as  25 he described it, about 34 miles up the Skeena from  26 Hazelton.  And he says there were nine smoke houses  27 there.  And his first visit was in October 1890, which  28 would be at the end of the fishing season.  And the  29 reason for the first visit we haven't got, but the  30 reason for the second visit was to settle a dispute  31 between two families that had threatened each other  32 regarding the exclusive right to a fishery and a smoke  33 house.  The third visit in May 1897, earlier in the  34 fishing season, was to settle "various complaints and  35 disputes pertaining to contentions" - a favourite word  36 of his, contentions - regarding fishing stations and  37 smoke houses.  And those are the words he used.  So he  38 was there three times.  There is no trace of any such  39 fishery now that I know of.  40 The three reports are collected at tab 15, though,  41 my lord, the first one is merely a travel report.  The  42 second one --  43 MR. GRANT:  The first one appears to be a different name.  A  44 different place, possibly.  4 5 MR. MACAULAY:  Well, it may be.  46 MR. GRANT:  It's not the same name as my friend has in the  47 second and third one. 28437  Submissions by Mr. Macaulay        1  MR. MACAULAY:  As we'll see in  other places the spelling varies.  2 And in fact in this one there are three different  3 spellings, but I believe it's the same place.  It may  4 be a different one.  5 The second one gives the location Lach-an-dalgh he  6 calls it, D-A-L-G-H.  7  8 "... about thirty-four miles up the river  9 Skeena and on its left bank, as two families  10                   threatened each other".  11  12 And the third time he calls it Lach-an-dagh.  A  13 slightly different spelling.  And he says that this is  14 a fishery and smoke house, nine in number, situate on  15 the right bank of the Skeena above here, and distance  16 is 34 miles to the north.  He remained there settling  17 various complaints and disputes pertaining to  18 contentions to fishing stations, and in some cases as  19 to claims to the use in common of smoke houses, etc..  20 There is a place called Gough-lax, G-O-U-G-H -  21 L-A-X, which is Loring's spelling, and he went there  22 in July 1891 to deal with a feud between several  23 families about the possession of a fishery.  And  24 that's at tab 16.  It's the only mention of Gough-lax  25 in the reports.  Now, here's another case of the  26 different spellings, but clearly the same place.  27 In January 1892 Loring visited the Kispiox winter  28 camp at Andilaran he first calls it.  I put in  29 brackets his later spelling Andilghan.  On the Kispiox  30 river about 30 miles from Hazelton.  Loring travelled  31 to Andilaran in December 1893 again to meet with the  32 assembled villagers about the allocation of Andilaran  33 as a reserve, and to settle fishing disputes.  Then he  34 was there again in November 1897.  And he commented  35 then -- he gave a very, very considerable and  36 interesting description of the ideal situation for  37 hunting and trapping and referred to it its  38 desirability as a winter fishery, the detailed account  39 of the technique of fishing under the ice, and it's  40 worth looking at.  He says -- I'm looking at the  41 report of November 30th, 1897.  42  43 "As a winter camp for hunting, trapping, etc.  44 and its location it is ideal.  An abundance of  45 fine-wood" --  46 Firewood -- that should be firewood, I think, my  47 lord. 28438  Submissions by Mr. Macaulay        1  2 "... forms its environment in a well sheltered  3 basin."  4  5 Maybe it is fine-wood.  6  7 "In traversing the intermediate distance from  8 the mouth of the river Kispiox to its location,  9 one meets during summer, with miles of splendid  10 bottom-lands of parklike aspects, but the early  11 and late frosts one for agricultural purposes  12 detrimental to prove it worthy of that intent.  13  14 For stock-raising, the winters are too long to  15 permit of the enterprise being successful.  16  17 The plateau and back of Andil-ghan are level  18 table lands whereon during this period under  19 present consideration, cariboo are wont to  20 browse."  21  22 THE COURT:  Where are you reading, Mr. Macaulay?  23 MR. MACAULAY:  I'm at tab 17.  2 4 THE COURT:  Yes.  25 MR. MACAULAY:  The report of November 30th, 1897.  26 THE COURT:  November 30th?  2 7 MR. MACAULAY:  It's the third one.  2 8 THE COURT:  Third one?  29 MR. MACAULAY:  Yeah.  I want to make a correction on the top of  30 the next page.  31 THE COURT:  Yes.  All right.  Yes, I have it.  Thank you.  32 MR. MACAULAY:  I've been reading from the first page and now I  33 am at the top of the --  34 THE COURT:  Yes.  35 MR. MACAULAY:  — Next page.  36 THE COURT:  That last one reads like Mrs. Brower's farm.  37 MR. MACAULAY:  Yeah.  And I want to make — correct an error.  