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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-18] British Columbia. Supreme Court Jun 18, 1990

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 28574  Proceedings        1  June 18, 1990  2 Vancouver, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 18th day of June, 1990.  Delgamuukw  6 versus Her Majesty the Queen at bar, my lord.  7 MR. GRANT:  My lord, before my friend proceeds, there's two  8 matters I wish to deal with that are relatively  9 housekeeping.  One is that -- is with respect to the  10 errata or correcting pages in Volume 4 of our  11 argument.  I'll hand up the copy for the Court in a  12 moment, but I'm going to refer you just to the pages.  13 It would be a correction.  A new page 2 of the index,  14 correction to page 43.  15 THE COURT:  Have these been inserted in my copy?  16 MR. GRANT:  No.  I'm going to hand you this one, my lord.  It's  17 new pages 61-1 to 61-5, a new page 64, a new page 78,  18 a new page 107, a new page 115, a new page 163 and a  19 new pages 216, 217 and a 217-1 and a new page 367.  2 0 And I've -- I've marked those and advised Madam  21 Registrar.  Now, those -- I've put a sticky on those  22 so that your lordship would appreciate those are ones  23 where there are corrections that I indicated.  Putting  24 those in would mean that that disk would match -- the  25 disk will match that and, of course, that's part of  2 6 our argument.  27 THE COURT:  All right.  Thank you.  28 MR. GRANT:  Now, the second point I wish to raise, my lord, is a  29 concern that the plaintiffs have as a result of a  30 discussion between Ms. Koenigsberg and Mr. Rush on  31 Friday at 10:30.  Ms. Koenigsberg advised Mr. Rush at  32 10:30 on Friday by telephone that there would be new  33 material on the wills, and Mr. Rush requested it right  34 away.  I've just received it this morning.  Ms.  35 Koenigsberg said she would get it Friday afternoon.  36 There would be new material and that would be argued  37 today.  There was an addendum to the argument on law  38 and use and occupation, which we would not receive  39 until tomorrow morning.  There was a major factual  4 0 argument on use and occupancy, abandonment and  41 extinguishment, which from her description to him was  42 a very large section, which we do not have, and she  43 did not say when we would have it; presumably by  44 Thursday or Friday when it's being argued.  45 And then there is a new -- a further 100 pages on  46 the counterclaim, which we would not get until next  47 week. 28575  Proceedings        1 Now, except for the -- the  problem is, is getting  2 all of these addendums, is that we must have time to  3 read these and deal with whether we're responding to  4 them or not, and it's our position, my lord, that in  5 this situation, except for any response on Sparrow,  6 which we can understand would be late, that there was  7 no real reason why -- for example, in the  8 counterclaim, it was delivered, I believe, around  9 April 15th or 19th.  It does say there will be new  10 material.  Well, now we're not going to get that until  11 next Monday or Tuesday, and we say that somehow this  12 should have been delivered earlier.  I don't know what  13 my friends can do about this because I understood that  14 last week it was raised and they indicated they would  15 give us all the additional material by today.  But we  16 to respond, my lord, cannot -- we would have to not be  17 able to have evening sittings or this Saturday because  18 my friends have given up Friday of their own volition.  19 We must have time to be able to read this before our  20 reply next Thursday.  It puts us in a terrible  21 position.  So we're asking that -- that we be -- we be  22 given those evenings and those Saturdays to do that,  23 because we want to -- and this coming Saturday to do  24 that so that we can reply.  We're in a situation now  25 where if the Federal schedule of delivery occurs,  26 we're going to get a very large section less than a  27 week before our reply, and we're going to get a  28 further hundred pages on the counterclaim less than a  29 week before our reply.  It's going to be very  30 difficult, my lord.  We all know the schedule, and my  31 friend, Mr. Macaulay, indicated that giving up Friday  32 was not going to jeopardize that schedule, but we have  33 to have time to review what they're going to start --  34 continue to deliver.  35 THE COURT:  Well, I don't know that there's anything that I can  36 usefully say.  I have to urge your learned friends to  37 get the material to you as quickly as possible.  But  38 I'm not able to interject with something to do this in  39 any useful or constructive way.  The -- the issues in  40 this case are -- have been pretty well canvassed.  I'm  41 surprised if there's anything new in this case other  42 than the recent jurisprudence, which is there and  43 everyone has time to deal with it.  Other than that,  44 there's nothing I can say.  I am not disposed, and Mr.  45 Grant isn't asking, to extend the length of this trial  46 beyond 4:00 p.m. on June 30th and I cannot sit this  47 week in the evenings anyway.  It may be that the right 28576  Proceedings        1 thing to do is not to sit in the  evenings next week  2 either as Mr. Grant suggests.  I will -- I just think  3 we should carry on and see how we get along.  I don't  4 know if you're able to say, Mr. Macaulay, how late you  5 want to sit tonight.  6 MR. MACAULAY:  Well, my lord, if we could go till five o'clock  7 tonight.  8 THE COURT:  Yes.  I think that's reasonable.  9 MR. MACAULAY:  I expect that most of the matters that Mr. Grant  10 has referred to will be in his hands today or tomorrow  11 morning.  12 THE COURT:  Yes.  Right.  13 MR. MACAULAY:  We are in the position of having -- of wanting to  14 and having to scale down and change our submission  15 because the Province in so many cases had covered  16 certain topics so thoroughly that it would make no  17 sense to refer to them.  The -- the use and occupation  18 submission will be available later tomorrow morning,  19 not Thursday.  And the new material on wills, they're  20 the same old wills.  I have some notes for  21 submissions, which has the tendency of cutting down  22 the number of submissions and the number of wills that  23 we have to look at.  It's a few pages, 10 to be exact,  24 including some brief submissions.  No.  Really nine  25 pages.  I don't think that the -- his advisors on  26 wills are going to take 10 minutes -- have to take  27 more than 10 minutes to read it.  28 Before I come to wills, and that's the next topic,  29 my lord, there is a little unfinished report regarding  30 Loring reports.  Your lordship will recall that we  31 were having difficulty with a bad copy at Tab 82 in  32 Volume 2.  It was the date.  It had to do with a  33 letter from Loring to Mr. Vowell, his superior,  34 regarding the Kispiox request that the Indian reserve  35 commissioner attend on them to allot reserves.  It  36 wasn't a letter addressed to Loring.  It was a letter  37 addressed to the commissioner.  And your lordship will  38 recall that Loring in his response -- as part of his  39 response told his superior what apparently he had been  40 told by the people of Kispiox; that they were under  41 the impression that all they were going to get by way  42 of reserves was the village site.  And your  43 lordship -- we all had difficulty making out the date,  44 whether it was 1896, 1898 and so on.  I have a better  45 copy and I think it shows fairly clearly that the date  46 of the letter was August 3rd, 1896, which would fit in  47 with the -- the issues then being addressed.  That is, 28577  Proceedings        1 it was 1896 that the issues were  being addressed, not  2 1898.  However, that may be.  If I could hand up  3 another copy or two copies of -- 1209A-70 is the  4 exhibit number.  Oh, yeah.  But it's at Tab 82.  5 MR. GRANT:  Before my friend starts, I appreciate him now  6 updating the status of things.  I wonder if my friend  7 will or can advise if there's any chance we can get  8 his counterclaim argument prior to next weekend so  9 we'll have time to deal with it on the weekend.  10 MR. MACAULAY:  I hope so, my lord.  11 MR. GRANT:  Thank you.  12 MR. MACAULAY:  There's another matter.  Mr. Grant asked me to  13 look for additional material concerning Ootsa Lake and  14 Chislatta Lake and so on, and I have found others.  15 They're mostly sketches, which appear to be undated.  16 And I'll just inform your lordship and my friend of  17 the numbers of those exhibits.  18 THE COURT:  Do you know the exhibit number in Mr. Loring's  19 material?  2 0 MR. MACAULAY:  That gave rise to that?  21 THE COURT:  Yes.  22 MR. MACAULAY:  It was 205, I think, Tab — Tab 75.  It was Tab  23 75.  Yes.  That's right, of the collection, Tab 75.  24 But the exhibit number was 1209C, as in Charlie, 205,  25 where he said no Indians are living at Ootsa and  26 Francis Lakes.  And then he talks about Chislatta and  27 certain numbers of families going to Bella Coola.  28 There is a -- another reference to that matter at  29 1209C-209, and then some sketches in the following  30 volume.  It's sort of buried on the bottom of the  31 second page.  32 THE COURT:  What is the reference?  33 MR. MACAULAY:  Oh, it's Tab 209.  34 THE COURT:  Yes.  All right.  35 MR. MACAULAY:  In the second volume.  36 THE COURT:  That's the second volume of Loring's reports?  37 MR. MACAULAY:  Second volume of this collection I handed up.  38 See, we put them there, but the actual exhibit number  39 is 1209C-209.  40 THE COURT:  Yes.  I'm in the second volume, I think.  41 MR. MACAULAY:  This isn't in the volume.  I'm giving additional  42 references that my friend asked for.  43 THE COURT:  Yes.  I'm just — I want to make a note of where I  44 might find that.  45 MR. MACAULAY:  The original letter was — was at Tab 205, the  46 second volume of 205.  47 THE COURT:  And then you gave me 209 and then you said there are 28578  Proceedings        1 some sketches.  2 MR. MACAULAY:  That's Volume D of the — of the exhibit,  3 1209D-213, 14, 15.  And then there's another report in  4 the following year, I think, 1209D-20.  So that's all  5 I can find on the subject.  6 THE COURT:  All right.  7 MR. MACAULAY:  In this — this letter, September 30th, 1905, I  8 guess it is, 1905, he says -- he deals with Fraser  9 Lake on the first page and then he talks about  10 Chislatta, and he describes two villages on Chislatta,  11 and so on.  And then he goes on:  12  13 "I here beg leave to allude to my opinion  14 that the inhabitants of those localities  15 rather belong to the Northwest Coast agency,  16 since a letter of instructions made no  17 mention of bands south of the Telegraph  18 Trail."  19  20 And he says about Ootsa Lake:  21  22 "To Ootsa Lake belongs no Indians."  23  24 This is an additional letter.  25  26 "There is one named Nahone, (part Kitsun)  27 who hunts in that district, but belongs to  28 Moricetown.  Another of the latter village  29 assuming right to land on Ootsa Lake, is one  30 Adilak (skin Tyhee) who left the Bulkley to  31 keep out of the way for appropriating 14  32 head of horses which should have come to  33 another by inheritance, and has expatriated  34 himself on other counts."  35  36 And then he goes on:  37  38 "There is another village on the south shore  39 of Francis Lake (towards its middle) which  40 with the adjoining tract for meadowland and  41 gardens, will prove an urgent necessity to  42 the Indians there.  43 At the end of this month I was  44 proceeding to the head of Francis Lake.  In  45 reporting everything doing well throughout  46 this agency."  47 28579  Proceedings        1 And then the next thing we have is in  the following  2 volume.  We have some sketches, which cover all the  3 places mentioned, some maps that he forwarded.  And I  4 can't find the -- any covering letter.  That's Volume  5 D and it's 213, 214, and 215, which includes, amongst  6 other things, Francis Lake.  And he shows 3 dwellings,  7 2 smokehouses, 11 people, certain number of graves, 9  8 horses.  And another one on Francis Lake, 26 people,  9 so many houses, so many graves and 25 horses.  There  10 are three of those sketches.  They're undated.  One is  11 Chislatta Lake.  One concerns Chislatta and Ootsa  12 Lake.  And then the last one deals with Burns Lake, 7  13 people, an old graveyard, 9 horses and 6 cattle, and  14 so on.  That's the Tibbetts family.  We're still  15 there.  And there's another family, Charles, and three  16 brothers with -- I think it's 13 people, certain  17 number of horses and cattle.  But the -- the dates are  18 not endorsed on there.  Clearly what he's doing is  19 he's indicating where -- where reserves ought to be.  20 And that's 1906 -- no.  The next -- that's undated.  21 But the next and last letter we could find on the --  22 on this subject is a letter -- and this is in  23 1209D-220.  That's the exhibit number.  It's not in  24 this collection.  25 THE COURT:  1209D-220?  26 MR. MACAULAY:  Yes.  220.  Now, he deals with Chislatta Lake and  27 then Ootsa Lake.  He says Ootsa Lake -- about Ootsa  28 Lake:  29  30 "The cabins on Ootsa Lake were only lately  31 erected by the two (2) Indians, of whom one  32 is Adilak, (self-styled) skin-Tyhee,  33 expatriated himself for his quarrelsome  34 propensities; and the other, Nahone (half  35 Kitsun) who merely hunts in the mountains  36 about Ootsa Lake, and has a house at Rocher  37 Deboule and another at Moricetown.  38 Furthermore, I learned from two gentlemen  39 coming from there (Ootsa Lake) that the  40 localities referred to had been staked by  41 settlers.  I cannot get myself to understand  42 why Adilak should claim miles around Ootsa  43 Lake, whereas his fellow tribesmen, of the  44 Bulkley Valley, have to content themselves  45 with narrow strips of land, unless it were  46 to obtain plenty of latitude wherein to  47 exercise an exceedingly ugly temper. 28580  Proceedings 1                     To Nahone, I approportioned  the choicest  2 location (No. 6) on No. 2, Cor-ya-tsa-qua  3 reserve, north by west of No. 1 Moricetown  4 Reserve, and think him not at all worthy of  5 that much consideration."  6  7 Frankly, Mr. Loring didn't like these two gentlemen.  8 And then he says:  9  10 "Only on a Marsh-meadow, within one mile  11 from end of Ootsa Lake - marked No. 6 - and  12 seven miles to the northwest of the village  13 of Chislatta, and recommended for the people  14 of Stilaholo"...  15  16 It's another band, I guess.  17  18 "... middle of lake - see my plan under  19 September last, I found a semblance of a  20 stake in the shape of a squared jackpine  21 sapling, cut off, but much short of being  22 four inches square.  The excuse for a stake  23 was to such an extent encrusted with pitch,  24 that after scraping I made out the  25 following:  26 A.H. Wisgadge, northeast corner, 320 acres  27 (scrip)"  28  29 That's some kind of pre-emption.  Anyhow, those are  30 the letters that -- the ones that I'm referring to in  31 response to my friend's request for the references to  32 additional material.  You have your own copy.  33 MR. GRANT:  I just -- I know that.  I just want your lordship to  34 note that last letter my friend reads, because he  35 talks about the removal of people in the Bulkley  36 Valley as well in 1906, just above where my friend  37 started, and I just wonder -- I didn't have the volume  38 here -- what -- if my friend has that note of what  39 date the Tab 75 letter was.  Is it -- it's before  40 these, I presume.  41 MR. MACAULAY:  1905, yeah.  42 MR. GRANT:  Thank you.  43 MR. MACAULAY:  My lord, before I come back now to my argument,  44 may I hand up a -- all this is is a set of three blank  45 tabs.  It's just -- they will be useful in separating  46 my brief submissions on various topics.  Your lordship  47 will recall I have one in a book on Loring and now I'm 28581  Submissions by Mr. Macaulay        1 going to hand up  short notes of oral argument on  2 wills.  3 THE COURT:  Yes.  4 MR. MACAULAY:  And there will be a couple more.  They will be  5 the two Indian agents that gave evidence, Mr. J.B.  6 Boys and Mr. Mclntyre, your lordship will recall,  7 which I'll hand up this afternoon.  So if I could hand  8 up the -- just the dividers as a convenience.  And  9 I'll give Madam Registrar another set of these three  10 tabs so that we can -- we can divide the second copy  11 of the book in a convenient way.  12 My lord, I'm going to address the question of  13 wills this morning.  I have had to rearrange affairs  14 for reasons I won't bore your lordship with, but I had  15 intended to make this and other submissions that I  16 make today after our submissions on aboriginal rights  17 and the subject pertaining to that, but as it's turned  18 out, we will not be able to make those until tomorrow.  19 Has your lordship got the --  2 0 THE COURT:  Yes.  21 MR. MACAULAY:  — the wills submission?  22 THE COURT:  Yes.  23 MR. MACAULAY:  I have also —  24 THE COURT:  Where do you say it should be inserted in your  25 argument?  26 MR. MACAULAY:  Well, your lordship had a little book.  All that  27 was in it was about 22 pages of Loring.  2 8 THE COURT:  Yes.  29 MR. MACAULAY:  It should be in there.  30 THE COURT:  Oh, all right.  Thank you.  31 MR. MACAULAY:  And the dividers that — the blank — the  32 dividers without any markings on them are just a  33 matter of convenience to separate those.  34 THE COURT:  I should use one of those at this time.  35 MR. MACAULAY:  Yes.  36 THE COURT:  All right.  Thank you.  37 MR. MACAULAY:  There will be a couple more very brief ones in  38 that book.  And now I am handing up copies of certain  39 wills, not all of them.  It's a book that has the tab  40 numbers in this book that correspond with the tab  41 numbers in the original exhibit.  For instance, the --  42 we have -- we start in this book with Tab 4, Tab 5,  43 Tab 7, Tab 14 and so on.  They correspond with the  44 original tabbing in the exhibit itself.  The wills all  45 are found in Exhibit 1237A, B and C.  And these are a  46 selection of those wills.  47 In addition, my lord, I'm handing up books of 28582  Submissions by Mr. Macaulay        1 genealogies that we  say -- it's a book, single book --  2 that we say pertain to the -- these wills.  I'm not  3 going to make any extensive reference to the  4 genealogies, but it's a reference.  The genealogies,  5 of course, are the plaintiffs' exhibits.  Very  6 often -- very often the plaintiffs have 24 or 30 pages  7 in one genealogy.  We have tried to isolate the ones  8 that are relevant to the wills.  And the tabbing is  9 the same with these extracts in genealogies.  In other  10 words, the tabbing corresponds with the original  11 exhibit.  You'll see that in some cases many -- some  12 testators, like James Blackwater, there are two tabs  13 in the original exhibits.  So we have two tab numbers  14 assigned to him, one genealogy, of course.  15 THE COURT:  Those tab numbers are in -- do you know the number  16 of the exhibit?  17 MR. MACAULAY:  Yes.  The exhibit is 1237 for the wills.  Those  18 are where the wills are to be found.  19 THE COURT:  Yes.  20 MR. MACAULAY:  And there's a certain order of tabs.  21 THE COURT:  Yes.  22 MR. MACAULAY:  In everything I've handed up now the tabbing  23 corresponds to that original tabbing.  So that Tab 1  24 is always Jimmy Andrew, and Tabs 5 and 6 are always  25 James Blackwater, et al.  26 THE COURT:  So the tabbing relates to your —  2 7 MR. MACAULAY:  The original exhibit.  28 THE COURT:  — to 1237, not to the plaintiffs' book of  29 genealogies?  30 MR. MACAULAY:  That's right.  They are extracts of the  31 plaintiffs' genealogies.  We may have a testator on  32 page 12 of a 25-page genealogy.  We're not producing  33 the whole genealogy.  This is a selection from the  34 plaintiffs' exhibits which are -- if an inquiry has to  35 be made about who this testator is or who the  36 beneficiaries are, what relationship they had, then  37 you can have reference to the genealogies.  I do not  38 intend to make -- partly because of the time, but I do  39 not intend to make extensive references to those  40 genealogies.  I'll just say that's where I got my  41 information, and the question whether somebody is a  42 son or a nephew or brother or sister, and so on.  43 MR. GRANT:  I understand my friend has -- just if he could  44 clarify before he starts in the genealogy extract.  I  45 see that some -- there's a sequential numbering and  46 some of them are blank on the index and there's  47 nothing in where those blanks are, but I notice, for 28583  Submissions by Mr. Macaulay        1 example, Tab 10  refers to Henry Brown.  In looking at  2 the index, I assume there's something in there.  3 There's nothing in my copy.  Tab 15 refers to Martha  4 Brown and there's nothing in my copy.  I'm sorry.  5 THE COURT:  I take that to mean that Mr. Macaulay won't be using  6 their genealogy with respect to that argument.  7 MR. GRANT:  I just want to be sure that we're all in -- that a  8 tab doesn't mean there's anything in it.  9 MR. MACAULAY:  Tab 10 should have something.  10 THE COURT:  Yes.  I have — there's a content in my Tab 10.  11 MR. GRANT:  Yes.  I have nothing in Tab 10.  12 MR. MACAULAY:  Well —  13 THE COURT:  I have nothing in Tab 6.  14 MR. MACAULAY:  No.  15 MR. GRANT:  Nor Tab 14.  16 MR. MACAULAY:  Can I explain Tab 6?  You have to look at the  17 original exhibit to see why that is.  18 MR. GRANT:  Maybe —  19 MR. MACAULAY:  And the same — but Tab 15 may not have something  20 there unless there's no genealogy.  In some cases --  21 now, in the case of Martha Brown, Tab 15 --  22 MR. GRANT:  I'm sorry.  I had something.  23 MR. MACAULAY:  -- she does not appear on any genealogy.  That's  24 my guess.  That would be my guess.  There is no  25 genealogy.  26 MR. GRANT:  I'm sorry.  Sorry.  I do have something in 15.  I  27 guess it was 14 I have nothing in.  Yeah.  I have  28 something in 15.  2 9 THE COURT:  I have nothing in 14.  30 MR. GRANT:  So if what my friend is saying, there's a blank  31 after the number, that means there's nothing in the  32 tab, that I can be sure that I have everything if  33 that's —  34 MR. MACAULAY:  I've asked Mr. Wolf —  35 THE COURT:  How can you be sure you have nothing if there's  36 nothing in the tab?  I'm sorry.  How can you be sure  37 you have everything if there's nothing in the tab?  38 MR. GRANT:  That's right.  39 MR. MACAULAY:  I'll go back to the original exhibit and we'll  40 deal first with Tabs 5 and 6.  They both deal with the  41 same testator, James Blackwater.  That's why in the  42 genealogies we have nothing in Tab 6.  Martha Brown,  43 Tab 15 --  44 THE COURT:  Well, is it any more difficult than that, Mr.  45 Macaulay?  If you don't have a tab in this book of  46 genealogies -- rather, if you don't have anything in  47 the tab in the book of genealogies, it means that you 28584  Submissions by Mr. Macaulay        1 won't be relying or  referring to a genealogy in your  2 argument?  3 MR. MACAULAY:  That's right.  4 THE COURT:  Yes.  5 MR. MACAULAY:  There are testators we know their band numbers.  6 We have their band number because they're -- we can go  7 to the band lists, to the administration documents.  8 But in a number of cases you can't find them on  9 genealogies.  10 THE COURT:  Yes.  11 MR. MACAULAY:  They just weren't there for whatever reason.  12 MR. GRANT:  Mine may be more elementary, my lord.  I take it  13 that if there's a number on the index and no name  14 beside it, I should assume there's nothing in the tab,  15 if there's a number.  And then if that's how my friend  16 is proceeding, then I can be sure I have whatever he  17 has by using the index.  18 THE COURT:  What is missing is that Mr. Macaulay is saying  19 either he is not relying upon a genealogy for his  20 argument with respect to that testator or he didn't  21 find a name in the -- in any genealogy.  22 MR. MACAULAY:  That's right.  23 THE COURT:  That doesn't say that his search is necessarily  24 conclusive in that regard.  25 MR. MACAULAY:  And there's another explanation for a blank tab,  26 and that is where, as in the case of Jimmy Blackwater,  27 we used two tabs in the original book for that man.  28 So there would only be one genealogy.  We put that  29 under Tab 5 and there would be nothing under Tab 6.  30 THE COURT:  All right.  31 MR. MACAULAY:  I thought I was trying to simplify matters, but I  32 didn't succeed.  33 THE COURT:  Oh, I think we'll let you know.  34 MR. MACAULAY:  Now, have you got two of these?  35 THE REGISTRAR:  Just one.  36 MR. MACAULAY:  My lord, there were 133 members of the various  37 Indian bands in the claim area who made wills that we  38 have found.  