26986 Submissions by Mr. Willms 1 Vancouver, B.C., May 22, 1990. 2 3 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 4 5 THE REGISTRAR: In the Supreme Court of British Columbia, this 6 22nd day of May, 1990. Delgamuukw versus Her Majesty 7 the Queen at bar, my lord. 8 THE COURT: May we speak to the schedule? I have found that if 9 the tides are with me, I could sit on Saturday morning 10 if that would assist counsel. 11 MR. WILLMS: This Saturday morning? 12 THE COURT: Yes. I was hoping that we wouldn't sit Saturday 13 morning, but I find that I can if it's -- 14 MR. WILLMS: All right. 15 THE COURT: — convenient to the schedule. 16 MR. WILLMS: If I could come back to that maybe this afternoon, 17 my lord. 18 THE COURT: Yes. Certainly. All right. And you are also going 19 to consider whether we are going to sit one evening 20 this week? 21 MR. WILLMS: I think Thursday, my lord. 22 THE COURT: Yes. All right. Well, we will count on that at 23 least. All right. Thank you. All right. Thank you, 24 Mr. Willms. 25 MR. WILLMS: My lord, I was at part 3(b) on page 21. 2 6 THE COURT: Yes. 27 MR. WILLMS: And I had just finished paragraph 32. I was going 28 to start paragraph 33 at the bottom. 2 9 THE COURT: Yes. 30 MR. WILLMS: Your lordship may recall that I read an extract 31 from Dr. Yerbury talking about cultural complexity 32 decreasing as you move from west to east in the Claim 33 Area and I had also submitted to your lordship that 34 other ethnologists working in this area had noted the 35 cultural borrowing of the Wet'suwet'en from the 36 Gitksan and had come to the conclusion that that 37 resulted from the fur trade, the influence of the fur 38 trade, and I'd also advised your lordship of the 39 evidence pertaining to the Gitksan move up the Skeena 40 in response to the fur trade. 41 Now, I note in paragraph 33 that even Dr. Daly 42 noted that there was a societal difference from west 43 to east through the Claim Area. And the -- I won't 44 take your lordship to the extract, but Dr. Daly, in 45 the extract cited there, noted the degrees of storage 46 required more hierarchy in the west, he said in the 47 western Gitksan villages than as you moved east and 26987 Submissions by Mr. Willms 1 that there was a difference in the complexity of some 2 of the institutions. Now, I say that that that's a 3 point that was noted by Dr. Yerbury and accepted by 4 Dr. Rigsby, Dr. Goldman, Dr. Steward, Dr. Jenness, 5 Father Morice and Dr. Kobrinsky. And I would ask your 6 lordship to turn to page seven at tab 33. 7 THE COURT: Page seven? 8 MR. WILLMS: Page seven at tab 33. It's from the 9 cross-examination of Dr. Daly at tab 33. 10 THE COURT: Yes. All right. 11 MR. WILLMS: And at the top of the page at line four: 12 13 "Q Just putting aside your participant observation 14 since 1986. When you review Dr. Rigsby's 15 linguistic argument about the Gitksan moving up 16 the Skeena River in response to the fur trade, 17 and Gitksan being a dominant culture, and 18 review Dr. Goldman, Dr. Steward, Jenness and 19 Morice, they are all consistent with Dr. 20 Kobrinsky's thesis at Exhibit 881-12 aren't 21 they? 22 2 3 And Mr. Grant: 24 25 " The one you just read to him. 26 Q Yes, the paragraph I read to you. 27 A Yes, they are consistent with his thesis." 28 29 And I think I could deal at this point -- I have Dr. 30 Kobrinsky over the next page here, my lord, and your 31 lordship asked about septs. 32 THE COURT: Of the argument? 33 MR. WILLMS: No. Of the yellow tab. 34 THE COURT: Yes. Same tab? Oh, yes. 35 MR. WILLMS: Same tab — page eight is the start of Dr. 36 Kobrinsky on the Tsimshianization of the Carrier 37 Indians, and on the next page he talks about septs. 38 This is page nine of the tab. 3 9 THE COURT: Yes. 40 MR. WILLMS: And at the top he says, "Morice recorded — " this 41 is under "Names." 42 THE COURT: Yes. 43 MR. WILLMS: 44 45 "Morice recorded nine sept names together with 46 their severally subtended villages. These same 47 divisions appear in Jenness' map of Carrier 26988 Submissions by Mr. Willms 1 'subtribes' and Duff's list of 'tribes' with a 2 few minor inconsistencies. I have opted for 3 the term sept, incidentally, to avoid 4 connotation of politically-integrating 5 institutions such as chieftains and councils 6 which were lacking in the precontact era as, 7 ex hypothesi, were the pansept kin sodalities." 8 9 Now, my lord, I have no idea what that means. I am 10 just reading it, that part. But then he says this: 11 12 "The etymology of sept names raises some 13 intriguing possibilities. 14 15 The names are constructed from a root element 16 which typically denotes a lake or a river and a 17 suffix, -hwideyniy, applicable in principle to 18 any place name meaning simply 'the people 19 of...'. Thus, the Bulkley river sept is named 20 Hwitso hwideyniy, meaning 'people of the 21 Hwitso wits n (i.e. Spider) River.' Similarly, 22 the Stuart Lake sept is named Nag azdliy 23 hwideyniy where Nag a is the name of Stuart's 24 Lake and -zdliy is a contraction of tezdliy 25 connoting a lake outlet; hence, 'people of the 26 outlet of Stuart's Lake'. Of Morices nine sept 27 names only one (Tano- tenne = 'people a little 28 to the north') makes no clear reference to a 29 water body, five directly denote specific water 30 bodies and one implies a water body, while two 31 remain of unknown etymology. In sum, Carrier 32 sept taxonomy is essentially a geographic 33 taxonomy—for the most part hydraulic--upon 34 which people appear as a deletable appendage." 35 36 Now, just stopping there, my lord. What I understand 37 Dr. Kobrinsky to be saying there, and it's something 38 that's quite similar to what Dr. Kari said in terms of 39 Carrier direction. You might recall Dr. Kari talked 40 about the Carriers talking about being upriver, 41 downriver, but having a riverine directional system, 42 and I think that's in the plaintiffs' outline of 43 argument as well. And what I take Dr. Kobrinsky to 44 say here is that the septs were really the names of 45 the places where people lived and they had relation to 46 a description of where they were. So you would have 47 the Babine Lake people or people of Babine Lake, the 26989 Submissions by Mr. Willms 1 people of Spider River or the Wet'suwet'en. And -- 2 THE COURT: What do you draw from that? So they are named after 3 the places where they lived. What's next step in that 4 analysis? 5 MR. WILLMS: Well, if I could just read the last line on the 6 page nine, my lord -- 7 THE COURT: Yes. 8 MR. WILLMS: — where Dr. Kobrinsky says: 9 10 "In other words, general woodland tradition 11 seems, like the Carrier sept names, to 12 represent people as contingencies of places." 13 14 And that is, my lord, that the name of the people was 15 not a name that followed the people along. The name 16 of the people depended on where they at any particular 17 time lived. So that people might come and go, but 18 that wouldn't change the name that they had which 19 would be people of Babine Lake. Or I believe as 20 Harmon noted, the -- now, I can't -- the Natowet'ens, 21 Natowet'ens, people of Babine Lake. I think that's 22 Harmon. So my submission on septs, my lord, is that 23 it's not that different from what Dr. Duff noted about 24 the Gitksan, that is the Gitksan at about the time of 25 contact lived in seven villages that Dr. Duff noted 26 from -- accepted from Dr. Barbeau. And that they were 27 just geographic locations where people lived. And 28 that the Wet'suwet'en and the other Carrier, as Morice 29 noted and as Dr. Kobrinsky explained, were quite 30 similar, that is they -- the nomenclature was sept, 31 not village, but it was a geographic location where 32 people lived that was used to describe them. 33 THE COURT: But the evidence here is that these plaintiffs 34 recognize that geographic source in the seating 35 arrangements at the feasts? 36 MR. WILLMS: Yes. Villages, my lord. You see, it's not a 37 house -- it's not houses. It's villages or geographic 38 locations where people lived. So that there is no -- 39 there is no nationhood. There is no Gitksan 40 nationhood. There is no Wet'suwet'en nationhood. 41 What there is is in my submission in the contact era, 42 there is an aggregation of villages where people 43 lived. 44 THE COURT: But didn't — doesn't the evidence disclose that the 45 seating at the feast was based upon a combination of 46 both factors? That is house or sept and -- 47 MR. WILLMS: Well, my understanding of the — 26990 Submissions by Mr. Willms 1 THE COURT: — source location? 2 MR. WILLMS: -- feast, my lord, is that the visitors were seated 3 in a particular area and that the people from the 4 locality were seated according to the clan that was 5 giving the feast. 6 THE COURT: But there were places designated for chiefs of 7 various houses. 8 MR. WILLMS: Well, my lord — 9 THE COURT: I haven't analysed it sufficiently. You say the 10 analysis of that shows that it was really by village 11 rather than by -- 12 MR. WILLMS: Well, no, my lord, my submission is that what's 13 happening today is nothing at all like what was 14 happening when Brown was there. That it's come -- 15 they have come a long way and it's also my submission 16 that by the time Brown got there the people had come a 17 long way in terms of social organization as well. So 18 that the social and political organization has been 19 something that has been changing dramatically since 20 the proto-historic period. And that's why, my lord, 21 it is my submission you would have to struggle 22 mightily to find confirmation of the present system 23 even in the Brown record. Because it's evolved. It's 24 changed. As Dr. Robinson said, cultures change. 25 People change. Society changes. But the particular 26 importance of septs and villages as Duff noted and as 27 Morice noted -- sorry, as Barbeau noted and as Morice 28 noted, is that they are not houses as your lordship 29 has before you here. What is happening is there has 30 been a further development in social organization that 31 I say, my lord, is clear from the historical record. 32 Especially when you look back to Brown and what Brown 33 observed in terms of nobility, a ranking one to 20 in 34 a village. Some chiefs having no authority over their 35 own people. Other chiefs having authority outside 36 their village. What you have in my submission, my 37 lord, is exactly what every other expert in this area 38 has found, except for the plaintiffs' experts in this 39 case, every other person who has been to this area and 40 done participant observation in this area, including 41 Dr. Adams and Dr. Kobrinsky, people who attended 42 feasts. Dr. Kobrinsky spent three months in 43 Moricetown, which is something that Dr. Kari didn't 44 know. Dr. Mills didn't know that either. And of 45 course, Dr. Adams spent 13 months with the Gitksan. 46 And it's only the plaintiffs' experts in this case, my 47 lord. You'd have to search long and hard through the 26991 Submissions by Mr. Willms 1 writings of the other anthropoligists and ethnologists 2 in this area to find anybody who agreed with Dr. Daly, 3 Dr. Mills and Mr. Brody in this case. 4 Now, if I can carry on back in my argument, my 5 lord, at page 22. I say there in paragraph 34 that 6 Dr. Mills engaged in the same uncritical analysis of 7 Wet'suwet'en society as Dr. Dr. Daly of Gitksan 8 society. She interviewed mostly chiefs. Dr. Mills, 9 while acknowledging the scholarship of writers such as 10 Dr. Steward and others, I should say, incorrectly 11 suggested that when the work of Drs. Dyen and Aberle 12 was considered, writers such as Dr. Bishop had 13 "corrected" their opinions. 14 And my lord, at tab 34 of the yellow book, the 15 very last page is Dr. Bishop 1987, and this is the 16 extract that is from Exhibit 1191A-46 that my friend 17 Mr. Grant marked in the cross-examination of Dr. 18 Robinson. And here after considering Dyen and Aberle 19 for the second time, Dr. Bishop says -- I am on the 20 left-hand side midway down the first paragraph, my 21 lord: 22 23 "I argued (Bishop 1983) that: (1) exchange 24 between the Northwest Coast and interior 25 British Columbia generated ranking among 26 interior groups during the proto-historic 27 period; and (2) the processes of development 28 among interior peoples, although accelerated by 29 the European fur trade, were essentially the 30 same as those that had generated ranking 31 prehistorically on the coast. Additional 32 evidence to support this view will be given 33 here." 34 35 And that's what he spends the balance of the article 36 doing, providing additional evidence for a proposition 37 that he first had in '79, after considering Dyen and 38 Aberle, and still has, after considering Dyen and 39 Aberle again. Well, Dr. Mills, as I said in my 40 argument at paragraph 34, was quite wrong when she 41 suggested that Dr. Bishop had changed his mind after 42 considering Dyen and Aberle. He hadn't. 43 I say in paragraph 35, in addition, two-thirds of 44 Dr. Mills' publications relate to reincarnation, and 45 Dr. Mills appears to have relied on reincarnation 46 evidence in coming to her conclusions. I submit that 47 evidence based on reincarnation stories can hardly be 26992 Submissions by Mr. Willms 1 the basis for legal rights. 2 Now, at the bottom of page 22, my lord, and over 3 to the top of page 23 I refer again to Dr. Mills as 4 part of the plaintiffs' team commissioning Lame 5 Arthur's son, her statements at the memorial service 6 for Moses David about the injustice that she sees 7 going on. 8 And I say in paragraph 37 that if the plaintiffs' 9 anthropologists are correct and all that has gone 10 before is wrong, it does not speak well for the 11 science or expertise that each brought to the 12 courtroom. In an analysis entitled "The Expert in 13 Court," Anthony Kenny sets out four considerations, 14 which I adopt, my lord, as argument, in determining 15 whether or not a discipline is a science justifying 16 the admission of opinion evidence in court. I say 17 when these prerequisites are considered, it can be 18 seen that the evidence of the plaintiffs' and 19 anthropologists falls short of anything qualifying as 20 a science. Kenny suggests: 21 22 "First, the discipline must be consistent. 23 That is to say, different experts must not 24 regularly give conflicting answers to questions 25 which are central to their discipline. That is 26 not to say that there may not be differences of 27 opinion between experts.... 28 29 Secondly the discipline must be methodical. 30 That is to say, there will be agreement about 31 the appropriate procedures for gathering 32 information within the discipline. A procedure 33 carried out by one expert to reach a particular 34 conclusion is one which must be capable of 35 duplication by any other expert... 36 37 Thirdly, the discipline must be cumulative. 38 That is to say, though any expert may be able 39 to repeat the results of others, he does not 40 have to: he can build upon foundations that 41 others have built. The findings of one 42 generation of workers in the discipline are not 43 called in question by the workers of the next 44 (that is not to say that they may not be placed 45 in an altered context, or accounted for by a 46 higher level system of explanation; this quite 47 frequently happens). But research, once done, 26993 Submissions by Mr. Willms 1 does not need doing again; if you have to 2 repeat someone else's experiments, or re-sample 3 his population, on the very same issue as him, 4 that shows you (unclear) -- " 5 6 I am sorry, that must be a quote that I didn't pick 7 up, my lord. The document is at tab 37. 8 9 " -- that shows you there was something wrong 10 with his experiment, or something faulty in his 11 sampling. 12 13 Finally, the discipline must be predictive, and 14 therefore falsifiable. It need not necessarily 15 predict the future (paleontology does not) but 16 it must predict the not yet known from the 17 already known (as the doctor's diagnosis of the 18 nature of a terminal illness predicts what will 19 be found at the post mortem, and is falsified 20 if it proves otherwise)." 21 22 Now, I say, my lord, that each of Dr. Daly, Dr. Mills 23 and Mr. Brody claim to have been engaged in 24 participant observation anthropology. Yet their 25 methodology for conducting participant observation 26 research was different one from the other, it was 27 different from methodology used by other participant 28 observation anthropologists and, in some cases, 29 different from participant observation conducted by 30 the witness himself or herself in a prior situation. 31 And I say in this sense, the participant observation 32 by Dr. Daly, Dr. Mills and Mr. Brody fails the first 33 two criteria set out by Mr. Kenny. That is, the 34 discipline isn't consistent and it's not methodical. 35 Each one of them in my submission did their own thing. 36 Paragraph 39. The third criteria is not made -- 37 not met in at least two ways. First, Dr. Mills, Dr. 38 Brody and Dr. Daly - that should be Mr. Brody - reject 39 the work done by anthropologists who did conduct 40 participant observation in the Claim Area prior to the 41 litigation. They do not build on the work of Dr. 42 Adams or Dr. Kobrinsky, but reject it as being wrong. 43 Dr. Daly goes so far as to imply that Dr. Adams' 44 informants are unreliable notwithstanding that they 45 were hereditary chiefs who, on the theory of the 46 plaintiffs' case, must have been the teachers of his 47 own informants. That is, the hereditary chiefs 26994 Submissions by Mr. Willms 1 teaching the future generation. Second, the work of 2 Mr. Brody, Dr. Mills and Dr. Daly could not be 3 duplicated for the purposes of trial by other experts 4 because much of their opinion is based on their 5 unrecorded recollection of their observation. In 6 other words, there is no data that another expert 7 could review in order to come to the same or perhaps 8 different conclusions. And as Dr. Daly admitted, the 9 people he interviewed (knowing that Dr. Daly was) 10 there at the instance of their representative group 11 and for the purposes of assisting them in their 12 lawsuit... were more co-operative with (Dr. Daly) for 13 that reason. And the extracts, my lord, that I put to 14 Dr. Daly apply equally to Mr. Brody and Dr. Mills. 15 That is the note-taking that Katherine McLellan did 16 while working in the north. The extract from Pelto 17 when Pelto described the appropriate way to do 18 participant observation, to make sure that you write 19 clearly and specifically about what you saw and what 20 you observed. There are no notes except for a few 21 interviews by Dr. Mills and Dr. Daly. They don't have 22 specific references for what they observed. It's all 23 stored up in their mind. Impossible to duplicate by 24 anyone else. And impossible to build on. 25 Now, finally, my lord, I say in paragraph 40, that 26 participant observation conducted during the course of 27 litigation where the anthropologist accepts the 28 statements of the plaintiffs being observed predicts 29 only the result sought by the plaintiffs in the 30 litigation and little more. This is especially so 31 when evidence given by the plaintiffs when put to the 32 plaintiffs' anthropologists in cross-examination is 33 doubted or ignored because it is inconsistent with the 34 preconceived result. The very nature of participant 35 observation anthropology makes it clear that where the 36 observation is conducted during the pendency of 37 litigation, it is the desired result that will predict 38 the observation rather than the observation predicting 39 the result. And I say that participant observation 40 anthropology in this case advances the litigation as a 41 means to achieve an end and not as a means of 42 explaining the plaintiffs' society and culture. 43 MR. GRANT: I think my friend is moving to another part. I just 44 wanted to check for my recollection, this Kenny 45 article to which he refers I see he has it in the tab. 46 Is this the article that my friend referred to in 47 argument on expert evidence which is a critique of the 26995 Submissions by Mr. Willms 1 existing law on the expert opinion evidence? This is a summary of the existing law, my lord, that I referred to in argument. It wasn't a critique of the existing law. Where is it found? It is found at -- Tab 37? I have put it at tab 47. 37. 37, my lord. Who was Kenny again? It's not the author of the First Criminal Code, I am sure. No, no. Kenny is, I believe, an English barrister, my lord. It's in The Law Quarterly Review and we'll have the whole -- in our authorities the whole extract will be in our authorities. I have just put the part that I quoted from. All right. What's the date of it? 1983, my lord. Yes. There is no doubt that a vast amount of work needs to be done on expert evidence. Well, my recollection is that this is a critique. This is the article my friend has referred to. Critique of what? Critique -- a criticism of the existing law on admissibility of psychiatric evidence in a murder case and that these are not -- he's not setting out the law but saying this is what the law should be. My friend -- I think I am with him on murder cases. He had automatism argued in conjunction with the defence of drunkeness in the Supreme Court last week. Now, my lord, at the top of page 41. The plaintiffs' counsel -- Sorry. Page 41? Sorry, paragraph 41 page 27. All right. Thank you. Plaintiffs counsel, and some of the plaintiffs' witnesses, turned, time and time again, to the work of Drs. Dyen and Aberle as support for rejecting the views of "most scholars" and saying that the Carriers or Athabaskans did not borrow heavily from the coastal cultures. This is in error for two reason -- or for a number of reasons. First, Drs. Dyen and Aberle reach their conclusions on matrilineality as follows. And I won't read through that page, my lord, but what they do is they set out two different approaches. Either 2 MR. WILLMS 3 4 5 THE COURT: 6 MR. WILLMS 7 THE COURT: 8 MR. WILLMS 9 THE COURT: 10 MR. WILLMS 11 THE COURT: 12 13 MR. WILLMS 14 15 16 17 18 THE COURT: 19 MR. WILLMS 20 THE COURT: 21 22 MR. GRANT: 23 24 THE COURT: 25 MR. GRANT: 26 27 28 29 MR. WILLMS 30 THE COURT: 31 32 33 MR. WILLMS 34 35 THE COURT: 36 MR. WILLMS 37 THE COURT: 38 MR. WILLMS 39 40 41 42 43 44 45 46 47 26996 Submissions by Mr. Willms 1 matrilineality is borrowed or matrilineality is 2 ancient. And that's the sum and substance of the 3 discussion here that leads up to over to page 28. And 4 I have underlined it, my lord: "One can decide 5 between this hypothesis -- " and "this hypothesis" is 6 the borrowing of matrilineality, and the "retention 7 hypothesis" is that matrilineality is very ancient. 8 All right. And they say that: 9 10 "One can decide between this hypothesis and 11 the retention hypothesis outlined above on the 12 basis that kinship organization is relatively 13 resistant to changes, whether it be change de 14 novo or through borrowing, or on the basis 15 that kinship organization changes frequently 16 and easily. We have assumed that it is 17 relatively resistant to change." 18 19 So there is the assumption that tips the scale for 20 Drs. Dyen and Aberle. And then carrying on: 21 22 "Hence, other things being equal, where the 23 same distribution of forms of residence and 24 descent can be explained either by retention or 25 by borrowing and/or parallel innovation de 26 novo, retention is regarded as the preferred 27 hypothesis. Where there is direct evidence 28 for borrowing, or reason to infer borrowing, 29 however, the retention hypothesis cannot be 30 maintained." 31 32 Now, I say in paragraph 42 at the bottom of the page, 33 their conclusions, as evident from the underlined 34 passages above, are based on an assumption that 35 Athabaskans do not borrow readily. This assumption is 36 contradicted by evidence in this case about Athabaskan 37 borrowing, especially the linguistic evidence of Drs. 38 Rigsby and Kari concerning borrowing of potlatch 39 names, ranking names and chiefly names. And Dr. Mills 40 gave some evidence about that borrowing as well. I 41 think it's 75 per cent of chiefly named are borrowed. 42 As to which, Dr. Jenness noted, only one-third of the 43 Bulkley River Carrier understood. And that is, they 44 understood -- only one-third of them when he was there 45 understood the meaning of the names and he concluded 46 that was an indication that they were borrowed. And 47 the "wonderful power (of the Wet'suwet'en) of 26997 Submissions by Mr. Willms 1 imitation and self- adaptation" including adoption of 2 Christianity. Now, for the adoption of Christianity, 3 my lord, Dr. Mills noted that, but on the power of 4 imitation and self-adaptation I would ask your 5 lordship to turn to -- at tab 42, page 15. And this 6 is an extract from Exhibit 953 by Morice. It was 7 marked by the plaintiffs. 8 MR. GRANT: What page is it? 9 MR. WILLMS: Page 15. Morice says, my lord, in the bottom 10 paragraph: 11 12 "Not so, however, with regard to the 13 prehistoric Denes. As I have elsewhere 14 demonstrated, that family of American 15 aborigines, and more especially the Carrier 16 tribe to which prominence will be given in the 17 following pages, is characterized by a 18 wonderful power of imitation and 19 self-adaptation which prompted it, upon the 20 advent of the whites, to discard most of its 21 native customs, indigenous weapons and working 22 implements." 23 24 Now, that -- that Father Morice was not an academic 25 anthropologist, but that has been accepted, my lord, 26 by academic anthropologists. As I say -- as I carry 27 on on page 29, because -- right by the three-hole 28 punch I say: As Dr. McLellan said "the view that has 29 become prevalent among anthropologists since the 1930s 30 (is) that Athapaskans are highly adaptive and as Dr. 31 Duff said "until very recent times the Carrier Indians 32 have been rapidly borrowing features of social culture 33 from their coastal neighbours", a point which was 34 accepted by Dr. deLaguna and Dr. deLaguna I only bring 35 up there, my lord, it was accepted by many, many other 36 scholars in the area, but I mentioned Dr. deLaguna 37 because Dr. deLaguna is one of the scholars who thinks 38 that matrilineality may be ancient. But even she 39 accepts in terms of cultural borrowing that the 40 Carriers borrowed from their coastal neighbours during 41 the proto-historic period. 42 I say in paragraph 43, that even if Drs. Dyen and 43 Aberle are correct in their matrilineality hypothesis, 44 which may be doubted, and there are some scholars who 45 still doubt that, they do not disagree with the 46 proposition that the potlatch rank complex was 47 borrowed from the coast. And your lordship may want 26998 Submissions by Mr. Willms 1 to make a note. I won't ask you to turn back to it, 2 but in 3(a) in Part IV section 3(a) paragraph 49 in 3 this argument I have quoted from Dyen and Aberle where 4 they talk about the coastal effects. Not only did Dr. 5 Dyen and Aberle say that, but other scholars such as 6 Dr. Tobey, and I have quoted Dr. Tobey here, who is 7 looking at Dr. Dyen and Aberle. Dr. Tobey said: 8 9 "Based on their lexical reconstruction of the 10 Proto-Athabaskan kinship system, (Dyen and 11 Aberle) suggest that the Carrier (and most 12 Athabaskans) were originally matrilineal, that 13 only the potlatch-rank complex and not 14 matrilineal descent rule was adopted by the 15 Northern Carrier." 