38 He starts off at the top of the next page:  39  40 "... whereon during this period under present  41 consideration, cariboo are wont to browse;"  42  43 Now, of course, it's "both blue and willow  44 grouse", not grasses.  45 MR. GRANT:  Is that from the original?  46 MR. MACAULAY:  I looked at the original again and there are blue  47 grouse and there are willow grouse.  I don't know of 28439  Submissions by Mr. Macaulay        1 any blue and willow  "And rabbits are plentiful.  The camp itself is sought after for the  facilities in getting the winter salmon,  (melite in Kit-Ksun) till the end of April."  I think he's talking there about steelhead, my  lord.  "In fishing for the latter, holes are cut into  the ice at intervals about a fathom apart each  way. A net is inserted in the evening between  two holes and upheld by a pole laid over them.  In the morning the weighted down part of the  net is moved upward from an almost vertical  position to that of both top and bottom lines  parallel to each other on the surface of the  water under the ice."  And then he goes on to describe how the net is  made to become like a bag, and how they are caught.  He says:  "I have seen some salmon taken guessing to have  weighed more than fifty pounds.  The result of  the catch of fish at times is of a  miscellaneous character comprising pink and  white trout frequently of great size, white  fish and the common or white sucker."  He was there settling various contentions  especially pertaining to hunting, trapping, fishery  rights, and they stayed over Sunday and Monday on  account of heavy snow storms and then returned.  The fourth trip, we don't know why the fourth trip  was made.  The only interesting thing about it is that  he went by car.  He was up and down there in an  automobile in 1915.  My lord, the automobile doesn't  show there, but the expense voucher shows it was an  automobile that was used.  By that time a road, the  Kispiox Valley road had been built then.  A sudden  trip to there.  :  Did they have a bridge that could accommodate  vehicles?  They must have.  grasses.  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  THE COURT  47 28440  Submissions by Mr. Macaulay        1  MR. GRANT:  I'm quite surprised  at this date that my friend is  2 saying there was an automobile.  3 THE COURT:  Yes.  4 MR. MACAULAY:  We'll find the voucher at three o'clock, my lord.  5 THE COURT:  That's fine.  6 MR. GRANT:  What's the exhibit number there?  7 MR. MACAULAY:  Perhaps they had a ferry.  8 Now, my lord, turning the page of my notes.  9 Loring went to Get-sop, which was a Kuldo winter camp  10 about 50 miles northeast of Kispiox.  11 Could I go back, my lord, to the Kispiox winter  12 camp?  13 THE COURT:  Yes.  14 MR. MACAULAY:  One of the reports makes it quite clear, of the  15 four that we looked at before, that the whole village  16 was there.  It's the second report.  It's the report  17 of December 30th, 1893.  Under heading December it  18 says account of travelling during that quarter, and  19 under December 11th he says:  20  21 "On the 11th of this month I left here in  22 company with Mrs. Loring as Interpreter, by  23 request of the Kis-piux Indians, for  24 Andil-ghran, their winter camp.  As they were  25 all assembled and wanted to see me to request  26 the Reserve Commissioner, on his next coming to  27 allot to them Andil-ghran as it is their home  28 in winter and place to catch their spring  2 9 salmon."  30  31 So it's clear from that that at that time that was  32 their winter home.  That wasn't the winter camp of a  33 few.  34 And now we're coming to a Kuldo winter camp about  35 50 miles northeast of Kispiox is the description  36 that's given.  At the request of the Kuldo people he  37 visited the camp in November 1892, but the reason for  38 the visit isn't given in the exhibit.  In fact it's  39 clear from the text here that they were all -- that's  40 where the whole village was, because he says in -- at  41 tab 18:  42  43 "I was asked by the Indians of Gal-Doe" --  44  45 That's the village of Kuldo.  46 "... to see them if possible, and at this time  47 of the year I had to meet them at Gol-sop." 28441  Submissions by Mr. Macaulay        1 So there was no  point in going to Kuldo.  They had  2 to be in December -- November, rather, they were gone  3 to their winter camp.  4 Another fishing village on the Skeena was  5 Tsis-lee-tin, T-S-I-S - L-E-E - T-I-N, 39 miles north  6 of Hazelton.  Loring went there in November 1890, and  7 again in July 1895, to settle what he called "little  8 difficulties existing", to use his words.  In his  9 first report, 1895, he describes his -- I'm looking at  10 tab 19, my lord.  