And they're all in this Exhibit 1237.  39 It's three volume exhibits.  So the volumes are marked  40 A, B and C.  The D.I.A. estate administration  41 documents are included in the exhibit itself for the  42 purpose of showing the identity, the village and the  43 band number of the testator.  We don't include any  44 other estate document because the points I am making  45 about the wills have nothing to do with the -- the way  46 in which the -- any estate was administered or not  47 administered. 28585  Submissions by Mr. Macaulay        1 In some cases you  can't tell from reading the will  2 alone what kind of property was the subject of the  3 bequest, for instance whether or not that testator was  4 leaving land on reserve to the beneficiary.  In cases  5 like that, you can look at the estate administration  6 documents for particulars.  The same applies to  7 traplines.  Occasionally a testator will say I leave  8 all my property of every kind whatsoever, both real  9 and personal.  In order to determine whether he was  10 disposing of a trapline as well as other things, you  11 have to go to the administration document, the D.I.A.  12 administration document, to see, yes, there is a  13 trapline or, no, there is no trapline.  14 The wills take a great variety of forms and some  15 are very informal.  Others are -- not many -- are on  16 D.I.A. forms and some appear to have been drafted by  17 solicitors, undoubtedly were drafted by solicitors  18 because there are provincial probate documents that  19 relate to them.  The earliest, that of Alexander  20 Oakes, which is at Tab 95, is 1904, made in 1904, and  21 the most recent was the will of Wallace Wale, and it  22 was made in 1987.  That's Tab 135 of the original  23 exhibit.  24 I have set out here the division of wills by  25 decades, and you will see that there are very few  26 before 1930 and then they varied from 20 to 30 from  27 1930 through to 1980.  After 1980 there was a — only  28 half that number.  That may be because of this  29 litigation, but it's just as likely the wills haven't  30 come in.  These people who have made wills of the  31 1980's are still alive and their wills are not in the  32 hands of the department.  In some cases, two or three  33 successive wills were located and it's the -- although  34 the earlier wills are included in the original  35 exhibit, but it's the last of the two or the last of  36 the three that's referred to in this submission.  37 We've taken the latest.  38 Of the 133 testators, the vast majority made  39 bequests of Indian reserve houses and land.  These are  40 the localities and severalty that Loring talks about.  41 These were the dwellings and properties referred to in  42 the Loring reports.  And 95 of the wills provide for  43 inheritance of houses and land on Indian reserves by  44 beneficiaries who are members of the testator's  45 immediate family, wives and children, and in some  46 cases grandchildren.  And I've given here a list of  47 the wills and the tab number is the -- is -- relates 28586  Submissions by Mr. Macaulay        1 to the original  exhibit where the will is to be found.  2 MR. GRANT:  12 87.  3 MR. MACAULAY:  Yeah.  For instance, the James Blackwater, 5/6  4 simply means that the document relating to him appear  5 in both those tabs in the original exhibit.  And the  6 same with Henry Brown.  Tabs 10 and 11 relate to him,  7 and so on.  We have listed the beneficiary or  8 beneficiaries in each case.  These are the single  9 family dwellings built, individual allotments made  10 after 1890 away from the old village sites where the  11 traditional long houses or plank houses were situate.  12 I include that only because although it appeared in  13 the early stages of the trial that these -- this  14 property was not to be considered as traditional, a  15 later -- later witnesses of the plaintiffs seem to be  16 giving evidence to the effect that in some cases, if  17 not all cases, this was traditional property.  But  18 clearly, and it just stands to reason, this kind of  19 property there were single family dwellings.  They  20 were for families as we understand the word, not  21 larger extended groups.  It would only be natural that  22 they would be bequeathed to children and grandchildren  23 in most cases.  In some cases there might not be a  24 surviving child or grandchild, but we have not  25 included those.  Some of them would be traditional in  26 the sense that they would go to the -- to people in  27 the same clan.  If a wife leaves a -- her house to her  28 daughter, the plaintiffs can say, well, there, that's  29 traditional.  They're the same house, same clan.  If a  30 father leaves the property to his daughter or son, it  31 isn't.  We have made no distinction here between the  32 traditional and nontraditional.  The purpose of  33 compiling this material is to show that in -- in the  34 great majority of cases it was -- the property was  35 left to sons and daughters and grandchildren.  36 There are 43 testators who bequeathed traplines  37 and hunting grounds to their heirs.  And that number,  38 the following, and I'm listing them here, provided in  39 their wills that these traplines and these hunting  40 grounds should be inherited by beneficiaries who were  41 not of the same clan.  If you're not of the same clan,  42 you're necessarily not of the same house either.  And  43 in most cases it was a question of the testator being  44 a male, leaving his trapline to his wife or his  45 children because a man's wife is necessarily not of  46 the same clan or house and the children similarly,  47 because they adopt the house and clan affiliation of 28587  Submissions by Mr. Macaulay        1 the mother, are not  connected with the father in that  2 way.  3 I should mention there is -- there are a few --  4 there are a few of these testators who aren't  5 plaintiffs, but they have traplines in the claim area  6 and they live in the claim area and they are Indians  7 and they are members of bands.  On this page 5 there's  8 one.  And I have identified them where I can.  Theresa  9 Sam.  Theresa Sam is a member of the Burns Lake Band  10 and she had a trapline.  And she bequeathed that  11 trapline to a grandson.  Similarly Chief -- both  12 Tibbetts, Chief David and Frank David, who left their  13 traplines to their sons, neither of them are  14 plaintiffs.  They are members of the Burns Lake Band.  15 MR. GRANT:  Well, maybe my friend could clarify for me then that  16 phraseology, not a plaintiff.  Is my friend saying --  17 when these people aren't plaintiffs, is he just saying  18 they're members of an Indian band under the Indian  19 Act, which isn't one of the bands?  If that's all he's  20 saying, then that doesn't necessarily follow.  There's  21 extensive evidence that people belonging to other  22 bands are plaintiffs.  Or is he saying that they're  23 not members of the plaintiff houses?  2 4 MR. MACAULAY:  I think my friend knows the answer to that.  25 MR. GRANT:  Well, I don't know the answer to that.  26 MR. MACAULAY:  He knows about Theresa Sam and he knows she's not  27 a plaintiff and he knows that she's a member of the  28 Burns Lake family.  29 THE COURT:  Well, I'm with your friend on this one, Mr.  30 Macaulay, because I'm not sure.  31 MR. MACAULAY:  Burns Lake Band are not Wet'suwet'en or they're  32 not connected with the Wet'suwet'en for the purposes  33 of this action.  They don't appear in the genealogies  34 either.  35 THE COURT:  Can I take that as a given?  That is, if someone  36 belongs to the Burns Lake Band, that they aren't  37 members of the plaintiff house?  38 MR. MACAULAY:  I don't know of one who's a member of a plaintiff  39 house in the Burns Lake Band.  If they were members --  40 if they were members of the plaintiff house, they'd  41 appear on genealogies.  That's another way of putting  42 it.  You can't find any Tibbetts on the plaintiffs'  43 genealogies.  44 THE COURT:  I don't — I'm sure if I looked at your documents I  45 could find the answer to the question of whether the  46 Burns Lake reserve is in the claim area or not.  I  47 think somebody told me that it was. 28588  Submissions by Mr. Macaulay        1  MR. MACAULAY:  Well, Mr.  Mclntyre gave that evidence.  2 THE COURT:  Yes.  All right.  And the Burns Lake Band has a  3 reserve also within the claim area.  4 MR. MACAULAY:  Yes.  Some of them are plaintiffs and others  5 aren't.  But in the case -- I don't know of a single  6 exception to the -- my proposition in the case of the  7 Burns Lake Band.  I don't know of a single one who is  8 a plaintiff.  There might be.  It's possible that a  9 Burns Lake Band member married a Wet'suwet'en who is a  10 member of a house.  But none of these are -- or were.  11 That's one of the problems of -- that relates to the  12 plaintiffs' claim.  13 THE COURT:  Yes.  14 MR. MACAULAY:  There were people who lived there.  The maps I  15 just produced at my friend's request, the Loring's  16 sketches, that shows the Tibbetts family.  17 THE COURT:  Yes.  18 MR. MACAULAY:  They were there in 1906.  The Tibbetts family are  19 not plaintiffs, people named Tibbetts.  20 THE COURT:  They're recent arrivals.  21 MR. MACAULAY:  Who knows when they got there.  There were there  22 in 1906 --  23 THE COURT:  All right.  Thank you.  24 MR. MACAULAY:  — on Burns Lake.  We have no record of when they  25 first got there.  When Mr. Loring went to Burns Lake,  26 there they were.  Might have been there for a thousand  27 years for all we know.  28 Now, this book of wills that I handed up covers  29 all the categories of people who bequeathed traplines  30 and hunting grounds.  I haven't included a few cases  31 and they're so rare as to be statistically irrelevant,  32 cases where fishing stations were or chiefs' names or  33 totem poles or things of that kind.  They're the  34 exception.  I don't think that we can draw any  35 conclusions from the fact that a particular chief 40  36 years ago decided he would leave his fishing ground in  37 his will.  But there is a -- there is a large enough  38 proportion of trapline and hunting ground -- they mean  39 the same thing -- trapline who left their wills to  40 make it relevant and justify drawing certain  41 conclusions when that -- those -- the facts, and  42 that's what they are, are considered in connection  43 with other facts concerning other evidence concerning  44 traplines.  45 My lord, if you'll turn to page -- of this book,  46 book of 46 wills, I want to explain something that  47 I've put in there. 28589  Submissions by Mr. Macaulay        1  THE COURT:  Can I take it that  all the testators, all 133  2 testators resided in the claim area at the time of  3 their death -- at the time they made their will,  4 rather?  5 MR. MACAULAY:  They were members of bands in the claim area at  6 the time they made their will.  Some of them made  7 wills -- I think Harry Oakes, who was a famous member  8 of a famous Kitwanga family, I think his was dated at  9 Port Essington.  There are some of them that were  10 dated at the canneries where they spent part of the  11 year.  12 THE COURT:  All right.  Thank you.  Yes.  Book of wills?  13 MR. MACAULAY:  Now, if you look at Tab 1 — I'm sorry.  It's Tab  14 4.  15 THE COURT:  Yes.  16 MR. MACAULAY:  Because he appears in the original at Tab 4.  Mr.  17 Peter Bazil, you will see we've put in a memorandum  18 showing -- and we get this from the administration  19 documents.  He is number 8, Moricetown.  His Indian  2 0 name is Wah tah k'eght.  We get that from the  21 genealogy.  His house is Wah tah k'eght.  And we quote  22 there Exhibit 119, page 9.  That's the genealogy.  His  23 clan is Laksilyu.  The date of the will is given and  24 the witnesses.  And in every case, in the case of  25 every will included, we have -- you'll see he's the  26 head chief, Peter Bazil.  27 The next one, Blackwater, is the head chief too.  28 He is Wii Minosik of the House of Wii Minosik.  29 The third one, Albert Brown, is Wii Goob'1.  But  30 he is in the House of Gyetimgaldo'o.  So he has a name  31 in that house.  And in these cases we have referred  32 to -- located them on the plaintiffs' genealogies and  33 established their Indian name and their house and clan  34 in that way.  35 Sometimes there's a bit of difficulty in the  36 genealogies.  If you look at the following one, Joseph  37 David Brown, his band he is number 6, Kitsegukla.  We  38 have his Indian name and we have a notation.  He  39 appears on another genealogy.  That is another house's  40 genealogy.  He is married to Martha Brown, Mool'xan.  41 MR. MACAULAY:  But he doesn't appear, for reasons we don't know,  42 on the genealogy of his own house, if indeed that's  43 his own house.  44 THE COURT:  Where did you get the house reference from?  45 MR. MACAULAY:  The other genealogy, the Haak Asxw genealogy.  46 That's where we have to turn to the big book.  47 THE COURT:  Oh, yes. 28590  Submissions by Mr. Macaulay        1  MR. MACAULAY:  And we have  that's Joseph David Brown, Tabs 13  2 and 14.  3 THE COURT:  Where did you get that his name was Xsgogimlaxha,  4 X-s-g-o-g-i-m-l-a-x-h-a?  Where did you get that?  5 MR. MACAULAY:  From the genealogy of his wife's house.  Could  6 you turn to Tab 13, my lord, in the big book of  7 genealogies that you have there?  8 THE COURT:  Yes.  9 MR. MACAULAY:  And go to Tab 13.  At page 2 of the tab you'll  10 see Joe Brown is listed there.  And we believe that to  11 be the same Joseph Brown.  And we get his name from  12 that.  Now, the plaintiffs may argue no, it's another  13 Joe Brown.  And let them do so.  14 MR. GRANT:  I just wonder.  That's what I'm trying to  15 understand, my friend's logic.  Is there anything  16 other than the fact that the name Joe Brown is the  17 same name as is on the will?  Is that the sole basis?  18 I mean, he says we think that's the same Joe Brown.  19 I'm just wondering what the connecting link is in my  20 friend's argument, that's all.  21 MR. MACAULAY:  No.  There's —  22 THE COURT:  Well, I don't see him on this -- on this genealogy  23 for Sakxum Higookx, S-a-k-x-u-m, new word,  24 H-i-g-o-o-k-x.  I don't see him on that genealogy.  25 MR. MACAULAY:  No.  The second genealogy shows the  26 beneficiaries.  Esther Brown, I take it, is the same  27 as Esther Hyzims.  She is Esther Hyzims.  And then on  28 the last page of that second genealogy, Connie Wesley  29 is another of the beneficiaries.  30 THE COURT:  I see.  31 MR. MACAULAY:  She was Connie Wesley married to George Milton,  32 because in order to make the submissions, we had to  33 determine who was who and what clan they were.  34 MR. GRANT:  In following my friend, I'm still wondering how he  35 connects this particular Joe Brown, the husband of  36 Martha Brown, to the person he's got with that will,  37 Joseph David Brown.  38 MR. MACAULAY:  Well, it's a process, in some cases, of  39 deduction.  This is a Kitsegukla man, the man who made  40 the will, and that Joe Brown is the Joe Brown of that  41 era in Kitsegukla.  He's one of the Joe Browns in Kitsegukla.  Right.  That's a good research project for your friend.  Another reason why I'll take the weekend to read  46 these wills again.  47 MR. MACAULAY:  Can I turn to William Brown, number 27,  42 THE COURT  4 3 MR. GRANT  4 4 THE COURT  4 5 MR. GRANT 28591  Submissions by Mr. Macaulay        1 Gitanmaax?  It's the  next in that tab of wills.  2 William Brown.  It's Tab 22.  3 THE COURT:  Yes.  4 MR. MACAULAY:  Now, this is one where William Brown appears on  5 Wiigyet, the Wiigyet genealogy, is married to Hanna  6 Jackson.  So there is no house given.  7 THE COURT:  NHG means no house given, does it?  8 MR. MACAULAY:  Yes, my lord.  We have — well, more than clues.  9 We have identification in the -- in the wills  10 themselves.  They -- they refer to sons and daughters  11 by their names, and that's another way of -- of  12 determining who they are.  13 MR. GRANT:  So I take it my friend here just in this example  14 demonstrates -- so I just want to be clear about them.  15 My friend is relying on wills of non-plaintiffs in  16 support of his argument.  In this case William Brown  17 is identified as Nishga.  18 MR. MACAULAY:  In wills of band members of the bands in the  19 claim area.  We didn't exclude wills because they  20 didn't happen to be on genealogies.  And, of course,  21 it affects the -- to some extent it might affect the  22 conclusion we draw.  23 The next one, my lord, is Tab 27, Daniel Cookson,  24 who is Guxsan.  He is the head chief of the house in  25 Kitsegukla.  And his clan is given there.  And in this  26 will he leaves -- if you turn to the will -- I should  27 mention something about this, my lord.  You notice at  28 the top there's the written copy.  If you go to the  29 original exhibit, you will see that there is both the  30 handwritten document and a copy in most cases.  What  31 happened was there was no Xerox in those days.  The  32 regulations required the Indian agent to send a copy  33 of the will to Ottawa.  So he typed out a copy and  34 either sent the original or -- and kept a copy for  35 himself or vice versa.  In a very few cases all we  36 have is the copy, but it's an estate document and it  37 was done at the time by -- in the ordinary course of  38 business by the official carrying out his duty.  39 Looking at the original exhibit will show if that's  40 apparently a case where only the copy has survived.  41 The original may be in the archives somewhere, but  42 only the copy has survived.  In that case, he left  43 land on reserve to his wife and some cash, which is  44 not relevant, and then cash -- a cash bequest to  45 Arthur Sampare, and Vincent Woods and Ben Woods and  46 Edward Wesley were to receive the trapline.  Now, Ben  47 Woods appears on the same genealogy here, the Guxsan 28592  Submissions by Mr. Macaulay        1 genealogy, but he is  not -- he is in the house.  No.  2 It's the other one who isn't.  Wesley was not.  In  3 that case, it's Wesley, Edward Wesley, who is not a  4 member of the same clan.  5 MR. GRANT:  Well, I disagree, my lord.  My friend's Tab 853, Mr.  6 Wesley is indicated, as is Mr. Mark, and they're all  7 on the Guxsan genealogies members of that house, both  8 Woods, Mark and Wesley.  9 MR. MACAULAY:  My friend is right.  I have Daniel Cookson as  10 part of my list -- I haven't come to that yet -- of  11 testators who did bequeath their trapping and hunting  12 lines in a manner that appears in accordance with the  13 house clan structure.  That's at page 7.  I have three  14 lists.  I've just been going through these in  15 alphabetical order.  But if your lordship will -- will  16 look at my three lists, one appears at pages 5 and 6.  17 And that's a list of the testators who we say did not  18 leave their traplines in the manner -- in the crest --  19 according to the crest system.  20 And then there's a second list of bequests of  21 traplines to beneficiaries who don't appear on any  22 genealogy.  23 And the third list is bequests -- that's on page  24 7 -- bequests of traplines in a manner that appears to  25 be in accordance with the house clan structure  26 described by the plaintiffs at trial to the extent  27 anyhow that the legatees are of the same house.  And  28 Cookson was one of those.  29 THE COURT:  That, of course, wouldn't conform to the clan — to  30 the crest system, as it's been described in the other  31 evidence, just leaving it to members of the clan.  32 MR. GRANT:  They leave it to named successors.  In the case of  33 Guxsan, it went to Peter Mark.  34 THE COURT:  If he's the successor.  35 MR. GRANT:  That's what you see when you look at the genealogy.  36 I think that's what my friend is saying.  37 MR. MACAULAY:  Well, there are a few cases of that.  And I —  38 I'll be referring to them.  And my recollection is  39 that Dan Cookson was one of them.  Yes, it is.  He was  40 one of them.  41 THE COURT:  Well, Peter Mark was Guxsan, but Edward Wesley  42 wasn't.  He had a different name.  43 MR. MACAULAY:  Yes.  The first list of — if I can come back to  44 the first list, if we turn to Fritz Harris -- and I am  45 turning to him because one of the beneficiaries gave  46 evidence at trial.  That's Tab 42.  Fritz Harris was  47 in the House of Delgamuukw, and he left his trapline, 28593  Submissions by Mr. Macaulay        1 he says, to Chris  Harris and Jeff Harris.  "I hereby  2 give, devise and bequeath my traps and trapline".  3 Well, of course, they were of a different house.  He  4 was Delgam Uukw.  And they were, as my recollection  5 serves, Geel -- Luus -- sorry -- Luus.  6 Now, the last survivor of them, Jeff Harris, gave  7 evidence.  Your lordship heard his evidence in  8 Smithers.  And he gave the -- he said that his father  9 had murdered his mother and that that was the reason.  10 It was to compensate for that that the boys got the  11 trapline.  He was asked if that transaction had been  12 dealt with at the feast and he said no.  So you find  13 some odd explanations for the odd one.  I thought I  14 ought to draw that very unusual explanation to your  15 lordship's attention.  16 Now, there is another odity that I should mention  17 to your lordship.  Mathew Sam of Noralee.  The Noralee  18 Mathew Sam was Tab 108.  Mathew Sam had adopted his  19 beneficiary.  Mathew Sam was Gyologyet, so in the  20 House of Woos.  That was his chief's name.  He adopted  21 Roy Morris, who he describes as his grandson in his  22 will, and left the trapline to his grandson.  But that  23 trapline was in the territory of Knedebeas.  And in  24 fact the current Knedebeas made an issue of that, but  25 both the -- but the beneficiary, Roy Morris, whose  26 chief's name was Woos, he was a head chief.  He stuck  27 with it and he -- he had the trapline now, although  28 it's Knedebeas territory.  So that is not in  29 accordance with the crest system at all where a man  30 bequests his trapline to his son or his daughter.  Of  31 course, it goes without saying that under the system  32 that we've heard, that it could not possibly be a  33 crest system transaction.  And most of these are --  34 are like that.  35 In one case Seymour Tom left his trapline to  36 members of the Stellaco Band.  They're not on the  37 genealogies.  But they're also said to be in the will  38 itself Stellaco.  That's Tab 128.  He is number 6 of  39 the Maxim Lake Band.  And he bequeathed his trapline  4 0 to Kenneth Luggie and Gordon Luggie.  And he says in  41 his will:  "These boys are members of the Stellaco  42 Band of Indians".  And, of course, they're not on any  43 genealogy, but the trapline is in the claim area and  44 he is a plaintiff.  45 The second category of bequests are to people who  46 aren't on any genealogy.  Now, Solomon Dick, there's a  47 note that his wife was a Sustut Dene.  So that the 28594  Submissions by Mr. Macaulay 1            sons would not be  either Gitksan or Wet'suwet'en.  2 They would be Sustuts.  So that couldn't possibly be  3 in accordance with the crest system.  He's at Tab 33.  4 He's number 17 Glen Vowell, and he has a chief's name  5 in the House of Miluulak and his clan is Lax Seel.  6 His will provides that his house and contents to Peter  7 Dick, my grandson, whom I adopted, and to Martha Dick.  8 But neither of those is on a genealogy.  We have  9 Solomon Dick itself on a genealogy of Miluulak.  And  10 it gives his chief's name.  And the genealogy shows  11 that Martha, his wife, was a Sustut Dene.  Yes.  He  12 was first married to someone else, then to Martha.  A  13 sister Dene and the two beneficiaries who are named  14 are not on any genealogy.  So that that can't be  15 classified as a -- as a crest system, bequest of a  16 trapline.  17 Chief Louis, who is Louis Baptist, at 64 he -- Tab  18 64.  Chief Louis is number 14 in the Chislatta Band,  19 but his house is said to be that of Goohlaht/Caspit,  20 where he appears, Louis Baptist.  And his will  21 provides:  22  23 "I, the undersigned Chief Louis of the  24 Chislatta Band wish to will herewith  25 everything I own, including trapline, cabin,  26 house, land, equipment of any nature  27 whatsoever to my grandsons George, Johnny  28 Peters, son of something Peters deceased."  29  30 Now, Chief Louis, although he is a member of the  31 Chislatta Band, is a plaintiff if he appears on the  32 genealogies.  He is claimed to be a plaintiff, or the  33 ancestors of plaintiffs.  His is not the sort of case  34 we run into with Theresa Sam or Chief Tibbetts.  This  35 is an odd -- one that's difficult to classify.  36 Douglas Marsden, Tab 70.  Marsden was number 126  37 Kitwanga and he had been formerly at Kitwancool.  38 There is no house given for him.  He called himself a  39 chief in his will.  