16 17 So that if Dr. -- if Dyen and Aberle stands for 18 anything, my lord, it only stands for the matrilineal 19 borrowing hypothesis versus -- versus the ancientness 20 of matrilineality. But Drs. Dyen and Aberle agree 21 with what all of the other scholars, save for the 22 three plaintiffs' experts that I mentioned earlier, 23 all of the other scholars who have looked at this area 24 have concluded, which is the Wet'suwet'en borrowing of 25 social culture during the proto-historic period. 26 Now, I carry on in page 30 to note that this was 27 apparently Dr. Mills' view in 1986 before her report 28 was edited, and I say presumably by Richard Overstall, 29 when she said - and there is a quote from her original 30 draft: "There is no doubt that the Wet'suwet'en 31 adopted the system of clans, houses and titles from 32 their more coastal neighbours." To this extent, the 33 plaintiffs' lengthy argument about Dr. Robinson's 34 alleged failure to consider Drs. Dyen and Aberle is a 35 "red herring" because it meets here nor there to the 36 borrowing of culture. Even Dr. deLaguna, who does 37 agree with Drs. Dyen and Aberle about the ancientness 38 of matrilineality, acknowledges Carrier borrowing of 39 social structure. 40 The most recent -- I say at the bottom the most 41 recent opinion on cultural borrowing, marked as an 42 exhibit by the plaintiffs in the cross-examination of 43 Dr. Robinson, was that of Dr. Bishop. And my lord, I 44 won't read that. I just read that extract from Bishop 45 to you and I won't read it again, but I will read the 46 part at the middle of the page, which is from the same 47 article where Dr. Bishop says: 26999 Submissions by Mr. Willms 1 2 "the Carrier, unlike their Nortwest Coast 3 antecedents, did not have to evolve a 4 hereditary system, being able to adopt and 5 modify a fully developed one from their 6 neighbours." 7 8 This opinion, from a writer uninfluenced by this 9 litigation, is the most recent scholarly work building 10 upon scholarly work that was done in the past 11 uninfluenced by this litigation. 12 Issues of cultural dominance are important when 13 assessing trade to the coast. As Dr. Robinson noted, 14 Brown's difficulties in trading with the Atnahs and 15 the Hotsett people may have had more to do with 16 cultural preferences and dominance than with economic 17 considerations. Certainly the trading that Brown 18 observed on the Babine River, which included exchange 19 of articles with little or no intrinsic value along 20 with signs of peace is consistent with the theory of 21 cultural dominance. And that was the dropping of the 22 swan or the down and Dr. -- and Brown noted that he 23 thought -- to put it colloquially, he thought that 24 they were getting a bad deal from the coast because 25 they were getting lousy goods. His goods were better 26 than what they were getting from the coast, but they 27 were still trading with the coast. 28 I say in paragraph 46, my lord, that Dr. Ray's 29 evidence is consistent with Dr. Robinson's evidence 30 concerning ranking, save and except that Dr. Ray 31 doesn't mention slaves. Dr. Ray noted "nobles" or 32 "men of property" and "villages of differing rank." 33 These interpretations of Brown's observations are 34 consistent with the development of the ranking and 35 clan structure later observed in a more sophisticated 36 form by Jenness, Morice and Goldman. And I say, my 37 lord, now observed by your lordship in this case in a 38 most sophisticated form, but in a form that has been 39 evolving since the late prehistoric period. 40 Now, I say in paragraph 47, my lord, another 41 societal consideration for which Dr. Robinson finds 42 more support in the evidence than Dr. Ray is warfare 43 before contact. Dr. Ray acknowledges warfare after 44 contact but, notwithstanding the fortifications at 45 Fort Kilmaurs read to him he attempted to explain the 46 system of reciprocal killings as being no different 47 than killings in European society, and suggested that 27000 Submissions by Mr. Willms 1 some of the reciprocal murders were white-generated. 2 Well, I say, my lord, once again, consistent with 3 people uninfluenced by this litigation in conclusions 4 that they have come to. 5 In paragraph 48, that the clear picture emerging 6 from an available data is that, up to the 1860s, when 7 white intervention stopped it, peoples of the 8 Northwest Coast were living at a constant state of 9 war, which clearly extended into the Claim Area. Now, 10 Brown -- and my lord, after the word "Brown" you might 11 want to say "noted in 1825." 12 MR. GRANT: Where is that? 13 MR. WILLMS: I am on page 33. Brown, in 1825, noted "so long as 14 the present animosities continue amongst the Indians 15 they will neither hunt nor fish from a mutual dread of 16 one another." Furthermore, as Dr. Barbeau said, and 17 Dr. Duff accepted, Gitksan "tribes (were) nothing but 18 villages, or casual geographic units, seven in all", 19 which would indicate that any notion of the Gitksan 20 "nation" in any present day sense would be quite 21 wrong. And I would ask your lordship to turn to tab 22 48 and page 33, which is the last page of the book, 23 the last page of the tab and the last page of the 24 book. This is from the cross-examination of Dr. Daly. 25 Sorry, from the evidence in chief of Mr. Grant, and I 26 am at line 32: 27 28 "Among the Gitksan prior to the 29 arrival of the Europeans, the degree 30 of inequality, status hierarchy and 31 centralized authority was limited by 32 the peoples' preoccupation with the 33 round of subsistence activities. 34 Inequality, status hierarchy and 35 centralization were even more limited 36 among the Wet'suwet'en. While the 37 Gitksan and Wet'suwet'en both engaged 38 in trade by means of gift-giving and 39 barter with neighbouring peoples, 40 they did not engage in anything 41 resembling modern commodity 42 production. 43 44 And that is your opinion with respect to 45 the Gitksan and Wet'suwet'en? 4 6 A Yes." 47 27001 Submissions by Mr. Willms 1 So at the time of contact, my lord, according to Dr. 2 Daly and consistent with Trader Brown, rather than the 3 very complicated house structure with chiefs and wing 4 chiefs and elaborate seating structures at feasts, 5 what even Dr. Daly accepted was that there was a much 6 lesser degree of inequality, a much lesser degree of 7 status hierarchy and a much less degree of centralized 8 authority, something consistent with Dr. Barbeau; 9 something that is consistent with Morice and his 10 septs, and that what has been happening is that there 11 has been continuation of that development over time 12 right up to trial, and that's something that even Dr. 13 Adams noted when he commented about potlatching, that 14 the potlatch still continues today probably has a 15 great deal to do with the land claims. 16 THE COURT: Well, does it matter if the sophistication has been 17 heightened since the time of contact? 18 MR. WILLMS: Well, it does, my lord, because this claim is a 19 claim for house ownership and jurisdiction and I say 20 there were no houses. There were no houses at the 21 time of Brown. And that's the plaintiffs' claim. It 22 might make a difference, my lord, if there was some 23 Calder type claim advanced here, but there isn't. 24 There is a claim for ownership and jurisdiction and on 25 this point alone, my lord, the evidence shows -- the 26 historic evidence shows that there weren't any houses 27 at that time. I mean, certainly that's something that 28 Brown, who Dr. Ray called as good as an observer as we 29 would get, would have picked out and, my lord, I deal 30 with this a little bit later -- 31 THE COURT: All right. 32 MR. WILLMS: — when I refer to Harmon — 33 THE COURT: All right. 34 MR. WILLMS: -- and the Carrier. Now, I say in conclusion, my 35 lord, at page 34, paragraph 49, that when all of the 36 evidence under this heading is considered, the 37 following propositions, it is submitted, hold for the 38 prehistoric and proto-historic period in the Claim 39 Area area. The first is that salmon was the mainstay 40 of subsistence of economy. Second, beaver trapping 41 was not particularly important to the subsistence 42 economy prehistorically. But after the advent of the 43 fur trade, it was important to the market economy. 44 Third, the culture of the inhabitants on the Upper 45 Skeena River and the Bulkley River was changed by the 46 coastal culture and was likely adopted by the Atnahs 47 in the late prehistoric, proto-historic period and by 27002 Submissions by Mr. Willms 1 the Hotset people in the proto-historic period. 2 Finally, the big game hunting was not an important 3 aspect of the subsistence economy in the prehistoric 4 or proto-historic period since the Claim Area was 5 destitute of large animals. Now, the next section, my 6 lord, and I have another yellow binder. 7 THE COURT: Oh good. 8 THE COURT: The next section I have entitled territoriality and 9 exclusive resource use in the Claim Area. Once again, 10 my lord, I am focusing on the period late prehistoric, 11 proto-historic and early historic between the 1750s 12 and about the 1850s, although there will be reference 13 to other parts as well. 14 In paragraph one, the historical record is the 15 only direct evidence of territoriality and exclusivity 16 of resource use in the Claim Area. Archeological 17 evidence does not indicate the territorial boundaries 18 of the human inhabitants at any particular time and 19 Ms. Albright was not "proving boundaries. She (had) 20 nothing to do with boundaries." And that quote, my 21 lord, is from Mr. Rush during Ms. Albright's evidence. 22 Prehistoric and protohistoric territoriality must be 23 inferred from direct evidence or from a comparative 24 analysis of territoriality among neighbouring 25 societies. 26 Fur traders in the 1820s noted that families 27 appeared to have "controlled access to beaver lodges" 28 but that big game hunting and other fur trapping took 29 place at large. The one reference there, my lord, is 30 at page 13 of tab one -- sorry, tab 2. Page 13 of tab 31 2, which is an extract from the cross-examination of 32 Dr. Ray at line five. 33 MR. GRANT: What page was that? 34 MR. WILLMS: Page 13: 35 36 "Q Just carrying on with where your draft and your 37 final coincide, you do specifically note in 38 your report that it was beaver that could only 39 be trapped with the approval of the noble who 40 held the land in question? 41 A Correct. 42 Q And you also noted that marten appeared -- 43 there appeared to be no restrictions on marten 44 or on the hunting of large game or the taking 45 of fish. And as I understood your distinction, 46 your explanation of why this would be 47 important, you suggested that for the 27003 Submissions by Mr. Willms 1 Wet'suwet'en the 1 for the distinction was 2 that beaver meat was important to feasting? 3 A Uh-huh. 4 Q Is that correct? 5 A That's correct." 6 7 And I won't repeat all of the evidence that Dr. Ray 8 relied on to reach the conclusion, but from the 9 district reports and from Brown's reports it's quite 10 clear that there was no big game in the area. I say 11 at the bottom of the page, salmon fishing was a 12 "communal activity" "common to the Gitksan and other 13 Carrier groups" carried out by the use of fishing 14 weirs and barricades. The movement of the Hotsett 15 people to Babine Lake on the failure their fishery 16 appears to indicate that fish was a shared resource. 17 But I say that the only resource use exclusivity or 18 territoriality noted in the early historic records was 19 with respect to beaver trapping. 2 0 THE COURT: Mr. Willms, I am not — I don't remember the 21 reference to the Hotsett people moving to Babine Lake. 22 MR. WILLMS: My lord, that's in — at tab 2 at the last page, 23 page 21. This is from the evidence in chief of Mr. -- 24 of Dr. Ray. 2 5 THE COURT: Yes. 26 MR. WILLMS: And I'll just read the answer, my lord, which is at 27 page -- line 23: He said: 28 29 "Okay. We're talking primarily about the area 30 between Babine Lake, the Bulkley River Valley 31 and the Babine River at least down to the forks 32 as a primary focus of this work here. Within 33 that area in any given fishing sites for a 34 variety of reasons the fishery may fail. His 35 first winter, for example," 36 37 And "his" is referring to Brown, my lord. 3 8 THE COURT: Yes. 39 MR. WILLMS: 40 41 " -- on Babine Lake he indicates that at the 42 principal village of the lake a bunch of 43 Hot-sett came and spent the winter there 44 because their fishery had failed, which would 45 be one specific case in point where this 46 occurs. There are other references elsewhere 47 and it certainly was the company's own 27004 experience with Submissions by Mr. Willms 1 .eries of natives around them would fail from time to time and they would have to move fish between posts." Now, that was a case, I think, that related, my lord -- later on you will recall that the Hotsett people moved when the rocks fell in the river, the Hotsett people moved to Hagwilget to fish. Brown's first winter there was what year? : The winter of 1822/1823. And there he notes the Hotsett people coming to Babine lake to fish because their fishery had failed. But they had just moved to Moricetown, wasn't it in 1820? : No. 1830. : It was in 1824, my lord, that I submit that the Hotsett people moved from Moricetown to Hagwilget. All right. : I think that's primarily based on MacGillivray. It may be 1825, but Brown notes, for example, in his 1826 report that two years ago a large mass of rocks fell on the river and MacGillivray noted that as well. But even before that happened, there was apparently a failure of the fishery and the Hotsett people came to Babine Lake to fish. Now, I just on this point, my lord, my friend fortunately has put in the previous page or in his previous page to that, it's not the previous page from Volume 205. It's in the yellow book. My friend did not cite in paragraph two on page 13691 lines 30 to 45 in which Dr. Ray explains that it's his understanding from the analysis of the record that many people went and bought the fish from the Ack Koo Shaws, A-c-k K-o-o S-h-a-w-s, people, and I just ask you to note lines 31 to 45 of page 13691. It's the page immediately before the one that my friend referred you to. And it's with respect to the same matter, I believe. What line? Lines 31 to 45 refers to the purchase by the Hotsett of fish from the Babine. Yes. : Now, the paragraph -- Yes. : Back on page two. it: 3 pOStS 2 3 4 5 6 7 8 9 thai ; the f 10 THE COURT: 11 MR. WILLMS 12 13 14 THE COURT: 15 16 MR. WILLMS 17 THE COURT: 18 MR. WILLMS 19 20 THE COURT: 21 MR. WILLMS 22 23 24 25 26 27 28 MR. GRANT: 29 30 31 32 33 34 35 36 37 38 39 40 41 THE COURT: 42 MR. GRANT: 43 44 THE COURT: 45 MR. WILLMS 46 THE COURT: 47 MR. WILLMS 27005 Submissions by Mr. Willms 1 THE COURT: Yes. 2 MR. WILLMS: Yes. Dr. Ray refers time and time again to the 3 collectiveness nature of the fishery, my lord. And 4 that's also on the previous page that my friend 5 referred you to. 6 THE COURT: Yes. 7 MR. WILLMS: Although I should point out, my lord, that I think 8 the argument that was advanced to your lordship was 9 that fishing rights was a collective right. I think 10 Ms. Pinder advanced this argument along that ground 11 and it's interesting that my friend pointed out that 12 rather than the Babine people sharing with the 13 Wet'suwet'en, even though as Dr. Kari said the 14 Babine-Wet'suwet'en are one linguistic group, they had 15 to buy the fish. It's an interesting collective 16 method or collective ownership of the fishery. 17 But in any event, I carry on on page two, 18 paragraph three. The Algonquin hunting debate 19 mentioned earlier canvasses whether beaver trapping 20 territories were prehistoric or not. At a recent 21 conference devoted to a re-examination of this notion, 22 it appears that the debate may have shifted from: is 23 it "prehistoric" or "historic"? to: is it 24 "proto-historic" or is it "historic"? I say that some 25 scholars now consider that the appropriate focus for 26 investigation involves "a shift of emphasis from 27 territoriality to common property resource 2 8 management." 29 Paragraph four. Scholars also acknowledge that 30 "the concept of Indian land tenure... tended to be 31 modelled after Western European concepts." And at 32 that point, my lord, if you could turn to tab 4 and 33 this is tab 4, these were extracts that were put in 34 evidence by -- during the cross-examination of Dr. 35 Robinson. Tab 4, my lord. 3 6 THE COURT: Yes. 37 MR. WILLMS: It shouldn't be sideways. 3 8 THE COURT: No. 39 MR. WILLMS: Oh. Yes. I am sorry, my lord. It should be 40 sideways, the second page. Yes. Page two, and this 41 is an extract from Rogers, and you'll see in paragraph 42 14 at the bottom part of the page under the Land 43 Claims: An Ethical Issue it says: 44 45 "Ethnocentric viewpoints have often appeared in 46 many studies of Indian land tenure to date. If 47 the concept of Indian land tenure existed all 27006 Submissions by Mr. Willms 1 in the minds of non-Indian scholars, it tended 2 to be modeled after western European concepts. 3 Do we believe what we want to believe? The 4 answer is often yes. Thus, we must always be 5 on guard, especially in this age of litigation 6 over Indian land claims." 7 8 For a description of a native concepts of 9 territoriality pre-litigation, my lord, if you turn 10 two pages you'll find an extract from Exhibit 902-14 11 which is Dr. deLaguna and the Tlingit, and she says on 12 page 20: "I have spoken -- " it's the first full 13 paragraph on the left-hand side. 14 THE COURT: Yes. 15 MR. WILLMS: 16 17 "I have spoken of Tlingit land as divided into 18 areas, but this is probably not how the native 19 thinks of it. For him territory is rather 20 conceived in terms of points, that is, of spots 21 and localities. We are accustomed to think of 22 the land in terms of areas that are marked off 23 by boundaries. There are, or should be, no 24 gaps between these areas; the boundary of one 25 is the boundary of the next. Our geographical 26 knowledge we feel is incomplete so long as 27 there remain 'blank spaces on the map.' This 28 scheme is natural for a people who divide land 29 into acres, city blocks, half sections, or 30 national territories. As individuals we 31 differ, of course, in our ability to visualize 32 the country as map or to retain an awareness of 33 the cardinal directions as guides, but our 34 first impulse when dealing with the unfamiliar 35 is to orient ourselves with a map." 36 37 And then she says this: 38 39 "if our picture of the world is that of the 40 farmer,property-owner, and landlubber, the 41 Tlingit's is that of the traveler, especially 42 the mariner, who is concerned with places and 43 the routes between them." 44 45 That point, my lord, the point of dividing the land 46 up, that concept was put to Dr. Daly. And that's at 47 page 6 of this yellow tab. I have just put -- I have 27007 Submissions by Mr. Willms 1 just read Dr. deLaguna to Dr. Daly, my lord, and then 2 I say at line eight: 3 4 "And if you could just read the bottom, the 5 rest of that paragraph to yourself, Dr. Daly. 6 That's an accurate description of what might be 7 called European cultural baggage, isn't it? 8 A The European system of dividing land into metes 9 and bounds and -- yes, you're right. 10 Q Now, what -- 11 A And it was quite exciting that a similar 12 conception of land was predominant in the area 13 that I have been studying, and that others have 14 noted in the region too." 15 16 Just before I refer to Dr. Robinson, my lord, this 17 would be very exciting because it would be the only 18 location. It's not on the coast because that's where 19 Dr. deLaguna was, on the coast. And Dr. Robinson 20 explored the coast as well. And the Algonkian hunting 21 debate deals with what's coming across the country and 22 it's a debate about how the land was divided up and 23 whether it was historically or proto-historically and 24 yet right here in the middle of everything Dr. Daly 25 and Dr. Mills and Mr. Brody say voila, we've found it. 26 European concepts of dividing the land up, sitting 27 here all alone in an island in the middle of North 28 America. Well, I say, my lord, at the top of page 3 29 of my argument, again, that Dr. Robinson's opinion 30 that notions of territoriality, if they existed, 31 existed in respect of specific resources and varied 32 from resource to resource, is more in accord with 33 modern thoughts on aboriginal territoriality than the 34 Eurocentric notions of the plaintiffs' experts. And 35 on that point the two extracts from Dr. Robinson I'd 36 like to read. The first one is at page 21, my lord. 37 At the top of the page at line one I say: 38 39 "And in your report you have mentioned 4 0 ownership from time to time. Can you explain 41 what you mean in your report when you use the 42 term owned or ownnership? 43 A I'm referring to some kind of assertion of a 44 right to use exclusively. 45 Q Okay. To use what exclusively? 46 A To use a specific resource or 47 resource-producing area exclusively. 27008 Submissions by Mr. Willms 1 Q And can you do you have an example of that 2 from the descriptive history? 3 A Well, in the Fort Kilmaurs journals and also in 4 the Fort St. James district reports there's 5 references to beaver hunting territories that 6 seem to have been owned by certain individuals, 7 who are call respectable men. 8 Q Now, when you use the word territory, what do 9 you mean by territory? 10 A I'm referring to some discrete area defined in 11 space or definable in space over which some 12 kind of ownership, as I have defined it, is 13 expressed. 14 Q All right. 15 A So some kind of use right is expressed over 16 discrete resource or area. 17 Q And can you give an example once again from say 18 the descriptive history of a territorial use 19 right, exclusive use right? 20 A Well, again there seem to be territories 21 associated with beaver or beaver trapping in 22 the historic records, such as the 1822 and 1826 23 district reports, Fort St. James." 24 25 And I will just skip down to line 46, my lord, where I 26 ask Dr. Robinson: 27 28 "Now, do these ownership rights, that is the 29 right to exclusive use of a particular resource 30 and the territoriality associated with it, does 31 that vary refrom resource to resource or is it 32 constant? 33 A It seems to have varied. Probably better 34 examples I can draw on are from the coastal 35 area, where discrete ownership would be 36 asserted sometimes with regards to berrying 37 grounds or berry patches and yet they seem to 38 have been used by all the women members of a 39 community. In contrast to that, and I'm using 40 another historic example, it seems that sea 41 otter hunting was communal, and there were very 42 specific regulations regarding who got what, 43 allocate what part of the catch." 44 45 Now, what I suggest, my lord, before I read the last 46 extract from Dr. Robinson, is that that is -- and I am 47 going to deal with it a little bit further later on in 27009 Submissions by Mr. Willms 1 terms of some of the other expert discussion that's 2 been going on, but that accords, my lord, with what 3 Brown saw. Marten could be taken anywhere. Big game 4 could be taken anywhere, if you could find it. Only 5 beaver, there was only territoriality with respect to 6 beaver and salmon fishing was a communal right. It 7 was a communal resource. I'd like to go to page 25 in 8 the yellow book, my lord. 9 MR. GRANT: Just for -- is the Brown reference that my friend 10 just alluded to in his statement, are they in this 11 tab? 12 MR. WILLMS: Well — 13 MR. GRANT: They are not cited in this tab or are they? I just 14 want it for my own reference. 15 MR. WILLMS: Well, my lord, I have been referring to Brown. 16 MR. GRANT: No. Just now. 17 MR. WILLMS: I think the best place for my friend to look for 18 the Brown references are in Dr. Ray's report. They 19 are quite clearly set out in Dr. Ray's report. There 20 are some in this section, but they are not all here. 21 MR. GRANT: No. Just the references you were relying on for 22 your proposition just now. 23 MR. WILLMS: Yes. It's the references I have been relying on 24 for the last two days. 25 THE COURT: Page 25. 26 MR. WILLMS: Page 25 at the bottom, line 47: 27 28 "Dr. Robinson, I have put up on the easel 29 Exhibits 646-9A and 646-9B, that is the top 30 copy of these proceedings. And these depict 31 the territories that the plaintiffs in this 32 case assert ownership and jurisdiction over. 33 They assert that they have exercised ownership 34 and jurisdiction over these territories since 35 time immemorial. And I would like you to refer 36 to the period he covered by your report, and 37 ask you to comment on the opinions in your 38 report and relationship between the opinions in 39 your report and the assertion by the plaintiffs 40 that that is what Gitksan and Wet'suwet'en 41 territoriality looked like in the period 42 covered by your report? 43 A Well, I think it's unlikely that that map 44 represents traditional or late prehistoric use 45 or occupancy of the area. As I stated earlier, 46 I see more a situation -- or I imagine a 47 situation where specific resources or patches 27010 Submissions by Mr. Willms 1 of resources were used regularly and some kind of claim was made to those. And that as village sites were occupied and inhabited, these were linked up by a system of trails and roads. But I don't really have any understanding from any of the reading I've done that there would be contiguous areas such as are laid out on this map. And in addition to that, I also suggest that there is fairly good evidence that territorial holdings were extended in both the northern and southerly direction during the proto-historic period." That, my lord, is a reference to the Gitksan moving up into the Upper Skeena and the middle and the Upper Nass. That's the northward movement into the area that the Tsetsaut lived in. Why would they move north during the proto-historic period? : Chasing furs, my lord. Why? Proto-historic, what are they going to do with their furs? : The proto-historic means, my lord, that the historic period has arrived in an adjacent area and has arrived on the coast. So you are talking about the proto-historic period within the Claim Area? : Within the Claim Area and my use of language, my lord, throughout is proto-historic within the Claim Area, because what is proto-historic in this Claim Area is historic for a hundred -- hundreds of years in eastern Canada and historic on the coast since at least 178 — the 1780s. It seems to me that the historic period didn't begin in the Claim Area then until -- : Brown. Brown. When did MacGillivray come? : 1833 was MacGillivray. Brown was the 1820s. Yes. : So the historic period didn't come until Brown was in the Claim Area and he only was in two locations in the Claim Area, my lord. He went to Hotsett once and we have no record of that and -- of that trip and he went to Weepsim twice or down the Babine River to Weepsim twice. And MacGillivray established a -- no, he doesn't 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 THE COURT: 20 21 MR. WILLMS 22 THE COURT: 23 24 MR. WILLMS 25 26 27 THE COURT: 28 29 MR. WILLMS 30 31 32 33 34 35 THE COURT: 36 37 MR. WILLMS 38 THE COURT: 39 MR. WILLMS 40 THE COURT: 41 MR. WILLMS 42 43 44 45 46 47 THE COURT: 27011 Submissions by Mr. Willms 1 establish a fort. 2 MR. WILLMS: He didn't establish anything. He just — 3 THE COURT: Passed through. 