He describes it as:  11  12 "... a fishing village with many smoke houses,  13 situate on the Skeena River, on its right bank  14 and thirty-nine miles in northerly direction up  15 the river from here."  16  17 And he refers to settling little difficulties and  18 returning the second time November 1890.  Actually  19 that's the earlier visit.  You see the 1890 one, my  20 lord —  21 THE COURT:  Yes.  22 MR. MACAULAY:  — Is simply the travel voucher for his trip to  23 Tsin-lee-tin, slightly different spelling.  I don't  24 think the rest of the report has anything to do  25 particularly with Tsin-lee-tin, it's simply his --  26 that's the record of his having been there at the  27 earlier time.  28 My lord, it's three o'clock, and that may be a  29 convenient time to take the break.  30 THE COURT:  Yes.  All right.  Thank you.  31 MR. MACAULAY:  I'll find the automobile for Mr. Grant.  32 THE COURT:  All right.  33 THE REGISTRAR:  Order in court.  Court stands adjourned for a  34 short recess.  35  36  37  38  39  40  41  42  43  44  45  46  47 28442  1  Submissions  by Mr. Macaulay  (PROCEEDINGS  ADJOURNED)  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Peri McHale,  Official Reporter,  UNITED REPORTING SERVICE LTD. 28443  Submissions by Mr. Macaulay        1  THE REGISTRAR:  Order in court.  2 MR. MACAULAY:  I have shown my friend the entry about the  3 automobile, my lord.  4 THE COURT:  Does he believe you?  5 MR. MACAULAY:  I don't know.  6 MR. GRANT:  I am skeptical, but there is some reference to  7 automobile there.  8 THE COURT:  Well, it could certainly get as far as the canyon --  9 MR. GRANT:  But it would be very interesting to suggest go up  10 Kispiox Valley.  I understand there was no road,  11 although there was a ferry across the Skeena.  12 THE COURT:  No road there yet, is there?  13 MR. GRANT:  Given the rainfall, there isn't now.  14 MR. MACAULAY:  It's not in the tabs, my lord, but in this  15 particular travelling expense account the first charge  16 is for his horse going up Ksun Canyon, and then the  17 last entry is two amounts paid by way of one-fifth  18 part, and a total charge of $25.84 for automobile hire  19 with driver in conveyance to 26 miles up the Kispiox  2 0 River and return.  21 THE COURT:  Well, he had to get across the canyon to get to 26  22 miles above Kispiox, didn't he?  All right.  Well, I  23 think by balance of probabilities we are with you, Mr.  24 Macaulay, on that issue.  25 MR. GRANT:  I just want to note one thing that your lordship  26 should note on.  My friend was at Tab 19, the second  27 page of the 1995 report, and he was talking there  28 about the fishing village.  The fourth paragraph down  29 on page 2 though you can see that Mr. Loring refers to  30 the Susqua and Bear River.  That only, I suggest,  31 demonstrates that that other river he was referring to  32 at Damoolp, which is an entirely different name,  33 D-a-m-o-o-l-p, I think it was spelled, is clearly not  34 on the Susqua or Bear River, because he's giving quite  35 a different name there.  36 THE COURT:  All right.  37 MR. MACAULAY:  No, I didn't think it was on the Bear River.  We  38 are coming to the Bear River.  39 THE COURT:  All right.  40 MR. MACAULAY:  In fact right now.  I am in the middle of page 8  41 of my notes, my lord.  42 THE COURT:  Thank you.  43 MR. MACAULAY:  After the turn of the century, the only fishing  44 stations and winter camps mentioned in Loring's  45 reports are, with the exception of that 1915 trip by  46 automobile, and the many, many trips to Ksun and Upper  47 Ksun, there to the camps of the Wet'suwet'en, and they 28444  Submissions by Mr. Macaulay        1 include and Anghaik,  A-n-g-h-a-i-k, Lachanax,  2 L-a-c-h-a-n-a-x, Kwansoots, K-w-a-n-s-o-o-t-s, and  3 Bear River.  And I've made a reference here to exhibit  4 1209-A-56 merely to show that Loring calls the Susqua  5 the Bear River.  6 THE COURT:  Yes.  7 MR. MACAULAY:  That's what he means by the Bear River.  8 And that particular fishing place, that's all at Tab  9 20, all those trips, that it's not Damoolp.  It's  10 quite clear from the description in one of these,  11 where he gives the mileage.  There is several reports  12 at Tab 20 to all those different places.  There is a  13 couple of those at Bear River.  Yes, there is a  14 report, my lord, of November 1911, for instance.  15 THE COURT:  All right.  16 MR. MACAULAY:  Which is the — I make it the fifth.  17 THE COURT:  November.  18 MR. MACAULAY:  November 30th, 1911.  19 THE COURT:  Yes.  Thank you.  20 MR. MACAULAY:  Page 2, second last paragraph where I sidelined  21 it.  22 THE COURT:  Yes.  23 MR. MACAULAY:  And he says:  24  25 "On the 20th instance I repaired to the  26 Hagwilget fishing and winter camp at the Bear  27 River crossing, and visited the railway camps,  28 where at Indians are employed, on my way back  29 along the line, and returnd to this office on  30 the 22nd."  31  32 And then in the next one -- not the next one, but  33 the last one he says:  34  35 "...  