And he bequeaths all his personal  40 and real properties and interest in the trapline to  41 Gordon Johnson, who is not on the genealogy.  Gordon  42 Johnson, I believe, was Chief Fred Johnson's son.  He  43 is a Kitwancool chief.  44 MR. GRANT:  Gordon Johnson is Malii, M-a-1-i-i, my lord.  45 There's evidence of Mr. Williams on that.  He's in the  46 same house as Glen Williams, and this succession from  47 Douglas Marsden to Gordon Johnson was referred to 28595  Submissions by Mr. Macaulay        1 in -- I believe it  in Mr. Williams' evidence.  2 They were in the same house but they're Kitwancool  3 houses.  4 MR. MACAULAY:  Well, this is a Kitwanga band member.  Perhaps  5 that shouldn't be in the collection at all, but once  6 you start excluding them for this reason or that  7 reason, it's impossible to draw the line.  What we  8 have done is -- I repeat.  What we have done is we  9 have taken the band members of bands in the claim area  10 who live there and Mr. Marsden at the time he drew his  11 will --  12 THE COURT:  Gordon Johnson is who?  13 MR. MACAULAY:  Gordon Johnson is a -- bears a chiefly name in  14 the Kitwancool band.  15 MR. GRANT  16 THE COURT  17 MR. GRANT  Malii, my lord, M-a-1-i-i.  That's a Kitwancool house.  It's a Kitwancool house.  And Douglas Marsden was in  18 that house.  19 THE COURT:  So you're only interested in the factor where is the  20 trapline.  21 MR. GRANT:  For the purposes, yeah.  The only relevant may be  22 where the territory was.  My recollection is it's in  23 the Kitwancool area.  24 THE COURT:  All right.  25 MR. MACAULAY:  In the case of George Moore, he bequeathed the  26 trapline to his grandchildren.  That's 78.  He himself  27 was in the House of Sakxum Higookx.  Allan Johnson was  28 in the same house and successor to his name, but  29 Pauline Johnson was not.  In fact, she's not on the  30 genealogies.  That's why she's on that list.  31 THE COURT:  She's quite a person.  32 MR. MACAULAY:  Yes.  Went on to other things, not trapping.  33 THE COURT:  Couldn't be the same one, could it?  34 MR. MACAULAY:  I don't know, my lord.  35 THE COURT:  All right.  36 MR. MACAULAY:  Sophia Mowatt bequeathed traplines to several  37 people.  One of them was a grandson not on the  38 genealogies.  39 And Jasper Skulsh bequeathed his trapline.  That's  40 118.  He's a Kispiox man.  41 MR. GRANT:  Pauline Johnson, by the way, my lord, would have  42 been the sister of Allan Johnson.  I don't think she  43 was the one that went on to greater things, although  44 she may have been named after the person that was  45 travelling through the same area.  46 MR. MACAULAY:  Anyhow, that person doesn't appear on the  47 genealogies.  Pauline Johnson -- 28596  Submissions by Mr. Macaulay        1  THE COURT:  No.  2 MR. MACAULAY:  — is not — I don't know how you define  3 plaintiff, but as I understand it, you define  4 plaintiff by their presence or nonpresence on the  5 genealogies.  And that's how you know that Chief  6 Tibbetts is not a plaintiff.  He might qualify in  7 every conceivable way other than the fact that he's  8 not on the genealogies.  He is excluded from the magic  9 circle.  10 THE COURT:  Well, I would have thought that that's one way.  11 Another way of describing it is to say that a  12 plaintiff has to be a member of one of the houses of  13 the named chiefs.  14 MR. MACAULAY:  Yes.  Yes.  15 THE COURT:  All right.  16 MR. MACAULAY:  I don't know what the problem with Pauline was.  17 MR. GRANT:  She's deceased.  I think that's the problem.  18 MR. MACAULAY:  Is that why she's not on the genealogies?  19 MR. GRANT:  Well, I don't know.  She's not a plaintiff today.  20 MR. MACAULAY:  All kinds of deceased people on the genealogies.  21 Anyhow, Jasper Skulsh of Kispiox, who here is a case  22 where he did what appears to be D.I.A. form, witnessed  23 by a doctor, Dr. Donald, and the Indian agent  24 Mortimer.  He bequeaths to Douglas Angus and Raymond  25 Tait jointly his trapping ground.  He was -- he had an  26 Indian name in the House of Gutginuxw.  He did not  27 have the head chief's name.  And his genealogy shows  28 the -- here that Douglas Angus was of that -- the  2 9 right house.  And Raymond Tait we -- is not on that  30 genealogy.  So one was right and the other is no house  31 given.  When I say no house given, we -- like, I'm  32 sure the other parties -- we developed a master roll  33 of all the people who appear on genealogies.  It  34 wasn't a question of just thumbing through the  35 genealogies.  And we haven't been able to find that  36 person on the genealogies.  There's a typical  37 disposition, typical.  It's almost universal  38 disposition of land on the reserve.  He says:  "To my  39 wife, Emma, my land situate on the Kispiox Indian  40 reserve".  And we don't say that hurts the plaintiffs  41 or doesn't hurt the plaintiffs, but it puts pain to  42 the proposition that any of that reserve -- those  43 reserve allotments and houses were traditional  44 property in any sense.  45 My lord, if there's going to be an adjournment.  4 6 THE COURT:  Yes.  All right.  Thank you.  47 THE REGISTRAR:  Order in court.  Court stands adjourned for a 28597  1 short recess.  2 (PROCEEDINGS ADJOURNED)  3  4 I hereby certify the foregoing to be  5 a true and accurate transcript of the  6 proceedings transcribed to the best  7 of my skill and ability.  8  9  10    11 Kathie Tanaka, 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 28598  Submissions by Mr. Macaulay        1 (PROCEEDINGS RESUMED  PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Mr. Macaulay.  4 MR. MACAULAY:  My lord, in this category of the requests to  5 people who don't appear on genealogies, the last one I  6 want to refer to, the last one on my list is Mary  7 White.  Mary White was a head chief.  Her name -- her  8 chiefly name was Miluulak.  Mrs. Mary White, Alexander  9 White's widow, or wife, she made a will on, you know,  10 a printer's form.  It's one of the many varieties of  11 wills.  It's at tab 151.  And she gives all her real  12 and personal estates to her daughter Elsie White,  13 including her hunting -- "my Hunting Ground called  14 'Malaulach' near Takla Lake."  The Malulach area shown  15 on the plaintiffs' maps is indeed near but not on  16 Takla Lake.  It's over here, my lord.  Takla Lake is a  17 bit south.  She describes it as -- gives it the name,  18 Malaulach, which is a hunting ground.  But her  19 daughter Elsie is not on the genealogy, or at least if  20 she were -- anyhow, she left the -- her property in  21 that way.  22 Now, the next testators, starting with Peter Bazil  23 and Daniel Cookson, did leave their traplines to  24 members of their house.  As I mentioned earlier, there  25 were a few testators who purported to leave fishing  26 stations, berry patches and other traditional  27 property, not always in accordance with Gitksan and  2 8 Wet'suwet'en systems.  And we find examples in the  29 wills of Chief Laknits and of James White who was the  30 Gyetimgaldo'o.  But there isn't a large enough group  31 of those to make anything of it.  But of the 43  32 testators who did make mention of traplines or hunting  33 grounds in their wills, only two disposed of their  34 traplines in terms that left it to the successor, as  35 head chief of the house, to determine who should use  36 the trapline.  These were Peter Mark and George  37 Naziel.  But the latter's will was made post motam  38 litem in 1986, and it was witnessed by the "Legal  39 Information Counsellors" and including Jack Sebastian  40 of the Tribal Council.  And even so, maybe we should  41 look at his will, my lord.  93.  That was to be an  42 example of a traditional will, presumably.  It's at  43 tab 93.  And he leaves to his sons his Indian reserve  44 property.  There is nothing unusual about that.  He  45 leaves to one son "my property, the Hudson's Bay  46 Ranch," on the Telkwa High Road.  Well, the Telkwa  47 High Road, the southern end of the Telkwa High Road is 28599  Submissions by Mr. Macaulay        1 at Telkwa.  George  Naziel was Madeek, and Madeek's  2 property, Madeek's land, of course, is a way down much  3 farther south than that.  Around Buck Flats.  It's  4 down in here.  The Hudson's Bay Ranch that he  5 bequeaths to his son is in somebody else's territory.  6 Then after dealing with his -- the power saws and --  7 THE COURT:  I am sorry, I was wondering how you knew it was --  8 yes, I'm sorry.  The ranch is on the Telkwa High Road  9 and therefore it's within the territory of who, Woos  10 or Wah tah ghets?  11 MR. MACAULAY:  Well, since I don't know exactly where the ranch  12 is, it be one or the other, it doesn't say exactly  13 where the ranch is.  The Telkwa High Road is 20 miles  14 long or something like that.  15 THE COURT:  It goes right to Moricetown, doesn't it?  16 MR. GRANT:  Yes.  17 MR. MACAULAY:  Yes.  But the southern end of it, my lord.  The  18 village or town of Telkwa now.  And then he bequeaths  19 to his grandson and sons -- sons and grandsons the  20 trapline "to be held in trust," as he says, "until  21 until decided different in the feasthouse, when my  22 Chief Name is passed on to Clarence Dennis."  That  23 might be considered -- this is the 1986 will might be  24 considered to be only insofar, though, as the trapline  25 is concerned, his trapline at Buck Flats to be in  26 accordance with the plaintiffs' evidence of their  27 system.  There were two other chiefs, only two, who  28 bequeath their -- these are head chiefs, who bequeath  29 their traplines to their successors and those are  30 Peter Bazil and Andrew Wilson.  They are at tabs four  31 and 154 respectively.  32 The others of this ten I'm dealing with now, the  33 so-called traditional ones, the other trapline  34 requests made within a house were made to specific  35 persons.  For instance, Daniel Cookson, tab 27.  He is  36 Guxsan, the head chief, and he leaves his trapline -  37 we have seen this before - to two members of his  38 house, two particular members of his house, that's Ben  39 Woods and Edward Wesley, neither of whom is Guxsan.  40 MR. GRANT:  And Peter Mark.  41 MR. MACAULAY:  Well, the — the trapline was left to Ben Woods  42 and Edward Wesley and then three people, including his  43 successor, get the beaver hunting grounds, which is  44 looked after separately, dealt with separately in the  45 will.  Peter Mark, Arthur Sampare and David Milton.  46 Peter Mark is his successor as Guxsan, along with two  47 others.  I am talking about now, my lord, I am saying 28600  Submissions by Mr. Macaulay        1 there are only two  who left it to their successors,  2 period, not to their successors among others.  And  3 there are other examples given, Richard Fowler at 35A.  4 Albert Johnson is an example of what I mean.  That's  5 46.  Albert Johnson, he leaves his registered trapline  6 at Brown Bear Lake to Sampson Muldoe to be shared with  7 his brothers, Earl Muldoe, Kenneth Muldoe, George  8 Muldoe and Lloyd Muldoe and Dick Crosbie and his house  9 to his wife Mary Johnson.  And at tab 140 Weget, Chief  10 James Weget.  He identifies himself as "Chief of the  11 Kitzsegukla Band."  Oddly enough he doesn't seem to  12 have got a name on the genealogy.  His house is  13 identified.  He is on -- he is on the Wiigyet  14 genealogy, but he is not given a chief's name, but he  15 describes himself as:  16  17 "Chief of the Kitzsegukla Band do hereby make  18 a, Will, in writing to my Nephew Mr. Moses  19 Brown."  20  21 And he leaves what he calls:  22  23 "I hereby surrender my Trapline estate to my  24 above named Nephew Moses Brown.  A trapline  25 registered out at the Kitwincool area.  A  26 trapline which belongs to my ancestors.  And as  27 our Native Custom passes on to our Family as an  28 inherritance.  Now, it remains into the Hands  29 of the above named Mr. Moses Brown."  30  31 THE COURT:  Where is Miller Bay?  32 MR. MACAULAY:  Oh, Miller Bay was on the coast, my lord.  It was  33 a place where it was a TB hospital at one time.  34 THE COURT:  Oh, all right.  35 MR. MACAULAY:  But it was a place where seriously ill members of  36 the bands of the Babine Agency were sent.  37 THE COURT:  Thank you.  38 MR. MACAULAY:  It's closed now, I believe.  It's not used for  39 that purpose.  40 MR. GRANT:  I believe this trapline referred to here is outside  41 the trapline claim.  It's within Kitwancool area, my  42 lord.  43 MR. MACAULAY:  It may be, my lord, but it's a chief of the  44 Gitsegukla Band, a member of the Gitsegukla band who  45 says he is a Chief of Gitsegukla who is making that  46 request.  There is an artificial -- of course that's  47 one of the problems.  Here we have an artificial 28601  Submissions by Mr. Macaulay        1 removal of one of the  Gitksan houses from this action.  2 But the evidence overall shows that people from  3 Kitwancool didn't live in splendid isolation.  They  4 married people of other villages.  5 THE COURT:  I understood they are Gitksan —  6 MR. MACAULAY:  They are Gitksan.  7 THE COURT:  They are Gitksans.  8 MR. MACAULAY:  Yes.  Yes.  9 MR. GRANT:  I am not suggesting Mr. Weget was a Kitwancool  10 chief.  I am saying that the land here, Weget had  11 certain rights, and I think you have heard evidence of  12 that.  13 MR. MACAULAY:  Well, certain rights.  It was called his trapline  14 on which he was registered.  With the exception of  15 Peter Bazil, Daniel Cookson and Peter Ward and Douglas  16 Marsden, the testamentary disposition in the case of  17 traplines and hunting grounds involved a statement or  18 assertion of ownership usually phrased as "my  19 trapline" or "my hunting grounds".  The term  20 "trapline" was used most times, or trapping ground.  21 Occasionally "hunting ground" is used and in the five  22 cases, the formula "all I posess" and similar  23 expressions are used.  And we know from the estate  24 documents that it included traplines.  In two cases,  25 Cookson and Morrison, there is a distinction drawn.  26 And we saw one of them just now between "trapline" and  27 "hunting ground."  They are used to identify separate  28 properties bequeathed to different beneficiaries.  29 It's tempting to think that a hunting ground means the  30 same as trapline, but that is not always so.  If it's  31 so in some cases it's not in others.  32 My lord, the wills, these wills that we've  33 reviewed show that Indian reserve houses and  34 allotments are private property and they belong to and  35 are used by individual band members and their  36 immediate family.  Traplines are dealt with by these  37 testators as personal property.  They are bequeathed  38 to beneficiaries who are not members of the testators'  39 houses in a majority of cases.  Not all but in a  40 majority of cases.  And the traditional system of  41 inheritance and control by Hereditary Chiefs doesn't  42 appear to apply in the case of most traplines that are  43 the subject of bequests.  44 May I turn now, my lord, to the evidence and it  45 will deal again with traplines -- oh, can I say this  46 about the wills:  These are documents drawn by the  47 ancestors of the plaintiffs themselves.  This isn't 28602  Submissions by Mr. Macaulay        1 something written by  somebody else about them.  They  2 are the unself-conscious expression and have an unique  3 place in this body of evidence for that reason, with  4 the exception of that will made post motam litem,  5 perhaps.  6 I want now to, my lord, if I may, deal with the  7 evidence of Mr. J.V. Boys.  Mr. Boys gave Commission  8 evidence.  He's an elderly man.  He was an Indian  9 Agent many years ago.  And before I start with him I  10 would like to hand up some documents that are referred  11 to in Boys' evidence and in the Indian Agent  12 Mclntyre's evidence.  There will be some reference  13 made.  And they are both in this -- in a collection  14 which I hope will be useful.  And I have -- in my  15 notes I refer to these exhibits, and they appear in  16 the order in which they are referred to.  I hope to  17 anyhow.  Can I explain, my lord, that because he gave  18 Commission Evidence Boys' transcripts are marked as  19 exhibits, so his first transcript is Exhibit 1213A and  20 another is 1213B, C, D, F. and G.  The documents were  21 all collected in 1213E at various tab numbers.  22 THE COURT:  What was that, five days of examination?  23 MR. MACAULAY:  It was, yes, it was five.  2 4 THE COURT:  Five volumes?  25 MR. MACAULAY:  Five volumes.  2 6 THE COURT:  Yes.  All right.  27 MR. MACAULAY:  One of the days was taken up with Mr. — one and  28 a half days was taken up with Mr. Mackenzie's  29 cross-examination and it was held, I believe, that  30 that was not properly evidence before the court and so  31 Mr. Boys had then given Commission Evidence again and  32 Mr. Plant examined him as his witness.  33 THE COURT:  Yes.  All right.  34 MR. PLANT:  Yes.  Yes, Mr. Macaulay has got it almost right.  35 Mr. Mackenzie's cross-examination of Mr. Boys was  36 ruled by your lordship to be inadmissible as against  37 the plaintiffs.  3 8 THE COURT:  Yes.  39 MR. PLANT:  But insofar as it may have some bearing on the  40 counterclaim, it remained admissible.  41 THE COURT:  All right.  42 MR. MACAULAY:  Well, at any rate, I am not going to be referring  43 to the counterclaim just now.  I'm referring to the  44 evidence.  That's why -- a reason why there were so  45 many different days.  Mr. Boys was Indian Agent at  46 Hazelton from September 1946 to mid 1951.  I should  47 mention -- and it's not -- I don't give the reference, 28603  Submissions by Mr. Macaulay        1 but I don't think my  friends will quarrel with me, he  2 was a Provincial policeman in the days when British  3 Columbia had a provincial police, before the war.  And  4 his -- he was stationed in the area immediately north  5 of the claim area, that is on the Stikine, Telegraph  6 Creek, but he never -- his duties never actually took  7 him into the claim area, although he went right to the  8 border of it, to the Klappan area, which is due north  9 of -- immediately north of the claim area.  After he  10 came back from the war he served as Indian Agent in  11 Hazelton from 1946 to mid 1951.  He went on to serve  12 as the Indian Commissioner for British Columbia later,  13 but the evidence that I am referring to has to do with  14 his term of office in '46 to '51, which is now a long  15 time ago.  When he took up his duties, the trapline  16 records were not in good order, so Boys had to spend a  17 lot of time dealing with this subject.  And of course,  18 this affected the administration of estates.  And if  19 your lordship could turn to tab one which corresponds  20 with my paragraph one, the tab corresponds to the  21 paragraph one.  You will see his report on the  22 problems he was having, particularly those exhibits,  23 the letters he wrote at the time.  The letters make  24 clear that trapping was an important subject in the  25 claim area at the time and he was having very  26 considerable difficulty in reconciling his maps, and  27 that was one of the problems he faced, his maps with  28 the Game Branch maps insofar as registered traplines  29 was concerned and that gave him a lot of concern.  And  30 of course, the subject came up in his capacity as the  31 administrator of intestate estates and as the Indian  32 Agent dealing with estates that were the subject of  33 the Indian Act form of probate.  But shortly after his  34 appointment Boys was informed by the Secretary of the  35 Kitwanga village about the crest system of trapline  36 ownership and he very quickly came to the disputes  37 that arose out of that.  And that's at tab 2.  There  38 are a couple of letters from a Mr. -- addressed to him  39 by Mr. -- one by Mr. Moore of Kitwanga and another by  40 Harold Sinclair.  Looking at the handwriting you would  41 think that they are both the same author and one  42 suspects that Moore's letter was written on his behalf  43 by Harold Sinclair who was a well-known member of the  44 Kitwanga Band.  And that bears reading.  Mr. Moore  45 says:  46  47 "Whereas I am one authorized a Councillor by 28604  Submissions by Mr. Macaulay        1 the Previous  Indian Agent, Capt. Mortimer of  2 Hazelton.  3 I wish to advice, that Councillors had a  4 meeting yesterday with Chief Councillor W. B.  5 Morgan and Constable Bryant being present.  6 Subject of the meeting; Re Mrs. Thos. Harris  7 who has been causing Trouble in our Village,  8 year after year.  Our Chief Councillor, Mr.  9 Morgan, pointed out readings from the Indian  10 Act.  11 That such unlawfull Trouble makers, should  12 vacate Off the Reserve, even though she or he  13 may be a Chief, So long as such is Proved to be  14 the timely Trouble maker, to other People."  15  16 And he goes on:  17  18 "Now may I explain to your Office, Mr. Boys,  19 that the Game Warden, was here at Kitwanga last  2 0 Friday, November 22nd.  And he gave us the  21 understanding that Mrs. Thos. Harris had  22 registered a trapline across Kitwanga which  23 does not even concern her by any means.  And  24 that through her orders from her Registeration,  25 that we have been adviced not to trespass  26 thereon.  To our knowledge, the fact that she  27 had registered the said trapline, without any  28 notification given to any of the villagers,  29 neither had she any witnesses to prove her  30 claim.  31 But that the registeration was issued to her  32 through her underground and false claim.  33 Now may I explain to your Office, that the said  34 trap line since from the very ancient  35 forefather's times, known definitely, the  36 property of the Eagle Clan.  37 And since registerations of trap lines, was  38 into effect that the Late Abraham Fowler, was  39 the first of the Eagle Clan to register the  40 said Property.  After the death of Abraham  41 Fowler, the Registeration was transferred to  42 Charlie Sampare.  43 After the death of Charlie Sampare then the  44 Registeration was transferred to me.  I am in  45 no doubt, but that Records, of the said grounds  46 is in your Indian office to date.  47 Now all of those ancient and of the previous 28605  Submissions by Mr. Macaulay 1                   years, why  didn't she, make her claim, in the  2 lawfull way.  I refere to what Mr. Thos. Harris  3 said to me himself.  That he was to obtain  4 Registeration through the Game Warden's Office  5 direct.  6 And that he will not have anything to do with  7 the Indian Agent, nor to deal through your  8 Office.  That proves definitely, that they are  9 in full action to deprive our Ancient-Memorial  10 inherrited property.  11 Mr. Harold Sinclair, Councillors Secretary, and  12 a grandson of The Eagle Clan, tried to stop  13 them, causing and threatening for trouble.  But  14 they made threats, to cause more trouble with  15 Mr. Sinclair.  Therefor may we ask you to  16 settle this trouble at the earliest possibly  17 date.  18 Yours truly,  19 George H. Moore."  20  21 That may be a fair sample of what Mr. Boys was having  22 to contend with regarding the crest system and  23 disputes that arose out of it.  At about the same time  24 he got a letter from Harold Sinclair, which was  25 intended to explain to the new agent the crest system.  2 6 And that's the next letter under the same tab.  He  27 says:  28  29 "As a Secretary for the Villagers here in  30 Kitwanga I have been adviced, by Village  31 Councillor;- to write into your Office, for  32 explanations.  Whereas you are realized by our  33 Villagers that you are our New Indian agent, of  34 our Dept., and that you may not have the  35 understanding of our Kitwanga Band's,  36 individual trapping ground, Title Rights,  37 surrounding our Kitwanga vicinity.  Since of  38 the very ancient times, that there are only a  39 certain number of clans here in Kitwanga, that  40 has any Title Rights of Trapping Grounds, as  41 ownerships.  And there never was any False  42 Claim or any Dispute over their own known  43 Trapping ground Properties.  But now, since the  44 last few years after the deaths of those Head  45 Chiefs, and Title holders.  There seem to be  46 some People here, who are strongly Trying to  47 Deprive, such Properties by False Claims. 28606  Submissions by Mr. Macaulay        1 Because as at  first of course, they knew  2 definitely that they had no grounds, or  3 anything to prove their claim.  4 We have also be given to understand, that one  5 of the Head Chiefs, of the Kitzsegula Band,  6 chief Stephen Morgan and Chief Arthur McDames  7 have Registered certain grounds west of  8 Kitwanga which shows the prove that there are  9 certain people, who are strongly working  10 underground, and at the back, of our people  11 here in kit Kitwanga.  Whereas those two Chiefs  12 of the Kitzsegula came from as known  13 definitely, is from the Kitzsegula Band.  