4 MR. WILLMS: Passed through. But the point noted and why I say 5 that the proto-historic had been carrying on for some 6 time in this area was Brown noted that there was a 7 significant trade to the coast when he got there. By 8 the time Brown got there the traders were already 9 coming up from the coast and had been apparently for 10 some time. And at least as your lordship might recall 11 that, but if you don't I'll -- Mackenzie noted 12 European trade goods, Russian trade goods in 1793. 13 Harmon, when Harmon got into the area of New Caledonia 14 he noted goods which he said were traded European 15 trade goods which came from the A-te-nas who traded 16 from their coastal neighbours. 17 THE COURT: All right. 18 MR. WILLMS: Now, in paragraph five, my lord, according to Dr. 19 Ray the "land tenure system described by Brown applied 20 equally to the Atnahs as well as the Babines." Dr. 21 Ray confirmed that, "assuming that the fur trade was 22 important to the Indians in respect of beaver 23 trapping, it would likely have the same importance to 24 both the Gitksan and the Wet'suwet'en and the Babine." 25 He also said that while beaver appeared to be 26 important for feasting for the Carrier, the Gitksan 27 considered the meat unclean. Therefore, I submit, 28 consumption of beaver at feasts would not have the 2 9 same importance to the Gitksan and Wet'suwet'en. And 30 in terms of the importance of beaver for feasting as 31 being the reason for all of this, my lord, I say that 32 the plaintiffs' acknowledged the difficulty in and 33 limitations on packing beaver meat in addition to 34 beaver pelts in from the traplines. 35 I will just refer to the very last extract at tab 36 five, which is an extract from the evidence of Alfred 37 Mitchell. And it's at transcript 55, my lord, page 38 3308, and Miss Mandell is leading the evidence. Line 39 13: 40 41 "Q When you are packing beaver out of the 42 territory, do you prepare the beaver in any way 43 for to make it lighter to pack? 44 A Yes. 45 Q What do you do to make the beaver lighter? 46 A Like reminds me of first day, we prepared Tsa 47 k'ayh. We dry it for about a week and get 27012 Submissions by Mr. Willms 1 pretty light. We catch two big beaver fresh 2 and that's all they can pack. They are heavy 3 but once it's dried, you can pack about six 4 beavers, maybe more." 5 6 The feasting of the beaver, my lord, and all of the 7 references to feasting and you might recall especially 8 the Harmon description, it's a whole beaver, it's not 9 dried beaver that's being passed around. It's a whole 10 beaver. And in light of what I say is probably pretty 11 obvious when you consider the weight of a beaver, you 12 know, there isn't going to be a great deal of 13 competition out there for everybody to run out and 14 pack back at most two beaver for a feast in my 15 submission. Now, I say in paragraph six -- whereas, 16 furs are easy to pack out, my lord, you don't even 17 need to take the meat. You can just pack the furs. 18 You can pack 20 furs maybe. 19 Now, paragraph six. For furs other than beaver, 20 such as marten, there was no territoriality 21 whatsoever. Now, debt at the Hudson's Bay forts was 22 in "made beaver." Marten were not as valuable as 23 beaver - three marten pelts being approximately 24 equivalent to one made beaver. And that is the 25 evidence of Dr. Ray. The reasons common to the Atnahs 26 and the Babines to husband beaver could have been that 27 it is "predictable," "stationary" and "easier than 28 other animals to manage by territories." My lord, if 29 you could turn at tab 6 to page four, and this is an 30 extract from Exhibit 1191A-53. 31 THE COURT: What's number again? 32 MR. WILLMS: 1191A-53. 33 THE COURT: All right. 34 MR. WILLMS: And the title is on the previous page, Common 35 Property Resources and Hunting Territories. But 36 here -- and this is the recent revisiting of the 37 Algonkian hunting debate. This is an extract from 38 that which was put by the plaintiffs to Dr. Robinson. 39 THey didn't put that extract to her, though. But on 40 page 148 in the first paragraph, my lord, you'll see 41 about five lines from the bottom "beaver is a 42 predictable resource." 4 3 THE COURT: Yes. 44 MR. WILLMS: 45 46 "Beaver is a predictable resource, as most 47 stationary resources must be." 27013 2 3 4 5 6 7 Submissions by Mr. Willms 1 And then a conclusion is drawn from that over on to the next extract, which is the next page, up at the top of page 154 in the left-hand side: "The beaver has a special place in the resource use system:" 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT: MR. WILLMS: Yes, "it is an important species, for both meat and fur, and is easier than other species to manage by territories. By contrast, the otter, another important fur species, is not a sedentary animal and cannot be managed by territories. The hunter who encounters an otter does not go looking for the 'owner' of that territory; he shoots the otter first and informs the hunting boss later." Now, what you see from the Brown record, my lord, is the resource exclusivity limited to beaver, a predictable resource. Now, I say in paragraph six, carrying on, my lord, that the beaver was also "one of the staples" of the fur trade. I say that it is most unlikely that feasting was the reason for the importance of the beaver in the Claim Area in proto-historic and early historic times that. It is far more likely that the part that beaver played in the market economy, combined with its relative predictability and the ease of management, led to the beaver trapping exclusivity and territoriality noted by the Hudson's Bay traders. I say in addition to this strong indication in the historic record, many ethnologists including Dr. Adams and Dr. Kobrinsky, and I am quoting from Dr. Kobrinsky here. He concludes that: "... a complex of territory-owning matrilineal crest divisions led by a class of potlatching divisional chiefs, are manifestations of the fur trade period... The system of phratry territories is essentially a system of fur trapping areas adapted to regulate access to fur resources, 27014 Submissions by Mr. Willms 1 probably with a to checking hostility in 2 the heat of the competition for claims and 3 possibly, too, with a view to administering 4 problems of conservation. This is reminiscent 5 of Helm's and Leacock's conclusion about the 6 (primarily) Algonkian hunting territories that 7 'In fact, the 'territories' are, properly 8 speaking, not hunting grounds, but areas 9 surrounding traplines. 10 11 The diffusion of the coast completion of 12 territorial crest divisions was probably 13 triggered by the proprietary claims of 14 important hunters over specific beaver lodges 15 within their customary hunting areas. Personal 16 ownership of beaver lodges in the early 17 contact-traditional period has been widely 18 reported." 19 20 And also he lists people for the Stuart Lake Carrier. 21 Over the page at the top of page six, my lord. I 22 say in an attempt to bolster their own opinions, 23 contrary to those stated above, Dr. Daly attempted to 24 diminish the statements of Dr. Adams' informants who 25 were hereditary chiefs and Dr. Mills and Dr. Kari both 26 wrongly stated that Dr. Kobrinsky did no field work in 27 Moricetown and attended no feasts when in fact he 28 spent three months in Moricetown and did attend 29 feasts. 30 When cultural ecological theory is brought to bear 31 on the question, theories of territoriality and 32 resource use generally accord I say with common sense, 33 that is, where the resource is close at hand and 34 "there is no need to go beyond the village bases very 35 far, then it's unlikely that people would have (gone 36 beyond) in terms of their resource exploitation". It 37 is only where competition for those resources exist 38 that territoriality may emerge. That is, 39 "territoriality is possible only when the benefits 40 from holding a territory exceed the costs of defending 41 it". And page nine -- sorry, tab 9 of the yellow 42 book, my lord. Tab 9, page nine. This is a 43 discussion by Berkes, this is in the Algonkian hunting 44 revisited. On page 14 the author says this: "In 45 general," under Preconditions for Territoriality on 46 the right-hand side? 47 THE COURT: That's got to be 147, doesn't it? 27015 Submissions by Mr. Willms 1 MR. WILLMS: On 147, yes. On 147. 2 3 "In general, it is held that territoriality is 4 possible only when the benefits from holding a 5 territory exceed the costs of defending it. 6 The concept was originally borrowed from cost 7 benefit studies in economics and used in 8 ecology for analysing the feeding territories 9 of birds. It was adapted for use in ecological 10 anthropology by Dyson-Hudson and Smith. These 11 authors considered that a resource must be 12 sufficiently predictable and abundant to permit 13 the development of a geographically stable 14 territorial system for its use. However, 15 ongoing work in ecology suggests at least one 16 additional condition. It has been found that 17 territoriality occurs within certain maximal 18 and minimal limits in the abundance of the 19 resource in question. It does not occur if the 20 resource is very scarce, relative to demand, or 21 superabundant." 22 23 Now, my lord, in this case we have, except for a 24 failure of salmon from time to time, a resource that 25 has been described as superabundant: the fish. And we 26 also have from the Brown records resource described as 27 very scarce, which is big game. 28 Now, I say, my lord, at the bottom of page six of 29 the argument that this explains the existence of 30 beaver trapping territoriality during the fur trade 31 including the -- and this is from Dr. Bishop and Dr. 32 Ray. They call it the "middleman era, indirect trade 33 era," that's the prehistoric period and explains why 34 there was no other territoriality. There is no 35 credible evidence for prehistoric competition for 36 fish, fur-bearing animals or big game in the Claim 37 Area. And that's from Dr. Robinson. 38 I would like to put, my lord, Mr. Brody, if your 39 lordship can turn to page 13 of the yellow book at tab 40 9. Now -- and I want to suggest before I -- it's at 41 page 13. Before I read the extract from Mr. Brody's 42 cross-examination I want to suggest, my lord, that I 43 am not trying to make this a very simple proposition. 44 It's not that simple. But it can be stated in 45 relatively simple terms as Berkes has done it and as 46 Dr. Robinson has done it. That is, an explanation for 47 why you would have territoriality and an explanation 27016 Submissions by Mr. Willms 1 for why that territoriality would differ from resource 2 to resource. 3 THE COURT: Yes. 4 MR. WILLMS: Now, here one of the plaintiffs' experts was given 5 a golden opportunity to come up with the rebuttal 6 proposition. And that -- this is Mr. Brody and the 7 question starts at line 18: 8 9 "Why would hunter-gatherers divide land up 10 anyway? 11 A Well, you are asking one of the most difficult 12 questions that anthropologists face and -- 13 Q Well, instead of characterizing the difficulty, 14 you have expressed opinions on this, haven't 15 you? 16 A There is a connection between -- 17 Q Well, can you express -- can you answer my 18 question? 19 MR. JACKSON: Well, Mr. Goldie has asked a 20 question. Perhaps he could give the witness an 21 opportunity to respond. 22 23 And then your lordship: 24 25 "Well, I took the sense that the witness was 26 seeking to discuss something else without 27 answering the question. The question was a 28 very simple one. Why would hunter-gatherers 2 9 divide up the land anyway? That's the 30 question. It seems to me that is one that is 31 capable of being answered or of not being 32 answered. No discussion is required. We can 33 have discussion afterwards if the witness 34 wishes. 35 A It's a — 36 THE COURT: Do you understand the question? 37 A It's a simple question, my lord, I agree. But 38 it's one that has a rather complicated answer. 39 First of all, hunter-gatherers in my experience 40 do divide up the land in various ways, either 41 by convention over long periods of time. There 42 is an association between families and areas or 43 between subcultural groups in areas, and there 44 is also a connection between hunter-gatherers 45 who are focused on a large resource which comes 46 to them and a great preoccupation with 47 territoriality. And in the anthropological 27017 Submissions by Mr. Willms 1 literature there to be evidence for a 2 simple correlation between peoples who rely on 3 a large resource that comes to them at one 4 place, thanks to which they spend a part of the 5 year there in large numbers, the people I mean 6 are there in large numbers, a correlation 7 between that and a great deal of territoriality 8 and preoccupation with property relations and 9 boundaries and so on. Now, that's not an 10 explanation of why it happens. Only that there 11 is this correlation. And if you ask me why it 12 happens, I would want you to give me time to 13 think and try and review the anthropological 14 theory in this matter." 15 16 And he didn't answer the question, my lord. What he 17 did was he -- if I can put it this way: He dodged and 18 he weaved and he ducked and he never did answer it. 19 And the reason why I submit he didn't answer it, my 20 lord, is because there is no answer. It doesn't make 21 sense for hunter-gatherers to divide up the land in 22 the absence of some resource-related reason. 23 THE COURT: Do you want to take the adjournment now. 24 MR. WILLMS: Yes, my lord. 25 2 6 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING RECESS) 27 28 I hereby certify the foregoing to 29 be a true and accurate transcript 30 of the proceedings transcribed to 31 the best of my skill and ability. 32 33 34 35 36 37 Laara Yardley, 38 Official Reporter, 39 UNITED REPORTING SERVICE LTD. 40 41 42 43 44 45 46 47 27018 Submissions by Mr. Willms 1 (PROCEEDINGS RESUMED AT 11:20) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Willms. 5 MR. WILLMS: My lord, I was on page 7, paragraph 10. 6 THE COURT: Yes. 7 MR. WILLMS: The evidence of Dr. Robinson, it is submitted, 8 should be accepted over the conflicting evidence in 9 this case. She envisaged prehistoric and 10 protohistoric territoriality and resource use 11 involving lines of communication between nodes of 12 activity where there may have been some claims to 13 specific resource exclusivity at the nodes of 14 activity. She said: 15 16 "It is important to emphasize the limitations 17 inherent in any theory of aboriginal land use 18 which attempts to reconstruct a 'reality' that 19 existed before any relevant written records 20 were kept and long before the memory of living 21 plan. In my research I have discovered no 22 conclusive evidence that suggests that, prior 23 to the advent of European influence in the 24 claim area, the Gitksan and Wet'suwet'en 25 lineages and families identified ownership 26 rights to large and precisely defined tracts of 27 hunting territories." 28 29 And over onto the next page, this is Dr. Robinson 30 again, she said: 31 32 "Gitksan and Wet'suwet'en claims of traditional 33 ownership and occupation of certain territories 34 can be challenged on the basis that they do not 35 account for developments which occurred during 36 the protohistoric period. These changes 37 include adjustments in boundaries between the 38 Gitksan and Wet'suwet'en and their neighbours 39 as well as more precise delineation of 40 boundaries within and at the margins of Gitksan 41 and Wet'suwet'en territories. Both processes 42 of territorial demarcation are linked to and 43 were stimulated by indirect contact with 44 Europeans through the eighteenth and early 45 nineteenth centuries." 46 47 Therefore: 27019 Submissions by Mr. Willms 1 "One may expect that some form of organized 2 control would have been exercised over access 3 to fisheries and other resources which were 4 necessary for survival and over the local 5 trails and bridges which facilitated 6 prehistoric trade networks but prior to the 7 intensification of pressure on interior fur 8 resources sparked by European demand for furs 9 there would appear to have been no need for a 10 sophisticated and elaborate body of rules 11 governing access to resources or for extensive 12 and defined areas of land for their 13 exploitation." 14 15 16 THE COURT: Well, what in the first quote, what contact does she 17 talk about in the eighteenth century? 18 MR. WILLMS: Contact through the early eighteenth and early 19 nineteenth centuries. The eighteenth century, my 20 lord, was the Russian trade that she suggested and 21 that Dr. Macdonald writes about. That's an overland 22 trade that comes across Asia. 23 THE COURT: All right. 24 MR. WILLMS: And comes -- I read some extracts where ship 25 captains were surprised to find metal goods, European 26 metal goods in the possession of the people when they 27 first sighted them. That's the eighteenth and early 28 nineteenth centuries, my lord. 2 9 THE COURT: Yes, thank you. 30 MR. WILLMS: Over to page 9, the plaintiffs asserted in their 31 outline that Dr. Robinson's opinions ignored Trader 32 Brown and ignored Dyen and Aberle. And I say, as to 33 Dr. Robinson in her evidence, that she considered both 34 Brown and Dyen and Aberle, and she said with respect 35 to Trader Brown that his observations fit neatly 36 within her opinions. And she also said that Dyen and 37 Aberle agreed with her in respect of the borrowing of 38 culture, just not the matrilineality. 39 Not surprisingly, I say in paragraph 13, Dr. 40 Robinson's view of resource use and territoriality is 41 evident at the present time. Where there are 42 registered traplines and animals trapped on registered 43 traplines, there appears to be territoriality, 44 although even this theory is not universally accepted. 45 There are some people who seem to trap where they feel 46 like. There have been and still are disputes between 47 trappers on the different traplines. 27020 Submissions by Mr. Willms 1 But animals, such as moose and deer, are hunted 2 wherever they are available without the hunter 3 obtaining permission from other plaintiffs to hunt. 4 As Mr. Shelford said about Mathew Sam when my friend, 5 Mr. Grant, asked him in cross-examination whether or 6 not Mathew Sam "may have hunted on his trapline",(but 7 Mr. Shelford did not know about it. Mr. Shelford said 8 "He may have, but, knowing Mathew Sam", and he did 9 know him quite well, "I think he was a little smarter 10 than that. I think he'd get game closer to home". 11 And on that point, my lord, at tab 14, I ask your 12 lordship -- at tab 14 of the yellow book -- to turn to 13 page 20. This is re-examination of Mr. Morris by Mr. 14 Adams, it's from Exhibit 671-A, and starting at the 15 top: 16 17 "Q Did you hunt for other animals as well? 18 A On the base of that mountain on both sides 19 up a ways, don't know how far, trapping, 20 trap marten, fisher. 21 Q Are there any other animals that you shot? 22 A The whole area of that mountain, around the 23 base of the mountain, there is -- get some 24 fox, otter and beaver. 25 Q Did you shoot any moose? 26 A Moose or -- needed moose, we shot moose. 27 Too hard and heavy to pack so we try to 28 take them close as we can." 29 30 And your lordship has heard evidence about moose 31 hunting close to the roads, moose hunting close to 32 where people lived, a proposition which I suggest, my 33 lord, accords with common sense, the suggestion put to 34 Mr. Shelford that Mathew Sam may have gone moose 35 hunting on Mathew Sam's trapline some 70 miles away. 36 Had Mathew Sam been here he probably would have 37 laughed at that question in my question. He said "I 38 get moose right off my doorstep like everybody else in 39 this area". 40 Now, I say that you contrast -- and some of this 41 evidence, my lord, will be gone into in a little more 42 detail by my colleague, Miss Sigurdson, later on in 43 the lay evidence. I say you contrast this evidence 44 with Dr. Mills' conclusion that "one of the firmest 45 laws in the Wet'suwet'en system is you do not go on 46 someone's territory where you do not belong without 47 any permission". Well, I submit, my lord, as Olive 27021 Submissions by Mr. Willms 1 Ryan said "Today no one obeys the traditional rules of 2 our territories and boundaries". And the evidence is 3 consistent with that, people hunt where they want. 4 Now, in the list of people, my lord, at the 5 beginning of page 15, I've added another affidavit of 6 the affidavit of Mr. Fletcher's, and I would ask if 7 your lordship would add the words "Mr. Fletcher" after 8 "Mr. Shelford". 9 THE COURT: Yes. 10 MR. WILLMS: Some of these people gave evidence in court and 11 some of them gave evidence by way of affidavit, but I 12 say that Mr. Hobenshield, Ms. Peden, Mr. Tourand, Mr. 13 Shelford, Mr. Fletcher, and Mr. Steciw, the people who 14 have either spent a great deal of their life in the 15 claim area or have travelled extensively in the claim 16 area, or both, all said that in the hunting of animals 17 or the exploitation of resources away from roads or 18 where people lived, there was little aboriginal 19 activity except for traplines. And I say at the top 20 of page 11, according to the plaintiffs' own evidence, 21 exceptionally productive areas are admittedly not 22 exclusive. That's from Dr. Daly. That reflects right 23 back to the extract I put to your lordship before the 24 break about super abundance, where there's super 25 abundance, that's one end of the scale, where you 26 wouldn't have any exclusivity, and the other end of 27 course is very scarce. 28 This view of resource use and territoriality also 29 likely accounts for Dr. Mills' use, in her draft 30 report, of the word "trapline", when describing the 31 plaintiffs' resource use and territoriality. Dr. 32 Mills changed this to "territory" in her final report 33 saying that the words in Wet'suwet'en for trapline and 34 territory are the same. Now, more than that, my lord, 35 and I would ask your lordship to turn at tab 16 to 36 page 4, she changed a couple of other things as well. 37 MR. GRANT: Sorry to interrupt, I just want to say regarding 38 paragraph 15, my lord, I think my friend certainly, at 39 least with respect to Ms. Peden, Tourand and 40 Hobenshield, his suggestion must be relying on their 41 uncross-examined affidavit, because all three of them 42 certainly appear to vary that proposition my friend 43 sets out there, at least those three. 44 MR. WILLMS: Yeah, my friend can make that argument to whatever 45 avail. I don't know, I haven't seen that evidence, 46 but I am sure he'll draw that evidence forward in 47 reply. 27022 Submissions by Mr. Willms 1 MR. GRANT: Thank you. 2 MR. WILLMS: We're all looking forward to that. Now, at page 3 4 -- page 3, my lord, are minutes at -- I'm in the 4 yellow book. 5 THE COURT: Yes. 6 MR. WILLMS: The first page is at page 3. 7 THE COURT: 3? 8 MR. WILLMS: If you go to page 3, the notes that I'm referring 9 to are from the Wet'suwet'en-Sekanni-Carrier Overlap 10 Feast of April 6th, 1986, and you'll see it's Exhibit 11 82. But the extract that I want to read is on the 12 next page, and here's what was said at the feast, 13 about the middle of the page, the three-hole punch 14 part-way through the line "We know all the traplines". 15 THE COURT: Yes. 16 MR. WILLMS: 17 "We know all the traplines. The chiefs know all 18 the traplines where they are. Everybody who 19 owns the trapline, they benefit from it. 20 Amongst all our native people, we all know we 21 use our land, wherever it is located." 22 23 Now, that is what was said at the feast, this is the 24 transcript. Now, this is what, if you turn to page 6, 25 you will see what Dr. Mills did, and the quote is 26 below the middle of the page, and here she's 27 purporting to quote from the feast, but she says this: 28 29 "We all know the territories." 30 31 Not traplines: 32 33 "We all know the territories. The chiefs know 34 where all the territories are. It has always 35 been worked in the feast. The chiefs that take 36 a name, they are the ones that receive the 37 territory. Amongst all our native people, we 38 all know we use our land, wherever it is 39 located." 40 41 There are a number of other instances, my lord, and 42 they're all at this tab, or some of them are at this 43 tab, where what Dr. Mills did was she took the word 44 "trapline" from this overlap feast and changed it to 45 "territory" in her final report. 46 And I say, my lord, in paragraph 17, that it 47 appears linguistically and in fact, that "trapline" 27023 Submissions by Mr. Willms 1 and "territory" are interchangeable words and concepts to the plaintiffs, and that they mean trapline. The remarkable concordance between Exhibit 24 and Exhibit 646-9A and 9B lends credence to this. Exhibit 24 is what? Exhibit 24 is the trapline map, my lord. Yes. And the alienation series. Yes. And 9A and 9B are the plaintiffs' claim maps. Yes. Now, Thomas George placed the dividing up of the traplines, I say, in the historic period, and that's at page -- if you go to tab 17, tab 18 -- no, 17, there is no 18. And the second page there is the first page of a letter dated September 7th, 1945. Sorry, tab 17? 17. Page? Second page. Thank you. And it's the first page of a letter from Thomas George to the Indian Agent of September 4th, 1945. Yes. And what Thomas George says on the second page, starting at the top, he says: "Remember at the meeting in Telkwa when the older people who knew better swore to prove that the lower lake was given to our ancestors according to Indians rites years" -- "And years ago". "-- years and years ago and lately was known as my Uncle Joseph's trapping ground. Our Uncle Joseph now is the fifth generation from the time this trapping place was given to our ancestors. In our family, according to Indian ways, Uncle Joseph is still the owner of the lower lake and its vicinities." So he suggests there, and that's a suggestion, my lord, that also -- I won't take your lordship to the extract, but that's a suggestion the five generations also appears from Dr. Steward and for the Stuart Lake area. 2 3 4 5 THE COURT: 6 MR. WILLMS 7 THE COURT: 8 MR. WILLMS 9 THE COURT: 10 MR. WILLMS 11 THE COURT: 12 MR. WILLMS 13 14 15 16 17 THE COURT: 18 MR. WILLMS 19 THE COURT: 20 MR. WILLMS 21 THE COURT: 22 MR. WILLMS 23 24 THE COURT: 25 MR. WILLMS 26 27 28 29 30 31 32 33 THE COURT: 34 MR. WILLMS 35 36 37 38 39 40 41 42 43 44 45 46 47 27024 Submissions by Mr. Willms 1 MR. GRANT: Does my friend make reference, I haven't checked 2 through the tab, to where Mr. Brody actually spoke to 3 this very letter? 