I repaired to the fishing camps of Aguedin  36 the No. 3 Kispiox reserve, and returend on th  37 15th; and on the 23rd to the Hagwilget  38 fisheries of the Bear River crossing, and came  39 back on the 25th."  40  41  42 MR. GRANT:  I think that's Aguildem (?)?  43 MR. MACAULAY:  Yes.  I thought I gave — one of those gave a  44 distance.  45 THE COURT:  Do we have it in evidence how far *Ksun Canyon is?  4 6 MR. MACAULAY:  I'm coming to that now.  47 THE COURT:  I know where it is.  I don't know how far up — 28445  Submissions by Mr. Macaulay        1  MR. MACAULAY:  So he was able  to get to the Bear River crossing,  2 and then to visit railway camps where Indians were  3 working on the railway.  So it couldn't have been that  4 very far.  He left on the 20th and back on the 22nd.  5 At the bottom of page 8 I start into the Great  6 Ksun Fishery, my lord.  That's what Mr. Loring called  7 it.  Loring visited at the Great Ksun Fishery on the  8 Skeena 31 times.  The first visit was to Lower Ksun,  9 23 miles north of Hazelton, and it was in December.  10 The purpose was to settle disputes over fisheries and  11 smokehouses following the death of several, as he  12 called them, prominent Indians in 1893.  A second  13 visit was made in May of 1895, and he reported that  14 Ksun was the congregation centre, those are his words,  15 for fishing of the Gitanmaax and Kispiox Indians, and  16 that many disputes arose.  17 In February 1897 he describes both Ksun with 9  18 lodges and Upper Ksun, 29 miles above Hazelton, with  19 12 lodges.  And he says of the total number half were  20 used as winter dwellings.  And the purpose of that  21 visit was to settle disputes.  22 Now, if there weren't winter dwellings, of course,  23 my lord, he wouldn't be up there in December and  24 February, because there would be nobody there.  25 Ksun and Upper Ksun Canyon were gaff fisheries, and  26 the process is described in Loring's report of July  27 31st, 1897, and in the general report he made on  28 various locations and types of fisheries, which is  29 dated 11th of February 1898.  That February 1898  30 report is not a report of a visit to Ksun, it's a  31 report on fisheries generally.  But in 1897 he gave a  32 very careful description of the process.  And I think  33 it's worth looking at, my lord.  It's at Tab 21 --  34 sorry, Tab 24, pages 2 and 3, and I have sidelined the  35 relevant portion.  36  37 "On the 23rd inst., with Mrs. Loring and two  38 packers (Indian) I repaired, on foot, to Ksun,  39 a fishing village about twenty-three miles to  40 the north of here and situate on both sides of  41 the Skeena at the Ksun Canon.  The canyon is  42 one of the most important fishing localities on  43 the river; its sides are very precipitous and  44 narrow.  All the fishing stations are platforms  45 held together by ropes twisted out of cedar  46 bark fibre and are suspended by the same  47 material.  The fishers are provided with a long 28446  Submissions by Mr. Macaulay 1                   slender, well  seasoned and tough pole, to the  2 end of which a gaff hook is attached.  They are  3 passed through the foaming boils of water and  4 the vibrations in the pole indicate when a  5 salmon is fast.  The wriggling fish is drawn up  6 to the platform and is dispatched by a well  7 directed blow back of its head.  The fish thus  8 accumulated, on the platform, are taken by  9 women and boys, slung to their backs in  10 cedar-mat baskets, up an almost perpendicular  11 placed and knotched timbers at most only five  12 inches in width, in most instances at  13 astonishing heights.  And, I here may add, it  14 is surprising that not a single accident to the  15 climbers, under these conditions, has ever come  16 to my notice.  During my stay I advocated the  17 rigging up of a windlasses where with to draw  18 up the fish in boxes fitted on smoothened and  19 grooved timbers.  This idea was readily taken  20 up and will, no doubt, be carried into  21 practice.  22 The reason for making the trip, to Ksun,  23 was prompted by many difficulties existing  24 there on account of disputed rights to stations  25 amongst numbers of different crests.  In former  26 years these disputes frequently ended in  27 cutting down platformss, destroying  28 smoke-houses and, often, in worse."  29  30 There is a similar description, and the  31 description of another kind of fishery, my lord, in  32 the report -- other report I referred to.  This latter  33 report was introduced by Mr. -- Dr. Galois, but he  34 made no mention of Ksun.  He didn't -- I forget now  35 why he introduced this report.  36 He describes a different kind of fishery.  