And  14 befor they can take up any ground property  15 within the vicinity of Kitwanga they must get  16 the approval from our head Chiefs, sanctioned  17 by our Indian Agent.  Because as you will find  18 in your office of course that they are  19 Registered, as head Chiefs of the Kitzsegula  20 Band, and they have their own Tribal Clans  21 within their Band and Properties.  There are  22 others here in Kitwanga, who are also trying  23 that same path of crooket work, who certainly  24 has no grounds to prove for here.  And still  25 trying to make underground application and  26 claim of trap line Registeration at the back of  27 our known ownerships; such as Mr. and Mrs.  28 Thos. Harris and others.  29 Therefor now befor any further dispute which  30 might cause serious trouble later, may we ask  31 of your kindness not to issue any more trap  32 line Registerations to anyone, untill such a  33 time when our main Head Chief, Mr. David L.  34 Wells, and Chief Joe Bright arrives back home  35 here in Kitwanga, also Chief Richard Lattie,  36 Chief George H. Moore, Chief Robert G. Harris,  37 Chief Fred Johnson who are now already here.  38 Those are the main holders of Trapline  39 Properties, being that they are the new  40 succeedor-in-Chiefs may it also be known, sir,  41 Mr. Boys, in your Office; -  that since the  42 year 1922 shortly after I arrived back home  43 from School that I have been Authorized, as a  44 Secretary and Interpretor for our People here.  45 And later, I have been appointed as a Local  46 Branch President, of our Native Brotherhood of  47 B.C. Organization and still in that possition 28607  Submissions by Mr. Macaulay        1 to date.  2 Therefor the fact, that since those number of  3 years, I have experienced all Properties and  4 Ownerships within our vicinity, may I also  5 state that my Late Father is Mr. Alfred  6 Sinclair, former Chief Alfred Ackgaud, Brother  7 of Chief Wallace Laknits, former Chief  8 We-Clan-gwak, 2nd Head Chief here succeeded by  9 Chief Joe Bright now.  Therefor upon your  10 visitation here for investigation, I shall be  11 very glad to help you.  12 Yours truly,  13 Harold Sinclair. "  14  15 So the system, such as it was, was explained and it  16 was apparent that there were lots of disputes about  17 that.  However, the system was working or not working,  18 it gives some idea of what the reasons for the 31  19 trips that Mr. Loring made to the K'sun Canyon and the  20 endless trips to settle disputes elsewhere.  There  21 were claims made by crests that Boys had to deal with  22 and there were competing claims between heirs at law  23 and the crest claimants.  And I think that the  24 documents speak -- the reference to the evidence is  25 there.  At tabs nine, eleven and twelve will show.  26 That's tabs nine, eleven and twelve of the discovery,  27 but we have collected that under tab 3 of the book.  28 It's the three documents I want to refer to.  One is  29 to Mr. Ray Morgan of Kitwanga and this is 1947 and it  30 reads -- it's a short letter.  31  32 "   I have your letter of November 6th  33 concerning disposal of Joshua Ridley's  34 trapline.  Before any disposal of this trapline  35 can be made I shall first require to know:  36  37 1.  Did he leave a Will?  If so I shall require  38 a copy of it.  39  40 2.  Who were his immediate relatives; sons,  41 daughters or grand-children or failing any  42 of these, brothers or sisters?  43  44 You will understand that under the  45 provisions of Indian Act where an Indian dies  46 intestate his effects and amont them his  47 trapline descend as follows: 28608  Submissions by Mr. Macaulay        1 One third  to his widow  2 The other two thirds to be divided among  3 his children.  4  5 We take no cognizance of your Crest system  6 so the sooner your people agree to abandon it  7 the better it will be for the administration of  8 your Indian affairs.  9 If you will assist in determining who are  10 the heirs of this estate and if they will turn  11 the trapline over to you then there can be no  12 objection from a legal standpoint."  13  14 That shows in fairly brief compass the collision  15 between, in some cases anyhow, between the heirs at  16 law and the Crest heirs.  17 The next document, of course that same letter from  18 George H. Moore that we had seen before about Mr. --  19 Mrs. Thomas Harris and her alleged shenanigans and  20 another one -- and we have also Boys' reply to that  21 letter of December 2, 1946.  He says:  22  23 I have your letter of Nov.25th.  I wish to  24 advise that Mrs. Thomas Harris has a legally  25 registered trap line on the South side of the  26 Skeena River near Kitwanga Reserve, transferred  27 to her by Chief Lacknits in 1943 through this  28 office.  It will remain her trap line in spite  29 of any crest, and any person trespassing on it  30 is subject to prosecution."  31  32 So we know that Chief Laknits, who was one of the Head  33 Chiefs of Kitwanga, one of the great names of  34 Kitwanga, had transferred to Mrs. Thomas Harris this  35 trapline in 1943.  This was not -- apparently not a  36 will transaction.  It was a transfer by the chief to  37 Mrs. Harris for his own good reasons and there was an  38 issue being made by Chief George Moore.  Boys reported  39 that a number of traplines belonged to companies or  40 crests and while the younger people preferred descent  41 of property to the family, a number of the old people  42 wanted the crest system inheritance.  And I will refer  43 here to some of the evidence he gave and it's  44 collected, my lord, at tab 4.  This is his -- just  45 transcripts of his evidence.  I don't see that page 58  46 helps in this regard.  But at 145 at the top of the  47 page it's cross-examination by Mr. Rush.  Starting on 28609  Submissions by Mr. Macaulay 1            line, one question:  2  3 "Q   Now, Mr. Boys, would you agree with me that the  4 conflict with the rules of descent under the  5 Indian Act and the rules of the descent under  6 the crest system intensified -- perhaps I  7 should ask you -- began with the insistence of  8 the Indian Agents in enforcing the provisions  9 of the Indian Act?  10 A  Well, I don't know where it began, but  11 certainly that was -- that was the basis of the  12 conflict at the time that I was administering  13 the affairs at the agency.  14 Q   The -- this was not a new conflict to the  15 agency, was it?  I mean, it pre-dated your  16 tenure?  17 A  Apparently not, although my predecessor hadn't  18 done very much in the way of getting trap lines  19 registered."  20  21 And he goes on:  22  23 "Q   Mr. Boys, Mr. Mallinson — "  24  25 That's the previous agent, my lord.  26  27 "    -- had in fact, had he not, raised the question  28 of the conflict, if you will, between the two  29 systems of devolving property with the  30 superintendent, Mr. MacKay?  31 A   Yeah, I think -- I think I recollect reading  32 that.  33 Q   All right.  Would it be your -- would you agree  34 with the statement that a large majority of  35 traplines in the Babine Agency belonged to  36 crests or sub-crests?  37 A   Yeah.  Well, a lot of them were marked down  38 as -- as crest areas or company areas.  Very  39 often the -- the marking on the map would be  4 0 somebody and company.  41 Q   All right.  It would be the case, would it not,  42 Mr. Boys, that almost all of the traplines in  43 the Babine Agency were company traplines?  44 A   Not in the eastern half of the agency.  A large  45 proportion the of them in the -- in the  46 Skeena -- Skeena tributaries were."  47 28610  Submissions by Mr. Macaulay        1 And at page 148 Mr.  Rush shows him a letter from  Mallinson to MacKay and at the top of 148 he says --  this is line five:  "Q   -- it is the case that Mr. Mallinson did not  follow these policy guidelines, to your  knowledge?  A  Well, he may have to some extent, but certainly  there was a lot left undone when I succeeded  Mr. Mallinson in the agency.  Q   And in terms of what was left undone, what you  meant by or mean by that, or perhaps meant at  the time, was that the property of the deceased  Indian people had not been transferred in  accordance with the provisions of the Indian  Act?  A   Right."  And then at lines 2 0 and 21:  "Q   And that's the state of affairs as you found it  in '46 and '47 when you were in the Babine  Agency?  A   Yes, broadly speaking that was it."  And then at line 23:  "Q   It was your understanding that throughout the  period of time of your tenure as the Indian  Agent that the Indian people sought to transfer  their rights or title in traplines by means of  their crest system.  A   No, not by any means universally.  A great many  of them wanted them transferred to -- to the  immediate family.  There was a conflict  between -- well, mainly between a number of the  older people, who advocated the continued use  of the crest system, and the younger members of  the Indian society, who preferred the descent  of property to the family.  We got a great deal  of support for that."  And at page 157, the next page that's included here,  this is still the cross-examination by Mr. Rush:  "Q   And now there were, I think you've said,  disputes among Indian trappers as to who was  shows  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 28611  Submissions by Mr. Macaulay        1 entitled to  trap on certain trapping grounds?  2 A   Yes.  3 Q   This was -- and it is fair to say that some of  4 these disputes arose because of the application  5 of the policy to require the devolution of  6 property in an estate in accordance with the  7 rules of the Indian Act?  8 A   Yes, some of the older Indians, as I stated  9 previously, were not happy.  They preferred  10 the -- the crest system rather than the --  11 rather than the devolution of property as  12 required by law."  13  14 Now I'm on paragraph five of my short submission here,  15 my lord, where I say:  The majority of Gitksan  16 families went to the coast to engage in commercial  17 fishing and to work in the canneries from May to  18 September.  In Mr. Boys' time.  And the evidence there  19 is at tab five, page 54 and 55 where he says -- and  20 this is on his examination in chief by Miss  21 Koenigsberg.  He says at line 40, he says -- well,  22 page 54 line 40:  23  24 "A  Well, so far as the people resident along the  25 Skeena, the Gitksan people, the majority of  26 those people habitually went to the coast in  27 the late spring, and they went as a whole  2 8 family.  The men went down, and they went to  29 different canneries that were then functioning  30 at the mouth of the Skeena.  And there were, as  31 I recollect, five different canneries.  And  32 these different -- these various families from  33 different reserves went to the same cannery  34 year by year, and they had -- they had duties  35 to perform when they got down there.  The men  36 very largely were used in repairing boats and  37 preparing them for the gill-netting season.  38 They were almost gill-net boats, two-men boats  39 that were handled with a small inboard motor on  40 them, and they were not -- they were not  41 suitable for fishing in the open ocean, but  42 only in the estuary of the river.  43 Q   Okay.  Now, what you're now telling us, is that  44 something that you had described to you or did  45 you observe it yourself?  46 A   That's something that I know from my own  47 personal observation because I went down from 28612  Submissions by Mr. Macaulay        1 time to time  and saw them at work.  I saw  2 them -- I saw the women at that time repairing  3 the nets and preparing the nets for the  4 upcoming season, also preparing the  5 fish-processing area.  And the womenfolk would  6 be engaged in the processing of the fish when  7 the season opened, and the menfolk were  8 bringing in the -- the fish.  So I saw this  9 myself when I went down.  And I saw numerous  10 people from my own agency down there and -- and  11 also the cannery operators, and I have a fairly  12 good firsthand knowledge of what went on.  And  13 they stayed down there until -- the final run  14 would probably have been the chum salmon and  15 the -- oh -- probably early October, the end of  16 September or early October, and after have that  17 they would start coming back to the villages."  18  19 The major source, my lord, of -- I am in paragraph six  20 now -- of income for the Gitksan was the commercial  21 fishery but trapping and logging also played an  22 important part.  And I'm referring again to his  23 evidence at page 58 of book A and page 256 of book F  24 and that's there collected at tab 6.  Here is 58 again  25 that we saw before, and it's a little more relevant  26 here.  It's an answer.  He had been asked the effect  27 of children attending school on trapping and his  28 answer was:  29  30 "It's difficult to judge because actual  31 trapping was an on-again, off-again thing.  If  32 there had been a particularly good fish run and  33 a particularly good year of income from  34 fishing, then there wouldn't be the same  35 attention to trapping in the wintertime that  36 there would be in a lean year of fishing.  I  37 think families enjoyed -- or trappers enjoyed  38 getting out for what they termed the beaver  39 hunt in the spring during the break-up, and  40 they tended to go out at that time, but some  41 families, if the fishing year of the previous  42 summer had been a good fishing year, there  43 wouldn't be as many leave the village to go  44 trapping."  45  46 And then at page 256 starting at line eleven,  47 question -- and this is examination in chief by Mr. 28613  Submissions by Mr. Macaulay 1            Plant:  2  3  4 "Q   You spoke earlier about other economic  5 opportunities for those people.  Can you give  6 examples of other sources of income that the  7 Indian in the Babine Agency would have had  8 during your time there?  9 A  Well, the major source of income was fishing at  10 the coast and the entire family was in the  11 habit of going to the coast towards the end of  12 May or June and the womenfolk would be employed  13 mending nets and the men would go down first  14 and overhaul boats and gear and then the men  15 would fish and when the fish came into the  16 canneries the womenfolk would work processing  17 the fish.  18 Q   Apart from fishing at the coast and trapping  19 were there any other sources of income --  20 A   Yes.  21 Q   -- for the Indians?  22 A   There was a limited amount of logging.  Mostly  23 cutting poles and then there were individual  24 occupations that are fairly numerous.  There  25 may have been one or two Indians employed doing  26 surface work at the Silver Standard Mine.  27  28 And at the bottom of the page starting at line 38:  29  30 "Q   You said there was a limited amount of logging.  31 Would you describe the logging activity that  32 went on during your time in the Babine Agency?  33 A  Well, mostly Indians were employed working for  34 a pole company or a logging company.  And  35 logging was done either with horses or with  36 small tractors.  It wasn't the type of high  37 lead log that's done around the course here."  38  39 THE COURT:  Probably means coast, doesn't it?  40 MR. MACAULAY:  The coast.  He must have meant the coast.  He  41 gave evidence in Victoria, my lord.  42 Now, returning to my submissions -- rather, my  43 summary of Mr. Boys' evidence.  The Indians in the  44 Agency hunted for -- hunted game for food and  45 non-Indians also hunted.  And Mr. Boys never heard  46 that non-Indians were limited in their hunting by any  47 crest boundaries.  And I give a reference there. 28614  Submissions by Mr. Macaulay 1                And now paragraph  eight.  It was the policy of the  2 Department of Indian Affairs and its predecessor  3 departments to enforce the inheritance provisions of  4 the Indian Act regarding traplines although this was  5 contrary to the crest system.  There was a -- thought  6 to be, anyhow, a conservation aspect to this policy.  7 There are two -- I am referring to there under tab 8,  8 I have some letters from Mr. MacKay, who would -- had  9 been referred to before, a letter of MacKay, the  10 Indian Commissioner, of June 16, 1947 and another  11 letter from the same MacKay to Mallinson, of August  12 14, 1941, which is to the same effect, about the  13 enforcement of the Indian Act, whatever the crest  14 system might provide, and then there is a letter, the  15 earliest which is the last in this collection is a  16 letter from Mallinson of August 8, 1941.  And perhaps  17 we might start with Mallinson's letter where he  18 advises his superior, Mr. MacKay, as follows:  19  20 "I wish to advise you that a large majority of  21 traplines in this Agency belong to Crests or  22 Sub Crests, for the benefit of all families  23 comprising such."  24  25 THE COURT:  I am sorry, where are you, Mr. Macaulay?  26 MR. MACAULAY:  Well, there is three letters under tab 8 and  27 that's the third, or the last one.  2 8  THE COURT:  Yes.  Yes, I have it.  Thank you.  2 9  MR. MACAULAY:  30  31 "They are not individually owned and the person  32 elected head to look after each trapline holds  33 that position in trust for the crest, and on  34 the death of such person a new head is elected  35 to take his place.  In other words, almost all  36 the traplines belonging to this Agency are more  37 or less Company traplines, and the head has no  38 power to will the trapline unless a successor  39 is appointed during his lifetime.  40 Will you kindly advise if this 'Crest'  41 system should be continued in the future?  That  42 part of the Indian Act under the heading  43 'Descent of Property' does not appear to apply  44 to such cases."  45  46 And he got a reply to Mr. MacKay which says:  47 28615  Submissions by Mr. Macaulay 1                   "Section 26 of  the Indian Act provides that on  2 the death of the Indian his property of all  3 kinds shall descend as set out in the Act.  4 Traplines in your Agency are presumably  5 registered in the name of an individual, family  6 or group.  If it is a group registration and  7 one of the group dies, his interest would pass  8 to his next of kin as required by the Act, and  9 the same would apply in the case of a trapper  10 who is the head of a family.  11 The 'Crest' system of descent or ownership  12 of property is not recognized by any Act in  13 Canada so far as I am aware.  It devolves upon  14 The department, as guardians of the Indians, to  15 ensure that their estates are handled according  16 to law and the failure of an officer of this  17 Department to do so would, in my opinion,  18 render him liable to civil action by the  19 aggrieved heirs, in that he failed to comply  2 0 with the requirements of the Department and  21 clear-cut legislation on the subject.  No  22 Indian Agent has power to vary provisions of  23 the Act or permit any other person to do so.  24 The only safe course is to follow it  25 explicitly, seeking clarification from the  26 Department where he is not sure of the  27 interpretation.  Consequently, it will be  28 observed that local Indian custom would not  29 hold good in a court of law and should be  30 avoided."  31  32 And he goes on to say that one of the dangers of not  33 adhering to this policy is that when a son thought his  34 father was about to die the son would go and trap the  35 hell out of the trapline and leave it without enough  36 animals.  That was MacKay's opinion.  37 The third letter which is the first one on this  38 tab, the most recent is a letter to Boys from the same  39 man, Mr. MacKay, where he says in the second  40 paragraph:  41  42 "It is considered that a great deal of the  43 question in dispute could have been disposed of  44 in the past by a determined effort on the part  45 of the Game Warden and the Indian Agent and  46 that your predecessor,"  47 28616  Submissions by Mr. Macaulay        1 That is Mallinson,  2  3 "should not have permitted Estates involving  4 traplines to have drifted unattended.  The  5 Indian Act and the Game Act are quite clear and  6 there was no excuse for re-registering the  7 lines of deceased trappers in the names of  8 other than those entitled to them or the  9 Administrator and it is not felt that this  10 course should be departed from unless the  11 responsible official is prepared to face, at a  12 future date, an action in court by an aggrieved  13 heir.  14 It seems to me that where the registered  15 owner of a trapline died intestate  16 administration should be applied for without  17 delay and if the rightful heir cannot be  18 immediately determined someone could be  19 designated, with the consent of the Game  20 Branch, to care for the line pending settlement  21 of the Estate.  Obviously the simple expedient  22 is to require each registrant to make a will."  23  24 So that the crest system was very much in evidence in  25 the early '40s and the policy of a Department  26 concerning that was pretty plain as well.  27 If you would look at MacKay's letters of 1941 and  28 1947.  Now, I am on item nine, this is a different  29 subject, my lord.  Boys gave evidence that members of  30 the Kisgegas Band no longer lived at Kisgegas during  31 his tenure, although food fishing was still being done  32 there in 1947, at least.  There were people going  33 there to food fish, according to his report which is  34 referred to in that exhibit.  And pre-emption ended  35 the trapper's right to continue trapping on that part  36 of his trapline included in the pre-empted lands.  And  37 there is an exhibit dealing with that.  Boys gave  38 evidence also that the introduction of the Family  39 Allowance payments to mothers of children attending  40 school had the effect of breaking up the old Indian  41 family trapping unit and Boys gave evidence of that,  42 and the reference is there.  43 Boys gave evidence that fur prices were  44 disappointing in 1946 to '51, but he was talking about  45 what he recalled of the pre-war fur prices.  It was a  46 curiosity in the Depression.  The fur prices were very  47 high and he was comparing what he recalled of fur 28617  Submissions by Mr. Macaulay        1 prices on the Stikine  before the war with prices  2 during his tenure.  But in the season following Mr.  3 Boys' departure, he left in June, and in the '51  4 season there was a catastrophic fall in fur prices  5 which lasted for several years.  Trapping stopped but  6 it didn't revive when prices improved.  And for  7 that -- of course Boys is gone, and for that  8 proposition one has to refer to the evidence of Mr.  9 Benson, Richard Benson.  Richard Benson gave  10 Commission evidence.  He was not examined before the  11 court.  He was one of the key witnesses for the  12 plaintiffs in the matter of boundaries of traplines.  13 He gave evidence regarding many houses and many  14 traplines, because he had spent his life as a trapper  15 and knew -- it was something like the late Stanley  16 Williams in that regard.  He rather than the chief of  17 the house gave evidence where the boundaries had been?  18 For instance, he trapped on Mary McKenzie's trapline  19 in the 1930's.  Mary McKenzie has never seen that  2 0 trapline.  But he gave evidence about what happened in  21 1951.  At the bottom of page 39, right at the bottom  22 he is being examined in chief by Mr. Rush on this  23 Commission Evidence.  This is not a cross-examination  24 on an affidavit.  This is one of their witnesses who  25 was not examined at the -- brought down to give  26 evidence at the trial because he was an elderly man.  27 And the question at line 46 is:  28  2 9 "Okay.  And did you remember why you stopped  30 going out there, why did you stop trapping that  31 year?"  32  33        This is 1951.  And over the page is the answer:  34  35 "Well, see, the reason why I stopped there, you  36 know, because, you see, the Hudson Bay Company,  37 I got stuff to take out there like groceries  38 and things like that, and I was out there all  39 winter.  Oh, gosh, I just about went through  4 0 the ground when I got home.  The price of fur  41 went down so low there is -- I just actually  42 get nothing for all the furs that I got.  So  43 that's the reason why I stopped trapping --  44 everybody, not just me, the whole works of  45 them.  4 6 Q   All right.  47 A  We got nothing for what we got there. 28618  Submissions by Mr. Macaulay 1               Q   Okay.  Now,  the next year, the next year, did  2 you go pole cutting, is that what you did?  3 A   Yes.  That's when I started go out and start  4 getting cedar poles.  5 Q   And you did that for a number of years, did  6 you?  7 A   Yes.  8 Q   Okay.  Now, I understand that you also worked  9 at the coast in the commercial fishery?  10 A   Yes, I was -- when the sockeye season is open I  11 went down and fished."  12  13 And he says for about 15 seasons.  