4 MR. WILLMS: Gee, I was hoping my friend would direct us in 5 reply to Mr. Brody's illuminating comment on that 6 letter. 7 MR. GRANT: Thank you. 8 MR. WILLMS: Yes. Now, I say, my lord, at the bottom of page 9 11, that if you go back five generations prior to Mr. 10 George or Mr. Steward, who are both writing at the 11 same time, they're both writing in the 40's, that puts 12 the dividing up of traplines at about the turn of the 13 nineteenth century, coinciding with the -- or if I can 14 put it this way, shortly preceding the observations of 15 Harmon, Brown and Connelly. 16 I say on page 12 in paragraph 18 that the 17 plaintiffs have attempted to glean notions of general 18 territoriality in the historic period through Dr. 19 Galois' opinions on certain incidents that took place 20 in the nineteenth century. The main incidents 21 referred to were the Kitsegukla fire, the Collins 22 Overland Telegraph, and the Cassiar Pack Trail 23 incidents, the Youmans murder, the Kitwancool Jim 24 affair, and the laying out of reserves. And within 25 each incident, Dr. Galois attempted to find European 26 notions of assertion of ownership or jurisdiction. 27 I'm going to deal with each in turn. 28 The Kitsegukla fire, my lord, was sited by Dr. 29 Galois as an example of the application of Gitksan law 30 to non-natives to settle a dispute, and there the fire 31 was apparently started by accident by some -- a group 32 of non-natives and some natives from the coast who 33 didn't put out a camp fire, and it resulted in the 34 burning of Kitsegukla. As a result, the inhabitants 35 stopped at least two canoes from ascending the Skeena 36 until Mr. Hankin came down from Hazelton and obtained 37 their agreement to stop. And once Mr. Hazelton -- 38 sorry -- once Mr. Hankin came down from Hazelton they 39 did stop. Subsequent to this, the chiefs at 40 Kitsegukla were summoned by Trutch to attend at the 41 coast in respect of closing of the river, and there 42 was this semantical back and forth that I had with Dr. 43 Galois about whether they were invited to come down or 44 whether they were summoned to come down. Well, I say 45 in any event it was an invitation they couldn't refuse 46 in the circumstances, since the people that went to 47 invite them were armed, and according to one native 27025 Submissions by Mr. Willms 1 version, arrested them all and took them down to the 2 coast. 3 On the coast -- at the coast, it was made clear 4 that stopping the traffic on the Skeena River was 5 unacceptable conduct and must stop. There was a show 6 of force, and I say that notwithstanding Dr. Galois' 7 attempts to convert the incident at the coast into a 8 resolution of the dispute by a feast, by calling it a 9 feast, the blockade was actually stopped shortly after 10 it commenced. The blockade was stopped by Mr. Hankin, 11 it wasn't stopped by the events at the coast. And I 12 say that the circumstances fell far short of a feast 13 or anything close to a feast that your lordship has 14 heard about. I also say that native methods of 15 resolving disputes had been terminated some years 16 before. I say that there was no negotiation that took 17 place at the coast but an assertion that Canadian law 18 applied, and there was payment of money that today 19 would be much like payment of flood relief or disaster 20 relief. The Kitsegukla fire incident, in my 21 submission, does nothing to advance the Gitksan or 22 Wet'suwet'en claims to territoriality, nor does it 23 support claims to an assertion that Gitksan law 24 applied to resolve the fire incident. But, here I 25 make the point again, my lord, that the Kitsegukla 26 people acted in concert as a village, and I say that 27 the incident reinforces an earlier contention that the 28 unit of identity, at least in the protohistoric 29 period, was the village, not the house, but the 30 village. 31 Now, Dr. Galois also attempted to categorize the 32 Cassiar Pack Trail incidents, as well as some 33 difficulties that the C.O.T. had at Hagwilget and 34 Kispiox as being examples of terms being imposed to 35 control the entry of Europeans into the claim area. 36 Now, with the C.O.T., what happened prior to the 37 C.O.T. reaching Hagwilget was that there had been 38 rumours fostered by the Coast Indians who were trading 39 up river among the Indians that the telegraph lines, 40 if they crossed the river, would ruin the salmon run. 41 And I say that the discussion that took place at 42 Hagwilget had nothing to do with controlling terms of 43 entry. And there was a minor disagreement based on a 44 fear fostered by the Coast Indians that the telegraph 45 wire would stop the fish, and the Coast Indians, I 46 submit, spread that rumour in order to make sure that 47 they weren't competed with from the east. 27026 Submissions by Mr. Willms 1 At paragraph 23, the Cassiar Pack Trail incidents 2 were characterized at the time by Reverend Tomlinson 3 in solely economic terms completely unrelated to 4 territoriality. If your lordship could turn to tab 5 23, page 2, this is from Tomlinson's journal, and it's 6 on page 282 of the journal on the right-hand side, 7 beginning with "Edward and Legaic". 8 THE COURT: On the right-hand side, yes. 9 MR. WILLMS: 10 "Edward and Legaic" had reached the forks on 11 Saturday evening, and they had held service 12 twice on Sunday with the natives there. Many 13 changes have taken place here since I visited 14 their place two years ago. First, the Indians 15 have left their old ranch and built a new 16 village half a mile higher up the river. Then 17 there were five stores and about twenty-five 18 white men; now there are but two stores and 19 four or five white men. This is owing to the 20 Peace River mines being deserted. I may here 21 add that this has also affected the Indians 22 most seriously. Many among them who, during 23 the gold excitement, were making their hundreds 24 of dollars by packing, et cetera, cannot now 25 make their tens. The result of such a sudden 26 reaction has been to make them steal from and 27 browbeat the few white men who come into their 28 neighbourhood. Last summer the Indians levied 29 blackmail upon and otherwise maltreated some 30 packers and men driving cattle across country 31 to the new gold fields at the head of the 32 Stickeen River." 33 34 Now, what I suggest, my lord, is that Dr. -- Reverend 35 Tomlinson was there and observed what was going on and 36 gave two descriptions of what the forks looked like, 37 what it looked like two years before, and I suggest 38 that his conclusion of the motivation for the Cassiar 39 Pack Trail Incidents is on the mark. Dr. Galois' 40 conclusion, that is it had to do with controlling 41 terms of entry into the area, is, in my submission, 42 off the mark. 43 THE COURT: We don't have a date for this. 44 MR. WILLMS: This is 1874 is when he went on the journey. 4 5 THE COURT: Thank you. 46 MR. WILLMS: And it was printed in 1875. I say, back in my 47 argument, that there appears to be little doubt that 27027 Submissions by Mr. Willms 1 there was competition for trade of non-subsistence 2 items and also employment, and that's people were -- 3 the Kuldo Indians, for example, when Humphrey was 4 ascending the river, the Kuldo Indians didn't like the 5 fact that Geel was with Humphrey. They wanted to do 6 the packing for Humphrey, and they didn't want the 7 Kispiox Indians to do the packing. I say that the 8 Cassiar Pack Trail incidents are a straightforward 9 incident of labour unrest after a decline in the 10 mining activity in the Omineca. 11 The next item that Dr. Galois referred to, or 12 another item is the Youmans murder. And I -- in his 13 reconstruction Dr. Galois did not mention the fact 14 that the murderer was turned in by the -- I say the 15 ancestors of the plaintiffs, that evidence was given 16 by the ancestors at a preliminary hearing in Hazelton. 17 He does not note the murderer was taken away, that 18 there was an apology from who I say were the ancestors 19 of the plaintiff for the murder, and a plea for 20 clemency and no assertion that Gitksan law had any 21 application. And I would ask your lordship, at tab 24 22 of the yellow book, to turn to the second page, and 23 this is from Exhibit 1035-14. These are some 24 newspaper accounts, and it's on the second page and 25 it's the second column over, my lord, and Mr. Roycraft 26 ascended the river and met with -- he hadn't 27 apprehended Youman's murderer yet but he spoke to the 28 chiefs, and if you look at the first -- the second 29 full paragraph beginning "After several speeches". 30 THE COURT: I don't know which column you're in. 31 MR. WILLMS: I'm in the second column from the left. 32 THE COURT: From the left? 33 MR. WILLMS: And if you go down to the first inch down "After 34 several". 35 THE COURT: Yes. I have it, thank you. 36 MR. WILLMS: 37 "Mr. Roycraft informed the chief that he would 38 remain in the village til the murderer was 39 brought in. This was done soon afterwards, and 40 the superintendent arrested him at once and led 41 him to the mission house next door, and 42 disarmed him of a knife. 43 The Indians demurred at the taking of the 44 man, but were told that he would not be 45 surrendered. 46 Council was held the day following, the 47 Hackelgates and the Kittselas coming to the 27028 Submissions by Mr. Willms 1 court fully armed. The guns were left outside 2 at the command of the superintendent; but the 3 Indians carried their knives into the 4 courtroom, in and about which there were 5 gathered 300 warriors. Mr. Elliott presided, 6 and after the witnesses for the prosecution had 7 been examined, the murderer was cautioned and 8 advised not to make a defence. But he said: 9 'I felt when I heard my son was dead and 10 Charlie Yeomans had been in the place three 11 days without telling me, that Yeomans had 12 killed my son. Someone told me - it was not 13 any friend who told me but an evil spirit that 14 entered my heart - to go and kill Yeomans. 15 Then I walked down and stabbed him. I was like 16 a drunken man - furious - when I did it. The 17 knife taken off me by Mr. Roycraft is the one I 18 killed Yeomans with; I feel very sorry but it 19 couldn't be helped; I will go with the police 20 and see the white tyhee; my friends tell me to 21 kill myself; but I won't do it; I ask all my 22 friends to let me go with the police - not to 23 trouble themselves about me; the white tyhee 24 will look after me.' 25 Mr. Elliott then committed the prisoner for 26 trial and Mr. Roycraft and Officer Hough 27 conducted the old man and three witnesses to a 28 canoe and left the same evening for Victoria." 29 30 And in addition to the submissions that I made in my 31 written argument about that, my lord, if there was any 32 idea that Gitksan law applied to this situation, there 33 were 300 armed native people who witnessed the 34 preliminary hearing, witnessed the arrest, and 35 witnessed what was going on according to this 36 newspaper account, and they didn't lift a finger. And 37 here, although I suggest that even the words that Dr. 38 Galois cited don't support his proposition, here 39 action speaks far louder than words, that there was no 40 question there that Canadian law applies. 41 I say in paragraph 25, my lord, that there is a 42 suggestion by Dr. Galois that the locals thought that 43 Gitksan law applied. However, and this is Tom Hankin 44 wrote a letter at the time, and he said that: 45 46 "The Indians demanded pay for the loss of the 47 boy, which Mr. Youmans was willing to give, but 27029 Submissions by Mr. Willms 1 before any arrangements could be made, he was 2 stabbed by the boy's father, from the effect of 3 which he died in less than an hour." 4 5 And still at tab 24, if your lordship could turn to 6 the fourth page, which is an extract from a newspaper, 7 Exhibit 1065-163. 8 THE COURT: 163? 9 MR. WILLMS: Yes. 10 THE COURT: All right. 11 MR. WILLMS: I'm at page 4, and if you go down, my lord, the 12 second paragraph -- the second column from the left, 13 and this, by the way, is a letter from the Reverend 14 Woods from the Kitwanga mission, and very close to 15 the -- about ten lines up from the bottom of that 16 first paragraph under "Skeena River, June 16". 17 THE COURT: Yes. 18 MR. WILLMS: You go down the words "Youmans thought he was 19 coming in to bargain". 20 THE COURT: In that first paragraph? 21 MR. WILLMS: Yes, underneath "Skeena River, June 16", you have 22 to go down -- well, actually, working up, two, four, 23 six, eight, ten, twelve lines from the bottom of that 24 paragraph under "Skeena River, June 16". 2 5 THE COURT: Yes. 26 MR. WILLMS: "Youmans thought he" — he was the murderer: 27 2 8 "Youmans thought he was coming in to bargain for 29 the usual equivalent for the life in blankets, 30 which has of late taken the place of blood 31 revenge, and therefore remained where he was. 32 Upon reaching the spot the Indian drew the 33 knife he had ready concealed, and without 34 pausing a moment plunged it into his victim's 35 neck, who never spoke again but expired about 36 two hours after, the jugular vein being severed 37 and the lungs pierced." 38 39 Now, I say that, my lord, because there was a comment 40 during the plaintiffs' outline that referred to, in my 41 submission, which is at the bottom of page 16 in 42 paragraph 25, where I say after quoting from what 43 Thomas Hankin said, and I've now read what Reverend 44 Woods said, that it appears to indicate that the well 45 known Gitksan custom of revenge killing was stronger 46 than the lately asserted custom of compensation. And 47 Reverend Woods noted that it was a lately asserted 27030 Submissions by Mr. Willms 1 custom. Now, I say that perhaps Dr. Galois thought 2 that Gitksan law applied because Youmans had a native 3 wife, and that's something that Dr. Galois noted in 4 his draft but took out of his final. In any event, I 5 say that the Youmans incident had nothing to do with 6 territoriality and is evidence of an acceptance by the 7 ancestors of the plaintiffs of and participation in 8 the imposition and application of Canadian law. 9 Now, the next reference is the Kitwancool Jim 10 Affair, which Dr. Galois spent sometime referring to, 11 and I say here, my lord, that it is clear from an 12 analysis of the affair that the issue really involved 13 the application of Her Majesty's law in the 14 circumstances of the killing of Neatsqu and did not 15 involve assertions of territoriality or jurisdiction. 16 The ancestors of the plaintiffs requested assistance 17 from Provincial authorities to apprehend Kitwancool 18 Jim, the murderer of Neatsqu. They sent his shot 19 up -- Neatsqu's shot up shirt down to the coast and 20 asked for some help in apprehending the murderer. The 21 compensation which was proferred by Kitwancool Jim was 22 not accepted by the relatives of Neatsqu, apparently 23 as a result of the influence of Reverend Pierce. And 24 I say that there may have been a tiring of the 25 necessity to desert villages, such as happened later 26 in Kitsegukla, on account of a "state of terror" on 27 the occurrence of homicides. And on this one, my 28 lord, I would like to, at tab 26, ask your lordship to 29 turn to page 8 at tab 26. This is a letter of July 30 24th, 1888 from Fitzstubbs to the Attorney General, 31 and it's written on the occasion of Fitzstubbs making 32 his way up to Hazelton. And at the bottom of the 33 page, about six lines up, he says "Ascending the 34 river" -- 35 THE COURT: How many lines up? 36 MR. WILLMS: About six. 37 THE COURT: Yes. 38 MR. WILLMS: 39 "Ascending the river I called at the 40 Kitse-guec-la village, which I found almost 41 deserted, the people having left for the woods 42 in a state of terror at the double homicide of 43 a few days before." 44 45 And there were a number of homicides which have taken 46 place at this time, my lord, but there you have 47 something which Brown noted too, people refusing to 27031 Submissions by Mr. Willms 1 trade out of fear for what would happen if they 2 exposed themselves to the neighbouring village, who 3 they may have had a feud with at the time. Now, over 4 to the top of -- 5 MR. GRANT: Just to be clear, is my friend there -- is that not 6 referring to the Kitwancool Jim incident itself, or is 7 it referring to something else. That's my 8 understanding of that particular -- 9 MR. WILLMS: Well, that was one of the murders, and then there 10 was a murder by Morelehan(Ph.) at the same time. 11 MR. GRANT: Or Moolxan(Ph.). 12 MR. WILLMS: Well, sometimes Morelehan someties Moolxan. Later 13 there was a preliminary inquiry and Morelehan was 14 discharged at the preliminary inquiry, he was not 15 committed for trial. I say at paragraph 27 in any 16 event, the attendance of Roycraft and Fitzstubbs at 17 Hazelton on August 8, 1888 and their meeting with the 18 thirteen chiefs from five tribes was a very important 19 event in the history of the Skeena in the late 20 nineteenth century. At that meeting, both Roycraft 21 and Fitzstubbs made it clear that it was Her Majesty's 22 law and Her Majesty's law alone that applied to the 23 chiefs. This, I say, is a continuation of the 24 statements that were made by Douglas in 1858 to the 25 Indians at Hill's Bar that British law, not Indian 26 law, would apply. The chiefs in attendance at 27 Hazelton were thankful that it would forthwith apply 28 and acknowledged that it would apply. And that, my 29 lord, is -- I won't ask you to turn to it, but I have 30 set out at tab 27 the full extract of Roycraft and 31 Fitzstubbs up there, and you can read what all of the 32 chiefs said, and that's amply supported by what each 33 of the chiefs said. 34 Now, I say at the bottom of the page, the only 35 grievances raised by any chief at this meeting was one 36 complaint of some alleged sharp practice by the local 37 Hudson's Bay trader in Hazelton. There were no 38 grievances advanced in respect of territoriality 39 notwithstanding that an opportunity was given to all 40 the chiefs to speak, and most of them did. In fact, 41 and this is quoting from the exhibit: 42 43 "Thirteen chiefs, representing in all five 44 different tribes, came into Hazelton in 45 response to the requests of the Magistrates, 46 and after being appropriately addressed, 47 professed their submission and friendship, 27032 Submissions by Mr. Willms 1 together with a desire to co-operate with 2 provincial officers in carrying out law and 3 order. 4 5 THE COURT: That of course has to be a paraphrase. 6 MR. WILLMS: No. This is a quote from a letter. 7 THE COURT: Yes, I know, but the author of the letter was 8 paraphrasing. 9 MR. WILLMS: Was paraphrasing what happened. No. If you look 10 at the quotes from what the chiefs said, they said 11 they're glad you've explained the law to us, we're 12 grateful that it will apply, we will carry it out, and 13 statements like that. The important point, my lord, 14 is that at this opportunity, like with the Youmans 15 opportunity, a great number of people are gathered at 16 one spot, 300 people at the Youmans murder at the 17 preliminary inquiry, here 13 chiefs. There's no 18 assertions of jurisdiction and territory. 19 Now, carrying on at page 19, another suggestion by 20 Dr. Galois of assertion of territoriality is in 21 respect of the refusal of the Kitwancool Indians to 22 allow reserves to be laid out. I say that the real 23 reason for this refusal had nothing to do with 24 assertions of ownership and jurisdiction and 25 everything to do with the killing of Kitwancool Jim. 26 If you turn at tab 29, my lord, to page 3 -- page 3, 27 my lord. This is an extract from Exhibit 1035-250. 28 It's in the upper right-hand corner. 2 9 THE COURT: Yes. 30 MR. WILLMS: This is a letter from the Chiefs of Kitwancool to 31 Mr. Vowell, and they say: 32 33 "We the chiefs of Kitwancool do not want you to 34 come to Kitwankool to make a reserve for us 35 because we continually remember the death of 36 our Chief Jim, who was killed by the white man 37 who was sent by the government to kill him; 38 therefore we do not want you to come here. You 39 the government said to me Weka whatever we say 4 0 to you, do it. This I have done now I want you 41 to have mercy upon me, not to come and reserve 42 our land." 43 44 What I say, my lord, there is that as with the -- I 45 suppose the decision of the Kitwancool chiefs not to 46 participate in this action, they've always done things 47 it appears from the historic record as well, things a 27033 Submissions by Mr. Willms 1 little differently than the other Gitksan villages, 2 and here, because of the killing of Kitwancool Jim and 3 their perspective of the killing of Kitwancool Jim, 4 they didn't want any white men coming up there. But I 5 say put that to one side, since the Kitwancool Gitksan 6 chiefs are not plaintiffs in this case, the ancestors 7 of these plaintiffs were apparently in favour of the 8 application of Her Majesty's law while the descendants 9 of Kitwancool Jim, who have chosen not to be 10 plaintiffs in this action, may have taken a different 11 view. Dr. Galois also suggested he could find 12 assertions of ownership and jurisdiction in the 13 documents relating to O'Reilly's laying out of 14 reserves. In respect of this, it is clear that only 15 at Kispiox did O'Reilly receive any serious objection. 16 And I'm going to deal with that in the next section, 17 my lord, that's the reference to summary. Later the 18 chiefs of that village apologized to O'Reilly and 19 asked him to come back and lay out a reserve, and I 20 submit, and I'll deal with it in more detail later, 21 that the objection was fostered by the missionaries, 22 in any event. 23 A word here, I say, about missionary influence on 24 native concepts of territoriality. First, it should 25 be noted that anthropologists recognize that ideas of 26 territoriality, that where a map is divided into 27 contiguous parcels is European in origin and probably 28 not aboriginal. I've referred your lordship to that 29 already. Second, it was in the missionary's interests 30 to attempt to get some sort of fee simple in the local 31 Indians in order to keep them within the missionary 32 influence. And again, I deal with that a bit later. 33 Duncan at Metlakatla is probably the best example of 34 this, and of course Duncan's disciple, Tomlinson, was 35 instrumental in the Kispiox area. Thus, I say the 36 resistance to laying out reserves, as insignificant as 37 it was, that is only at Kispiox, was fostered by the 38 missionaries for their own rather than for the 39 natives' interests. And I'll be coming back to this, 40 my lord, in fleshing this out in the next section. 41 At this time point, suffice it to say that Dr. 42 Galois' interpretations are strained and involve the 43 rediscovery and reinterpretation of history, sometimes 44 contrary to the plain meaning of the document. And I 45 suggest this may be because of Dr. Galois' acceptance 46 of the propositions of Peter Kropotkin, that history 47 should be rediscovered and reinterpreted, and that was 27034 Submissions by Mr. Willms 1 a paper that Dr. Galois wrote. Perhaps it's because 2 Dr. Galois reviewed the documentary record assembled 3 for him by the plaintiffs rather than doing all his 4 own historical research. And I would ask your 5 lordship to turn to tab 32 to page 13 -- well, 6 actually it starts at page 12 at line 36: 7 8 "Q What percentage of the documentary research 9 that formed the basis for your opinion 10 would you say that you did directly and 11 what percentage was done by others and then 12 given to you? 13 A What do you mean by documentary research? 14 Q Well, you gave evidence earlier that there 15 had been a collection of historical 16 documents already made by the Tribal 17 Council when you went up there to review 18 it. You said those documents were similar 19 to the ones that you ultimately reviewed at 20 the archives? 21 A They are documents that one would find in 22 the archives. In fact, a lot of them are 23 taken from the Provincial Archives. 24 Q So my question to you is: How many of the 25 documents that now -- we now find in 26 volumes one through eight, were documents 27 that you physically went and dug up on your 2 8 own research and how many of them would you 29 say are documents that were already dug up 30 by others for you? 31 A Absolutely no idea. It's not a question 32 that I would address. I still have to read 33 the documents wherever they are. And I 34 mean the research is the reading of the 35 documents. It's not a question that I am 36 accustomed to addressing, I am afraid. And 37 I don't think any answer that I could give 38 you would be particularly helpful." 39 40 Well, my lord, I think Dr. Galois misses the point, in 41 my submission, because certainly you have to read the 42 document, but Dr. Galois' view of the importance of 43 reading the document is then to lead to his opinion, 44 his interpretation of the document. Now, that's for 45 your lordship, the interpretation is for your 46 lordship. What these researchers are supposed to do 47 is use their expertise to find the document, but Dr. 27035 Submissions by Mr. Willms 1 Galois didn't do that, he just went in and read the 2 documents that had been found for him. 3 MR. GRANT: Well, I think that's not even what he said, and I 4 think that he is -- my friend is saying something in 5 error there. Dr. Galois -- other people physically 6 pulled some documents for him, but he also did his own 7 archival work, and that's demonstrated in his answers, 8 it is what he read, and he read them from different 9 sources. That was his answer. 10 MR. WILLMS: Well, I'm very grateful to my friend for that, my 11 lord, his answer speaks for itself. He didn't know 12 how much had been found for him. What is clear is 13 that unlike the other people who did research like 14 this on this, like Dr. Williams -- Mr. Williams, for 15 example, who did his own research, unlike Dr. Galois, 16 who had it done for him, he just missed the point on 17 what it was that he was to bring to this court, which 18 was he thought it was his reading of documents, not 19 his finding documents, that were relevant. 20 Now, I conclude paragraph 32 on page 21 by also 21 suggesting that Dr. Galois' bias is, from the title of 22 his draft, the draft of his report was entitled "This 23 Is Our Land", and I'm suggesting that this bias, that 24 this bent for rediscovering history, allowed him to 25 reinterpret and rediscover history in a manner 26 satisfactory to the tribal council. 