He says  37 every family, and this is on page 1 of that Tab 25,  38 it's the next tab.  3 9  THE COURT: Yes.  40  MR. MACAULAY:  On page 1, and it's sidelined:  41  42 "Every family of the Ksun Indians on Kit-Ksun  43 Indians, on the Skeena, boasts of having one or  44 more fisheries, which exist in eddies back of  45 projecting points of rock on the river.  46 Again the fisheries used in common are the  47 perpendicular sides, or nearly so, of all the 28447  Submissions by Mr. Macaulay 1                   canons on the  2 As regards the first, a large dip-net of  3 interwoven willow-wreaths to an oval shaped  4 frame terminating in a handle, is used.  Its  5 receptacle is in form like the larger half of a  6 pear cut longitudinally.  It is handled from a  7 platform fastened with ropes of twisted  8 cedar-bark fibre into crevices or onto points  9 of rock.  The vibrations on the handle of the  10 net indicate, approximately, the amount of fish  11 therein."  12  13 And then he goes on:  14  15 "In respect of the second, the salmon are  16 gaffed.  The gaff, attached to a long,  17 well-seasoned slender pole, is let down into  18 the seething and foaming waters, and is passed  19 down with the current.  The narrow confines of  20 the canons cause a large spread of salmon  21 converage into a dense mass, thus leaving  22 little probability of missing one.  23 The re-vibrations, conceived through the  24 medium of the slender pole, indicate the salmon  25 fastened.  On the salmon becoming hooked, of  26 its own weight and resistance, the gaff is  27 caused to be detached from the pole.  The  28 intermediate connection of both to each other  29 consists of braided pieces of sinew of about  30 six or eight inches in length.  31 The salmon are drawn up to the platform,  32 suspended in like manner as before mentioned,  33 but at greater heights, and, as it were, in a  34 compromise of its intents and that of an eyry,  35 and are killed with the blows of a short club,  36 and kept nicely arranged thereon.  37 Thence the fish are packed in cedar-bark  38 baskets, by women and girls, on a continuous  39 line of notched sticks, in almost perpendicular  40 positions, frequently, at distances of forty  41 feet and more to the top of the bank, whereupon  42 the smoke and curing-houses are situated.  43 One of the latter in many cases suffices in  44 common for several families as co-owners,  45 whereas one being in the possession of a single  46 family, same is readily shared with those less  47 fortunate than any in either respect. 28448  Submissions by Mr. Macaulay        1 As in  regard to the converging the salmon  2 from a platform to the top I advocated the use  3 of a windlass where circumstances will allow."  4  5 So that -- the first, of course, describes fishing  6 technique that apparently obtained all along the  7 Skeena River.  The second at the canyons, and of  8 course there were canyons at Ksun and up near Kuldoe  9 and a canyon at Kisgegas on the Babine.  10 THE COURT:  Does he say here which location he is talking about?  11 MR. MACAULAY:  In this latter one, Tab 25, no.  He is making a  12 general report on canyon fishing generated.  But at  13 Tab 24 he is reporting on Ksun.  14 THE COURT:  Yes.  15 MR. MACAULAY:  Because there were other -- if your lordship will  16 remember, he went up to 50 miles above Kispiox, and  17 that was a canyon apparently.  I will go back a few  18 pages.  19 THE COURT:  But I haven't seen mention of platform suspended  20 partway down the canyon and notched sticks for access  21 by women, although I think I did read this once before  22 in this case, but it seems to me that I haven't heard  23 that practise described for any location except Ksun,  24 but I don't know if that's right or not.  25 MR. MACAULAY:  Well, you didn't hear at all from the plaintiffs  26 on this subject.  27 THE COURT:  Well, I have heard this story somewhere before in  28 this trial.  2 9 MR. MACAULAY:  I opened it.  I read it in my opening.  30 THE COURT:  Well, that could be.  31 MR. MACAULAY:  That's the first time you heard it, my lord.  32 THE COURT:  Well, that would indicate that what he is describing  33 here is the fishery at Ksun.  34 MR. MACAULAY:  Well, you see, there are other canyon fisheries,  35 and he may be describing in the second letter the  36 general letter.  He may be describing the canyons --  37 you see --  38 THE COURT:  You see, he says here on the third paragraph:  39  40 "Every family of the Ksun Indians ..."  41  42 MR. MACAULAY:  Yes.  43 THE COURT:  You don't think that can be confined to this one  44 location that we have been talking about?  45 MR. MACAULAY:  Well, no.  That "every family", that's all along  46 the whole length of the Skeena River, not at the  47 canyons.  The basket fishing or net fishing. 28449  Submissions by Mr. Macaulay        1  THE COURT:  Yes, all right.  2 MR. MACAULAY:  Now, if your lordship will turn to the third page  3 of this same general report.  