Now, at page 118 on  14 cross-examination by Mr. Plant, the same subject came  15 up, towards the bottom of the page.  Well, not the  16 bottom of the page.  Say line -- it would be 25.  17 Unfortunately there seems to be -- the second digits  18 seem to be eliminated in the photocopying process.  19 But the middle of the page?  20  21 "Q   The fur buyer -- the Hudson Bay would lend you  22 the money so that you could buy supplies?  23 A   Yes.  24 Q   And then you would come back with the furs -- "  25  26        that should be,  27  28 "    -- and pay for your supplies?  29 A   Yes.  30 Q   And if there was anything left over, then you  31 would get to keep that?  32 A   Uh-huh.  33 Q   You nod.  Is that -- is that because there  34 wasn't anything left over?  35 A   Yeah.  Well, there is something like that,  36 that's why I quit trapping.  Next time I come  37 back I get nothing.  38 Q   So —  39 A   I got so many hundred dollars I owe the Bay and  40 my fur was just nothing."  41  42        And Mr. Rush says:  Some system, hey?"  43  44 "Q   That was in 1951.  45 A   Yeah.  Oh, gosh.  46 Q   The prices just dropped?  47 A   Yeah.  Into nothing.  I was coming home I 28619  Submissions by Mr. Macaulay 1                   figure how  many hundred or thousand -- many  2 thousand dollars I will get.  I didn't even  3 make a thousand with all the -- "  4  5 And page 119 doesn't add anything to that, my lord.  6 We'll go to page 168 now, 168 and 169 where I  7 cross-examined the same witness on the same subject.  8 At line 16:  9  10 "Q   Well, when you were trapping before 1951, was  11 Chris Harris in business then?  12 A   Yes.  13 Q   And did he buy furs?  14 A  Well, he help out some -- some people, yes.  15 Q   But did you sell your furs to Chris Harris?  16 A   No.  17 Q   You always went to the Hudson Bay Company?  18 A   Yes.  That's right.  There is three buyers  19 here.  Sometimes the fur buyer comes around,  20 you see.  That's when the fur goes up a little  21 higher.  Because the Hudson's Bay don't want us  22 to let that guy get the fur.  23 Q   You mean the price went up when there was  24 competition?  25 A   Yes.  That's right.  26 Q   After 1951 the fur prices were low for a long  2 7 time?  28 A   Yeah.  That's what I was telling, you know.  29 That's when I went -- I used to make lots of  30 money trapping.  I trapped all the fall through  31 the winter until spring.  But this one year,  32 well, I didn't know anything about that.  33 That's why I quit.  Everybody, not just me.  34 There is lot of trappers in Kispiox right here,  35 too.  In Hazelton.  Oh, boy, when I get back I  36 heard about the fur.  Well, I went into the  37 fur -- Hudson Bay and I let them have my fur,  38 but the Bay was good.  Although I didn't pay  39 all my bill, but she still give me -- he just  40 took half of what I got, but still I still owe  41 him quite a bit of money.  You see, when I get  42 the money to pay for that, I go down fishing  43 and I got enough money down there.  When I come  44 back I turn it into the Bay.  45 Q   You went down to the coast to do commercial  46 fishing?  47 A   Yes.  That's why the Hudson Bay still like me 28620  Submissions by Mr. Macaulay        1 today.  2 Q   And that's when you decided to go to start  3 cutting poles instead of trapping?  4 A   Yes.  Yes.  5 Q   Did the fur price ever get better --  6 A  Well —  7 Q   — after that?  8 A   They stay so low for I don't know how many  9 years.  So that's why I forgot about trapping.  10 I go and cut cedar poles and you know how much  11 I got when I got 30 marten.  I was cutting  12 cedar poles.  I see some marten tracks so I  13 start setting the trap.  So all -- gee, all the  14 traps that I sudden down I got marten on every  15 one of them.  16 Q   Yes.  17 A   There was so many of them.  18 Q   Where —  19 A   Every time I go I get 31.  You know, 31 marten  20 I didn't even make hundred dollars out of that.  21 Just five for one, three dollars a piece.  22 Q   Has the price for marten furs improved in the  23 last ten years?  24 A   Yes.  It does improve.  But I still work,  25 though.  26 Q   Are there many trappers working out of Kispiox  27 now or out of Glen Vowell?  28 A   Yes.  They all work in that mill.  29 Q   Oh, they are not working as trappers?  30 A   No.  31 Q   Are there many people trapping now in along the  32 Nass or the Skeena?  33 A   No.  I hardly think.  Just a very few.  The  34 prices are good, but I don't know why they  35 don't go out.  36 Q   Well, are there not many people who know how to  37 trap now?  38 A   I think so.  You see, but in other words, I was  39 surprised when I see the price of that, the  40 wolverine.  When I was trapping they usually  41 give me a dollar and a half or maybe three  42 dollars for one.  But now it's over three  43 hundred for one.  That's wolverine."  44  45 My lord, I added the Benson evidence at the end of  46 Boys because it followed immediately Boys' departure  47 and it tends to explain what happened, the evidence 28621  Submissions by Mr. Macaulay        1 that follows.  I will  be dealing after the adjournment  2 with Mr. Mclntyre.  You remember Mr. Mclntyre.  He was  3 another Indian agent.  4 THE COURT:  Yes.  5 MR. MACAULAY:  He came into the claim area after this situation  6 with Mr. Benson.  7 THE COURT:  All right.  2 o'clock.  8  9 (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON BREAK)  10  11 I hereby certify the foregoing to  12 be a true and accurate transcript  13 of the proceedings transcribed to  14 the best of my skill and ability.  15  16  17  18  19  20 Laara Yardley,  21 Official Reporter,  22 UNITED REPORTING SERVICE LTD.  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28622  Submissions by Mr. Macaulay        1        (PROCEEDINGS RESUMED  PURSUANT TO LUNCHEON ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Macaulay.  5 MR. MACAULAY:  My lord, I now propose to deal with the evidence  6 of Mr. Mcintyre.  7 THE COURT:  All right.  8 MR. MACAULAY:  Who was the Indian Agent or superintendent as  9 they came to call him then at Burns Lake.  At least  10 his headquarters were at Burns Lake.  And his area  11 included the southern part of the claim area south of  12 Houston.  It also included the Babine Indians on  13 Babine and Tatla Lakes and the Cheslatta.  He served  14 as Indian agent from 1964 to 1969 which was almost a  15 generation later than Mr. Boyes.  And he gave evidence  16 about trapping by the Wet'suwet'en and by others by  17 his bailiwick.  And he gave evidence about local  18 employment.  And he identified his semi-annual reports  19 from October 1965 to October '67.  And my recollection  20 was that he gave -- his evidence was that they must  21 have stopped requiring the semi-annual reports about  22 that time in 1967.  23  24 Mr. Mcintyre gave evidence that there was very  25 little trapping done by the Burns Lake and Omineca  26 Band members during his tenure.  And his efforts to  27 encourage them to make better use of their traplines,  28 because they had registered traplines, didn't meet  29 with success.  In that connection, my lord, that book  30 I have handed up contains tabs that correspond with  31 the paragraph numbers in my notes for the oral  32 submissions.  And here I'm referring in this  33 connection to volume 303 of the transcript at page  34 22880 and also at pages 22886 and 7.  One of his  35 annual reports, the one for April 1, 1966 was drawn to  36 his attention.  And the following, in particular, was  37 read to him.  It said in this report under the heading  38 "Fur and Wildlife":  39  40 "Increased fur prices this year probably  41 resulted in a slightly increased fur catch, but  42 trapping remains unpopular with most of the  43 younger Indians.  Most fur is caught in the  44 immediate vicinity of the reserve where the  45 trapper can return home each evening.  46  47 The question was: 28623  Submissions by Mr. Macaulay 1  2 "Q  You reported that at the time?  3 A   Yes, I did.  4 Q   Did those remarks apply to the Omineca Band  5 members?  6 A   Yes.  7 Q   And to the other band members in the --  8 A   Yes.  9 Q   -- Burns Lake area?  10 A   Yes."  11  12 The second portion of his evidence that I want  13 to -- to which I want to refer your lordship has got  14 to do with another entry on another of his annual  15 reports, semi-annual reports under the heading "Labour  16 and Placement".  And the particular portion of that  17 report that was drawn to his attention was as follows,  18 and I quote:  19  20 "In addition to this we will also try to  21 encourage Indians to make better use of their  22 traplines.  We have not been too successful in  23 this regard in past seasons, but I believe the  24 amount of fur that exists on most Indian  25 traplines certainly justifies our efforts in  26 trying to get Indians out to trap."  27  28 And the question asked of him was at line 16:  29  30 "Q   Could you tell by going around your bailiwick  31 or speaking to the band members how many of  32 them were trapping?  33 A   I couldn't tell on pure, you know, in real  34 accurate terms.  All I could go by was my  35 perception that they were not -- that they were  36 not trapping a great deal.  I obtained those  37 perceptions because I saw very few traps.  I  38 saw very little evidence of people out setting  39 traps.  In my visits to their homes I almost  40 never noticed any fur being prepared.  I heard  41 very little discussion about trapping success  42 or lack of trapping success or anything to do  43 with trapping and yet I was aware that these  44 people possessed traplines.  And I was -- I was  45 told, and it seemed obvious from trapline maps  46 that occasionally attracted my attention, that  47 these people had traplines in over -- over 28624  Submissions by Mr. Macaulay 1                   remote areas  arched that there must be some fur  2 there and that maybe I as Indian superintendent  3 ought to be doing something to encourage  4 trapping."  5  6 Now, over the page at line 6 I asked:  7  8 "Q   Did you have any success in getting more  9 trapping going while you were superintendent at  10 Burns Lake?  11 A   Oh, in retrospect I don't think so."  12  13 Then, my lord, at paragraph 3 I point out that Mr.  14 Mcintyre was in almost every Indian home at one time  15 or another.  He saw few traps, showshoes, furs being  16 prepared; he heard little discussion about trapping.  17 We have seen those entries just now.  But there is an  18 additional one at volume 304 at pages 23009 and 10.  19 And that's under tab 3.  We have the one we just read.  20 But the next volume, volume 304, this is  21 cross-examination by Mr. Grant.  The long question  22 starting at line 29:  23  24 "Q   One of the things that you said in answer to a  25 question of Mr. Macaulay was you talked about  26 your visits to people's homes.  And you said in  27 your visits to homes you didn't notice fur  28 being prepared.  The way you described it it  29 appeared to me, and I may be wrong, that you  30 had a picture in your mind of what you were  31 thinking of when you gave that answer 'cause  32 you explained it fairly clearly.  Where were  33 you thinking of that you went?  Whose homes are  34 you thinking of that you went to that you  35 didn't see any evidence of fur -- of trapping?  36 I'm not -- if you can't remember individuals  37 that's fine, but really I'm asking are you  38 talking about people in Woyenne and Burns Lake  39 reserve that were proximate or are you talking  40 about people at Cheslatta?  41 A   I was in most everyone's home at one time or  42 another at various times of the year throughout  43 the agency and throughout my time there."  44  45 And over the page he says:  46  47 "During the course of my visits I saw greater 28625  Submissions by Mr. Macaulay 1                   evidence of  fur preparation being done at  2 places like Smithers Landing and Fort Babine  3 and Topley landing than I did --than I did  4 elsewhere."  5  6 And then he continues:  7  8 "A  And if I didn't see fur being prepared I saw  9 other subtle signs of trapping activities such  10 as snowshoes leaning against the back door or  11 traps hanging in the veranda or things of that  12 nature.  13 Q   From my -- from my following, and I roughly  14 sketched, this isn't to bind you, but you  15 described as your area that Smithers Landing  16 would be one of the northern most villages?  17 A   The main village was, of course, at Babine, or  18 as I had been referring to Fort Babine right  19 there."  20  21 And at the bottom of the page, line 41.  Starting at  22 line 41, Mr. Grant persist in the question:  23  24 "Q   Okay.  Now, so it's in these northern -- your  25 clarification assists, but I just want -- I  26 think that my point -- my understanding may  27 still be correct that it was in these northern  28 more villages that you saw more evidence of  29 trapping and fur as you've described?  30 A   Yes."  31  32 And, of course, Old Fort and Fort Babine and  33 Smithers Landing and so on are outside the claim area.  34 Those are the villages of the Babine Indians, the  35 Babine Band.  36  37 And I am on paragraph 4 now.  There was  38 practically no fishing in that part of the Burns Lake  39 agency that lies within the claim area.  And I rely  40 here, my lord, on volume 303, page 22883 and 4.  And  41 at tab 4 of my book there is that excerpt.  At the top  42 of the page I drew his attention to something that  43 appeared in one of his reports which read:  44  45 "We have had discussions with Provincial  46 authorities concerning a proposal to allow  47 Indian to fish local lakes for whitefish and to 28626  Submissions by Mr. Macaulay 1                   sell them  locally.  2  3 You see that?  4 A   Yes.  5 Q   What lakes were you talking about?  6 A   The main focus and only focus of this -- of  7 this particular proposal related to Francois  8 Lake and specifically involved a few members of  9 the Omineca Band.  I discovered some months  10 previous to this that certain members of the  11 Omineca Band were catching commercial grade  12 whitefish, which I believe, and I am not an  13 expert in this, but I believe they are a specie  14 exactly the same as the commercial type of  15 whitefish found in northern Saskatchewan and  16 Manitoba.  As my report says, I saw here an  17 opportunity perhaps where this resource could  18 be -- could be developed and I asked for and  19 obtained a feasibility study on the -- on  20 developing this fishery.  This was in fact --  21 it was in fact an ARTA program that undertook  22 the study.  The outcome of the study was that  23 the reproductive capacity of Francois Lake in  24 respect to this particular fish species was  25 not -- was not suficient to support a  26 commercial fishery.  And so it never went  27 beyond the feasibility study stage.  28 Q   Who were the people catching these fish in  29 Francois Lake?  30 A  Mainly a lady by the name of Mary Jane Morris  31 and immediate family who were members of the  32 Omineca Band and in fact Mary Jane, either then  33 or shortly before or shortly thereafter, was  34 chief of the band.  35 Q   And you knew her?  36 A   Oh, yes.  Very well.  37 Q   And her family?  38 A   Uh-huh.  39 Q   Do you know anyone else who is catching those  40 fish in Francois Lake?  41 A   No.  I know of no other person that caught  42 them, although it's possible that there were  43 other members of the band who -- who set nets.  44 The reason I say that I believe that Mary Jane  45 was the only one that caught the fish was that  46 to the best of my knowledge she's the only one  47 that had a boat on the lake.  And the place 28627  Submissions by Mr. Macaulay 1                   where she used  to catch the fish was  2 immediately off-shore from her home.  3 Q   And the other band members didn't have boats --  4 A   No.  5 Q   -- who were living on the lake?  6 A  Well, there weren't that many of them actually  7 living on the lake."  8  9 He is talking about Francois Lake now.  10  11 "Most of the reserves of the Omenica bands are  12 not located on the lakes.  Rather, they are  13 located, you know, off -- you know, off from  14 the lake.  Not -- not far from the lake, but  15 they are not lake-using people.  There was no  16 reason for them to use the lake like there was  17 reason for members of the Lake Babine band to  18 use the lake.  The lake provided transport -- a  19 transportation route for members of the Lake  20 Babine band and the Omineca and Cheslatta  21 people were able to travel by road.  22 Q   Were any of the four bands heavily engaged in  23 fishing?  24 A   The lake babine band, of course, was very  25 heavily involved.  They were involved in mainly  26 in salmon, in the Babine river which is --  27 which flows out of Babine lake and is a  28 tributary of the Skeena.  It was not my  29 perception that members of the Omineca,  30 Cheslatta or Burns Lake band were as reliant or  31 as dependent, if you like, on the salmon  32 resource as members of the Babine band were.  33 Q   When you went to Lake Babine band reserve,  34 could you tell whether or not they were -- just  35 by looking around whether they were fishermen?  36 A   Oh, yes.  You could see nets hanging up.  You  37 could see their smokehouses.  In salmon season  38 these smokehouses would be used.  You would see  39 people preparing fishing, smoking them.  That  40 sort of -- sort of thing.  I did not see the  41 same kind of activity in respect to the members  42 of the Burns Lake, Cheslatta or Omineca bands."  43  44 My lord, the Omineca Band, if you remember, was  45 ultimately split into the Broman Lake and another  4 6 band.  But at that time it was all one band.  And many  47 of the Plaintiffs, the Wet'suwet'en Plaintiff belonged 28628  Submissions by Mr. Macaulay 1            to that band, the  who lived down in that area.  2  3 Now, I am on paragraph 5.  There was a lot of  4 Indian hunting.  But Mr. Mcintyre said that  5 non-Indians hunted, too.  And there was no exception  6 to that except in the case of trophy hunters.  The  7 Indian, he heard, objected to people who took the head  8 and left the carcass to rot in the bush.  9  10 And paragraph 6, employment was mainly in the  11 forest industry.  And there were also some prospects  12 of jobs in the Granisle Mine.  I am turning here  13 again.  If your lordship looks at tab 6 there is an  14 excerpt from volume 303, page 22878 and the following  15 pages about that.  The first question that I want to  16 refer to is at line 5 on page 22878:  17  18 "Q   Was there no shortage of work for the Indians  19 in your agency?  20 A   Except for those people who lived in the remote  21 areas along the northern -- or at Fort Babine,  22 which is at the northern end of Fort -- of  23 Babine Lake.  It was my -- my opinion when I --  24 when I wrote the report that those -- those  25 Indian people who lived in and south of Burns  26 Lake had employment opportunities.  It was  27 something else in my opinion as to whether or  28 not they chose to exploit those opportunities  29 and many of them did not choose in my opinion  30 to exploit those opportunities.  The  31 opportunities were mainly in the forest  32 industry, almost entirely in fact in the forest  33 industry.  Either in sawmill -- in sawmill  34 employment or in bush operations.  35 Q   Did you -- now, those employment opportunities  36 were available to the Omineca band members?  37 A   Yes.  Yes.  38 Q   As well as to the Cheslatta and Burns Lake?  39 A   To the Cheslatta and to those members of the  40 Lake Babine band who, of course, had by then  41 moved into Burns Lake.  42 Q   Yes.  And you met with officials of the  43 Granisle Mines Limited?  44 A   I am not -- I'm not sure that Granisle Mines  45 was underway at that point in time.  In any  46 case --  47 Q   I am drawing your attention to the last 28629  Submissions by Mr. Macaulay 1                   paragraph on  that page two."  2  3 That was a page of his report, my lord.  4  5 "A  I guess it was.  Yes, I can recall -- I can  6 recall having discussions with officials of  7 Granisle Mine.  8 Q   And what was -- I don't want you to tell his  9 lordship what you said, what they said to you,  10 but what was the purpose of your discussion,  11 the general purpose?  12 A   To determine the measure of employment  13 opportunities that would then exist or were  14 likely to exist in the future beyond that  15 point."  16  17 And 22881.  No, that's about hunting, my lord.  I have  18 already dealt with that.  22882 at line 6:  19  20 "Q   Was there -- what was the level of employment?  21 A  Well, I don't know that I could use the term  22 substantial, but I think a term I would prefer  23 to use would be significant number.  The nature  24 of logging activities in that area was -- it's  25 much easier to log in that area during the  26 winter when ground -- or when ground conditions  27 are frozen than it is at any other time of the  2 8 year.  And so the main removal of wood from the  29 forest at that time and even now still tends to  30 be during the winter months when equipment can  31 work on frozen ground or on frozen swamps or  32 whatever.  33 Q   Could you refer to tab three, witness.  My  34 lord, I will refer the witness now to his  35 report dated October 1, 1966.  Is this another  36 of your reports?  37 A   Yes.  38 Q   And under the heading "Labour and Placement"  39 you report here that -- and I read from the  40 first -- the first sentence:  41  42 'There have been good employment  43 opportunities available for local Indians  4 4 this summer.'.  45  46 Did that apply to the Omineca and Burns Lake  47 bands? 28630  Submissions by Mr. Macaulay 1               A   I think it  applied mainly to -- to members of  2 the Lake Babine band who were living in -- who  3 were living at Pendleton Bay at Babine Lake or  4 those who may have been living in Burns Lake  5 who chose to commute to Pendleton Bay.  At this  6 point in time, as my report says, there were --  7 this was -- there were an increase in mill  8 capacity at Pendleton Bay.  In the area of the  9 Omineca and Cheslatta people, on the other  10 hand, that there was no such increase in  11 capacity.  So my recollection is that there was  12 no -- that there was no significant increase or  13 decrease in employment opportunities for these  14 people at that time."  15  16 And, of course, we were dealing, my lord, with the  17 Omineca as those Plaintiffs who lived in the southern  18 part of the claim area were members of the Omineca  19 Band in Fort Kuldo.  20  21 And now I am going to tab 7.  And this is in  22 connection with Mr. Mclntyre's change of career.  And  23 he was the ARDA representative in the claim area from  24 1987.  In that capacity he received applications from  25 and conducted interviews with several Gitksan and  26 Wet'suwet'en applicants for funding regarding their  27 trapping proposals.  The relevant application --  28 applications, interview notes and correspondence is  29 Exhbit 1231, tabs 39 to 50.  And Exhibits 1235-A, B, C  3 0 and D.  31  32 The personal interviews and other information and  33 other information gathered while Mr. Mcintyre was  34 processing ARDA applications produced evidence of  35 three or four active Gitksan and Wet'suwet'en trapping  36 operations, but the highest reported season's catch  37 and that was the one of Mr. Robert Jackson's, doesn't  38 approach the volume reported by Lou Gelly for the  39 1946/47 season.  Now, whether that was because Lou  40 Gelly had a particularily good trapline or not by  41 comparison with the others, that may be the  42 explanation.  43 THE COURT:  What is ARDA stand for again, area?  4 4  MR. MACAULAY:  That was —  45 THE COURT:  I think RD is Regional Development.  Assistant  46 Regional Development?  I am guessing.  47 MR. MACAULAY:  I will get that for you, my lord.  You asked the 28631  Submissions by Mr. Macaulay 1            witness that.  2 THE COURT:  I think I did.  I have forgotten already.  3 MR. MACAULAY:  The acronym is now the word itself.  4 THE COURT:  Yes.  5 MR. MACAULAY:  And it is treated as a noun now.  And I'm sorry,  6 I don't know that.  7  8 But at any rate, the funds were to be used to  9 support worthwhile trapping operations, and a number  10 of people, Gitksan and Wet'suwet'en.  And that brought  11 Mcintyre up into the Gitksan area.  A number of people  12 applied for funds for trapping activities.  And one of  13 the things he had to look at was where their trapline  14 was and whether it was economic.  And also their  15 degree of expertise of trapping.  16  17 If you turn to page -- to tab 7, the first page.  18 The first page is his notes of an interview of Ed  19 Morris.  The trapper number is given there.  Trapline  20 number, I'm sorry.  