27 Now, I suggest, my lord, that when the conduct of 28 people in the claim area is considered, it is more 29 consistent with Dr. Robinson's theory of a network of 30 lines of communication with nodes of resource use than 31 with the plaintiffs' theory that the claim area is 32 divided up like a map of Europe. The plaintiffs' 33 theory of territoriality reached its logically 34 contradictory end in the evidence of Ms. Albright 35 when, faced with the proposition that hunter gatherers 36 either travel to "a particular spot and hope that the 37 game shows up" or follow "the migration of the game", 38 no matter where the territory was, Ms. Albright opined 39 that they did neither, she answered no to both 40 questions. 41 Now, in paragraph 34, my lord, I say that it is 42 submitted that among the inhabitants of the claim area 43 in prehistoric and even protohistoric times, there 44 were no notions of the territoriality depicted on 45 Exhibit 646-9A or 9B. At least, there is no evidence 46 for it. The present claim to fishing spots by the 47 Gitksan is not supported by the evidence of communal 27036 Submissions by Mr. Willms 1 weir fishing conducted by the villages, which is set 2 out by the Atnahs from the Brown Journals. The 3 present lay evidence of hunting territoriality, 4 including big game, is not supported by the evidence 5 from the Brown journals nor by the lay evidence at 6 this trial. And the evidence of observed beaver 7 trapping territoriality and ranked society in historic 8 times is more consistent with protohistoric fur trade 9 influences than any other explanation. And here this 10 is Dr. Bishop in 1987, my lord, and you may want to 11 make a note that it's 1987: 12 13 "Subsistence resource abundance alone, I 14 maintain, will not 'cause' a society to become 15 ranked though it may facilitate the development 16 of status inequalities by allowing for greater 17 population density and sedentism, given the 18 same labour input. But there still must be a 19 starting mechanism, something to generate 20 inequalities in status. Others must recognize 21 and accept social differences while those of 22 high status must have some means to gain and/or 23 maintain public approval. The redistribution 24 of subsistence goods by a central authority, 25 while important at the state level of societal 26 development, has been shown to be either 27 unimportant and/or incapable of provisioning 28 society where political centralization is 29 lacking. Likewise, control over labour in 30 production, under conditions where population 31 size and density in relation to available 32 resources is low, is more a political than an 33 economic response. Except among societies that 34 already have a well graded system of statuses 35 as on the Northwest Coast, control over access 36 to scarce goods, such as beaver lodges and 37 pelts among the Carrier, was more important 38 than political control over subsistence 39 materials. In sum, while the development of 40 social ranking is not dependent upon the type 41 of subsistence resources present, the exchange 42 of these resources may become important, in 43 some cases, to the maintenance of societies 44 with political offices. This might occur when 45 control over production leads to 46 overexploitation, or near overexploitation, 47 under conditions where political elaboration 27037 Submissions by Mr. population growth." 2 Willms has favored 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT THE COURT MR. GRANT And I pause there to point out, my lord, that there is no indication in the prehistoric record for competition for salmon, except for when the Atnahs barred the river, and it looked like they may have done it either for revenge or due to inadvertence, or prehistoric competition for anything other than beaver, or protohistoric. But when you review the Brown record and what Harmon saw, it's beaver and beaver alone, which just happens to fit within the hunting debate that has been going on among anthropologists in Canada for quite some time. And it's quite true, it's with respect to the Algonquin and the Iroquois people that Dr. Daly drew parallels between the Gitksan and the Iroquois in his evidence. Now, I say, my lord, in this section that it is unlikely that Exhibit 634-9A or 9B represents traditional or late prehistoric use or occupancy of the claim area. There is no credible evidence to refute Dr. Robinson's opinion. As Dr. Robinson said: "Gitksan and Wet'suwet'en laws about 'traditionally' having owned and managed certain territories are questionable". This conclusion, and I'm talking about Dr. Robinson's conclusion, is not only supported by a comparative analysis of work by scholars such as deLaguna, Oberg, McLellan, Bishop, Jenness, Steward, Mike Cranny, Tobey, MacLachlan, who have recognized that there are similar developments going on, it is supported by the work of Dr. Kobrinsky, Dr. Adams, and Dr. Garfield in the claim area. And it is a conclusion which the historic records reviewed by Dr. Ray do not refute. And just on that point, my lord, I would ask your lordship to turn to the last tab in the yellow book. Tab 36? Yes, tab 36. Yes. And at page of Dr. Ray: starting at line 7, cross-examination "Q Now, I would like to put a series of propositions to you and ask you to identify, if you can, a Hudson's Bay reference that refutes it. And the first one is, the first proposition is the Gitksan moved up into the Upper Skeena and 27038 Submissions by Mr. Willms 1 the Upper Nass in response to the coastal 2 fur trade. Now, is there anything in the 3 Hudson's Bay records that refutes that 4 proposition? 5 A In response to which fur trade? 6 Q The coastal fur trade. 7 A It doesn't speak to it. 8 Q All right. So the answer is there is 9 nothing in the Hudson's Bay reports that 10 refutes that because it doesn't speak to 11 it? 12 A Correct. 13 Q Now, second, is there anything in the 14 Hudson's Bay records which refutes or 15 disputes conflicts between the inhabitants 16 of the Skeena River and the Nass River in 17 the late 1700s and early 1800s that is 18 armed conflicts? 19 A Obviously not for 1820. We don't have a 20 record. There is no historical record to 21 establish that. 22 Q Is there anything in the Hudson's Bay 23 documents which refutes the proposition 24 that Carrier social organization was 25 patterned after Tsimshian or Gitksan social 26 organization? 27 A I say it makes that an open question, 28 because Brown makes it clear that the two 29 societies were very similar in 1820 and you 30 cannot conclude from that that who borrowed 31 it from whom. 32 Q But I'm putting my questions in terms of 33 refuting. There is nothing in the 34 documents that refutes that proposition. 35 It's unclear, but it's not refuted? 36 A It doesn't speak to it. 37 Q All right. Fourth, trade between the coast 38 and occupants of the Bulkley and Skeena 39 drainages had occurred prior to the end of 40 the eighteenth century? 41 A Trade had occurred. Well, the Hudson's Bay 42 Company doesn't speak to that. 43 Q And finally, notions of beaver trapping 44 territories where access was limited by or 45 owned by a chief developed in response to 46 the coastal fur trade. Is there anything 47 in the Hudson's Bay records that would 27039 Submissions by Mr. Willms 1 refute that? 2 A The references in the Hudson's Bay Company 3 to that system are in relation to the 4 feasting system, the antiquity of which we 5 can't establish. So I guess that the 6 record doesn't speak to it since it can't." 7 8 Now, that goes back to what I said on Friday, my lord, 9 about really the difference between Dr. Robinson and 10 Dr. Ray, because both of them agree on and can explain 11 or give an explanation for what Brown saw in 1820 and 12 what Harmon saw in 1811. 13 THE COURT: In 1911. 14 MR. WILLMS: 1811. 15 THE COURT: 1811. 16 MR. WILLMS: Harmon, well, from 1811 and on, his observations 17 were over a period of time. But with respect to 18 looking back and giving an opinion about what it might 19 have looked like prior to that time, what Dr. Robinson 20 has done is she has used the knowledge, the 21 information that she received in her earlier research 22 from the coast, she has used a comparative analysis of 23 what ethnologists working in adjacent areas have 24 concluded, and finally, she has built upon what 25 ethnologists who worked in the area have concluded. 26 In other words, she doesn't throw Dr. Adams and Dr. 27 Rigsby into the trash can like the plaintiffs' 28 experts, she is able to look at what happened after 29 contact and applying all of that other information 30 comes to the conclusion that what Brown saw and what 31 Harmon saw is really, my lord, if I can put it this 32 way, a slice of time in the social development of 33 these people. And I do want to point out, my lord, 34 that even Dr. Ray, because he was faced with the 35 historical record, acknowledged radical changes after 36 1831 in this area, so that when you look at what his 37 earlier conclusions were, and I put them in some 38 detail, I read them to your lordship, or his earlier 39 conclusions which were consistent with Dr. Robinson's, 40 I submit that you can replace Dr. Ray's "We just don't 41 know", you can put in there Dr. Robinson's "I can make 42 a very very good estimate on what was going on and my 43 very good estimate is that it doesn't -- it didn't 44 look like what Brown saw, it was different". 45 Now, the next section, my lord, is the missionary 46 influence section, and I have another yellow binder. 47 THE COURT: This of course will be your last, right? 27040 Submissions by Mr. Willms 1 MR. WILLMS: My lord, I'm at paragraph 1 of Section 3(d) of Part IV. I say that in the immediately preceding three subsections of this outline, it has been submitted that by the time of contact, the only instances of territoriality or exclusive resource use in the claim area were the beaver trapping areas which arose during the protohistoric period and resulted from the European influence. Now, Harmon noted when he was there Carrier 'confessions to the priests", and I suggest it's likely that religious influence on the inhabitants of the claim area was initially from the east, perhaps as early as the 1820's, and there, my lord at tab 2 -- Before you do that, Mr. Willms, I forget who Harmon was . Daniel Harmon, my lord, was -- I think he was with the Northwest Company and came over into the area in 1811 and spent into the 1820's in the New Caledonia area. He was at Fort St. James for awhile, he was at Fort Alexandria for awhile. He wasn't in this -- He went to Babine Lake once, that is evident from his j ournals. Do you remember when? I can find that out, my lord. All right. Just it's not a name that -- I've been hearing about Harmon from time to time, but I haven't really slotted him into any historic structure. I think when he's referring to Carriers in this extract my friend has -- my friend will agree he's not referring of course to the Wet'suwet'en but much further east, because he wasn't with the Wet'suwet'en, there was no missionaries in 1811 in this area, to my knowledge. Nor were there any Wet'suwet'en. Was he a missionary? No, he's a trader. But he refers to priests and Carriers saying priests, he's certainly not talking about the Wet'suwet'en, because he is talking about a different area. Yes. My friend can make that in reply. I just wanted to clarify that you were suggesting that it was the same group. I started it. I'm suggesting that when he says Carrier, he means Carrier, and I include the Wet'suwet'en at the time of 2 3 4 5 6 7 8 9 10 11 12 13 14 THE COURT: 15 16 MR. WILLMS 17 18 19 20 21 THE COURT: 22 MR. WILLMS 23 24 THE COURT: 25 MR. WILLMS 26 THE COURT: 27 28 29 MR. GRANT: 30 31 32 33 34 35 MR. WILLMS 36 THE COURT: 37 MR. WILLMS 38 MR. GRANT: 39 40 41 42 MR. WILLMS 43 MR. GRANT: 44 45 THE COURT: 46 MR. WILLMS 47 27041 Submissions by Mr. Willms 1 contact within Carrier. But the extract that I wanted your lordship to turn to is at -- Tab 2. Tab 2, page 5. And at page 5, this is an extract from -- Well, just one minute. Did -- did Harmon figure prominently in Dr. Ray's evidence? No. Harmon figured prominently I think in Dr. Mills' evidence. Oh, all right. And he did figure somewhat in Dr. Ray's, but Dr. Ray was primarily concerned with Fort Kilmaur in 1822. That's what I was thinking. Yes. Dr. Ray was aware of Harmon. Yes. But it's more Dr. Mills — Yes, thank you. -- that referred to Harmon. Tab 2. It's at tab 2, and this is an extract from McLellan and the Carrier from Exhibit 966-2. And it's the -- I'm having some trouble here, just a minute. Tab 2. Yes, all right. The first tab is number 2. Oh. Of this section. Yes, all right. Because there's no references, and at page 5 there is a description on the "Prophet Movement", partway down the left-hand column. Yes. "The profit dance that swept through the Salish tribes of the interior Northwest Coast area around 1800 reached the Carrier in the mid-1830's. Spier distinguishes two waves of the Prophet Dance: An early form that apparently subsided during the 1820's and a later Christianized form that spread rapidly during the 1830's among the tribes of Oregon, Idaho, Washington, Montana and British Columbia. It is the later Christianized form that is documented among the Carrier. A Hudson's Bay Company employee stationed at Stuart Lake wrote in the winter of 1834-1835 or 1835-1836: 2 3 THE COURT: 4 MR. WILLMS 5 6 THE COURT: 7 8 MR. WILLMS 9 10 THE COURT: 11 MR. WILLMS 12 13 THE COURT: 14 MR. WILLMS 15 THE COURT: 16 MR. WILLMS 17 THE COURT: 18 MR. WILLMS 19 THE COURT: 20 MR. WILLMS 21 22 THE COURT: 23 MR. WILLMS 24 THE COURT: 25 MR. WILLMS 26 THE COURT: 27 MR. WILLMS 28 THE COURT: 29 MR. WILLMS 30 31 32 THE COURT: 33 MR. WILLMS 34 35 36 37 38 39 40 41 42 43 44 45 46 47 27042 Submissions by Mr. Willms 1 'Two young men, natives of Oregon, who had 2 received a little education at Red River 3 had, on their return to their own country, 4 introduced a sort of religion, whose 5 ground-work seemed to be Christianity, 6 accompanied with some of the heathen 7 ceremonies of the natives. The religion 8 spread with amazing rapidity all over the 9 country. It reached Fort Alexandria, the 10 lower post of the district, in the autumn, 11 and was now embraced by all the Nekaslayans 12 (Stuart Lake Carrier). The ceremonial 13 consisted chiefly in singing and dancing.' 14 The names of the major Carrier prophets and a 15 summary of their religious activities from the 16 mid-1830's to the 1870's are given by Jenness. 17 The Carrier prophets most commonly received 18 their messages while in a death state and 19 returned to life to preach. Since they often 20 perceived the whites as sources of abundant 21 food and horses, their prophetic messages 22 lacked the elements of earth renewal and 23 destruction of whites that are so prominent in 24 the proselytizing of the 1890's Ghost Dance 25 Prophets. 26 Prior to the arrival of the Roman Catholic 27 priests, Carrier contacts with Christianity was 28 through the men stationed at the fur-trading 29 posts and through Indians of other tribes who 30 have been exposed to Christianity in diverse 31 ways. Missionaries did not visit the Carrier 32 until 1842 when Father Modeste Demers preached 33 and baptized sporadically in the summer months. 34 Father John Nobili, a Jesuit, worked in Carrier 35 territory from 1845 until 1847. This activity 36 was followed by a 21-year hiatus in 37 missionizing. 38 Rapid missionization began again in 1869. 39 The Babine Lake Carrier apparently resisted and 40 resented the efforts of the missionaries to a 41 greater degree than did other Carrier 42 subtribes. Bishop L.J. D'Herbomez and Fathers 43 Jean Lejac and A.G. Morice were the principal 44 missionaries to Carrier territory during the 45 last half of the nineteenth century." 46 47 And there, my lord, we do have a historic record, 27043 Submissions by Mr. Willms 1 because we do have Father LeJac's trip, and I note 2 that, and maybe I'll just finish that note, he 3 travelled to the claim area on June 4th, 1869, it's in 4 the argument, my lord, but he appears to be the first 5 missionary to travel into the claim area, and we have 6 his notes of his trip in 1869 followed by Reverend 7 Tomlinson. 8 THE COURT: All right, two o'clock please. 9 MR. WILLMS: Thank you, my lord. 10 THE REGISTRAR: Order in court. Court stands adjourned. 11 12 (LUNCHEON RECESS TAKEN AT 12:30) 13 14 I hereby certify the foregoing to be 15 a true and accurate transcript of the 16 proceedings herein transcribed to the 17 best of my skill and ability 18 19 20 21 22 Graham D. Parker 23 Official Reporter 24 United Reporting Service Ltd. 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 27044 Submission by Mr. Willms 1 (PROCEEDINGS RECONVENED AT 2:00 P.M.) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Willms. 5 MR. WILLMS: My lord, before I get back into my argument, the 6 first point is that we would be grateful to proceed 7 Saturday morning. 8 THE COURT: All right. 9 MR. WILLMS: What time? 10 THE COURT: Well, if we're going to do it, I think maybe we 11 ought to do it advantageously, and I'd like to suggest 12 we have three one-hour sessions starting at nine 13 o'clock. 14 MR. WILLMS: Starting at nine o'clock. 15 THE COURT: Then we'll adjourn at 12:30. 16 MR. WILLMS: Thank you, my lord. The second point is a question 17 that your lordship had about -- 18 THE COURT: Before you leave that may I say that I have to have 19 my semi-annual visit with my friendly dentist at 8:30 20 tomorrow morning, and I may be just a very few minutes 21 late. I should probably be back by 9:30, but I may be 22 a few minutes late. 23 MR. WILLMS: I'd like to know that dentist, my lord, that can 24 get you in and out that quickly because I'd like to 25 change. 26 THE COURT: Well, I made a suggestion, but I didn't think it was 27 very well received, that you all see my friendly 28 photographer for a team picture, but I got the 29 impression that counsel weren't very enthused about 30 that idea, so I think I'll pass on it. You won't have 31 the chance to meet him, Mr. Willms. 32 MR. WILLMS: My lord, the point that you'd asked before lunch 33 about Harmon and when was he -- 34 THE COURT: Yes. 35 MR. WILLMS: -- in the area, the exhibit that has the largest 36 extract is Exhibit 913, which was marked during Dr. 37 Mills' examination in chief, and that has quite a bit 38 from Harmon. But he was in this area between 1810 and 39 1819. He was in New Caledonia. And if I can just 40 give your lordship -- I said before the break that he 41 made it to Babine Lake. 42 THE COURT: Yes. 43 MR. WILLMS: And on pages 149 and 150 of the exhibit that I gave 44 you the reference there it describes his sojourn to 45 Babine Lake and the villages at Babine Lake. And, my 46 lord, there is one point and I -- if you could just 47 turn back to the very last page of the last tab in the 27045 Submission by Mr. Willms 1 argument. 2 THE COURT: I'm sorry? 3 MR. WILLMS: The last page of 3(c) in the argument. 4 THE COURT: 3(c), yes. 5 MR. WILLMS: Because I would like to give your lordship -- it's 6 a reference to Harmon. 7 THE COURT: Yes. 8 MR. WILLMS: The same exhibit, 913. I didn't read it out, but 9 I'm going to read one line from Harmon right now which 10 fits in — 11 MR. GRANT: What page? 12 MR. WILLMS: — to what I had said. 13 THE COURT: You're looking at page 24 of 3(c)? 14 MR. WILLMS: I'm looking at page 24 of 3(c). 15 THE COURT: Yes. 16 MR. WILLMS: Where I had concluded the issue of 17 territoriality -- 18 THE COURT: Yes. 19 MR. WILLMS: -- and jurisdiction. And Harmon has a point on 20 jurisdiction -- 21 THE COURT: Yes. 22 MR. WILLMS: — at Exhibit 913 at page 249. Harmon says — and 23 I won't read everything, but I'll read one line. 24 Harmon says: 25 26 "The Carriers have little that can be 27 denominated civil government in the regulation 28 of their concerns." 29 30 And he does carry on to describe chiefs, who 31 appear to be -- anybody that has enough money to throw 32 a feast is called a chief. Or the word he uses is 33 miuty, m-i-u-t-y. 34 THE COURT: M-i-u-t-y? 35 MR. WILLMS: M-i-u-t-y, and the plural being m-i-u-t-i-e-s. 36 THE COURT: M-i-u-t-i-e-s? 37 MR. WILLMS: i-e-s, yes. And he calls those chiefs -- miuties 38 are chiefs. 39 THE COURT: That's a Wet'suwet'en name for chief, is it? 40 MR. WILLMS: I don't know. That was a Carrier name. 41 THE COURT: A Carrier name for chief? 42 MR. WILLMS: Carrier name for chief. 43 THE COURT: It's not for money? 44 MR. WILLMS: No. No, it's not for money. It's for chief. 45 MR. GRANT: Well, the — if my friend is going to rely on that, 46 I think it's important that he bring to your 47 lordship's attention what Harmon said in the same 27046 246, Submission by Mr. Willms 1 page -- same section on distinguishes that the Carriers are not so ingenuous as their neighbours, the Nate-ote-tains, N-a-t-e-dash-o-t-e-dash-t-a-i-n-s, and Atenas, A-t-e-n-a-s. In other words, Harmon, when he talks about Carriers, is not talking about the Babine Lake people or the Atnahs or Gitksan. I think the word, my lord, is ingenious, not ingenuous. I don't think that my friend -- Ingenious. Ingenious. I don't think my friend meant ingenuous. I didn't mean to say ingenuous. As the Atnahs or who else? The Nate-ote-tains. Oh, yes. Which would be the Babine Lake people that he talked about, and those were the ones that were closest to the Wet'suwet'en in Harmon's experience. So he's talking about another group in that reference my friend is referring to than the plaintiffs. Well, actually, my lord, you have to read it. My friend, I'm sure, will make that clear in reply because it's not clear from the extract that I read -- All right. Thank you. -- that any such distinguishing was going on. But that was an ingenuous argument my friend had. At the bottom of page 1, my lord, paragraph 3, back on the missionary influence, I say that consideration of the missionary influence is relevant for two reasons. First, as noted by Dr. Trigger in commenting on oral traditions, "At least some of these oral traditions appear to have been heavily influenced by...missionary propaganda." Second, Dr. Drucker noted: "This sort of control led of the missionaries to insist that their charges lead well-ordered, civilized lives, and hence needed no Dominion interference, that is, legal and secular control by Indian agents. Therefore, the missionaries did not want reserves of any size for their congregation. They wanted their charges to be given title in fee simple to plots comparable to those given white settlers so that they, the missionaries, could continue unmolested to guide their Indians to complete and he there 2 3 4 5 6 7 8 MR. WILLMS 9 10 MR. GRANT: 11 THE COURT: 12 MR. WILLMS 13 MR. GRANT: 14 THE COURT: 15 MR. GRANT: 16 THE COURT: 17 MR. GRANT: 18 19 20 21 22 MR. WILLMS 23 24 25 THE COURT: 26 MR. WILLMS 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 27047 Submission by Mr. Willms 1 Christian civilization." 2 3 Dr. Drucker was acknowledged by witnesses for the 4 plaintiff to be a reputable, well-known anthropologist 5 and a very eminent source on the Northwest Coast. 6 The plaintiffs' experts, and I am referring 7 principally here to Dr. Galois, but Mr. Brody fits in 8 here as well, say that when you assess statements made 9 by missionaries on behalf of the Indians, that where 10 they are assertions of title they're reliable; in 11 other circumstances, such as assertions that they were 12 accepting law and order, the missionaries were 13 unreliable. 14 And I just pause there, my lord, to make the point 15 that in terms of whether there would be any of the 16 normal indicia that would guide your lordship in 17 assessing credibility here, why would the missionaries 18 tell other people that law and order have been 19 accepted, and that's a question -- if it wasn't true. 20 That's a question which I say the plaintiffs haven't 21 answered and can't answer. I mean, what motive would 22 the missionaries have to mislead on that point. 23 However, in terms of a motive for statements that all 24 of the land is ours and God gave us the land, as Dr. 25 Drucker noted, there was a great deal of self-interest 26 motivating the missionaries, and I'm going to deal 27 with some of that as I go through here. 28 Now, I say at the top of page 3 that there is no 29 question that some of the statements made by 30 missionaries are less reliable than others, but it is 31 submitted that when all the evidence is considered the 32 plaintiffs' experts' assessment of which ones are 33 reliable and which ones aren't is contrary to all of 34 the evidence. 35 I say that any inquiry into missionary influence 36 in the claim area must begin with Mr. Duncan at 37 Metlakatlah. And there's a brief biography here, and 38 I won't read the first paragraph, which has Mr. Duncan 39 getting to Metlakatlah, but I'll start at the bottom. 40 41 "In 1879 the C.M.S. having heard that Mr. Duncan 42 was not teaching the natives the ritual of the 43 Church of England and for other doubtless good 44 reasons (I am not entering at all into the 45 religious controversy) determined to disconnect 46 him which was accordingly done. This was the 47 beginning of the troubles. Bishop Ridley 27048 Submission by Mr. Willms 1 authorised by the C.M.S. occupied the building 2 hitherto occupied by Mr. Duncan and the 3 disputes as to who certain properties belonged 4 to were endless. 5 6 The majority, following Mr. Duncan insisted on 7 the representatives of the C.M.S. removing 8 themselves as they were causing dissensions, 9 while these latter having a following of about 10 l/7th of the community refused to move. Then 11 followed numerous petty persecutions practised 12 by the majority (known as Duncan's Indians) on 13 the minority, the result being that many 14 rejoined the majority though a resolute few 15 stuck to the Bishop. At the same time 16 questions relative to the Indian title to the 17 land were raised." 18 19 My lord, that was an extract taken from a report 20 of the commander of the CORMORANT, Commander Nichols, 21 in 1886. And as with the other extracts that I'm 22 going to read to your lordship or refer to, these were 23 all at the time. These aren't reconstructions a 24 hundred years later, but these were people who were 25 there at the time and came to certain conclusions at 2 6 the time. 27 On October 28th, 1884, three commissioners were 28 appointed to inquire into disturbances and breaches of 29 the peace at Metlakatlah and elsewhere on the 30 Northwest Coast. The commission went to Metlakatlah 31 and held hearings. And before I read the conclusions, 32 my lord, I do want to say that although the commission 33 was just a fact-finding commission, it didn't have any 34 judicial powers, yet still it heard evidence under 35 oath, and it was a commission that was appointed to 36 inquire into and report on the troubles. So that to 37 that extent it was, if I can put it this way, a quasi- 38 judicial fact-finding function that was being engaged 39 here. And the commission after holding the hearings 40 reported: 41 42 "The idea of the existence of an Indian title 43 and of its non-extinguishment in British 44 Columbia originated in remarks made by Lord 45 Dufferin when, as Governor General, he visited 46 British Columbia in 1876, to discuss the claims 47 of British Columbia against the Dominion. 