4 THE COURT:  Yes.  5 MR. MACAULAY:  He lists some canyons.  Right at the bottom he  6 lists three canyons, three areas of canyons.  He says:  7  8 "the little canon three miles above Hazelton."  9  10 Of course that's Hagwilget.  11 THE COURT:  Would you call Hagwilget a little canyon?  Surely  12 not.  13 MR. GRANT:  Or is it Four Mile Canyon.  It's both banks of the  14 Skeena.  I think it's is what's known as Four Mile  15 Canyon.  16 MR. MACAULAY:  My friend is right.  And second the canyons of  17 Ksun, which start 23 miles, and then the canyons of  18 Kisgegas about 72 miles, both banks in the Babine  19 River, and four miles above its confluence to the  20 Skeena.  So there are two locations.  21 THE COURT:  Yes, all right.  22 MR. MACAULAY:  Well, maybe that's just the same location.  Yes,  23 that's the same location.  24 MR. GRANT:  I just want to note the mileages of the two that are  25 known, my lord, are out.  So that sort of adds some  26 difficulty to the middle one of Ksun as to the mile  27 location.  And I just think my friend has overstated  28 that question you asked, is that I understand -- I  29 recall that there was evidence regarding at Moricetown  30 very similar that the plaintiffs did lead to this type  31 of practise with the women and the platforms --  32 THE COURT:  I remember the women packing the fish up to the  33 smoke houses, but I don't remember them crawling up  34 notched poles.  35 MR. GRANT:  Okay.  I will check that, my lord.  36 THE COURT:  Okay.  37 MR. MACAULAY:  Now, if we go back not many pages, there is  38 mention of another canyon in these trips to the winter  39 villages.  40 THE COURT:  Yes.  How far back do I go?  41 MR. MACAULAY:  I'm just looking for it, my lord.  42 THE COURT:  All right.  43 MR. MACAULAY:  It's the place where the — where the author says  44 that people were not sharing, they are not being nice.  45 They were hauling their platforms up.  4 6 THE COURT:  All right.  47 MR. MACAULAY:  Yes, it's at Tab 8.  But that's at Lakyalsap. 28450  Submissions by Mr. Macaulay        1 That's the Moricetown  band.  Perhaps that's the one I  2 was thinking, my lord.  3 THE COURT:  Yes.  4 MR. MACAULAY:  But we are here talking about a different order  5 of magnitude.  Of course the cliffs were up to 40 feet  6 high and nearly perpendicular.  My friend says where.  7 Well, that's the description at Tab 25 of canyon  8 fishing.  9 THE COURT:  I think it was 40 feet from the platforms, wasn't  10 it, the top of the bank?  11 MR. MACAULAY:  Yes, my lord.  Now, I'm back at page 9 of my  12 report, my lord, on the Ksun Canyon of my notes.  In  13 his report on the Ksun Canyon fisheries Loring makes  14 frequent mention over disputes over fishery stations  15 and smokehouses, and three times mentions contentions  16 between crests.  We have just seen one that's at Tab  17 24, but at Tab 26 there are two more that make mention  18 of crests.  We've seen the July 31st, 1897 one.  19 That's where the full description of the technique is  20 encountered.  Then there is April 30th, 1902 where he  21 says:  22  23 "I repaired to the Ksun Canyons ..."  24  25 THE COURT:  Tab 32 there, my lord.  26 MR. MACAULAY:  No, I'm sorry, Tab 26.  But April 30th, 1902 is  27 the second of the three reports under that tab.  The  28 first one we have seen just now, and then there is  29 another one dated April 30th, 1902.  3 0 THE COURT:  Yes.  31 MR. MACAULAY:  Tab 26.  32 THE COURT:  All right.  33 MR. MACAULAY:  Where he says:  34  35 "On the 22nd I repaired to the Ksun canyons,  36 whereat the Indians have begun to fish at the  37 earlier part of this month.  There, at this  38 time of each year, contentions arise as to the  39 rights of the several crests in shares to  40 stations and curing houses.  Of late years, the  41 mode of fishing on the platforms, suspended  42 from the precipitous sides of the canyons, is  43 being more and more confined to the older of  44 the population."  45  4 6 And then he repeats that:  47 28451  Submissions by Mr. Macaulay 1                  "Every family  boasts of having one or more  2 fisheries which were chosen in eddies back  of  3 projecting rocks, and in selections are now  4 best suiting ..."  5  6 He means this time of year.  7  8 "... suiting the different stages of water.  The  9 salmon are usually gaffed.  The gaff is  10 attached to a long slender pole; is let down  11 into the seething waters and passed down with  12 the current."  13  14  15 And then he describes the vibrations, and he makes  16 the interesting comment:  17  18 "Though very slow, this mode of fishing results  19 in an immense returns by patient and constant  20 application.  On a rise in the Skeena on the  21 25th, quite a number of spring salmon appeared  22 among the number of melite or steer-heads."  