And he reports that the:  21  22 "Area covers about 120 square miles at the  23 north end of Whitesail Lake.  An area that  24 may be difficult to access."  25  26 And the applicant's home, as he pointed out, was 100  27 miles away.  As to activity, the applicant, his notes,  28 that is, Mclntyre's notes are:  29  30 "Not trapping now due to the applicant having  31 no equipment.  The trapline has not been  32 trapped within the past 10 years since Eddie  33 obtained it from his father, the late Steven  34 Morris."  35  36 So that there was -- Eddie Morris had never trapped  37 there which was 100 miles away.  38  39 Another application was David Blackwater.  The  40 Blackwater family were famous trappers.  In fact, they  41 were one of the trappers who bought Lou Gelly's  42 trapline, and that was in the evidence.  If the  43 government advanced the money.  But James Blackwater  44 had bought the Lou Gelly trapline which had been such  45 a fertile line for Gelly in 1947.  And the notes are  46 first that he had a trapline for about 20 years.  And  47 that he, that is David Blackwater Sr. and his son were 28632  Submissions by Mr. Macaulay 1            the main trappers,  John Sebastian -- Jack Sebastian,  2 rather, assisted with the application, Part II  3 application.  The applicant was an experienced logger  4 and backhoe operator from Kispiox.  And he was looking  5 for work up in the Klappan Coal development.  And the  6 trapline is near the Klappan Coal development.  So he  7 is talking about a trapline way up north near the top  8 end of the claim area.  And there is a note that  9 Blackwater also traps on Jasper Jack's trapline.  His  10 brother Walter traps on the adjoining line.  That was  11 rather in contrast to the trapline that Eddie Morris  12 talked about.  13  14 Another, my lord, is the application of Jeffery  15 Harris.  If you remember Fitz Harris had bequeathed  16 his trapline to Christopher and Jeffery.  This is  17 Jeffery.  He is the one who gave evidence to your  18 lordship about the murder of his mother and that being  19 the reason why he was trapping on his father -- or he  20 inherited his father's trapline.  21  22 Now, this proposal was for a trapline 62 miles  23 north of Kispiox near Old Quldo.  In fact, from Quldo  24 to Luus Mountain is 60 miles and the trails may be  25 that long.  And the note 6 here is that:  26  27 "Jeffery Harris would like to open up an old  28 trapping area.  He will be assisted by his son  29 and perhaps his nephew."  30  31 In the area traditionally owned there.  So this is not  32 a trapline having been used.  33  34 Mr. Mcintyre says that it was an elderly  35 gentlemen, as he recalled it, quite an elderly  36 gentlemen.  And your lordship might recall also that  37 he was an elderly man who was going to be doing this.  38 Then the next part of this is exhibit is a letter to  39 Mr. Mcintyre from Mr. Harris, Mr. Jeffery Harris.  And  40 he describes himself as page 76.  Lifetime trapper.  41 And Jeff Harris Jr. being ago 46 years.  Experienced  42 trapper.  He said he had not trapped for the previous  43 five years because his wife was an invalid.  And over  44 the page he said he had a registered hunting ground at  45 Ironsides Creek which was his active trapline before  46 his wife's illness.  So the elderly Mr. Harris had  47 been a -- had been an active trapper, but at another 28633  Submissions by Mr. Macaulay        1 place at Ironsides  Creek.  2  3 The next application that the witness smoke of,  4 this is Mr. Mcintyre spoke of is James Morrison.  And  5 to sum up James Morrison, he said James Morrison was  6 an experienced trapper and had meticulous records.  He  7 recalled that.  And that he recalled the -- that.  8 Another of the trapping records had to do with Simon  9 Muldoe.  And the notes of the interview on May 13,  10 1985 are there.  That is after the green divider after  11 you leave the --  12 THE COURT:  I have it.  13 MR. MACAULAY:  This was an application prepared with Jack  14 Sebastian again.  And there is a mention of Richard  15 Muldoe, ago 22, single, lives in Hazelton.  And has  16 been employed with Rim Forest Products.  And Andy  17 Muldoe, ago 21, single, who lives with Mrs. Elsie  18 Michel.  Unemployed and had been employed with Rim  19 Forest Products.  Mr. Muldoe said he had not trapped  2 0 for 15 or more years.  And he didn't know whether  21 there was any logging in the area of his trapline.  He  22 referred to Delbert Turner catching 50, over 50  23 marten.  Mr. Muldoe had no equipment.  He was born in  24 1916.  It was proposed to him, and this Mr. Mcintyre  25 gave evidence of this, but that he join forces --  26 there is logging going on out there, my lord.  27 THE COURT:  It wasn't trapping.  28 MR. MACAULAY:  That he join forces with Delbert Turner, who was  29 of the same clan and has an adjoining trapline,  30 because neither trapline was very large in the opinion  31 of Mr. Mcintyre.  But Mr. Muldoe would have nothing to  32 do with that proposal.  He was not going to join  33 forces.  34 THE COURT:  Mr. Muldoe wouldn't join forces?  35 MR. MACAULAY:  With Mr. Turner.  36 THE COURT:  So Mr. Mcintyre suggested it?  37 MR. MACAULAY:  He said:  Why don't you get together with the  38 neighbouring trapline Delbert Turner and join forces  39 and make an application.  Then you will have a larger,  40 more viable trapline.  But he wouldn't do it.  41  42 After the divider -- I've been handed up the  43 transcript, volume 305, at page 23048, my lord.  44 THE COURT:  I'm sorry?  45 MR. MACAULAY:  305.  4 6 THE COURT:  Yes.  47 MR. MACAULAY:  23048.  At the bottom of that page your lordship 28634  Submissions by Mr. Macaulay 1            asks:  2  3 "Q   What does ARDA stand for?  4 A  Agriculture Rural Development Act."  5  6 THE COURT:  Thank you.  7 MR. MACAULAY:  I am grateful to Ms. Sigurdson for that.  8 THE COURT:  Thank you.  9 MR. MACAULAY:  10 Q   Over the green divider there is a letter to Mr. Muldoe  11 requesting certain information.  It's a letter from  12 Mr. Mcintyre.  And he asks for the names and ages of  13 the trappers who will benefit from the assistance  14 that's been requested.  And trapping experience of  15 them, of each trapper.  And what equipment is  16 available now.  And the quantity and species of furs  17 caught by each trapper in the past trapping season and  18 where this was sold and the like.  Well, to the first  19 question there is an answer.  There was an answer by  20 Mr. Muldoe to the first questions.  The answers for  21 the other trappers are Richard Muldoe and Andy Muldoe,  22 both sons of Simon Muldoe who will benefit.  They are  23 in their early twenties, very little experience.  He  24 was planning to share his knowledge with them.  To the  25 second question the answer was there was no equipment  26 and no cabins.  There was nothing.  To the third  27 question the quantity by species of fur caught by each  28 trapper during the past trapping season, the answer  29 was nil.  The fourth question was what other  30 employment does each trapper have during the  31 non-trapping season.  The answer was:  32  33 "Simon Muldoe, Pensioner, Richard Muldoe,  34 Millworker, Andy Muldoe, Millworker."  35  36 And the fifth question was about a statement of assets  37 and liabilities and it enclosed a form.  And the  38 answer was:  39  4 0 "Richard Muldoe and Andy Muldoe own very little  41 and few assets.  Too little to mention  42 statement of assets for Simon Muldoe.  Enclosed  43 is net worth statement."  44  45 That was the last document on that application other  4 6 than a recommendation.  47 28635  Submissions by Mr. Macaulay 1                Another one over  the divider is the Doris Morrison  2 who had the name Li-Gi-Nil-Ah Trapping Company pn the  3 trapping application.  And Doris Morrison is the  4 daughter of David Wells.  And amongst other things, he  5 left her his trapline and his title.  This is a few  6 years later.  We find those in the wills, my lord  7 under the heading David Wells.  Doris Morrison is  8 applying for this.  The transcription is set out in  9 the part 2 of the application which was handwritten.  10 And apparently in Mrs. Morrison's handwriting.  She  11 says:  12  13 "This trapping project will help train family  14 members in trapping and associated bush skills.  15 The trapline is located in an isolated area  16 requiring boat access.  A good harvest of furs  17 is expected this year, particularly marten,  18 lynx, fox and coyote."  19  20 And she goes on to say:  21  22 "Assistance would be helpful because my husband  23 and I who inherited the trapline are receiving  24 Unemployment Insurance benefits, and cannot  25 afford to acquire the equipment necessary for  26 trapping.  My father who trapped the line, now  27 deceased, had his cabin broken into and all  28 traps and other equipment were stolen.  We now  29 have to replace the equipment that was stolen."  30  31 And she he goes on:  32  33 "My husband and I are the members of the  34 company.  I have had ten years experience  35 trapping, and my husband has had 15 years  36 experience.  37 My husband would be responsible for the  38 maintaining of equipment.  He has had many  39 years experience maintaining bush equipment -  40 chainsaws, etc.  41 We plan to sell our furs to the Edmonton Fur  42 Sale.  We were not trapping last season because  43 our trapping equipment was stolen."  44  45 Well, that was stolen in David Wells' time.  She ends  46 off by saying:  47 28636  Submissions by Mr. Macaulay 1                   "I will be the  manager of this trapping company  2 as I am the Chief of the Eagle clan, have had  3 trapping experience."  4  5 And she says under heading G:  6  7 "Yes, we see a need for a training program to  8 be training two family members this year in the  9 skills necessary for trapping.  Next year we  10 would be training two more young village  11 residents interested in learning about  12 trapping."  13  14 That seems to be the same trapline of some of those  15 zingers of letters that were written to Mr. Boyes  16 about the Eagle trapline, the Eagle clan trapline.  17  18 The following document after the next green  19 divider deals with this trapline, too.  She is  20 described in Mr. Mclntyre's memorandum of March 13,  21 1986.  22  23 "Doris Morrison, age 53 and her husband, age 64  24 are residents of Kitwanga.  Mrs. Morrison has  25 been a teacher of handicapped children and has  26 eight years experience in this profession.  Her  27 husband is presently a janitor of the Kitwanga  28 school.  The Morrisons have a 29 year old son  29 who is a sawmill employee at Kitwanga and a 19  30 year old son who is presently unemployed.  They  31 expect that their sons will assist them to some  32 extent in operating the trapline."  33  34 And then over the page under the heading  35 "Buildings" there is the following notation.  36  37 "Mrs. Morrison claims that her late father had  38 two trapline cabins located at Doreen and at  39 the headwaters of Fiddler Creek.  She believes  40 these cabins are now beyond repair and will  41 have to be replaced."  42  43 It is quite clear from this application, my lord,  44 that no trapping had been done after David Wells'  4 5 time.  4 6  THE COURT:  Do we know when he died?  4 7  MR. MACAULAY:  Yes, my lord. 28637  Submissions by Mr. Macaulay        1  THE COURT:  That will be in the  genealogy, perhaps.  2 MR. MACAULAY:  Yes.  Well, we don't have to go that far.  3 THE COURT:  Don't trouble to look it up now.  4 MR. MACAULAY:  I will look for that for you in a minute because  5 we have his will.  And the accompanying document will  6 have his dates of death.  There was a bit of a row, an  7 intermarriage row at Kitwanga over that one.  8  9 The next one, my lord, after the next green  10 divider is Joshua McLean's trapline.  Mr. McLean did  11 give evidence.  He was cross-examined, rather, on a  12 territorial affidavit.  Although he lives at Hazelton,  13 he also lives -- now he is a resident and I think  14 perhaps the sole resident of Kisgagas.  So he is a  15 northern man.  He certainly had the kind of equipment  16 that would be needed by a -- or some of it.  He shows  17 his trapline, a map of his trapline along the Babine  18 River.  19  20 There is a note of an interview of Joshua McLean  21 after the following divider.  He was applying for  22 money for a trapper's cabin and for machinery and  23 supplies including nine dozen traps and a dozen wolf  24 snares.  Nine dozen traps.  He already had, according  25 to this interview, 20 traps and a cabin.  And another  26 not completed.  In 1986/87 in response to the usual  27 question about what had he trapped in the previous  28 season it was 3 marten, 5 squirrel and 1 beaver.  He  29 got $95 for the three marten, $5 for the five  30 squirrels, and $8 for the beaver.  So that that had  31 not been a very active year for him.  32  33 The next application is Robert Jackson.  And the  34 evidence was that Robert Jackson was an active trapper  35 and a resident of Hazelton.  On June 21, '83 Jackson  36 wrote to Mcintyre saying he had trapped 50 marten, two  37 wolverine, two otter, 24 beaver the previous season.  38 That was the season of 82/83.  And then he wrote in  39 May '84 saying he had caught 70 marten, 50 squirrels,  40 30 weasels, 1 fisher and one wolverine caught in the  41 Kisgagas reason -- region where his trapline was.  42 That was an active trapper.  Is an active trapper.  43  44 The next document is the document that -- it is in  45 the file, that is in Mclntyre's file.  He remembered  46 having received it.  And he -- this was about 1982.  47 And he said that this was about the time he first 28638  Submissions by Mr. Macaulay 1            received the kind of  information that is set out in  2 that document.  The undersigned recognizing Robert  3 Jackson, witness to the feast and so on, received the  4 name Malulek and so on.  He had never heard of a House  5 in his days in Burns Lake.  6 THE COURT:  Mr. Mcintyre hadn't?  7 MR. MACAULAY:  Mr. Mcintyre hadn't.  8 THE COURT:  Yes.  9 MR. MACAULAY:  Well, Mr. Boyes hadn't — Mr. Boyes had heard of  10 clans.  11  12 You recall, my lord, I was referring to the catch  13 in the old days, that is before 1951.  The next tab,  14 tab 8 shows -- the transaction here has to do with the  15 purchase of Lou Gelly's trapline for one of the  16 Blackwaters.  And in part it says:  17  18 "On his return after the War Mr. Gelly decided  19 to trap during the winter of 1946/47 and in  20 order to have a partner with him he permitted  21 the registration of the north portion from 5th  22 to 6th cabin in the name of Marty Allen.  By  23 agreement with Mr. Gelly it was later  24 transferred to Mr. Love, but it is still  25 acknowledged by Mr. Love as Mr. Gelly's  26 property.  The following is a list of catch in  27 1946/47, the last full season in which it was  28 trapped.  It is 15 Beaver, 15 Fisher, 15 Fox,  29 29 Marten, 18 Mink, 12 Muskrats, 200 Squirrels,  30 272 Weasel, 3 Wolverine, 3 Coyote, 5 Wolf."  31  32 The letter is written in February '51, that was  33 before the collapse in the prices.  I can't say that  34 that is a benchmark, that that's the kind of catch you  35 might expect.  But it might be contrasted with Joshua  36 McLean's take for the previous season.  37  38 My submission on all of that material of course is  39 that there were very few trappers, people who were in  40 the trapping business in a serious way who were  41 located by Mr. Mcintyre.  And Mr. Mclntyre took great  42 pains in order to determine just what the situation  43 was.  And one of the things that he did was to go and  44 see each trapper and talk to him.  45  46 Oh, yes, the evidence about not hearing about a  47 House, a Wilp or a House until 1982 is to be found 28639  Submissions by Mr. Macaulay 1            at -- that's volume  304 of the transcript, page 22974.  2 Tab 10 has the extract.  The question was line 4:  3  4 "Q   During your time as superintendent at Burns  5 Lake did you ever hear of clans in which the  6 various band members were divided?  7 A   Oh, yes.  I knew of the existence of clan -- of  8 clan membership.  9 Q   Yes.  10 A   I don't recall who belonged to what clan, but  11 the names of clans, the frog clan, the wolf  12 clan, the bear, the grouse.  And there may have  13 been others, but I was certainly aware of the  14 existence of these clans, yes.  15 Q   And did you know of any -- a subdivision --  16 another kind of division into houses?  17 A   No.  Houses is not a term that I -- that I --  18 that I had heard until I -- until many years  19 later when I was -- until, in fact, I was doing  2 0 my work with -- with the special ARDA programme  21 and came into contact with the people up in the  22 Hazelton area and then I heard the term houses.  23 But that was not a term that was mentioned by  24 people of the Burns Lake area.  But clans  25 were."  26  27 My lord, this may be an appropriate time for an  2 8 adjournment.  2 9  THE COURT:  Yes.  Thank you.  30 THE REGISTRAR:  Order in court.  Court stands adjourned for a  31 short recess.  32 (PROCEEDINGS ADJOURNED At 3:00)  33  34  35 I hereby certify the foregoing to  36 be a true and accurate transcript  37 of the proceedings transcribed to  38 the best of my skill and ability.  39  40  41  42  43 Lisa Franko,  44 Official Reporter,  45 UNITED REPORTING SERVICE LTD.  46  47 28640  Submissions by Mr. Macaulay        1 (PROCEEDINGS RESUMED  PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Okay, Mr. Macaulay.  4 MR. MACAULAY:  My lord, I've turned up the David Wells will.  5 And Tab 141 of Exhibit 1237C there is a copy of the —  6 THE COURT:  What's the number?  7 MR. MACAULAY:  Exhibit 1237C, Tab 141.  The application for  8 probate shows that he died on February 11th, 1970 at  9 Seattle.  He was then 76 years old.  10 THE COURT:  When did he die again?  11 MR. MACAULAY:  11th of February, 1970, at page 76.  12 THE COURT:  Thank you.  13 MR. MACAULAY:  His will is an interesting one.  It reads as  14 follows:  15  16 "I give the property of which I die possessed  17 as follows:  My name, Liginhila, and the  18 chieftainship of the eagle tribe, and all my  19 property to my daughter Dora Lilia Morrison."  20  21 My lord, you will recall that the purpose of the  22 application was to teach two younger members of that  23 chief's family how to trap and perhaps teach two  24 others the following year.  25 Mr. Mclntyre's viva voce evidence concerning that  26 particular application is found near the end of Tab 8  27 of the book.  It's in Volume 304 of the transcript at  28 page 22966 and at line 32.  That's Tab 8.  And it's  29 really near the end.  Right towards the end of Tab 8  30 there's some transcripts.  It's the big --  31 THE COURT:  I don't have it, Mr. Macaulay.  I put it all away  32 now.  33 MR. MACAULAY:  It's the one you have, I think, my lord.  Has it  34 got a Tab 8 there?  35 THE COURT:  I'm sorry.  I was looking for the will.  Tab 8.  All  36 right.  37 MR. MACAULAY:  And right towards the end of Tab 8 there's some  38 transcripts of evidence.  3 9 THE COURT:  Yes.  40 MR. MACAULAY:  And one of the — it's Mclntyre's evidence about  41 these applications.  And one of the pages is 22966.  42 THE COURT:  Yes.  43 MR. MACAULAY:  And it has to do with this trapline.  44 THE COURT:  I have it.  Thank you.  45 MR. MACAULAY:  At page — that page and at line 36 I asked about  46 Mrs. Morrison's application.  47 28641  Submissions by Mr. Macaulay 1                   Q   "And had  she been trapping there in recent  2 years, that is before your interview?  3 A   She was very vague about that.  And I  4 can -- I was left with the impression  5 resulting from my discussion with her  6 that -- that because of the location of  7 this trapline that it was very, very  8 difficult for her to trap it.  And I say  9 that because the map -- the map shows that  10 this trapline is located across the Skeena  11 River down river from the village of  12 Kitwanga, and to obtain access to this  13 trapline requires either that the trapper  14 travelled down the northwest side of the  15 Skeena River, and there is only rail access  16 on that side of the river, or alternatively  17 go across the river by boat.  And to cross  18 that river by boat in trapping season  19 when -- when the river may -- may have ice  20 chunks floating down the river is a very  21 risky proposition.  And, in fact, within  22 the items of assistance that Mrs.  23 Morrison listed that she would require to  24 access this trapline she listed a boat."  25  26 And then I asked line 23 on that page:  27  28 Q   "Did Mrs. Morrison tell you her own  29 trapping experience through her life or in  30 her lifetime?  31 A   I can't recall the details of my discussion  32 in that regard."  33  34 By the way, the following page is a matter of  35 interest.  The following page is in his evidence  36 that -- the following page in that tab at 22968 he  37 describes Joshua McLean's application.  And over the  38 page again he refers to the -- the season, 22969, the  39 catch for the previous season, trapping seasons 1986  40 and 1987.  At line 34 he says:  41  42 A   "I've got". . .  43  44 This -- this is his notes.  45  46 "I've got three marten for a total value of  47 $95 and five squirrels for $5 and one 28642  Submissions by Mr. Macaulay 1                       beaver  which he says he got $8 for.  2 Q   That's information he gave you.  3 A   Yes."  4  5 And then you asked the question and he just repeat it.  6 My lord, in these excerpts another that may be of  7 interest has got to do with Mr. Muldoe's application  8 that we were looking at, Simon Muldoe Sr.  If you go  9 back three or four pages to 22963, in the middle of  10 the page starting at perhaps line 2 at the top of the  11 page:  12  13 A   "It was Simon Muldoe Sr.  I believe he's  14 referred to.  Quite an elderly man again.  15 Q   Yes.  And did he tell you what his trapping  16 activities had been on this particular  17 trapline that he was dealing with?  18 A   Yes.  That is my notes refer to that.  I  19 believe it's item 4 of my notes where I --  20 I noted that he had told me that he had not  21 trapped for approximately 15 years.  He  22 also told me that there were roads into the  23 trapline, and that he did not know if any  24 logging had occurred within the boundaries  25 of his trapline.  26 Q   And what did he tell you about his -- I  27 take it these are sons, are they, Richard  28 and Andy, or were they sons or nephews  29 or -- or would you have to look at the  30 file?  31 A   I would have to look at the file.  I'm  32 inclined to answer that they are his  33 grandsons, but I would have to refer to the  34 file again.  35 Q   And he told you about them?  36 A   Yes.  They did not appear at the interview  37 although Mr. Muldoe seemed to feel that --  38 that it was important that this application  39 was important to their trapping activities.  40 Q   Did you gather from what Mr. Muldoe said  41 that he had trapping experience?  42 A   I wasn't really able to determine that.  He  43 was -- he was rather vague in that regard.  44 Q   Is that -- do you in the ordinary course of  45 events ask about the trapping experience of  46 applicants and their -- and their children  47 or grandchildren who are said to be 28643  Submissions by Mr. Macaulay        1 involved  in the application?  2 A   Yes."  3  4 And if you turn two pages farther, three pages back  5 again to page 22959, he's talking about Mr. Harris'  6 application.  Mr. Harris, my lord -- you'll recall Mr.  7 Harris was the son of Mr. Fritz Harris, and also an  8 elderly man.  At line 15 I ask him:  9  10 Q   "What did -- What were you told about the  11 previous use of this particular trapline?  12 A   I don't have my notes here now, but as best  13 I can recall Mr. Harris or his family had  14 -- did not indicate to me that they had  15 been in any -- that there had been any  16 recent use of this trapline.  And the -- I  17 think the reason for this was that the  18 location of the trapline was somewhat  19 distant north of their home of which is  20 located at Kispiox.  Also, Mr. Harris, as I  21 discovered when I arrived at his home, was  22 an elderly man, and I would judge his age  23 to be in the late seventies or perhaps even  24 the early eighties, so there was the  25 question that arose in my mind as to his --  26 as to his physical ability to go out and  27 trap.  28 Q   How about the son?  29 A   The son who arrived, and he was the only  30 other person that arrived and participated  31 in the discussion, seemed to be unaware of  32 his father's application and was not --  33 didn't lead me to understand that he was  34 really terribly interested in his father's  35 application.  