27049 Submission by Mr. Willms 1 Those remarks, which the Commissioners believe 2 were wholly foreign to the mission of the 3 Governor General, have been sedulously 4 inculcated in the Indian mind by some of the 5 missionaries, who appear to have been ignorant 6 of the constitutional law upon the subject." 7 8 And then another part of the quote: 9 10 "The severance between Mr. Duncan and the Church 11 Missionary Society has certainly given an 12 impetus to the question of Indian title. The 13 severance took place in 1881, when Bishop 14 Ridley handed Mr. Duncan a letter of dismissal, 15 and from that time there has been disquietude, 16 breaches of the peace, the pulling down of 17 houses and of a church, the overt assertion of 18 the Indian title to the lands, besides which 19 direct notices were given by the Metlakatlah 20 Indians to Dr. Prager and Bishop Ridley to quit 21 Metlakatlah. It was in consequence of these 22 notices that the resident Magistrate was 23 induced to swear in a number of native 24 constables for the protection of the occupants 25 of the Mission-house." 26 27 Some of the evidence that the commission heard is 28 quoted at the bottom of page 5. Mr. Clifford from 29 Lome Creek gave evidence: 30 31 "All the Indians that I have spoken to told me 32 that they had been taught by the missionaries 33 that the white men were coming into the country 34 to rob them of the land; that all the land 35 belonged to the Indians ... The missionaries - 36 Green on the Nass, Crosby at Fort Simpson, 37 Duncan at Metlakatlah, and Tomlinson at 38 Metlakatlah - are the only ones I know of who 39 have taught these things. Tomlinson went up 40 the forks of the Skeena last summer, and the 41 Indians say he told them that they had the 42 sympathy of the Metlakatlah Indians in trying 43 to drive the white men out of the country. 44 They further told me he condoned the offence of 45 killing Yeomans, and said, 'You have your 46 Indian laws and you take a life for a life, and 47 the white man has as much right to respect your 27050 Submission by Mr. Willms 1 laws as you have to respect his, and you have 2 the sympathy of the Indians at Metlakatlah.' 3 Tomlinson also told me that he thought the 4 Indians had a perfect right to resist" -- 5 6 THE COURT: Arrest. 7 MR. GRANT: Arrest. 8 MR. WILLMS: Did I say "arrest"? 9 THE COURT: No, you said "resist." 10 MR. WILLMS: Oh. 11 12 "...a perfect right to arrest any white man who 13 came on a reservation and did anything contrary 14 to the wishes of the Indians and their rules." 15 16 Now, at the same hearing, my lord, Mr. White, a 17 cannery manager, gave evidence: 18 19 "[Duncan] further went on to say that there were 20 only three ways of acquiring property - by 21 purchase, by finding it, or by stealing it; 22 that the government certainly had not purchased 23 this land from the Indians; that they did not 24 find it uninhabited; they did not acquire it by 25 right of conquest, so they must have stolen 26 it." 27 28 Now, the events referred to by Messrs. White and 29 Clifford occurred in the fall of 1883 and in the 30 spring of 1884 at Lome Creek and Metlakatlah. On 31 February 27th, 1884, Reverend Tomlinson, who has been 32 described as Duncan's most fervent supporter, wrote to 33 the chief commissioner of Lands and Works purportedly 34 on behalf of "Chiefs representing the seven inland 35 tribes scattered over a district more than one hundred 36 miles square, to bring [the] matter [of the land 37 question] before the government." 38 Prior to the first set of Metlakatlah hearings in 39 October 1884 Reverend Tomlinson wrote to the 40 Provincial Secretary enclosing a trancription of a 41 petition from the "Chiefs and principal men of the 42 Kitwangach village." Now, the transcription was not a 43 verbatim account, but in the petition the chiefs 44 allegedly stated: 45 46 "We hold these lands by the best of all titles. 47 We have received them as the gift of the God of 27051 Submission by Mr. Willms 1 heaven to our forefathers, and we believe that 2 we cannot be deprived of them by anything short 3 of direct injustice." 4 5 Still dealing with Reverend Tomlinson, my lord, on 6 November 12th he wrote to the Provincial Secretary and 7 enclosed an "Outline of a temporary arrangement to be 8 enforced until such time as the question is finally 9 settled between the Government and the Indians." And 10 I say in his letter Reverend Tomlinson foreshadowed 11 his contemplated actions by suggesting that this 12 agreement be implemented "to prevent further 13 complications." 14 Now, the agreement suggestion was not implemented, 15 and on September 10, 1885, Reverend Tomlinson wrote to 16 the Kispiox chiefs, where he said, among other things: 17 18 "Though I cannot see you this Autumn, I am 19 working for you with the Government not to let 20 the whiteman take your hunting and berry 21 grounds." 22 23 This open advocacy, I say, was illustrated in a 24 letter from Mr. Graham to the Provincial Secretary, 25 February 11th, 1886, where Mr. Graham, a Stipendiary 26 Magistrate of experience in the north, speaking of his 27 visit to Kitwanga in 1885, said: 28 29 "The Kitwingach Chief 'Caulk' told me that it 30 was Mr. Tomlinson and Mr. Duncan that were 31 making trouble among them a letter had come 32 from Metlakatlah stating that the Government 33 wanted to take their lands from them and that 34 the Bishop was the same as the Government. I 35 wished to see this letter the Duncanites had it 36 and objected, I told them it was foolish to let 37 any letter trouble them about their lands..." 38 39 Now, Reverend Tomlinson on April 9th, 1885, wrote 40 to Sir John A. Macdonald pointing out -- it's a 41 lengthy letter, my lord -- pointing out the problems 42 that he perceived in the claim area and on the Nass 43 and warning of an Indian war. He concluded his letter 44 with an admonition that: 45 46 "[I]t costs a country less to do justice even to 47 the weakest and most despised than to trample 27052 Submission by Mr. Willms 1 upon them and to bring down the curse of the 2 God of Heaven for our deliberate disregard of 3 his commands." 4 5 Now, again Reverend Tomlinson's hand continues in 6 paragraph 16. Mr. Stevenson writes to Mr. Powell, 7 Indian Affairs, December 9th, 1886, and says: 8 9 "We met several canoes on the river who told us 10 Mr. Tomlinson was at Kitwanga and stirring the 11 people up against the government and the Church 12 Missionary Society. From what they said Mr. 13 Tomlinson must have told them some very strange 14 things ... 'Mr. Tomlinson had told him,'" 15 16 and this is a reference to a chief. The "him" is a 17 chief. I can't recall which chief, my lord. 18 19 "... on no account to allow a CMS man to land let 20 alone stay at Kitwanga and if white men came to 21 prevent their landing': and that if all the 22 Indians rose and opposed the Government 23 sticking up for their rights and preventing the 24 surveys the Government would finally yield to 25 them'." 26 27 THE COURT: Of course, that's entirely hearsay, isn't it? 28 MR. WILLMS: This, yes. Well, it's like most of the evidence in 29 this case, my lord. In fact, about 99 per cent of 30 this evidence is hearsay. 31 THE COURT: Well, some of it's hearsay. 32 MR. WILLMS: Yes. 33 THE COURT: Some of it's opinion. This is direct hearsay, 34 ordinary, common, garden variety hearsay, reporting 35 what several canoes told him. 36 MR. WILLMS: Yes. 37 THE COURT: I assume he means the contents of the canoes told 38 him. 39 MR. WILLMS: The people in the canoes. 4 0 THE COURT: Yes. 41 MR. WILLMS: Yes. 42 THE COURT: There is no saving consideration here, is there? 43 Would this be an historical document? 44 MR. WILLMS: Yes. The saving consideration, my lord, is I think 45 the plaintiffs put this document in. Maybe that's the 46 saving consideration. Certainly Dr. Galois was well 47 aware of this document and gave evidence about it. 27053 Submission by Mr. Willms 1 And we didn't object, I don't think, when it went in. 2 THE COURT: All right. 3 MR. GRANT: I don't think it was put in -- I have to check over 4 the reference, but I don't think it was put in to 5 prove the truth of what third party -- anonymous third 6 parties in a canoe told the author about what happened 7 somewhere else. I don't think that was the point it 8 was put in for. 9 MR. WILLMS: Frankly, my lord, I don't know which of the 10 evidence my friends put in for the truth and which 11 they didn't. I assumed most of it was, but who knows. 12 MR. GRANT: This is hearsay. 13 MR. WILLMS: At the top of page 10 here, Mr. Powell expressed 14 the view in a letter to the Superintendent General of 15 Indian Affairs: 16 17 "that the long license that both Mr. Tomlinson 18 and Mr. Duncan have had to create a feeling of 19 hostility in the minds of the Indians not 20 against the Church Missionary Society but 21 against the government in the immediate 22 vicinity of Metlakatlah has had a very 23 prejudicial effect upon those more distant and 24 isolated bands." 25 26 Now, there was then a second commission called the 27 Cornwall Planta Commission appointed on September 28 30th, 1887, to inquire into the state and conditions 29 of the Indians of the Northwest Coast. Their report 30 came out on November 30th, 1887. And there were two 31 commissioners, one appointed by the Dominion and one 32 by the Province, and they say: 33 34 "Your Commissioners, while very unwilling to say 35 anything which might engender friction between 36 Indians or their missionary teachers, who 37 belong to different Christian churches or 38 denominations, feel that they would not be 39 fulfilling their public duty were they to fail 40 to point out the curious coincidence of the 41 correspondence between the views held by the 42 Indians and the missionary influence under 43 which they (the natives) are held. 44 45 The Indian adherents of the Church Missionary 46 Society, and resident at Kincolith and 47 Metlakatlah, put forward no claim of 'Indian 27054 Submission by Mr. Willms 1 Title' to the lands of the Province..." 2 3 And I should just pause there. By this time, my lord, 4 Duncan had left Metlakatlah. So by the time of the 5 second commission Duncan had left Metlakatlah, and the 6 views apparently had changed. 7 8 "On the other hand, the natives of Greenville, 9 on the Nass river, and the Tsimpseans of Port 10 Simpson, stations of the Methodist Church of 11 Canada, strongly urge their claim to ownership 12 in all the country, and speak most determinedly 13 as to what shall be their course of action if 14 their claim be not allowed...They hardly, 15 especially the Indians of Port Simpson, attempt 16 to veil the expression of their feelings of 17 opposition to the views of the Government. All 18 this seems to have its inception in, and to be 19 a continuance of, the policy inaugurated at 20 Metlakatlah, say in 1881, the date of the 21 severance between Mr. Duncan and the Church 22 Missionary Society." 23 24 And I have some more extracts -- another extract 25 from the evidence before that inquiry. This is 26 Matthew Aucland, one of the principal men from -- and 27 I can't remember which Indian tribe. One of the Nass 28 tribes, my lord. 29 30 "...There are two sets of Tsimpseans - the 31 Metlakatlans and Fort Simpson Indians - and we 32 want the reserves divided. We want it made 33 clear to us about the lands, as there are some 34 bad white men among us who say we are slaves on 35 the reserves, telling this in the ears of 36 ignorant Indians that we are slaves; so we wish 37 it made clear to us about our land. 38 39 Mr. Planta - Have you any objection to tell us 40 who told you that? 41 42 Aucland - I can tell you the names - Mr. 43 Duncan, Mr. Tomlinson, and Dr. Bluett. These 44 three men are the cause of the trouble among 45 the Tsimpseans." 46 Now, in his letter to the Superintendent General 47 of Indian Affairs Mr. Cornwall said this: 27055 Submission by Mr. Willms 1 "The idea first started at Metlakatlah during 2 the contest between the Bishop and Duncan that 3 the title to all Provincial lands was vested in 4 the Indians has spread to an alarming extent, 5 and is now really the basis upon which the 6 natives found their complaints and demands. 7 That is to say the disaffected ones, and they 8 are numerous, do so, but it is encouraging to 9 note that such is not the case with all. Thus 10 the Commissioners found that the Indians still 11 remaining at Metlakatlah and those of Kincolith 12 on the Naas river never mentioned the subject, 13 or if they did so it was merely to show that 14 they did not lay stress upon it. 15 16 But on the other hand the Tsimpseans of Fort 17 Simpson and the people of the upper Naas river 18 were loud upon the subject, were not to be 19 denied in their assertion of it, and would not 20 yield a point. And here I must point out (as 21 indeed the report does) the curious way in 22 which the expressed opinions of the Indians 23 seem to depend upon the character of the 24 missionary influence under which they live. At 25 Metlakatlah and at Kincolith there are 26 intelligent educated men sent and supported by 27 the C.M.S. At Fort Simpson and on the upper 28 Naas river the missionaries directing the 29 Indians are established and supported by the 30 Methodist Church of Canada. And the difference 31 of opinion on the part of the Indians is 32 observable on other points. At Metlakatlah and 33 Kincolith the natives wish to be governed under 34 the provisions of the 'Indian Act', at Fort 35 Simpson and the upper Naas they declare they 36 will have nothing to do with it. It is 37 impossible to shut one's eyes to the fact that 38 such differences of opinion depend on the 39 influences brought to bear on, and the advice 40 given to the Indians, especially where one sees 41 that at Fort Simpson the Indians Council 42 chamber in which they are said to meet night by 43 night to discuss their affairs is under the 44 roof of the Mission house, and communicates 45 with the office or study of the missionary in 46 charge of the place. It is abominable to think 47 that all or the greater part of these troubles 27056 Submission by Mr. Willms 1 are caused and fomented in this way, but that 2 is the view of every one whose opportunities 3 and experiences enable him to form an 4 opinion..." 5 6 And then some foreshadowing, my lord. 7 8 "...And while speaking upon this point I would 9 mention that there is a Mr. Tomlinson who at 10 one time worked with Duncan who is a great 11 mischief maker and who under the guise of 12 religion has done much to foment the 13 difficulties and disaffections which have 14 sprung up. This man is about to establish 15 himself upon the Skeena river." 16 17 Now, my lord, I say this, because I think I've 18 been mentioning that actions speak louder than words, 19 and if I can say here we go again, by the time of the 20 Cornwall Planta Commission Mr. Duncan and his 21 followers had left Metlakatlah to settle at New 22 Metlakatlah in Alaska. And perhaps coincidentally, 23 perhaps not, in 1884 the Attorney-General of British 24 Columbia had indicated to the Dominion's Minister of 25 Justice his intention to arrest and prosecute Mr. 26 Duncan "at common law for high misdemeanour of 27 seditious speaking." The C.M.S. missionaries who had 28 replaced Mr. Duncan by the time of the Cornwall Planta 29 Commission had apparently discontinued Mr. Duncan's 30 teachings. 31 It is a telling commentary, my lord, on the origin 32 and validity of the claims of Mr. Duncan's followers 33 to a right to the land superior to that of the Crown 34 and subsisting since time immemorial that they left 35 Metlakatlah, and that land, to follow Mr. Duncan to 36 New Metlakatlah when he decided he would tolerate no 37 further interference in the way in which he spoke the 38 gospel. And I say actions here, as elsewhere, speak 39 louder than words. 40 In 1906, in paragraph 23, two representatives of 41 the northern tribes stated in their petition to the 42 Governor General, the Dominion Government and the 43 Department of Indian Affairs that "in 1882 the 44 discussion of the land question commenced in 45 Metlakatlah..." 46 THE COURT: Does it matter who started the dialogue, Mr. Willms? 47 MR. WILLMS: Well, my lord, it matters who started the dialogue 27057 Submission by Mr. Willms 1 when you consider what happened to Mr. O'Reilly and my 2 friends' explanation for what O'Reilly said when he 3 went up the river, which I'm coming to in a little 4 while. But the reason why I say it matters who 5 started the question is that my friends are 6 suggesting, as I understand it, that when you look at 7 statements during the time, such as "We've had this 8 land since time immemorial. God gave us the land," 9 that that is a statement your lordship can use to find 10 that they actually did live there since time 11 immemorial. Now, to that extent it is important where 12 it came from, my lord, and I say that it came from 13 Metlakatlah, Duncan and Tomlinson. 14 Now, I say at the bottom of page 14 the travellers 15 in the claim area also noted the influence of Reverend 16 Tomlinson and Mr. Duncan. Mr. Turner-Turner noted in 17 1886, when he was up there: 18 19 "It was but a day's journey to Kishpyyox, on the 20 way we fell in with Mr. Tomlinson, Mr. Duncan's 21 colleague, who, from having lived among the 22 Kishpyyox Indians retained some influence over 23 them, he had heard of our difficulty and was 24 then, very kindly on his way to our assistance; 25 he and Mr. Duncan rule the Indians to a greater 26 extent than anyone else far beyond this point, 27 but I much doubt if even Mr. Duncan's power 28 would prove efficient in preventing them from 29 taking their own course in certain 30 emergencies." 31 32 Now, I say in paragraph 25 that these events in 33 the 1880s both at Metlakatlah and on the Skeena set 34 the stage for the minor difficulties that Mr. O'Reilly 35 had at Kispiox in the 1890s. In 1871, when Mr. 36 Dewdney selected and surveyed the townsite of Hazelton 37 and reserved land for a tribe called the Gitanmaax, he 38 did not appear to run into any difficulties 39 whatsoever. 40 Before Mr. O'Reilly arrived Mr. Vowell noted in a 41 letter to the Deputy Superintendent General of Indian 42 Affairs that in August of 1890 Chief 43 Kit-get-dum-gal-doe had been advised: 44 45 "not to let surveyors or Government officials 4 6 connected with the Indian Department up the 47 Skeena River, it being stated that when these 27058 Submission by Mr. Willms 1 officials came, it would be for the purpose of 2 turning the Indians out of their homes and away 3 from their fisheries." 4 5 It was also noted that these false reports had 6 been transmitted to Kispiox by the missionaries, 7 probably Tomlinson. 8 My lord, I say that it was in -- at this point, 9 and I am going to digress from the text for a moment, 10 but I say that it was in response to these false 11 rumours that Mr. O'Reilly gave his assurances about 12 reserve land, hunting and fishing and berrying, that's 13 b-e-r-r-y-i-n-g, which I say, my lord, for Mr. 14 O'Reilly was just a continuation of the pre- 15 confederation colonial policy of British Columbia. 16 That's all that Mr. O'Reilly was engaging in. 17 And as an example, my lord, I have an extract from 18 a couple of exhibits that I would -- the first two 19 pages, my lord, are from Exhibit 1142-2, and this is a 20 despatch in 1859 from Governor Douglas to Lytton. And 21 if I can -- 22 MR. GRANT: 1142-2? 23 MR. WILLMS: Yes, 1142-2. In paragraph 6 Douglas starts by 24 saying: 25 26 "I feel much confidence in the operation of this 27 simple and practical scheme, and provided we 28 succeed in devising means of rendering the 29 Indian as comfortable and independent in regard 30 to physical wants in his improved condition, as 31 he was when a wandering denizen of the forest, 32 there can be little doubt of the ultimate 33 success of the experiment. 34 35 7. The support of the Indians will thus, 36 wherever land is valuable, be a matter of easy 37 accomplishment, and in districts where the 38 white population is small, and the land 39 unproductive, the Indians may be left almost 40 wholly to their own resources, and, as a joint 41 means of earning their livelihood, to pursue 42 unmolested their favorite calling of fishermen 43 and hunters. 44 45 8. Anticipatory reserves of land for the 46 benefit and support of the Indian races will be 47 made for that purpose in all the districts of 27059 Submission by Mr. Willms 1 British Columbia inhabited by native tribes. 2 Those reserves should in all cases include 3 their cultivated fields and village sites, for 4 which from habit and association they 5 invariably conceive a strong attachment, and 6 prize more, for that reason, than for the 7 extent or value of the land. 8 9 9. In forming settlements of natives, I should 10 propose, both from a principle of justice to 11 the State and out of regard to the well-being 12 of the Indians themselves, to make such 13 settlements entirely self-supporting, trusting 14 for the means of doing so, to the voluntary 15 contributions in labour or money of the natives 16 themselves; and secondly, to the proceeds of 17 the sale or lease of a part of the land 18 reserved, which might be so disposed of, and 19 applied towards the liquidation of the 20 preliminary expenses of the settlement." 21 22 He then says something at the top of the next page 23 which he repeats a number of times, my lord, and which 24 I say caused quite a bit of the fear. 25 26 "The plan followed by the Government of the 27 United States, in making Indian settlements, 28 appears in many respects objectionable..." 29 30 And at page 12 -- and I'll come back to that, my lord. 31 Now, he is referring here to the costs for the 32 United States, but he does in the next despatch refer 33 to another problem with the U.S. But in paragraph 12 34 he says: 35 36 "I would, for example, propose that every family 37 should have a distinct portion of the reserved 38 land assigned for their use, and to be 39 cultivated by their own labour, giving them 40 however, for the present, no power to sell or 41 otherwise alienate the land; that they should 42 be taught to regard that land as their 43 inheritance; that the desire should be 44 encouraged and fostered in their minds of 45 adding to their possessions, and devoting their 46 earnings to the purchase of property apart from 47 the reserve, which would be left entirely at 27060 Submission by Mr. Willms 1 their own disposal and control; that they 2 should in all respects be treated as rational 3 beings, capable of acting and thinking for 4 themselves; and lastly, that they should be 5 placed under proper moral and religious 6 training, and left, under the protection of the 7 laws, to provide for their own maintenance and 8 support." 9 10 Now, the next set of pages, my lord, is from 11 Exhibit 1142-4, and there are two despatches here. 12 The first despatch is from Douglas to the Duke of 13 Newcastle, October 9th, 1860. And the part that I'd 14 like to draw to your lordship's attention is at page 15 25, paragraph 35. And this is at a -- Douglas is 16 speaking of a place called Cayoosh, C-a-y-o-o-s-h. 17 THE COURT: Is this the one that he wrote — no, this isn't when 18 he was on his tour. No. This is from Victoria. 19 MR. WILLMS: Yes. And at paragraph 35, my lord, he describes 20 something that he said. 21 22 "I had an opportunity of communicating 23 personally with the native Indian tribes, who 24 assembled in great numbers at Cayoosh during my 25 stay. I made them clearly understand that Her 26 Majesty's Government felt deeply interested in 27 their welfare, and had sent instructions that 28 they should be treated in all respects as Her 29 Majesty's other subjects; and that the local 30 magistrates would attend to their complaints, 31 and guard them from wrong, provided they 32 abandoned their own barbarous modes of 33 retaliation, and appealed in all cases to the 34 laws for relief and protection. I also 35 forcibly impressed upon their minds that the 36 same laws would not fail to punish offences 37 committed by them against the persons or 38 property of others. 39 I also explained to them that the 40 magistrates had instructions to stake out, and 41 reserve for their use and benefit, all their 42 occupied village sites and cultivated fields 43 and as much land in the vicinity of each as 44 they could till, or was required for their 45 support; and that they might freely exercise 46 and enjoy the rights of fishing the lakes and 47 rivers, and of hunting over all unoccupied 27061 Submission by Mr. Willms 1 Crown lands in the colony; and that on their 2 becoming registered free miners they might dig 3 and search for gold, and hold mining claims on 4 the same terms precisely as other miners: in 5 short, I strove to make them conscious that 6 they were recognized members of the 7 commonwealth, and that by good conduct they 8 would acquire a certain status, and become 9 respectable members of society. They were 10 delighted with the idea, and expressed their 11 gratitude in the warmest terms, assuring me of 12 their boundless devotion and attachment to Her 13 Majesty's person and crown, and their readiness 14 to take up arms at any moment in defence of Her 15 Majesty's dominion and rights." 16 17 Now, the previous two despatches, my lord, are 18 brought together in the final one, which is a despatch 19 of October 25th, 1860, from Governor Douglas to the 20 Duke of Newcastle. And he said -- and he's discussing 21 an address that he gave at Lytton, and at paragraph 5, 22 my lord: 23 24 "There was one subject which especially pre- 25 occupied their minds, as I discovered by the 26 frequent allusions they made to it, namely, the 27 abject condition to which the cognate native 28 tribes of Oregon have been reduced by the 29 American system of removing whole tribes from 30 their native homes into distant reserves, where 31 they are compelled to stay, and denied the 32 enjoyment of that natural freedom and liberty 33 of action without which existence becomes 34 intolerable. They evidently looked forward 35 with dread to their own future condition, 36 fearing lest the same wretched fate awaited the 37 natives of British Columbia. 38 I succeeded in disabusing their minds of 39 those false impressions by fully explaining the 40 views of Her Majesty's Government, and 41 repeating in substance what I have in a former 42 part of this report informed your Grace was 43 said on the same subject to the assembled 44 tribes at Cayoosh and Lytton." 