23  24 So apparently they were after steelheads first.  25 And then the third report that deals with -- the  26 third report that deals with crests, contentions  27 between crests, is one dated June 20th, 1916.  28 Although this is a typed report, we have retyped the  29 first page, because it's -- the first page is rather  30 difficult to read.  31 THE COURT:  Yes.  32 MR. MACAULAY:  And at the bottom of the first page and the top  33 of the second where I have sidelined it says:  34  35 "On the 19th instant, I repaired to the Ksun  36 canyons where the principal stock of fish for  37 the latter purpose is being derived.  There, at  38 this time of the year, contentions arise as to  39 the rights of the various crests (2) shares of  40 the several stations and curing sheds.  Every  41 family maintains the right to one or more of  42 the fisheries in the eddies of projecting  43 cliffs which vary in use according to changing  44 stages of water."  45  46 And then he goes on to describe how they are  47 gaffed and the platforms suspended by a slender pole 28452  Submissions by Mr. Macaulay        1 and the usual thing,  vibration through the pole.  2 That's a Blake report.  It was still going in  3 1916.  Within the lifetime of people now living.  Now,  4 Ksun Canyon fisheries were the most important,  5 according to Loring, of the fisheries.  They are  6 described as the principal fishing centre.  And for  7 that I refer you to Tab 27, at page 2 of that report,  8 which is a report of June 1913.  It says:  9  10 "On the 23rd I repaired to the principal fishing  11 centre of the Ksun and Upper Ksun canyon  12 fishing and curing stations and returned on the  13 28th."  14  15 Was a long trip.  And then in Tab 28 he describes  16 that as the principal stock of fish for the winter  17 supply.  And that's the one we had seen a moment ago,  18 my lord.  They were looking at it again, but from a  19 different point of view, at the same report.  20 He starts off:  21  22 "... I repaired to the Ksun canyons where the  23 principal stock of fish for the latter purpose  24 is ..."  25  26 He was talking in the previous paragraph about the  27 home supply for another winter.  The last sentence of  28 the previous paragraph.  2 9 THE COURT:  Yes.  30 MR. MACAULAY:  That's the latter purpose he is talking about.  31  32 "The principal stock of fish for the latter  33 purpose is being derived at the Ksun canyons  34 ..."  35  3 6 And that's 1916.  And at Tab 2 9 —  37 THE COURT: Isn't that the same document that's in Tab 27?  38 MR. MACAULAY:  Yes, it is, my lord.  What I am doing is I've got  39 it inserted again for a different purpose.  4 0 THE COURT:  All right.  Thank you.  41 MR. MACAULAY:  I do that occasionally so that you won't have to  42 go back to an earlier tab.  4 3 THE COURT:  Thank you.  44 MR. MACAULAY:  If you turn to Tab 28, a report of May 31st,  45 1917.  Page 2 of that report.  4 6 THE COURT:  Tab 28?  47 MR. MACAULAY:  Yes, my lord.  29.  This is 29. 28453  Submissions by Mr. Macaulay        1  THE COURT:  Yes.  2 MR. MACAULAY:  The importance of this fishery is stated again.  3 He says:  4  5 "On the 22nd I paid a visit to the Kitsum  6 fisheries at the Ksun and Upper Ksun Canyons,  7 and returned on the 26th.  8 At the latter localities, the outlook for  9 salmon was poor for that time of the season.  10 Upon these fisheries the people of several  11 villages depend for their winter supplies.  12 This fact no doubt will adjust itself in due  13 time upon the water assuming a more favourable  14 stage."  15  16 The water was perhaps too high for good fishing at  17 the time.  18 In his last report on Ksun, Loring notes that the  19 fishermen are mostly older people, and that the  20 quantity of fish caught and cured is 80 percent less  21 than in earlier times, and he says it's due to a  22 change in diet.  And that's at Tab 30.  There are two  23 reports at Tab 30.  The first is August 31st, 1918 and  24 page 2.  I have sidelined it, and he says:  25  26 "A fair supply of salmon for winter is thus far  27 put away in its regular order and in proportion  28 to a reasonable extent.  29 In the latter respect, aside of the  30 effaacement of barriers in the river and creeks  31 years ago, I deem it here worthy to mention  32 that, because of far less salmon as a  33 subsistence by the present generation of the  34 people, and none of the whilom large bands of  35 ravenous dogs to feed, its use must have been  36 reduced to fully one-twentieth in amount."  37  38 I think he means 20 percent, my lord, because of  39 the next one.  40  41 "And thus have stimulated the fish industry at  42 large equally for that degree at spawning by  43 comparison in these parts alone."  44  45 And then the next report is July 31st, 1919 in the  46 same tab on page 2 again, the first paragraph.  