He revealed to me that he  36 made most of his living in the commercial  37 fishing operation or in a commercial  38 fishing operation and really didn't have  39 very much to say at all that I could  40 interpret to be in support of his father's  41 application.  42 Q   Did the son tell you that he had been a  43 trapper?  44 A   That was -- no.  That was very vague to me.  45 And to this day I'm -- it's not clear in my  46 mind whether his son has ever trapped or  47 not. 28644  Submissions by Mr. Macaulay        1 Q   There is  reference in the application to  2 perhaps a nephew joining in the trapline.  3 Was that discussed with --  4 A   Yes, it was discussed.  But the nephew did  5 not appear at the interview and -- well, I  6 didn't make any attempt to contact the  7 nephew after my discussions with Mr. Harris  8 and his son."  9  10 And then he describes the trapline as being 62 miles  11 north of Kispiox near Old Kuldo.  You will recall, my  12 lord, perhaps the David Wells will and Mrs. Doris  13 Morrison's ARDA application are a paradime of the  14 trapping situation.  It may be doubted whether David  15 Wells reached that -- went to that very inaccessible  16 trapline across the Skeena River in his late sixties  17 or his seventies.  18 You'll recall, my lord, that the fur prices also  19 suffered a catastrophic fall in 1951 and that Mr.  20 Benson's evidence was that pretty well everybody  21 stopped trapping then.  You will recall that in  22 connection with the David Wells and Mrs. Morrison  23 trapline inherited by Mrs. Morrison's daughter, that  24 the object of the exercise in 1982 or '83 was to teach  25 younger members of the family how to trap.  The  26 evidence of the -- and it's interesting to note that  27 the -- the chieftainship of the eagle clan and the  28 name Liginhila was bequeathed by David Wells to his  29 daughter.  That supports my submission, my lord, on  30 this question of trapping that there was indeed a  31 crest system of ownership of traplines up to a certain  32 point, but it was by no means a universal system; that  33 by the nineteen thirties and forties and fifties, as  34 the wills show, there were many, including people who  35 had the highest names in the -- their clans and  36 houses, considered the trapline their own property and  37 considered themselves free to bequeath the trapline to  38 their son or daughter or to whoever else they cared  39 to.  40 The evidence also tends to show -- the evidence  41 especially of Mr. Mclntyre tends to show that trapping  42 in the southern area, and that would apply also to the  43 northern area, simply wasn't going on anymore among  44 the Wet'suwet'en, and the evidence of Mr. Benson shows  45 that trapping wasn't going on among the Gitksan, and  46 for a perfectly good and logical reason the trapping  47 didn't pay for many years.  You couldn't earn your 28645  Submissions by Mr. Macaulay        1 grub-stake trapping.  Who would trap if he couldn't  2 earn his grub-stake in all seasons?  You spend the  3 fall and winter without being -- coming and having  4 suffered a loss.  5 After prices improved, the trouble then is, of  6 course, what we see here with the Liginhila trapline,  7 Mrs. Morrison's trapline.  The younger generation no  8 longer knows how to trap and is not inclined to go out  9 when there are sawmill jobs available or other forms  10 of occupation, commercial fishing, whatever they may  11 be, not inclined to launch out into the wilderness in  12 extremely harsh conditions on an enterprise that  13 requires, it seems now, a certain amount of capital  14 and that has an uncertain -- a very uncertain return.  15 It is a way of life that for practical purposes ended  16 with the collapse of fur prices in 1951.  And the fact  17 that Mr. Jones or Mr. Smith may be the registered  18 owner of the trapline or Jones and Company and Smith  19 and Company may be the registered owners of the  20 traplines doesn't establish anything other than that  21 the game branch and the Indian agent carried on their  22 policy as it was to preserve Indian traplines.  23 When Mr. Mclntyre tried to get the Indian holders  24 of traplines to make more use of their traplines, he  25 did not succeed and he did not succeed because there  26 was an alternative way of life that the majority --  27 the great majority of the people in -- under his  28 supervision had available.  And it may be questioned  29 how many would know how to do any fishing, trapping  30 anyhow, not having been out with their parents and  31 their grandparents.  Those are my submissions, my  32 lord, arising out of the review of the evidence of the  33 two agents and the wills.  There it leads us to the  34 last subject that we want to tackle today, and Ms.  35 Russell will deal with that.  That is the employment  36 histories on some of the plaintiffs, which fits in  37 with the submissions that I have made.  I'll ask Ms.  38 Russell now.  39 MR. JACKSON:  Before Miss Russell does that, my lord, perhaps I  40 could ask Mr. Macaulay for some clarification.  Are  41 the plaintiffs to understand -- trying to relate Mr.  42 Macaulay's submissions to the summary of argument the  43 Federal Government has filed, are we to understand  44 that the collapse of the fur prices in 1951 and the  45 asserted rusting consequent thereto of trapping skills  46 constitute in law an abandonment, a loss of any  47 aboriginal title to the areas which have been the 28646  Submissions by Ms. Russell        1 subject of trapping or  hunting?  2 MR. MACAULAY:  The submissions we intend to make on abandonment  3 don't rely solely on that evidence, but that is part  4 of a factual background on which your lordship will be  5 asked to draw certain conclusions, findings of fact on  6 whether or not there has been abandonment or not, yes.  7 THE COURT:  Thank you.  8 MS. RUSSELL:  My lord, earlier today I handed up and handed to  9 my friends two new pages for our summary argument Part  10 X.  Those new pages are pages 114 and 115 and they've  11 been inserted in your binder already.  And I've also  12 handed up a new Appendix X, which follows Roman  13 Numeral Part X and is marked in your binder.  You  14 don't need to find it at this time.  I'm just putting  15 it on the record that we have handed those in and  16 they've been changed in your binder.  Those are --  17 THE COURT:  The two pages are the first two pages.  18 MS. RUSSELL:  No.  Pages Part X, Roman Numeral Part X of our  19 summary argument, my lord, which you have the  20 employment histories in front of you.  21 THE COURT:  Yes.  22 MS. RUSSELL:  And I will be referring to those.  That's why I  23 mentioned them to you now.  I'll be referring to them  24 in a few minutes.  And the new pages have been  25 substituted in there already, my lord.  I handed them  26 to Miss Thompson and she has placed them in for me and  27 I've also -- sorry.  I'll give you a chance to find  28 those.  29 THE COURT:  Where are they again?  30 MS. RUSSELL:  Pages 114 and 115.  They are in — they are at —  31 Roman Numeral X Part III.  See that?  Pages 114 and  32 115 are new today.  33 THE COURT:  My part X seems to start at page 116.  34 MS. RUSSELL:  Roman Numeral Part X, my lord.  35 THE COURT:  Oh, I've got two Roman X's.  36 MS. RUSSELL:  You have a Roman X and then you have cleverly an  37 Appendix X which follows it.  I've also substituted a  3 8 new Appendix X.  39 THE COURT:  Mine starts at page 114, or does it?  40 MS. RUSSELL:  Part X, my lord.  41 THE COURT:  I'm sorry.  I found 1415 at the end of — at the end  42 of Roman X Part II.  43 MS. RUSSELL:  Yes.  That's correct, my lord.  Sorry.  I was one  44 part out.  And then I have substituted as well a new  45 Appendix X, which follows the section beginning at  46 page 116.  47 THE COURT:  Yes.  But I don't see it labelled as Appendix X. 28647  Submissions by Ms. Russell        1 Does it start about  page 116?  2 MS. RUSSELL:  No.  It's labelled Appendix X, my lord.  3 THE COURT:  Where do I find it?  Oh, yes.  I see it, Appendix X.  4 Yes.  I see it.  I've got three Roman X's.  5 MS. RUSSELL:  Sorry.  6 THE COURT:  All right.  Thank you.  7 MS. RUSSELL:  And that is simply a more up-to-date list of  8 references which I've substituted in that section  9 there.  10 THE COURT:  This is a list of references about where employment  11 evidence was given by or about these various named  12 persons, is that it?  13 MS. RUSSELL:  That's correct, my lord.  14 THE COURT:  Yes.  All right.  15 MS. RUSSELL:  My lord, this material in these two volumes we  16 will rely on to show the capable way in which the  17 plaintiffs have adapted to any economy in which they  18 no longer rely as much on traditional ways of making a  19 living.  2 0 THE COURT:  All right.  21 MS. RUSSELL:  Loring and then Mclntyre and Mr. Boys all describe  22 this kind of trend, and this kind of evidence will  23 continue to illustrate that trend.  24 THE COURT:  What is the text you're going to work from?  25 MS. RUSSELL:  I'm going to work from Volume I now of the  26 employment histories, my lord, Volume I of II.  27 THE COURT:  Yes.  All right.  28 MS. RUSSELL:  In the beginning of that document, my lord, you'll  29 see a short introduction.  3 0 THE COURT:  Yes.  31 MS. RUSSELL:  These two volumes represent the data for a set of  32 conclusions based on the testimony of 55 Gitksan and  33 Wet'suwet'en witnesses concerning their employment and  34 income histories.  35 This defendant referred to this analysis at page  36 114, 115 of Part X of the summary as filed April 12th,  37 1990 and I will be referring to those conclusions.  38 The basis for that material was in Appendix X, which  39 follows Part X.  40 The material and the conclusions have now been  41 updated to include 55 witnesses instead of 50  42 originally considered and to delete any reliance on  43 material not exhibited, such as interrogatories or  44 discovery material.  45 We did not include several witnesses in this  46 analysis and I've set out following why they were not  47 included.  The first group we did not include were 28648  Submissions by Ms. Russell        1 non-plaintiffs who  either did not give evidence  2 regarding their economic activities or who were not  3 part of the Gitksan/Wet'suwet'en traditional economy.  4 And I've listed those witnesses following, my lord.  5 I've also listed the witnesses -- the Gitksan and  6 Wet'suwet'en witnesses who were excluded from the  7 analysis.  The first two were Mary Joseph and Walter  8 Joseph, and their data quite simply was too scanty to  9 draw conclusions from.  And also Florence Hall, as you  10 know, are Kweese.  Her data were nonexistent following  11 1945 in such matters as hunting, trapping and other  12 occupations.  13 Now, my lord, what I propose to do is to read you  14 several samples of these histories.  You'll be  15 thankful to know I won't read you very much.  But  16 these samples that I read you I believe will  17 illustrate the diverse ways in which the plaintiffs  18 now earn their livings.  But even those plaintiffs who  19 rely to some degree on trapping don't rely on it  20 exclusively, or hunting or food fishing.  They do not  21 rely on those methods exclusively to earn their  22 livings.  23 I'll start, my lord, in Volume I, Tab 22, is  24 Joshua McLean.  For reference purposes, my lord, I've  25 also included the chief's name and the house and the  26 clan of the witness involved.  Mr. McLean was born in  27 1930.  2 8  THE COURT:  What is Exhibit 603A?  29 MS. RUSSELL:  Sorry, my lord.  That is either an examination on  30 the cross-examination on a territorial affidavit or  31 commission evidence.  From that number I would expect  32 that's a cross-examination on territorial affidavit.  33 The references follow each of these tabs, my lord.  34 THE COURT:  Yes.  All right.  35 MS. RUSSELL:  The actual pages.  36 Mr. McLean was taught to trap by his father when  37 he was seven.  He has trapped annually each year since  38 then, except one year in the last 10 when he was ill.  39 He testified it was possible to earn a living if your  40 time is spent exclusively trapping.  He did make an  41 application for ARDA funding, as you heard from my  42 colleague Mr. Macaulay.  He later abandoned that  43 application and his brothers assist him on the  44 trapline when they were not employed.  45 He did also, my lord, have supplementary income  4 6 from nontraditional employment.  He worked for the CNR  47 just for a year, probably for the summer, and he also 28649  Submissions by Ms. Russell        1 trapped that year.  2 In 1946 he began working summers in the logging  3 industry and he trapped during the winter.  He worked  4 three years for Arthur Hankin cutting poles and 15  5 summers for Hobenshield as a faller.  6 He also food fishes up at Kisgegas.  And you'll  7 recall that we saw his residence when we did the view.  8 He says he resides at Kisgegas year-round.  He did not  9 participate in the commercial fishery.  10 If you'll turn the page over, my lord, we've also  11 included -- we try to include recent evidence of  12 hunting, trapping, gathering and food fishing in the  13 1980's.  14 Mr. McLean fishes at Kisgegas.  He says he's  15 trapped each winter of his life since he was seven,  16 but he has also, of course, supplemented his income  17 through nontraditional employment.  18 As my colleague Mr. Macaulay pointed out, in the  19 1986-87 season he caught three marten, five squirrels  20 and one beaver, for a total of $108 in monetary  21 returns.  That was in the material Mr. Macaulay read  22 you earlier today.  23 THE COURT:  Now, is that information contained in this tab or do  24 I have to go back to Mr. Mclntyre's --  25 MS. RUSSELL:  My lord, it is in the ARDA material.  2 6 THE COURT:  It's —  27 MS. RUSSELL:  I'm sorry.  It's not included in here.  2 8 THE COURT:  What year was that?  29 MS. RUSSELL:  The ARDA material was related to trapping in '86,  30 '87.  31 THE COURT:  Thank you.  All right.  Thank you.  32 MS. RUSSELL:  33 Q   I'd like to move into Volume II, my lord.  And at Tab  34 32 of Volume II you'll find James Morrison.  Now, Mr.  35 Morrison is perhaps a very good example of someone who  36 does make part of his living from trapping.  You heard  37 from my colleague again this afternoon of his ARDA  38 application and of Mr. Mclntyre's endorsement of Mr.  39 Morrison's efforts as a trapper.  He was highly  40 accomplished in that field, according to Mr. Mclntyre.  41 This is a fairly detailed summary, my lord, and I'll  42 just hit some of the highlights in it.  43 Mr. Morrison was born in 1928.  His father was a  44 commercial fisherman.  And he also accompanied his  45 father trapping for several years.  46 After 1948 or '49 Mr. Morrison began going out  47 trapping by himself or with others.  He's been 28650  Submissions by Ms. Russell        1 hunting/trapping off  and on and on many different  2 territories since then.  He hunted on Tsabux's  3 territory in 1948 and in the fifties.  Today he has a  4 territory.  He's known as Txaaxwok.  And he traps on  5 that trapline where he is quite successful, as we have  6 heard.  7 He is also a commercial fisherman and he takes  8 part in the commercial fishery at Prince Rupert from  9 the end of June or July to the end of August.  He does  10 not agree that commercial fishing is the principal --  11 and, my lord, that's a typo.  That should be p-a-1  12 principal source of his income, but he has followed  13 that occupation for many years.  14 He does not go fall fishing, but he returns to  15 Hazelton, and while he's waiting to begin trapping, he  16 logs.  And he also takes jobs in the logging industry  17 in the spring while he's waiting to go back to the  18 commercial fishery on the coast.  And he's been  19 following this pattern since he's about 20 years old.  20 He's also had his own operation, his pole cutting  21 operation.  He also uses the fishing on the coast to  22 do his food fishing.  And he doesn't fish in the  23 Skeena.  24 There's a very short summary on the next page, my  25 lord, of his trapping, gathering and food fishing in  26 the 1980's.  Mr. Morrison has engaged in hunting and  27 trapping activities on a fairly regular basis over the  28 years, including the 1980's.  He has trouble  29 remembering specific dates, but says that he has gone  30 hunting and trapping at various locations in his  31 territory and in other territories as well within the  32 last two to five years.  He says he uses the moose,  33 beaver and other kinds of meat taken from the  34 territory.  He does his food fishing at the coast.  35 Mr. Morrison, I think we have seen evidence of today,  36 is a very successful trapper and he seems to  37 supplement those income in a number of -- that income  38 in a number of other ways.  39 The next person I'd like you to review with me is  40 at Tab 35, my lord.  This is Peter Muldoe, Gitludahl.  41 Mr. Muldoe was born December 9th, 1909.  He began his  42 working life by cutting trees and making ties.  43 He also went trapping in 1930-31 and then he began  44 his commercial fishing career.  45 He also then became a entrepreneur and started his  46 own sawmill across the river from Kispiox.  This is a  47 small portable sawmill operation.  And I believe you 28651  Submissions by Ms. Russell        1 heard earlier -- that  was with Chris Harris -- he also  2 had a number of timber sale contracts with the  3 Province.  4 Mr. Muldoe has been a trapper for many years.  5 He's trapped around New Kuldo, Shaladamas.  That was  6 many years ago in 1936 and 1937.  And he's trapped in  7 other areas as well.  8 He registered a trapline in 1956, and he stated  9 that he has sold furs to the Hudson's Bay Company.  10 And on the next page, my lord, you'll see a very  11 short summary as well.  Mr. Muldoe trapped on this  12 territory as recently as January of 1988.  He also  13 went moose hunting in 1987, about which he says:  "I  14 hunt moose pret'near, just about pret'near all that  15 area.  It's all beginning from 1932 and right up to  16 date.  I don't go in there every year or every week or  17 anything.  Whenever I have a chance I go in.  Not all  18 the territory."  He also does some berry picking with  19 his wife and his family.  20 Mr. Muldoe again is another example of someone who  21 has had many sources of income in his life.  He has  22 maintained his trapping throughout, but clearly he's  23 relied on other sources, nontraditional income as  24 well.  25 I'd ask you to look next, my lord -- I'm sorry --  26 at Volume -- at Tab 54 of this volume.  This is Mr.  27 Walter Wilson's summary.  Mr. Walter Wilson was  28 Djogaslee.  And this is the summary from his  29 cross-examination on territorial affidavit.  The  30 references again, my lord, follow that.  31 Mr. Wilson was born in 1927.  He worked with his  32 father in pole camps and then he moved to Prince  33 Rupert to work as a drydock waterboy.  He returned to  34 Hazelton in the early forties and began a long period  35 of employment in a wide range of occupations.  He  36 worked in the CNR.  He was involved in mining and  37 logging.  He was a labourer with the government  38 telegraph and B.C. Telphones and he worked as  39 maintenance with the school board.  This in turn led  40 him to a job with D.I.A. and maintenance work and he  41 eventually took a construction foreman's position.  42 When this position was eliminated, he retired three or  43 four years ago.  44 He was also engaged in the commercial fishery for  45 a brief time.  46 He's a member of the band council.  47 As far as his trapping and hunting was 28652  Submissions by Ms. Russell        1 concerned -- were  concerned, he went with his  2 grandfather -- he tried to go to his grandfather's  3 territory at Irving Creek when he was a little boy.  4 He referred again to trapping and described an  5 encounter with MacKenzie while trapping three years  6 ago.  He has never trapped on the territory which he  7 inherited when he took the name Djogaslee.  He states  8 that he was fishing and trapping but says that he  9 traps weekends.  10 He also gave evidence about food fishing in two  11 instances.  First, in the commercial fishery when he  12 applied for a food fishing licence and, secondly, he  13 was charged in 1985 while fishing with a net in the  14 Skeena River without a permit.  15 On the next page you'll find a very short note on  16 his hunting and trapping efforts.  His evidence on  17 hunting and trapping indicates that these activities  18 are pursued part time on weekends and only during the  19 last four years since his retirement from the wage  20 economy.  He testified:  21  22 Q   "I take it it's only recently that you have  23 had time to spend a lot of time trapping?  24 A   I spend weekends."  25  26 I'll ask you to turn next, my lord, to Tab 52,  27 which is Mr. Stanley Williams.  I won't read this  28 whole document to you, my lord, but I will point out  2 9 to you that Mr. Williams, whom we heard evidence from,  30 was known as a hunter in his time, but his real  31 occupation, it would appear from his evidence, was  32 really as a commercial fisherman.  And in that  33 occupation he was following from his father, who had  34 gone out fishing before him.  And Mr. Williams  35 testified about buying a boat and acquiring a fishing  36 licence.  37 Mr. Williams was also a logger and he worked for  38 Hobenshield for over 32 years.  He also worked for the  39 CN.  And he reflects, among a number of the  40 plaintiffs' witnesses, this trend towards having a  41 number of different occupations during their lives,  42 including trapping and hunting, but often basing their  43 actual living on logging and commercial fishing,  44 particularly the Gitksan, their commercial fishing.  45 MR. JACKSON:  My lord, am I right in assuming that the  46 references to Stanley Williams there do not purport to  47 contain any references to his hunting? 28653  Submissions by Ms. Russell        1  MS. RUSSELL:  You're correct.  2 MR. JACKSON:  Is there some reason for that given that the other  3 references did seek to do that?  4 MS. RUSSELL:  No.  There is not a reason for that.  It is that  5 Mr. Williams' references concerning hunting were only  6 occasional.  They were not included as his main  7 occupation, which appeared to be commercial fishing  8 from his evidence.  9 THE COURT:  Want to take another adjournment now?  10 MS. RUSSELL:  My lord, I'll be about another five minutes.  11 Would you like to break now?  I'm in your hands.  12 THE COURT:  I think we'll break now.  13 THE REGISTRAR:  Order in court.  Court stands adjourned.  14  15 (PROCEEDINGS ADJOURNED)  16  17 I hereby certify the foregoing to be  18 a true and accurate transcript of the  19 proceedings transcribed to the best  20 of my skill and ability.  21  22  23  24 Kathie Tanaka, Official Reporter  25 UNITED REPORTING SERVICE LTD.  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28654  Submissions by Ms. Russell        1     h2 Submissions by Ms. Russell  2 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  3  4 THE COURT:  Miss Russell.  5 MS. RUSSELL:  Thank you, my lord.  I'd ask you to turn to tab  6 30, my lord, to Roy Morris.  There seems to be a  7 typographical error in his title.  I am sorry, my  8 lord.  That's in Volume 1.  9 THE COURT:  Yes.  10 MS. RUSSELL:  His chief's name is Woos, not Wood.  11 THE COURT:  W-o-o-s?  12 MS. RUSSELL:  Yes, my lord.  13 THE COURT:  Yes.  14 MS. RUSSELL:  And this material is taken from his  15 cross-examination on his territorial affidavit.  Mr.  16 Morris is born in 1936.  He trapped with his father as  17 a child.  He trapped then with Alec Michell near  18 Nadina Lake.  He then moved to live with Noralee  19 Matthew Sam and probably trapped with him then.  The  20 evidence is not entirely clear, but he probably  21 trapped with him during that period of time.  He then  22 moved back to Moricetown and also was trapping during  23 that time with Noralee Matthew Sam at Taatl'aat Lake.  24 This is the line that Mr. Morris inherited under the  25 will of Noralee Matthew Sam.  He continued trapping  26 this line after taking it over in his own name.  And  27 testified that he still uses it, although it has been  28 leased to non-Indians on at least two occasions, the  29 latest of which was for a ten year period.  The  30 commencement of this ten year period is not known with  31 certainty.  He often speaks of the lease as though it  32 were still current, but when asked why he granted the  33 lease he explained his nephew was killed in a car  34 accident.  He is currently using a  portion of  35 trapline near Tsichgass, Indian Reserve No. 2.  He  36 fishes for food.  He has also worked in the logging  37 industry from 1957 when he went to work at the  38 Moricetown Band sawmill.  He worked there until he was  39 injured in a car accident in 1981 or '82.  