45 46 Now, what I say, my lord, in respect of what Mr. 47 O'Reilly was faced with and what the effect of Mr. 27062 Submission by Mr. Willms 1 O'Reilly's statements were are really twofold. The 2 first part is that before Mr. O'Reilly got to the 3 Skeena the Indians on the Skeena had been told that 4 they were going to lose their lands, that they were 5 going to lose their villages, they were going to lose 6 their homes, they were going to lose their fisheries. 7 Some of them were told that the reserves were 8 temporary and that at some point they would be taken 9 back. Some were told that if you have a reserve you 10 will be physically confined to the reserve. These are 11 all things, my lord, which, if I can put it in 12 Governors Douglas' terms in referring to the United 13 States' position, which had reached the tribes that he 14 spoke to, were things that he had to disabuse the 15 Indians' minds of, and he said that you will not be 16 confined to your reserve, your reserves are going to 17 be made out of the village sites, and you will be able 18 to, just as everyone else can, hunt over unoccupied 19 Crown land, and you can get a free miner's licence 20 just like anyone else can, unlike the United States, 21 where not only were tribes moved, but where tribes 22 were confined to their reserve. They weren't allowed 23 off the reserve. 24 And that, my lord, is the context continuing on 25 from pre-confederation within which Mr. O'Reilly gave 26 his assurances. And, my lord, if the assurances were 27 to the extent that my friends have said, in other 28 words, if the assurances were don't worry about it, 29 this is all your land anyway, you can do everything 30 that you could do before without any fear of 31 interference whatsoever, first of all, then why was 32 Mr. O'Reilly laying out reserves in the first place; 33 and secondly, the effect of white settlement must have 34 been at the time obvious to those people. Mr. 35 O'Reilly declined to lay out some reserves because 36 pre-emptions had been taken out. And that was crystal 37 clear to the Indians at the time. 38 And with all due deference to my friends, my lord, 39 with all due deference to my friends, their 40 submissions depend on your lordship accepting 41 something that they've called racist. Their 42 submissions depend on your lordship accepting the 43 proposition that the government is a guardian and that 44 the Indian people are wards, because then you have to 45 go back and look at what Mr. O'Reilly said, forget 46 about what's going on around, and interpret, in my 47 submission, what Mr. O'Reilly is saying at the very 27063 extreme s 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 Submission by Mr. Willms 1 basest level, at the implest level. And, in my submission, that is exactly what my friends spent five weeks urging all of us to cast aside, and yet they rely on it. THE COURT: You started out at the beginning by saying that Mr. O'Reilly's statements were to be viewed in a twofold perspective I think you said. MR. WILLMS: Well, I'm sorry, I didn't say the second, but the second fold, my lord, is, first of all, that you will not be moved. Okay. You will -- the reserves will be where you live. So he is assuring them that the American experience of moving people away from where they lived is not going to happen to them. But the second thing that Mr. O'Reilly is saying to them, unlike the American experience, they won't be confined to their reserves. They can hunt over, gather berries from, fish from unoccupied Crown land and will not be confined to gathering resources from their reserves only. And, in fact, my lord, the evidence is that they haven't been. They have been hunting over unoccupied Crown land, fishing from Crown land, picking berries from Crown land. There hasn't been the U.S. confinement. And that's the twofold perspective, my lord, which I say is just a continuation of the policy pre-confederation which is set out in the despatches from Governor Douglas. MR. GRANT: Two points on what my friend raised just to clarify. Number one, is my friend saying, because I -- it seems suggested, that at the time of O'Reilly, when he made these statements in the territory, is my friend saying there were pre-emptions in the territory, and if so, what evidence is there of the pre-emptions at the time of O'Reilly? THE COURT: He didn't mention pre-emptions. MR. GRANT: Yes, he did, my lord. He said — THE COURT: Did he? MR. GRANT: Yes. In my friend's statement he said that O'Reilly -- the Indian people knew that the land was being taken and -- because pre-emptions were occurring, and I think that's contrary to any evidence I'm aware of. My friend may be able to correct that. That there were no pre-emptions in the territory at the time O'Reilly was in the territory dealing the Kispiox people. And secondly, is he saying that in his contrast of the U.S. experience and the Canadian experience that the American Indians could not go off the reservations and the Canadian Indians -- what 27064 Submission by Mr. Willms 1 Douglas and O'Reilly were saying is that they could go 2 off? Is he saying the American Indians could not go 3 off the reservations? 4 MR. WILLMS: My lord, the Oregon experience referred to by 5 Governor Douglas is the experience of removal and 6 confinement. I thought my friend knew about that. 7 There was more than that too, my lord. I'll find 8 my -- the reference to the pre-emptions, my lord, 9 because there are -- there were a number of 10 pre-emptions that O'Reilly referred to. 11 THE COURT: Well, he talked about the Americans in his third 12 letter, which you just handed up, dated October the 13 25th. Are you referring to "the American system of 14 removing whole tribes from their native homes into 15 distant reserves, where they are compelled to stay"? 16 MR. WILLMS: Yes, that's the reference. 17 THE COURT: Now, whether that's true or not is another matter, I 18 suppose. 19 MR. WILLMS: Well, actually, my lord, it really doesn't matter 20 if it's true or not -- 21 THE COURT: No. 22 MR. WILLMS: -- because it's what's on the people's mind at the 23 time. And the same kinds of suggestions were reaching 24 the people on the Skeena. They were going to be -- 25 they weren't going to get their villages. They were 26 going to be thrown out of their homes. And if 27 reserves were laid out, they'd be confined to them. 28 Now, if I can return to my argument now, my lord. 29 THE COURT: Page 16? 30 MR. WILLMS: On page 16, my lord. 31 THE COURT: Yes. 32 MR. WILLMS: I say, paragraph 27, notwithstanding the attempt to 33 generate opposition to laying out reserves, the only 34 location where there was hostility was Kispiox. The 35 Indians at Kispiox later apologized for obstructing 36 Mr. O'Reilly and asked him to return to lay out 37 reserves. 38 The first request by the Kispiox Indians for Mr. 39 O'Reilly to come back and lay out a reserve was 40 expressed to Mr. O'Reilly the day after he was 41 obstructed. Chief Geel "expressed his regret at the 42 conduct of his people on Saturday last." And Mr. 43 Spencer told Mr. O'Reilly that the people in Kispiox 44 "regretted their conduct and" -- and I couldn't make 45 out that word from the quote -- "to send a petition 46 asking me to return but feared I will not." 47 Now, O'Reilly did not return on that day but 27065 Submission by Mr. Willms 1 reserves actually -- he did take metes and bounds 2 descriptions enough to lay out a reserve, and the 3 reserves were surveyed in 1898 when Vowell returned, 4 and I'll get to that in a moment because Vowell did go 5 to Kispiox. 6 THE COURT: 18 98? 7 MR. WILLMS: 1898, yes. 8 MR. GRANT: Is that the reference to Kispiox reserves? 9 MR. WILLMS: The second. There were reserves laid out in 1891 10 as well. 11 THE COURT: You say reserves were established in 1891? 12 MR. WILLMS: Yes, they were, and they were surveyed in 1898. 13 And also there were additional surveys. 14 My lord, I should say at this point, because we 15 had prepared our argument in sum before we got the 16 plaintiffs' argument, what some of us have done, and 17 I'm one of them, I will be taking sections of the 18 plaintiffs' argument and in writing, but not orally, 19 will be referring to the evidence that either shows 20 what I say happened -- and the reserve area is one 21 area that I'm still working on, my lord, but I've 22 decided to take it chronologically, which is the only 23 way I can approach it, and there will be a further -- 24 an appendix that will be handed up at some point in 25 that. 26 Now, I say at the top of page 17, my lord, that 27 it's interesting to note that on page 143 of Mr. 28 Brody's report he said that the reserve commissioners 29 were greeted with great hostility when, in fact, the 30 only hostility was at Kispiox and the hostility was 31 short-lived. 32 In the Apsassin case Mr. Justice Addy described 33 Mr. Brody as "an informed champion." Mr. Brody's 34 evidence in this case, I say, provides overwhelming 35 support for the characterization of "champion." He 36 proposed a film be made in support of Gitksan-Carrier 37 land claims in 1980. He called the film "On Indian 38 Land," completed the filming in the fall of 1985 and 39 the editing in January of 1986. Although the film was 4 0 shown in the United Kingdom, it wasn't shown by the 41 CBC, and in Mr. Brody's own words: 42 43 "After deliberation the C.B.C. has announced 44 that the film - which was given prime time 45 exposure in England - cannot be broadcast 46 because it is 'against the policy of balanced 47 broadcasting.'" 27066 Submission by Mr. Willms 1 Now, I say, my lord, that it is clear from a 2 review of the cross-examination on qualifications of 3 Mr. Brody and a review of the publications that he 4 either authored or authorized that, if anything, 5 "informed champion" is a mild categorization of 6 someone who could be properly characterized as a 7 propagandist. And if you read his articles, my lord, 8 and his articles are set out at these tabs, tabs 29 9 through 32, you will see -- and if I can just find -- 10 yes, my lord, perhaps a good example is his article 11 which is at tab 29, pages 7 and 8 in there, and at 12 those — tab 29. 13 THE COURT: Yes. 14 MR. WILLMS: It's "On Indian Land: The Gitksan-Wet'suwet'en 15 prepare to do battle in the courts." 16 THE COURT: I'm sorry, I don't see that passage. 17 MR. WILLMS: At page 7. My lord, it should look like — page 7 18 should look like this. 19 THE COURT: Oh. Well, I'm at page 7. 20 MR. WILLMS: At tab 29. 21 THE COURT: I thought I was. No, I'm sorry, I'm at tab — yes. 22 Yes. Whereabouts? 23 MR. WILLMS: At page 7. 24 THE COURT: Yes, I have that. 25 MR. WILLMS: And this is his article "On Indian Land: The 26 Gitksan-Wet'suwet'en prepare to do battle in the 27 courts." And it's on the second page. 28 THE COURT: I'm sorry, this print is so small that I haven't 29 found those words "to do battle in the courts." 30 MR. WILLMS: Oh, you have to -- it's from a two-sided page. You 31 have to sort of flip. 32 THE COURT: Oh, yes, I see it. 33 MR. WILLMS: It's the heading of "The Gitksan-Wet'suwet'en 34 prepare to do battle in the courts," and it's on the 35 second page. 3 6 THE COURT: Yes. 37 MR. WILLMS: He says in the middle column, talking about the 38 case: 39 40 "The implications are extremely far-reaching." 41 42 THE COURT: Yes. 43 MR. WILLMS: 44 "Every Indian and Inuit group in Canada will 45 immediately be fortified in its attempt to 46 ensure that its land claims be recognized - and 47 approximately one-third of Canada is at present 27067 Submission by Mr. Willms 1 subject to some form of aboriginal claim. The 2 Gitksan and Wet'suwet'en are thus attempting to 3 break out of the cul-de-sac into which the 4 evolution of Canadian society has led them. 5 And Canada is being offered a chance to let the 6 courts - rather than confrontational and 7 potentially violent politics - resolve an issue 8 that can only go on and on smouldering inside 9 the heart and conscience of the society." 10 11 By the way, my lord, I see the word "smouldering" 12 there, and I remember Dr. Galois' smouldering embers. 13 Maybe they helped each other. I don't know. 14 But I say, my lord, that when you read the cross- 15 examination of Mr. Brody and when you read the other 16 documents that he authored relating to his 17 film-making, that "informed champion" is a mild 18 categorization. 19 Now, I say in paragraph 31 -- 20 THE COURT: I think we'll take the afternoon adjournment, Mr. 21 Willms. Thank you. 22 THE REGISTRAR: Order in court. Court stands adjourned for a 23 short recess. 24 25 (PROCEEDINGS ADJOURNED AT 3:05 P.M.) 26 I hereby certify the foregoing to 27 be a true and accurate transcript 28 of the proceedings transcribed to 29 the best of my skill and ability. 30 31 32 33 34 35 Leanna Smith 36 Official Reporter 37 UNITED REPORTING SERVICE LTD. 38 39 40 41 42 43 44 45 46 47 27068 Submissions by Mr. Willms 1 (PROCEEDINGS RESUMED AT 3:25 p.m.) 2 3 THE COURT: Mr. Willms. I should have mentioned, Mr. Willms, 4 that I had inadvertently made an arrangement to deal 5 with some matters at 3 o'clock forgetting that half 6 time at the afternoon session would have been quarter 7 after, but I understand that we are going to sit until 8 4:30. 9 MR. WILLMS: Until 5:30. 10 THE COURT: Until 5:30 tonight? 11 MR. WILLMS: Yes. 12 THE COURT: All right. I had forgotten that too, but I have 13 forgotten a lot of things these days. We will take a 14 break just before 4:30. Presumably we are going to 15 change reporters. Yes. 16 MR. WILLMS: My lord, I am on page 18, paragraph 31. 17 THE COURT: Yes. 18 MR. WILLMS: And I say there that in my submission, not only was 19 Mr. Brody a propagandist, but apparently he was 20 willing to make general statements which are 21 contradicted by the historical record. For example, 22 he said at page 24 of his report: "If the whites knew 23 about the feast they did not - in the early days - 24 seek to stop or even change it." Yet, as early as 25 1825, attempts were made by the Hudson's Bay Company 26 to prevent chiefs attending at feasts because of the 27 injury to the fall hunts. And I've set out the 28 reference to the Hudson's Bay exhibit there. 29 At another point in his report, Mr. Brody 30 concludes that "The mutual Gitksan Wet'suwet'en 31 influences must have been at work for centuries, 32 possibly for millennia" and stated that "The absence 33 of a record of conflict between the Gitksan and 34 Wet'suwet'en despite the widely acknowledged impact of 35 the fur trade in this respect is very striking." 36 Well, not only does this statement ignore Reverend 37 Tomlinson's description of the hostility between the 38 Kispiox people, who were going to rise up and head 39 down to Hagwilget when he was on the Skeena, but it 40 ignores the conclusions of Dr. Ray in his report where 41 Dr. Ray described the Atnahs barring the river and 42 preventing fish from getting to the Wet'suwet'en and 43 describing the Gitksan as having in his words the whip 44 hand in that circumstance. A final one or another 45 one, my lord, is in the yellow book at tab 30. At tab 46 30 at page, the last page of the tab which is page 28, 4 7 my lord. 27069 Submissions by Mr. Willms 1 THE COURT: Yes. 2 MR. WILLMS: This is from On Indian Land by Hugh Brody and it's 3 the second page where in the middle column here Mr. 4 Brody is trying to capsulize some history and he talks 5 about in the middle column partway down "a Gitksan 6 chief," coming down from the top about eight lines. 7 THE COURT: Oh, yes. 8 MR. WILLMS: 9 10 "A Gitksan chief who had, in accordance with 11 Gitksan law, stabbed a white man whom he held 12 responsible for the drowning of his son, was 13 arrested, taken out of the area, tried in a 14 southern court and eventually hanged." 15 16 Well, that was Yeoman's murderer, my lord, and 17 Yeoman's murderer wasn't hanged. 18 And I say carrying on, my lord, in my argument at 19 paragraph 33 -- and these are just a couple of 20 incidents, but Mr. Brody's -- Mr. Brody's whole report 21 is at a level of generality which defies description. 22 But I say that his understandable reluctance to 23 descend into the particular in support of his 24 propositions is perhaps a reflection of a film-maker's 25 approach to research. It takes nothing away from the 26 entertainment value of the work product, but shows 27 that it is not only propaganda, but propaganda based 28 on inadequate research. 29 Now, the first two words of the next paragraph can 30 be changed to -- from "after 1896" changed to "in 31 1898." And here after Kisgegas, Kispiox should also 32 be added, because at Kispiox not only were the 33 original reserves surveyed in 1898, but there were two 34 reserves added in 1898 by -- and this is Vowell, 35 Vowell went up. But reserves were laid out at Kuldo, 36 Kisgegas and Kispiox and surveyed without any evidence 37 of hostility. 38 Now, I say that both Dr. Galois and Mr. Brody 39 tried to make much of some selective reading of 40 documents linked to the laying out of reserves. 41 However, except for Kispiox, there is a clear process 42 of negotiation taking place in each area where 43 reserves are laid out, including Moricetown and 44 Hagwilget. I refer to the exchange with Numticks at 45 Kitsegukla on September 30, 1891. And that, my lord, 46 is I say relatively typical. And if you could turn to 47 tab 35, and -- actually, my lord, the -- I hope in the 27070 Submissions by Mr. Willms 1 section that I put .ave more readable extracts. It starts at this page, at page 12, and this is at New Kitsegucla, and what happens here is, is that O'Reilly meets with -- and in the margin you can see it, "James Numticks empowered to speak for the people." It's on the left-hand side right near the three-hole punch. On page -- : On page 12. Yes. : You have to -- it's right here. Oh, I see. : Three-hole punch is almost in it. Yes. : In each place Mr. O'Reilly sets out who spoke and sets out what his address is and what his position is. And I -- I'll just read: "I should have liked to see more of you, but I know you have your business to attend to and I'm glad to find they have left a man to represent. I come here to represent both the Province and the Dominion Governments who are the guardians of the Indians. Both governments have -- " Delegated? No, no. I have translated this once before. "Have" something "me to define." Yes. "Directed" or. Yes. "-- me to define what lands are to be specially set aside for the Indian. Reserves once made become the property of the Indians and if anyone trespasses on them, the Indians should apply to Mr. Loring who will protect them, and not take the law in their own hands. Hitherto the Provincial Government have not allowed pre-emptions to be taken in the neighbourhood of the villages, least it should interfere with the rights of the Indians. But when the reserves are defined this prohibition will no longer exist. Therefore, I wish you to tell me where your fisheries, timber and village sites are. I will include their peculiar fisheries together that I'll h 2 3 4 5 6 7 8 THE COURT: 9 MR. WILLMS 10 THE COURT: 11 MR. WILLMS 12 THE COURT: 13 MR. WILLMS 14 THE COURT: 15 MR. WILLMS 16 17 18 19 20 21 22 23 24 25 26 27 THE COURT: 28 MR. WILLMS 29 THE COURT: 30 MR. WILLMS 31 THE COURT: 32 MR. WILLMS 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 27071 Submissions by Mr. Willms 1 in the immediate neighbourhood." 2 3 THE COURT: "But there is a — " 4 MR. WILLMS: "But there is a species — " 5 THE COURT: Special — 6 MR. WILLMS: "Special net." 7 THE COURT: Net? 8 MR. WILLMS: 9 10 "-- a special act which prohibits white men 11 from fishing. Therefore the fisheries are 12 virtually all the Indians and it is not 13 necessary to reserve each little space." 14 15 And, my lord, that is the similar when you look 16 through it -- and as I said, I will try to get all the 17 documents and have a transcription for all of them as 18 well. But that's similar to what Mr. O'Reilly said at 19 almost every location when he laid out a reserve. He 20 told the people what was going to happen after the 21 reserves were defined. 22 THE COURT: Is that Exhibit 1033-14? 23 MR. WILLMS: This is, yes, that's Exhibit 1033-14, my lord. 2 4 THE COURT: Thank you. 25 MR. WILLMS: And I can -- as I say, my lord, there is no doubt 26 that when you read this that after the reserves are 27 laid out in the land off the reserve people are going 2 8 to come in and preempt. I don't know how you can take 29 any other way on the face of it. 30 Now, I say back in my argument in paragraph 36, 31 that a recurring theme in many of the early petitions 32 on behalf of Indians for Indian title is an allegation 33 that the land was received from God or from the 34 "Creator." This theme appeared frequently, 35 notwithstanding the different societal structure of 36 the claimant native groups. And what I mean by that 37 is you saw it at Metlakatla on the coast. You see 38 that with the Gitksan, you see it with the 39 Wet'suwet'en. And it reappears again and again, 40 notwithstanding societal differences between the 41 groups who are speaking or making the allegation. 42 The plaintiffs may submit that the missionaries' 43 translation of the word God was either a translation 44 of the Gitksan word for Creator "Simoogit lax ha" or 45 "chief in heaven", and that's Stanley Williams' 46 evidence, or the Wet'suwet'en word for higher being, 47 being "Hudagshi", I think -- which is -- I think that 27072 Submissions by Mr. Willms 1 should be two g's not s-h-i. I think it should be 2 g-g-h-i. 3 THE COURT: Two g's? 4 MR. WILLMS: I think it should be two g's. 5 THE COURT: Yes. Yes. 6 MR. WILLMS: Yes. That's correct. It should be two g's, not g. 7 And I point out there as Miss Marsden pointed out that 8 "Simooget" is "chief" in Gitksan. 9 THE COURT: Yes. 10 MR. WILLMS: But Drs. — and I am in paragraph 38. Drs. Rigsby 11 and Kari concluded that the Wet'suwet'en word for God, 12 and this is how they spelled it phonetically, but I 13 think it's the same as the H-u-d-a-g-g-h-i, was 14 borrowed by the Gitksan and was "probably developed 15 about the same time, perhaps when Fort St. James was 16 established." And that's evidence from the 17 Kari-Rigsby report that the plaintiffs marked in this 18 action. 19 And I say at the bottom of page 21 that this was a 20 conclusion shared by Dr. Jenness who said: 21 22 "John McLean, who spent several years among the 23 Carrier in the first half of the nineteenth 24 century, states that 'the Takelly' (Carrier) 25 language has not a term in it to express the 26 name of Diety, spirit or soul. When the 27 Columbia religion was introduced among them, 28 our interpreter had to invent a term for the 29 Diety - Yagasita - the 'Man of Heaven'. The 30 only expression I ever heard them use that 31 conveyed any idea whatever of a superior Being 32 is, that when the salmon fail, they say, 'The 33 man who keeps the mouth of the river has shut 34 it up with his red keys so that the salmon 35 cannot get up. 36 37 The Bulkley natives, however, assert that they 38 at least recognized a superior Being long 39 before Europeans penetrated to their country. 40 At Stuart Lake he was called yutarre; at Fraser 41 Lake, yutakki; and by the Bulkley people 42 themselves, utakke, all meaning 'that which is 43 on high.' He was a typical sky god, and indeed 44 the Bulkley natives often called him sa, 'sky 45 or sky luminary.' They regarded the sky as 46 another land abounding in lakes and forests 47 like this earth, but neither very warm nor very 27073 Submissions by Mr. Willms 1 cold. Sa and his children had their dwelling 2 there, but occasionally he came down to earth 3 to help some unfortunate man or woman, and once 4 he sent his son instead. Thunder the natives 5 attributed to the flapping wings of a bird, 6 about the size of a grouse, that lived on top 7 of a mountain; but whenever the sun and sky 8 were obscured by heavy rain or snow they would 9 say, 'utakke nenye' (Utakke is walking on 10 earth), concealed in the storm. Whenever, 11 again, the sun went under something, (sa 12 wi'inai) was eclipsed, they thought that Utakke 13 was punishing them for some trangression and 14 that the phenomenon forboded sickness. They 15 still recall the terrible epidemic of small pox 16 that ravaged the Skeena River Basin in 1862, 17 shortly after a total eclipse of the sun. 18 19 Although this belief in a sky-God probably 20 dates back to pre-European times, it was not 21 until elements of Christianity had penetrated 22 to the Bulkley Carrier that it gradually 23 assumed a prominent place. Before that time 24 the Indians had looked mainly to powers in the 25 animal world for explanations of life's 26 phenomena and for assistance in life's 27 j ourney." 28 29 My lord, at the bottom of page 22 -- 3 0 THE COURT: Yes. 31 MR. WILLMS: — I refer to Harmon, and Harmon said that "(the 32 Carriers) have only a confused and limited idea of the 33 existence of a Supreme Being, the maker and governour 34 of the world... " And what I submit, my lord, when you 35 look at the statements that God gave us this land or 36 the Creator gave us this land, that it's further 37 evidence in support of the proposition that I'm 38 advancing that two commissions concluded at the time 39 and that other individuals who were observers at the 40 time concluded and that is that the theories of this 41 land ownership that your lordship is hearing today 42 started with the missionaries, not with the 43 plaintiffs. 44 Now, I say in paragraph 41 that it is submitted 45 that it is more likely -- more than likely that the 46 concepts of territoriality were generated by the same 47 people who inculcated the concept of a Christian God 27074 Submissions by Mr. Willms 1 in the natives of the northwest coast, namely the 2 missionaries. It certainly appears that the 3 missionaries were able to convince the plaintiffs of 4 the similarities between the Bible and the nax nok, 5 and I cite some evidence from Art Mathews, my lord, 6 where he describes exactly that in his answer. 7 Now, in paragraph 42 I say that in the early 8 twentieth century, the "missionary" influence appears 9 to have been replaced by the "lawyer" influence. For 10 example, a Toronto lawyer named Mr. Clarke came to the 11 Claim Area in 1910. And this is the same Mr. Clarke, 12 my lord, that drafted the Cowichan petition of 1909, 13 the same Toronto lawyer. And I say that it's a fair 14 inference after considering Green's letter to McLean 15 of August 6, 1910 that the 1910 Petition of the 16 Indians of the Upper Skeena to Laurier was drafted by 17 Mr. Clarke. And that was the one Dr. Galois didn't 18 know who drafted it. But at the time Clarke had been 19 through the area, Clarke had drafted a Petition for 20 the Cowichan Indians dated March 15, 1909. And I 21 suggest that when you look at the tenure of the 22 Petitions, that Clarke had a hand in the Skeena, Upper 23 Skeena to Laurier petition. 