47 28454  Submissions by Mr. Macaulay        1 "On the 10th  instant I repaired to the Ksun  2 canyon fisheries ..."  3  4 THE COURT:  I haven't found them yet.  5 MR. MACAULAY:  Tab 30.  6 THE COURT:  30.  I'm sorry.  7 MR. MACAULAY:  I had just read from the first report from Tab  8 30.  9 THE COURT:  I thought — I was in Tab 32 for some reason.  All  10 right.  On the second page.  11 MR. MACAULAY:  July 31st, 1919, the second page.  12 THE COURT:  All right.  Thank you.  13 MR. MACAULAY:  It says.  14  15 "On the 10th instant I repaired to the Ksun  16 canyon fisheries whereat, principally, the  17 elder of the population are busy catching and  18 preparing salmon for winter use, and found that  19 the runs of those fish are steady and strong.  20 The supply will prove ample for the purpose.  21 At the same time, I here beg to mention that  22 the need of that sustenance is at present by  23 eighty per cent less than during the earlier  24 years, and because of the adoption of different  25 diets, the decrease thereat will follow at the  26 rate of the passing away of the older people.  27 In the premise, I record this estimate as a  28 matter of public interest, without any further  29 comments of my own."  30  31 And he's referring, of course, to dried salmon  32 which at an earlier time had been the staple, and he  33 is writing now after he had been there for 30 years,  34 and a whole new generation had grown up, a generation  35 and-a-half.  A very large number of people would not  36 have remembered the day when Loring wasn't the agent  37 at Hazelton.  38 THE COURT:  What do you think he means by these large bands of  39 ravenous dogs to feed?  40 MR. MACAULAY:  Well, I haven't collected those reports here, but  41 Loring was very much against the large bands of dogs.  42 They were ravenous, and earlier travellers remark on  43 it.  They couldn't keep any food in the tent or in the  44 cabin without them pouncing.  It was a feature of the  45 villages that there were these dogs, bands of  4 6 extremely hungry dogs.  47 THE COURT:  I see.  All right. 28455  Submissions by Mr. Macaulay        1  MR. MACAULAY:  And Loring in  his reports mentions his hoping to  2 reduce the number or eliminate them altogether, and  3 the reason is they went after livestock, and he was  4 trying to promote the raising of livestock.  But he  5 mentioned in one report that the older Indians didn't  6 like that idea for, as he put it, some of them had a  7 certain veneration as he called it.  That's the only  8 word he could think of for these dogs.  And obviously  9 disapproved of -- like the wolf kill today, there are  10 people for their own and good reason don't want that  11 done.  12 THE COURT:  Yes.  13 MR. MACAULAY:  Well, there were dogs then.  And here he is  14 saying that those large bands of ravenous dogs aren't  15 there.  The dogs were --  16 THE COURT:  I'm sure it's the first I have heard of it.  17 MR. GRANT:  I hope you keep in mind in your observations, my  18 lord.  I find this only shows Mr. Loring's inability  19 to predict -- that question of dogs is an ongoing  20 question.  21 THE COURT:  I see.  Are they still a problem?  22 MR. GRANT:  And they still eat fish.  Yes, there are lots of  23 dogs, and they still eat lots of fish.  24 MR. MACAULAY:  He is saying there are fewer.  25 THE COURT:  All right.  26 MR. MACAULAY:  And more cattle.  Oh, Loring predicts a number of  27 things, some of which came to pass and others didn't.  2 8 THE COURT:  Yes.  What is that word whilom?  29 MR. MACAULAY:  It's a favorite expression of his, W-h-i-1-o-m.  30 It's a Victorian expression, and it means of former  31 times.  32 THE COURT:  I see.  33 MR. MACAULAY: First while would be a synomyn, I think.  Whilom  34 friend, he would say whilom.  35 THE COURT:  All right.  36 MR. MACAULAY:  I am about to launch into -- I understand your  37 lordship is rising at 4:00 o'clock.  I am about to  38 launch into another paragraph here and a long tab.  39 THE COURT:  I think we will adjourn then.  We have this argument  40 at 9:00 o'clock tomorrow morning?  41 MR. GRANT:  I understand that you are available.  42 THE COURT:  Yes.  And you are aware of that Mr. Macaulay?  4 3 MR. MACAULAY:  I am.  44 THE COURT:  We will resume then at 9:00 o'clock tomorrow  45 morning.  Thank you.  46 THE REGISTRAR:  Order in court.  Court stands adjourned until  47 9:00 o'clock tomorrow. 28456  Submissions by Mr. Macaulay 1  2 (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  3  4 I HEREBY CERTIFY THE FOREGOING TO BE  5 A TRUE AND ACCURATE TRANSCRIPT OF THE  6 PROCEEDINGS HEREIN TO THE BEST OF MY  7 SKILL AND ABILITY.  8  9  10 LORI OXLEY  11 OFFICIAL REPORTER  12 UNITED REPORTING SERVICE LTD.  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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