He also  40 appears to have done some logging on his own since he  41 acquired a skidder in 1979.  His employment was  42 interrupted in 1976 and it's not clear now if he works  43 at all.  His testimony I think is quite illuminating.  44 He says:  45  46 "I worked wherever I can find employment."  47 28655  Submissions by Ms. Russell        1 This is despite the  fact that he did do some trapping.  2 He says:  3  4 "I...during spring breakup, just go out hunting  5 and trapping when there is no work..."  6  7 "So we went out trapping in the fall, spring,  8 and whenever we get laid off we went  9 trapping...  We went trapping on weekends and  10                   my way of life was still the same now."  11  12 I won't read the summary that follows on the next  13 page, my lord, which simply echoes that sentiment.  He  14 found employment where he could and where he was  15 unable he did some trapping and some hunting.  16 I'll ask you to turn now, my lord, to tab 31 which  17 is Mr. Stanley Morris.  Mr. Morris gives his  18 occupation as logger.  He worked in the Moricetown  19 sawmills.  He worked at Fink's Sawmill.  He worked at  2 0 Hagman's Sawmill.  And then when it became Houston  21 Forest Products, he worked there.  He has not done any  22 commercial fishing.  He knows his house as a fishing  23 site at Moricetown, but does not know anything about  24 it.  He has never gaff fished at Moricetown and he has  25 never fished at Hagwilget.  He has trapped some, but  26 not on his own.  He trapped up on Telkwa before he  27 started his career in logging.  So Mr. Morris is  28 slightly different from some of the witnesses that  29 we've pointed out before now.  Mr. Morris is someone  30 whose occupation, he says, is logger.  And he doesn't  31 seem to do much fall-back trapping from his evidence.  32 I'll ask you to -- sorry.  The next person to whom  33 I'll refer you, my lord, is at tab 41.  This is Abel  34 Sampson.  Mr. Sampson says about trapping that it got  35 so bad "that they had the store up there, and pretty  36 soon you can't afford to get the airplane in to pay  37 for stuff and we had to move to town."  He moved to  38 Hazelton in 1949, and his father began working in the  39 sawmills.  At that time, in 1949, he would have been  40 about 15 years old from his birth date.  About.  He's  41 presently a millwright, a job which he has held for  42 the past 15 years, working for Weststar and Hazelton.  43 And before that he worked in a sawmill.  He says.  44 "I've been at the sawmill all my life."  And the  45 little summary that follows on the next page, my lord,  46 I won't read to you.  It's very short.  He doesn't  47 mention that he's done any hunting or fishing or 28656  Submissions by Ms. Russell        1 trapping, since he was  14 or 15 years old, out with  2 his father at Bear Lake.  3 THE COURT:  Of course that mill is closed now, isn't it?  4 MS. RUSSELL:  The — ?  5 THE COURT:  The Hazelton mill.  6 MS. RUSSELL:  The Hazelton mill.  I am sorry, my lord, I am not  7 aware of that.  8 THE COURT:   I am not either there was several.  9 MR. MACAULAY:  I thought it was the Kitwanga mill.  10 THE COURT:  No.  With respect it's still there.  11 MS. RUSSELL:  It's having its problems.  12 THE COURT:  It's having its problems.  But I think the Hazelton  13 mill was closed.  14 MS. RUSSELL:  Well, my lord, this is from — this is from a  15 couple of years ago.  16 THE COURT:  Well, I notice the evidence was in December '88 and  17 I think that we were up north in December of '88.  18 MS. RUSSELL:  Oh, yes, my lord, we were.  19 THE COURT:  It was working then, but I think it's closed since  20 then, but I am not sure.  21 MS. RUSSELL:  It may have closed since then.  I am sorry, I  22 don't know.  I can find out.  23 THE COURT:  Ask Mrs. Brower.  She will tell you.  24 MS. RUSSELL:  Okay.  25 THE COURT:  She has to get a counsel fee, too.  26 MS. RUSSELL:  My lord, I will ask you to turn next to Vernon  27 Smith who is at tab 42 following.  Vernon Smith was  28 born in 1944.  When he moved back to Kitwancool from  29 the Edmonton Residential School, he logged for three  30 or four years.  He then worked in the Hobenshield  31 Bros. Sawmill in Kitwanga Valley.  He's also a  32 commercial fisherman and he participates in the  33 herring fishery in February to March.  He also spent  34 one year at Camosun College in Victoria and he drives  35 a school bus part-time for Farwest Bus Lines.  In 1987  36 he went mushroom picking.  He has not done any  37 trapping since his father died in the 1970s and he  38 does not have a registered trapline.  39 On the next page, my lord, Mr. Smith says that he  40 still hunts deer today, but does not specify when his  41 last hunting expedition was.  He says he has not done  42 any trapping since his father died in the 60s.  He  43 says he goes sport fishing where he sets the net out  44 on Xsi gallii gadsit, but he does not mention berry  45 picking.  46 My lord, if I could ask you to switch to the other  47 volume for a moment.  The next person to whom I will 28657  Submissions by Ms. Russell        1 refer is at tab 24,  This is Art Mathews Jr.  Mr.  2 Mathews was born in 1940.  And as you recall his  3 evidence, my lord, he's really involved in the  4 forestry industry as a saw filer.  He has worked at  5 Westar for many years.  He's complete his  6 apprenticeship at the Pacific Vocational Institute and  7 he's worked as a commercial fisherman at the coast in  8 the summers.  Now, in addition to these occupations  9 Mr. Mathews has a registered trapline and he's done  10 some weekend trapping with his sons and he has sold  11 three or $400 worth of pelts to the Hudson's Bay  12 Company in 1978.  And again Mr. Mathews is someone  13 whose full-time occupation is clearly in forestry and  14 some commercial fishing time as well in his past.  15 The next page, my lord, gives a short summary of  16 his traditional activities.  He has been involved in  17 traditional activities, though only since taking the  18 name Tenimgyet in 1981.  The last time he was goat  19 hunting was two years ago.  He made another trip the  20 year before that.  When asked by Mr. Plant if he does  21 weekend trapping he answers:  22  23 "Well, if you disturb it...  visit it once a  24 week, yes."  25  26 He began building a smokehouse in 1981, which is now  27 run by his mother, which, of course, your lordship  28 will recall we visited when we took our view.  He  29 talks about annual food fishing at his territorial  30 sites, but does not give any further details.  Since  31 1981, he has gone back to his territory every year to  32 pick berries with members of his family.  33 My lord, I'll also refer you to tab 15 in this  34 volume, a very short summary here.  This is Ernest  35 Hyzims, Gwagl'lo.  He was born in 1922.  Mr. Hyzims  36 says that for five years he went commercial fishing  37 and worked at mending nets.  He also worked for the  38 CNR for five years beginning in '41.  Following this  39 he just worked around at home and did some fishing and  40 cutting wood.  Around 1966 he worked as a janitor at  41 the school in Kitsegukla and did this for five years.  42 And on the next page, my lord, you'll see his  43 traditional activities summarized.  Mr. Hyzims says:  44  45 "In my younger days I would go out trapping",  46  47 The last time he went out on his trapline was 1947. 28658  Submissions by Ms. Russell        1 He didn't go after  that, he said, because of  2 afthritis.  He has done some fishing.  After leaving  3 the CNR in the mid-forties he did some fishing and he  4 seems to have fished in the Skeena from spring to  5 early summer of 1988.  6 The last one to whom I will refer you, my lord, is  7 at tab 3 in this volume, and this is Charlie Austin.  8 Mr. Austin turned 68 on October 24, 1988.  During the  9 war he was a construction worker.  He then worked on a  10 CN work train and also became a section hand --  11 section man on CN.  He fished on the coast around 1942  12 and he worked on portable sawmills in 1945 to 1946  13 skidding with horses.  He also worked in Hazelton  14 sawmills.  He trapped and hunted while he lived with  15 his parents.  He was the chief councillor at Hagwilget  16 and was also the representative to the Gitksan-Carrier  17 Tribal Council.  He holds a registered trapline which  18 he has never used because of illness.  He received the  19 trapline in 1977.  He's driven down to try to see it,  20 but it's too far on Morice Lake for him to see him.  21 The trapline is not in his clan's territory.  He  22 hunted in the early or late 50s in Bulkley Canyon  23 area.  Other than fishing on the coast there is no  24 other mention of fishing in the transcript.  25 My lord, if you would now turn to pages 114 --  26 page 114 in the Summary of Argument for the Attorney  27 General of Canada.  This is Part X, that's Roman  2 8 numeral X.  29 THE COURT:  Do I understand, Miss Russell, that there is a  30 summary for each of the plaintiffs' witnesses?  31 MS. RUSSELL:  Yes, my lord, there is, except for the ones we've  32 indicated.  33 THE COURT:  Yes.  Yes.  All right.  Thank you.  What page do you  34 want me to go to?  35 MS. RUSSELL:  Page 114, my lord, and it follows the tab which is  36 Part X, Part 2, page 39.  37 THE COURT:  Thank you.  38 MS. RUSSELL:  At the bottom of page 114, my lord, it's headed "A  39 Sketch of Gitksan and Wet'suwet'en Economy at the End  40 of the Twentieth Century."  41 The Gitksan and Wet'suwet'en ecomonies in the  42 1980's were very different from what they were at the  43 beginning of the 1800's.  The major components of  44 these economies are forestry, various professions such  45 as teaching, commercial fishing on the coast, and  46 various kinds of income assistance programs such as  47 pensions.  In the 1890's, hunting, gathering, 28659  Submissions by Ms. Russell        1 trapping, and/or food  fishing (beyond an occasional  2 weekend or recreational aspect) is a component of the  3 economic strategies of very few of the group of  4 witnesses considered, and this group because it is  5 probably older than average, may overemphasize  6 traditional activities in the total population.  7 Furthermore, if we look at the end of the 80's, an  8 even smaller group follows economic strategies in  9 which traditional pursuits are a major component.  And  10 my lord, you may wish to refer to Robert Jackson Sr.  11 for an example of that kind of witness.  As the older  12 group of the population dies, it seems likely that the  13 trend away from reliance on traditional activities  14 will increase.  15 Among the 55 witnesses whose testimony was  16 analyzed, in addition to the few who rely on  17 traditional activities, a larger group mentioned  18 hunting, trapping, gathering and/or food fishing as an  19 occasional weekend or recreational activity.  Slightly  20 more than half the witnesses participate in  21 traditional activities to some extent.  In the Tribal  22 Council's own census, Exhibits 901-2, 3 and 4, less  23 than half the respondents replied that they  24 participated in these traditional activities in any  25 way, even as an occasional weekend or recreational  26 activity.  It is not clear, my lord, I submit, that  27 Gitksan and Wet'suwet'en participation in hunting,  28 trapping, gathering, or food fishing in the 1980's  29 differs from any non-Native rural community in western  30 Canada.  31 It is also not clear just how much income  32 traditional activities represent, but the impression  33 from reading the statements of witnesses is that they  34 contribute relatively little to the total income of  35 the 55 witnesses surveyed.  36 As Loring foresaw, the Indians' movement into  37 non-traditional activities such as logging, has to a  38 large degree supplanted their economic dependence on  39 hunting, gathering, trapping, and food fishing.  4 0 THE COURT:  Are you able to provide me with a reference to  41 Loring?  42 MS. RUSSELL:  Oh, my lord, would you like them all?  43 THE COURT:  No.  But I remember the prediction he made.  44 MS. RUSSELL:  I certainly can, my lord.  45 THE COURT:  It would be useful to have it noted here, if you  46 want to look for it.  47 MS. RUSSELL:  I will, my lord, provide it to you. 28660  Submissions by Ms. Russell        1  THE COURT:  Is there any problem  with your reference to Exhibits  901-2, 3 and 4? This is the itchy trousers question  again, and I don't remember if it was ever resolved.  Seems to me that there was some --  MS. RUSSELL:  I know there was a great deal of discussion about  it, my lord.  THE COURT:  I am not sure what the status of those exhibits is.  MS. RUSSELL:  I believe that they were admitted but for a  limited purpose.  I will look at this transcript, my  lord, and perhaps provide that transcript reference to  you tomorrow.  THE COURT:  All right.  Thank you.  MS. RUSSELL:  Those are my submissions, my lord.  Thank you.  THE COURT:  All right.  Thank you.  MR. MACAULAY:  My lord, one thing I forgot this morning, before  launching into the subject of the wills, was the  submissions that I would have made on Thursday night  had it not been for the lateness of the hour, and that  had to do -- it's at the conclusion of the Loring  material.  You remember I handed up 22 pages of Loring  material.  THE COURT:  Yes.  MR. MACAULAY:  And there are certain submissions there which  perhaps I ought to draw to your lordship's attention.  At page -- starting at page 21, they run from A to G.  One could make more submissions than that, but those  are the ones that perhaps are the most important ones.  The first is that the Gitksan traditional economy  wasn't providing adequate subsistence for the  population of the central and western villages by  1890.  And we reviewed -- I reviewed Loring's  observations in 1890 about the destitution that was  prevalent in all the villages that he had visited and  that I had referred to at the bottom of page two of  my -- of that submission.  And of course, the very  fact that there were head chiefs and people with  famous names who found themselves destitute and on the  welfare roles.  The northern villages, Kisgegas and Kuldo, where  the traditional economy was still in place, were  starting to lose their population in 1902.  The winter  hunting and fishing villages, and the outlying canyon  fisheries were abandoned, as were those of Kisgegas  and Kuldo, but after Loring's time.  It's a curious  thing that the -- what appears to have been the  principal fishery was not only abandoned - I'm talking  about K'sun and upper K'sun, which are 23 and 29 miles  our  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 28661  Submissions by Mr. Macaulay        1 respectively above  Hazelton on the Skeena River in the  2 canyons, but that the plaintiffs had no recollection  3 of them.  If the plaintiffs -- do you remember what  4 the fisheries expert said about how he determined  5 where the traditional fishing places were when he drew  6 his map 22.  That's the map 22 of the plaintiffs'  7 series of maps.  He and his researchers, his staff,  8 interviewed the elders and none of those interviews  9 produced any information at all about K'sun or upper  10 K'sun.  11 THE COURT:  That was Mr. Morrell, was it?  12 MR. MACAULAY:  That was Mr. Morrell.  I'm not faulting Mr.  13 Morrell or anyone else for it.  I am just making the  14 observation that there is a -- that it's not  15 remembered.  It's commentary rather on the collective  16 memory about matters that aren't so ancient at all.  17 Matters that must have stretched beyond 1920 when we  18 know that the older people were still up there gaff  19 fishing.  20 THE COURT:  Mr. Morrell was actually asked about that, was he?  21 MR. MACAULAY:  I beg your pardon, my lord?  22 THE COURT:  Was he actually asked about K'sun?  2 3 MR. MACAULAY:  No, he wasn't.  24 THE COURT:  I see.  25 MR. MACAULAY:  There was nothing there.  He didn't mark anything  2 6 about K'sun.  We didn't find out about K'sun.  27 THE COURT:  No, I am just wondering whether this -- what you  28 have just said is a reference to the evidence or it's  29 your submission.  30 MR. MACAULAY:  This is my submission.  I'm referring —  31 THE COURT:  Yes.  You are not saying that Mr. Morrell was  32 cross-examined and asked if any of the elders  33 mentioned K'sun or anything like that?  34 MR. MACAULAY:  No.  What I am saying is he described his method,  35 his modus operandi.  He said that he and his  36 researchers interviewed the elders and that is how all  37 those names and dots got on the map.  3 8 THE COURT:  Yes.  39 MR. MACAULAY:  What didn't get on the map was any sign of K'sun  40 or upper K'sun or for that matter Ilie-san-dalgh,  41 which was a little farther up the Skeena, and  42 Lac-an-dalgh, which I think that was 34 miles up the  43 Skeena.  That would be beyond K'sun.  There were other  44 places there too that Mr. Loring had visited in the  45 1890's but not after that.  However, K'sun stands on a  46 different footing.  He was up there until 1920.  The  47 other villages, fishing villages may have disappeared 28662  Submissions by Mr. Macaulay        1 in the way that Kuldo  seared.  They just  2 vanished.  The population clearly withdrew from the  3 northern and western areas, and it withdrew largely to  4 Hazelton which had a very small local indigenous  5 population but soon became the largest village, the  6 metropolis, and for obvious reasons.  7 The next thing that arises out of the Loring  8 reports is that the traditional economic activities of  9 fishing and hunting and trapping were losing their  10 central position then in the lives of the Gitksan and  11 the Wet'suwet'en, as other economic alternatives were  12 being taken up large scale.  I'm talking now about  13 the -- not only the fishery on the coast and the  14 freighting and packing, but the work on the railroad,  15 the work in logging.  They had three sawmills.  If  16 your lordship will recall by 1910 or '12 they  17 themselves had three sawmills.  One at Kispiox,  18 another at Andamahl, another at Glen Vowell.  So the  19 process had already started -- well, started.  It had  20 got very very largely under way and it was because  21 Loring saw this tendency, saw how popular -- and he  22 reports on that, how popular wages were with the  23 Indians.  He mentions some of the best hunters from  24 Kisgegas were coming down.  They preferred earning  25 wages to the hardships of their own profession.  26 And another thing that arises out of the reports  27 is the disputes between families and crests over  28 fishing stations and trapping and hunting grounds were  29 frequent and continued throughout the period of  30 Loring's tenure.  He was always going out to settle  31 disputes over fishing grounds and hunting grounds.  He  32 was not only going out to these -- all these winter  33 villages that have now disappeared, but to the main  34 villages and to the -- all the little stations along  35 the Skeena River between Hazelton and Kitwanga.  The  36 traditional methods of dealing with ownership and  37 claims to ownership of fishing stations and  38 smokehouses and trapping and hunting grounds were no  39 longer employed.  Or it appears that is a conclusion  40 one could reach from the frequency of the disputes and  41 the calls on his services to settle them.  42 The next submission is that the Gitksan of the  43 central and western villages, that is Gitinmaax,  44 Kispiox, Kitsegukla and Kitwanga, and later the  45 Wet'suwet'en, joined the cash wage economy with  46 alacrity.  And finally the society in the central and  47 western villages, and later in Hagwilget and 28663  Submissions by Mr. Macaulay        1 Moricetown, were  increasingly based on family units,  2 housed in single-family dwellings.  Now, I say that is  3 perhaps the most significant development of all.  It's  4 as significance as the collapse of the fur price in  5 1951.  Because the longhouse was the temple of the old  6 structure.  The longhouse had within it several  7 families and several generations, three and four  8 generations ruled by a chief and sub-chiefs, wings.  9 It's quite easy to understand how people living the  10 longhouse life in a longhouse might carry on under the  11 rules and regulations and laws and customs that have  12 been described by the plaintiffs' witnesses existing  13 now.  But once the wage earner, if I can call him  14 that, got himself a single-family dwelling where his  15 wife and his children lived with him, and where he was  16 responsible for the building of that house, buying the  17 windows and the nails and all the things that they  18 reported as bringing up from the coast and sawing up  19 the lumber for it, his focus would turn entirely to  20 that unit.  That's not to say he would neglect as a  21 matter of course his parents if they were elderly.  22 But the connection, the connection with the other  23 families in the longhouse and the other generations in  24 the longhouse are broken now.  And he is a wage  25 earning citizen who is in the same position insofar as  26 his obligations are concerned as anyone else.  And  27 that change must have -- must have had the most  2 8 fundamental importance in the development that we see  29 from 1890 to 1980 in the changeover.  It happened much  30 sooner than that.  31 MR. JACKSON:  My lord, is my friend pointing to some specific  32 evidence in the record for that proposition or is this  33 his --  34 MR. MACAULAY:  Lots of evidence.  35 MR. JACKSON:  — his submissions?  36 MR. MACAULAY:  Specific evidence, it's my submission.  37 THE COURT:  Well, there is a good deal of evidence about the  38 movement into private homes in the reports of Mr.  39 Loring.  40 MR. JACKSON:  Yes, my lord.  I was thinking more of the  41 conclusion that the shift had significance in terms of  42 the way of life and the system of reciprocity between  43 house members.  I am endeavoring to find out whether  44 there is particular evidence my friend will point to  45 in relation to that proposition.  46 MR. MACAULAY:  Well, my lord, you remember that Loring noted  47 that the old people could no longer count on the 28664  Submissions by Mr. Macaulay        1 support of the lodge  where three or four generations  2 lived and that for that reason they were the people  3 who had to rely on welfare and I think I made a  4 particular reference to that.  5 THE COURT:  Yes.  6 MR. MACAULAY:  And referred your lordship to particular exhibits  7 in that connection.  There are hundreds -- I say  8 hundreds.  There is at least one a month and sometimes  9 two and three a month from 1893 to 1913, the details  10 of relief payments.  And they are almost invariably to  11 old people.  It's the old people who are ill and  12 destitute.  Now, that state of affairs simply wouldn't  13 exist in the society that the plaintiffs' have urged  14 on your lordship as existing today - not only then,  15 but today.  Whatever system there was was broken up  16 into other units.  That's my submission.  And crests  17 are mentioned in Loring's time and crests are  18 mentioned in Boys' time and crests are mentioned in  19 Mclntyre's time, but there is no mention of a house.  20 The only thing that could possibly refer to a house is  21 that one expression of Loring's: the lodge.  When he  22 was talking about the old people no longer being able  23 to rely on the lodge for their support.  24 Well, those are my submissions, my lord, on  25 Loring.  They come at an awkward time.  I should have  26 made these submissions early this morning at the  27 latest.  But -- and they are set out there.  And of  28 course, they dove-tail I say with the -- with the  29 descriptions of these people, these particular  30 plaintiffs, by the agents 40 years ago and 20 years  31 ago.  It's no surprise to see that continuity of  32 development.  There isn't any sudden change.  The only  33 sudden change there was was in the field of trapping  34 in all the story.  Those are my submissions for this  35 afternoon, my lord.  I wonder if this is a good time  36 to adjourn.  37 THE COURT:  Yes.  I think it's a wonderful time to adjourn.  38 What time do you want to start tomorrow?  39 MR. MACAULAY:  10 o'clock.  Could we start at 10 o'clock?  40 THE COURT:  Oh, yes, we can start at 10 o'clock.  It's your  41 time.  42 MR. MACAULAY:  Yes, our time.  43  44 (PROCEEDINGS ADJOURNED UNTIL TUESDAY, JUNE 19, 1990 AT  45 10:00 A.M.)  46  47 28665  Submissions by Mr. Macaulay        1  2 I hereby certify the foregoing to  3 be a true and accurate transcript  4 of the proceedings transcribed to  5 the best of my skill and ability.  6  7  8  9  10  11 Laara Yardley,  12 Official Reporter,  13 UNITED REPORTING SERVICE LTD.  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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