24 Now, I say at the bottom of page 24 that the 25 consequences of petitions, complaints and land claims 26 instigated by lawyers will be dealt with under the 27 "Equitable Defences" heading and "Limitations" 28 heading, but I do say here that as early as 1910 29 inhabitants of the Claim Area appear to have been 30 receiving legal advice, directly or indirectly, and 31 acting on that legal advice. As Dr. Drucker said, and 32 here I can't over emphasize the fact that I don't 33 think any of the plaintiffs' experts said a bad thing 34 about Dr. Drucker. He was one of the anthropologists, 35 I think, that they all relied on to some extent or 36 another and said good things about. And Dr. Drucker 37 said: 38 39 "The story of the land claims by the Indians is 40 an important part of their recent history. Its 41 significance in regard to acculturation remains 42 to be considered. One fact shows through very 43 clearly. The inspiration throughout was 44 non-Indian, or by sophisticated Indians long 45 removed from the native way of life and 46 thought. The techniques used were non-Indian 47 petitions drafted by attorneys, attempts to 27075 Submissions by Mr. Willms 1 utilize British legal procedure, fund-raising 2 campaigns to implement the legal contest, and 3 the like. The obvious conclusion is that 4 Indian interest in land outside the few heavily 5 settled areas was largely artificial." 6 7 Now, my lord, I have -- I say that the assertions of 8 so-called Indian title in the Claim Area in the late 9 nineteenth century were generated by the missionary 10 influence and are not reflective of prehistoric and 11 proto-historic resource use and territoriality. The 12 significant points which support this are, I say, as 13 follows: Brown in the 1820s noted no territoriality 14 or exclusivity of resource use, except in respect of 15 beaver. The earlier travellers in the area were not 16 met by any assertions of Indian title or exclusivity 17 of use of land except in respect of trade and trading 18 trails. And the trails may have been used 19 prehistorically, but they were controlled 20 proto-historically only in respect of European trade 21 goods. Mr. Dewdney in 1871 met no opposition in 22 laying off the townsite of Hazelton and an Indian 23 reserve at that location. 24 MR. GRANT: I think my friend is mistaken in terms of Mr. 25 Dewdney laid off an Indian reserve in 1871. I don't 26 think -- there was -- certainly is correspondence 27 relating to what -- one of the proposals. But my 28 friend is mistaken in suggesting that an Indian 29 reserve is laid off there. 30 MR. WILLMS: I am not mistaken, my lord. I stand by what I 31 said. It wasn't surveyed but it was laid off. 32 MR. GRANT: Well, if it was laid off, if my friend would give me 33 the reference at some point, because I think he is 34 wrong. 35 MR. WILLMS: I will give him the reference. And I say in 36 paragraph four that two commissions of inquiry in 1884 37 and 1887 concluded, after hearing evidence, that 38 Indian claims to title were generated by the 39 missionaries. Five, Indian claims to title were 40 frequently supported by a claim that "God" had given 41 the Indians the land. Six, whether bands did or did 42 not advance claims to title appeared to depend on who 43 their missionaries were. Seven, the only serious 44 opposition to laying off reserves in the Claim Area 45 was at Kispiox, an area where Reverend Tomlinson lived 46 for a long time. And even those Indians, on 47 reflection, requested reserves to be laid out. And 27076 Submissions by Mr. Willms 1 they were later surveyed in 1898. 2 And I say the two strongest pieces of evidence are 3 the requests for reserves and the dearth of evidence 4 in the historic record prior to the advent of the 5 missionaries of any claim to territoriality or 6 resource use exclusivity, save in respect of the 7 beaver. 8 THE COURT: Is it inconsistent to acquiesce in the laying out of 9 reserves or even to ask for them with the concept of 10 some overriding claim that can't be advanced 11 conveniently at that particular time? Can the two not 12 stand together? 13 MR. WILLMS: My lord, I would say this. First of all, as I 14 understand the plaintiffs' claim there is no such 15 claim being advanced. There is no claim that the 16 reserves were too small or anything like that. 17 THE COURT: No. 18 MR. WILLMS: Okay. But I say that it is completely inconsistent 19 with the claim for ownership and jurisdiction. One 20 hundred per cent flat diametrically opposed to 21 ownership and jurisdiction. If you believe that you 22 own and have jurisdiction of the area, then in my 23 submission you don't ask for reserves which was done 24 at the time. Now, if you are seeking protection from 25 the intrusion of the whites and if you are seeking to 26 preserve those sites, then you request reserves, my 27 lord. But if you are maintaining a claim for 28 ownership and jurisdiction, yes, it is -- it is 29 completely contradictory to maintaining that claim. 30 Because the next thing -- 31 THE COURT: Why can't I say I claim it all but no one is going 32 to pay any attention to me and I better secure what I 33 can but I am not giving anything up? 34 MR. WILLMS: Well, my lord, I suppose that what you can do is - 35 and of course we'll deal with this under laches from a 36 different perspective as if what your lordship is 37 putting forward is the case and that will be dealt 38 with under the sleeping on rights. 39 THE COURT: Well, laches would only arise if I sleep on it too 40 long. 41 MR. WILLMS: Yes, yes. 42 THE COURT: But as a matter of law at the time the reserves are 43 being laid out, can I not say I claim it all but if I 44 maintain that position and do nothing more the whites 45 are going to gobble up all the land and I'm going to 46 be left without anything except my claim and therefore 47 I better secure something while I can secure it. 27077 Submissions by Mr. Willms 1 MR. WILLMS: Yes. Well, my lord, all I can say is that if you 2 look at the evidence of what happened, that you would 3 see something in my submission in the evidence that 4 would indicate something different than the 5 pre-emptions that everybody knew were coming, the 6 railroad that everybody in the 1900s knew was coming 7 through and surveyed and helped construct. Later on 8 the highways that came through and were constructed. 9 The mining and the packing. In my submission you get 10 to the point, my lord, where as someone once said the 11 response is me thinks thou doth protest too much, and 12 that is that from time to time people say, well, you 13 know, that's my land, that's my land, and do nothing 14 about it. Even when there are opportunities, and this 15 will be dealt with later on my lord, even when there 16 are opportunities to have something done about it. 17 But the fact of the situation, and what is actually 18 going on on the ground, my lord, in my submission are 19 contrary to any submission that there was some 20 reservation of rights and that there was just we'll 21 take whatever we can get and we'll reserve all of our 22 other rights. The other point there, my lord, too is 23 that I think that falls into the category that my 24 friends have suggested time and time again, that we're 25 falling into the trap and that is thinking that the 26 plaintiffs didn't understand what was going on at the 27 time, which my friends have so clearly demonstrated, 28 can't be the case. And I say that when you are fully 29 aware, as the plaintiffs suggest they were aware, of 30 what was going on at the time, that there is no other 31 conclusion on the record that they got exactly what 32 they were seeking at the time. 33 Now, I say, my lord, in paragraph 45 that the 34 statements of the Indians living in the Claim Area in 35 the late nineteenth century are no more reflective of 36 prehistoric territoriality and resource use than 37 Brown's observations. However, the evidence I say 38 shows the adaptability of the inhabitants of the Claim 39 Area and shows, as has been demonstrated by the other 40 evidence, that as the world has moved so have the 41 plaintiffs. My lord, the suggestion -- the extract 42 that I handed up to you could be put at the end. I 43 don't know if you have put it in somewhere already. 44 THE COURT: I have it handily located somewhere. 45 MR. WILLMS: All right. 46 THE COURT: Various cross-references. Thank you. 47 MR. WILLMS: That concludes Section III and my colleague, Ms. 27078 Submissions by Mr. Willms 1 Sigurdson, will deal with Section IV. 2 THE COURT: While we're changing gears here, will Mr. Goldie be 3 back sometime before the end of the argument? 4 MR. WILLMS: Yes. 5 THE COURT: Well, I'd be happy if he was to — I have been 6 considering his argument last week, that it was never 7 British colonial policy to recognize aboriginal rights 8 outside village sites and cultivated fields that he 9 referred to the Select Committee of the House of 10 Commons relating to the New Zealand question, he cited 11 some Privy Council authorities. And I'd like to have 12 his assistance on this specific question of whether 13 that view is consistent or inconsistent with the 14 events which Mr. Jackson described relating to either 15 British colonial policy or at least activities in the 16 North American colonies prior to the Royal 17 Proclamation. I haven't got a comparison of the two, 18 but it seems to me that what Mr. Jackson was 19 contending was that throughout the pre Peace of Paris 20 period, Mr. Jackson was arguing that it was the 21 policy, or at least the practice, to recognize these 22 aboriginal rights of the Indians, if not to ownership 23 at least to a general use of the land. It may be 24 there is no consistency at all, but I would be happy 25 if I could have some assistance in that area, and I 26 won't say now because I haven't reviewed it, but I 27 suspect that Mr. Jackson would or someone on the 28 plaintiffs' team would have the right of reply. 29 MR. WILLMS: Right. But are you just — just British North 30 America or the -- you mean the colonies up the 31 seaboard prior to the Royal Proclamation? 32 THE COURT: Yes. 33 MR. WILLMS: Or were you — yes. 34 THE COURT: The British possessions in North America. 35 MR. WILLMS: Okay. 36 THE COURT: I wouldn't exclude British colonies other than the 37 American seaboard, but I don't think there were any. 38 Nova Scotia, but I am not sure there is any suggestion 39 of any activity in that area. 40 MR. WILLMS: Actually I will draw that to my colleague's 41 attention. 42 THE COURT: All right. Thank you. Ms. Sigurdson? 43 MS. SIGURDSON: My lord, I'll be making submissions on the more 44 recent evidence with respect to the plaintiffs' claim 45 of ownership and jurisdiction. Before I do that I 46 would like to hand up what I call an annotation to the 47 first part of the plaintiffs' Volume 5 which is their 27079 Submissions by Ms. Sigurdson 1 claim to ownership. 2 THE COURT: I have -- somebody's put in my book an addendum to 3 Part IV Section 4. Is that where you are? 4 MS. SIGURDSON: That's where I will be, but that's not where I 5 am yet. 6 THE COURT: All right. Thank you. I have my book open to the 7 right place, have I? 8 MS. SIGURDSON: Yes, you do. And I will also ask you to have 9 the plaintiffs' volume. 10 THE COURT: Which one? 11 MS. SIGURDSON: If I am right, it's that one. 12 THE COURT: All right. Thank you. Do I need a yellow book for 13 the moment? 14 MS. SIGURDSON: Not yet, but there will be one coming. 15 THE COURT: Have you finished this book, Mr. Willms? 16 MR. WILLMS: I have, my lord. 17 THE COURT: Yes. All right. 18 MS. SIGURDSON: And what I'd like to do now is just take you 19 through this very quickly to show you how it works. I 20 have entitled it an Annotation, and it may be better 21 described as comments on the evidence referred to in 22 the plaintiffs' section on ownership. In the 23 left-hand side the page reference is referred to the 24 page numbers in the plaintiffs' final argument. And 25 by way of example if you could turn to the second page 26 of the annotation the first reference is to page 29 27 and turn to page 29 of the plaintiffs' argument on 28 ownership and jurisdiction. Now, you should have in 29 the plaintiffs' argument in the first full paragraph: 30 31 "These footprints have been described as 'being 32 there for thousands of years.'" 33 34 THE COURT: Yes. 35 MS. SIGURDSON: Yes. And the reference given in the argument is 36 to Emma Michell, and the annotation I note is that 37 Emma Michell did not say the footprints had been there 38 for "thousands of years." The plaintiffs may have had 39 in mind Mr. Joseph who had heard about these 40 footprints talked about in the feast, and this is from 41 Mr. Joseph "... when I first heard about the 42 footprints being there for thousands of years," and he 43 carried on. Mrs. Michell's evidence was that they 44 were Bini's footprints. And Dr. Mills' testified that 45 Bini "lived from approximately around 1820 to ... 46 1885." In another example, if I could ask you to turn 47 to page ten of the annotation and the first reference 27080 Submissions by Ms. Sigurdson 1 is to page 79 of the plaintiffs' argument. A 2 quotation of Olive Ryan. 3 THE COURT: Yes. 4 MS. SIGURDSON: In the plaintiffs' final argument Olive Ryan is 5 quoted as saying: "if you cross the territory of 6 another Chief," and she carries on, if you look in the 7 transcript you'll find that Mrs. Ryan said: "if you 8 cross someone's trapline." So there has been an error 9 there. 10 The next reference to page 80 of the plaintiffs' 11 final argument, in the plaintiffs' argument, it says: 12 13 "Thomas Wright described an incident where 14 someone trespassing on Wii Gaak's territory was 15 killed in 1918. " 16 17 Now, this is in a section of their argument entitled 18 Enforcement of Trespass Laws by the Gitksan and 19 Wet'suwet'en. And that particular section is on 20 capital punishment. I took it from the plaintiffs' 21 reference that there was a killing related to a 22 trespass. Mr. Wright's evidence is somewhat 23 different, however. He was asked question: 24 25 "Do you know what happened to Samuel Brown? 26 A He died. When there's nobody on the land, he 27 traps on Wiik'aax's yip when he's not there... 28 He got killed in Bear Lake. He died in Bear 29 Lake... Charles Crosby's the one that killed 30 him. That's Madeline Brown's brother. It's 31 because he killed Madeline Brown. 32 Q Was Madeline Brown Samuel's wife? 33 A Yes. 34 Q Do you know why Samuel Brown killed his wife? 35 A 1918 is when it happened. I wasn't there at 3 6 the time... 37 Q Was there a funeral or a feast for Madeline 38 Brown at Kisgegas? 39 A No. 40 Q Was there a settlement feast or a Xsiixsw when 41 Crosby killed Samuel Brown? 42 A No." 43 44 And Mr. Wright continued. And I take it from that 45 that the murder had nothing to do with the trespass. 46 It was a brother avenging the murder of his sister. 47 And if I could ask you to turn to the annotation 27081 Submissions by Ms. Sigurdson 1 page 15, and the reference there is to Olive Ryan's 2 evidence on page 101 of the plaintiffs' argument. And 3 there, reference is made to a cease for a peace 4 settlement in 1957 or '58 where, according to Mrs. 5 Ryan, the Eagles or people of the Eagle Clan gave a 6 mountain near Ritchie to the Guxsan's House. And in 7 the annotation I note that Solomon Marsden also told a 8 story about that incident. In Mr. Marsden's evidence, 9 however, he said that this happened long long before 10 he was born and he said that Yal, a Fireweed chief, 11 gave the mountain to Guxsan. And I leave off with the 12 comment that there is the obvious question about the 13 inconsistent stories. The other question is how 14 either a Fireweed chief or an Eagle chief could give 15 away territory that's now claimed to have been within 16 the Frog Clan territory since time immemorial. 17 MR. GRANT: On that particular point I do wish to comment, my 18 lord. I believe my friend -- I can understand her 19 confusion, but there are two different places. There 20 are two different incidents and two different places 21 being described. Mr. Marsden was testifying to Ant 22 ga'1 bakw, but Mrs. Ryan and Mr. Williams were talking 23 about a cease between Eagles and Guxsan. He was -- it 24 was not with respect to Ant ga'1 bakw, as I understand 25 it. It was another place. That was my recollection 26 of that. But Ant ga'1 bakw is that -- is another 27 place and I think I may have even said inadvertently 28 in argument, referred to it is Ant ga'1 bakw, although 29 it wasn't in the written argument, but there are two 30 different events that my friend is confused in. 31 MS. SIGURDSON: Well, my friend can come back to that in reply. 32 However, the evidence of Mrs. Ryan is clear that he 33 gave Ant ga'1 bakw and Xsi Galli Gadsit to Guxsan and 34 I don't see how that can be cleared up. That is her 35 evidence. 36 If I can ask you to turn to page 21 of the 37 annotation. And I won't spend much time on this. You 38 may recall argument on Bazil Michell's "life interest" 39 in a western part of the territory of Wah Tah Keght 40 and I have set out in my comments various extracts of 41 Mr. Michell's evidence and from his evidence on my 42 reading of it Mr. Michell claims that territory as his 43 and that he will deal with it as his traditional 44 lands. 4 5 THE COURT: Yes. 46 MS. SIGURDSON: And the last example I will refer your lordship 47 is on page 23 of the annotation and it's the reference 27082 Submissions by Ms. Sigurdson 1 to Florence Hall's evidence at page 142 of the 2 plaintiffs' argument. And that is an example of the 3 plaintiffs relying on what I say is hearsay evidence. 4 MR. GRANT: Which page was that? 5 MS. SIGURDSON: Annotation page 23 with reference to page 142. 6 And the evidence that I -- or the argument that I 7 refer to is the third paragraph where "Florence 8 recalled that it was at a feast where MacKenzie took 9 the high Chief's name." In the transcript Mrs. Hall 10 was asked or was asked if she was present at that 11 feast and she said, "No, I wasn't even around at that 12 time. My father told me about it." And that is just 13 by way of an example of what I say is inadmissible 14 hearsay. And I will not go through the rest of it 15 because of time restraints. This can I would suggest 16 go in with the plaintiffs' volume for convenience, but 17 if they have any objections it can go in Part IV of 18 the defendant's submission. 19 MR. GRANT: Yes. I don't think it — we haven't had a chance to 20 even look at this, my lord. I don't think we want to 21 put it into ours. I appreciate my friend fixing the 22 irrata. 23 THE COURT: You can speak to it when you are ready, but for the 24 purposes of knowing where I can find it that's exactly 25 where I am going to put it. But I will change it if 26 you can persuade me it should be somewhere else. 27 MR. GRANT: Well, as long as you note that it's the Provincial 2 8 defendant's comments, my lord. 29 THE COURT: Oh, yes. I have done that. No, I haven't. Not 30 quite. All right. Thank you. 31 MS. SIGURDSON: Now, we do, my lord, have yellow volumes for 32 this section as well. My lord, in the -- during the 33 course of argument, plaintiffs' counsel sought to 34 clarify the basis of the claim of ownership and 35 jurisdiction they make in these proceedings. 36 The plaintiffs' claim for past and continuing 37 ownership, or "full exclusive enjoyment of the 38 territory and all its resources" is based on 39 possession of the land and on the "institutional 40 structures" such as the feast. And I refer there to 41 Mr. Rush's statements made during the course of 42 argument from which I understand that he says that 43 possession is a necessary part of the ownership they 44 claim, but that the meaning of the ownership is ranted 45 (?) out by institutional structures such as the feast. 46 Submissions have already been made on the claim to 47 ownership in the addendum to Part III Section 2 27083 Submissions by Ms. Sigurdson 1 paragraphs 19A to 19G. There it is asserted that, 2 "the central feature of the plaintiffs' concept is 3 exclusive possession and that, on the facts revealed 4 in the historical record, the claim fails." 5 THE COURT: Now, I am sorry that addendum to Part III, that's 6 the defendants' argument? 7 MS. SIGURDSON: Yes. 8 THE COURT: Yes. 9 MS. SIGURDSON: And in the addendum it is also submitted that it 10 is "unsupported by any authority to say that the 11 common law of England or British Columbia ever 12 recognized ... internal gestures as constituting 13 indicia of exclusive possession of any of kind, much 14 less than against the Crown." And the nature and 15 extend of the requisite occupation of a claim for 16 ownership has been considered in Part II, Section 4, 17 paragraphs 44 through 64 of our Summary of Argument. 18 In these submissions, we say that the plaintiffs' 19 evidence on present day ownership and jurisdiction 20 (a), as a matter of fact, the plaintiffs' alleged 21 exercise of jurisdiction over the Claim Area does not 22 support a claim of ownership of the area; and (b), 23 except with respect to village areas that have been 24 set aside as Reserves, the plaintiffs do not, on their 25 own terms, have "possession" of the land sufficient 26 for a claim of ownership of the Claim Area or any of 27 the discrete territories that make up the Claim Area. 28 If I could turn to paragraph three on the next 29 page. During the course of evidence, Mr. Sterritt 30 explained the far-reaching extent of the plaintiffs' 31 claim thus: 32 33 "The Gitksan and the Wet'suwet'en have 34 sovereignty within that territory, within their 35 territories. The Gitksan-Wet'suwet'en have 36 their laws within those territories and the 37 power to make laws within those territories. 38 And the ... Gitksan and Wet'suwet'en laws 39 prevail over the laws of the province within 40 ... the territories." 41 42 And he also said: 43 44 "... If a law was applied by Canada or the 45 province in that area, say, then the house 46 and -- I don't know whether I should use the 47 word assembly of chiefs, but where the chiefs 27084 Submissions by Ms. Sigurdson 1 meet would have a veto power over any other 2 laws that may be applied or considered. They 3 could stop that because of the decisions that 4 the hereditary chiefs and their goals for that 5 given house territory in a given area." 6 7 And Mr. Sterritt's views except for his assertion 8 about the overt laws of Canada, the Federal Government 9 has been repeated in the plaintiffs' final argument. 10 I say the evidence of governance may pertain to 11 the question of whether the plaintiffs constituted an 12 organized society at the time of the assertion of 13 sovereignty. However, the evidence is essential to a 14 claim of ownership and jurisdiction advanced in this 15 case. In that context the task of giving specific 16 form and content to the allegation of governance, and 17 that I am using as shorthand for the jurisdictional 18 institutions and elements of ownership they refer to, 19 has particular significance. For the plaintiffs to be 20 entitled to the relief they seek it is not enough for 21 them to establish that they conduct some of their 22 internal affairs differently from other Canadians. 23 Canadian society is a composite of many groups with 24 different sets of internal rules of conduct. Such 25 groups do not claim jurisdiction superior to the law 26 of the land. The plaintiffs' claim is 27 all-encompassing: to succeed, one would expect them to 28 establish that their system of governance is equally 29 so. As will be more particularly set out below, it is 30 submitted that (a), where provincial or federal laws 31 are in force, the plaintiffs comply with those laws. 32 THE COURT: You mean they do now comply? 33 MS. SIGURDSON: Yes. (b), much of the plaintiffs' evidence in 34 support of their assertions of ownership and 35 jurisdiction is inadmissible or alternatively should 36 be given little weight. (c), the incidents of 37 ownership and jurisdiction alleged by the plaintiffs 38 are better described as local practices or customs. 39 The practices exist in areas not regulated at law, and 40 influence the internal conduct of some Gitksan and 41 Wet'suwet'en people. There is little, if any, 42 evidence of practices which regulate conduct of these 43 two peoples as between the two groups. The evidence, 44 if accepted, shows that within the communities the 45 practices are variously defined and irregularly 46 followed. And in our submission practices, so 47 limited, do not support claims of ownership and 27085 Submissions by Ms. Sigurdson 1 jurisdiction. 2 In the paragraphs that follow we attempted to put 3 their claim for ownership and jurisdiction as pleaded 4 in the context of the evidence, particularly the 5 opening. Mr. Rush and other counsel for the 6 plaintiffs have clarified their claim for ownership 7 and jurisdiction and it is based in possession and 8 secondly on their institutions. 9 Now, I'll take you directly, then, to paragraph 10 ten on page six, to the heading called Limits to 11 Jurisdiction. And I should add that to the extent 12 that their institutions are a basis of ownership as 13 they say they are, it's limited to the claim of 14 ownership as well. 15 The plaintiffs plead that they govern themselves 16 according to their laws. They do not claim that they 17 govern others. If plaintiffs' counsel's 18 cross-examination of Mr. Hobenshield indicates the 19 nature of the plaintiffs' society, then the 20 plaintiffs' system of government is equivalent to that 21 of a club. And I will refer to that -- if I could ask 22 your lordship to turn to the yellow book and to tab 11 23 and I would ask you to turn to page four starting at 24 line 22: 25 26 "Q You and I just had this exchange about how you 27 would explain where you were from when you were 28 introducing yourself to somebody and that's how 29 the Gitksan people would explain where they are 30 from, right? 31 A That's right. 32 Q But if you and I belong to a club which had 33 secret names and there was a code to show that 34 you're a member of the same club that I am then 35 maybe we would use that code to find out who -- 36 to give ourselves a different point of 37 reference. Do you understand what I'm saying? 38 A That's possible, yes." 39 40 And if your lordship would turn to the fifth page in 41 the yellow binder, I have added a reference from the 42 cross-examination. 43 THE COURT: I don't have a fifth page. Oh, yes I do. It's on 44 the other side. 45 MR. GRANT: If my friend is going to another reference now, I 46 certainly ask your lordship to take -- to read that 47 quote in the context of the cross-examination which 27086 Submissions by Ms. Sigurdson 1 was dealing with why Stanley Williams didn't use the 2 name Gwis gyen, for example, in his discussions with 3 Mr. Hobenshield and I think page 81 line 12 up to that 4 is something you should just note, my lord. I think 5 that my friends have taken that out of context. 6 MS. SIGURDSON: No. We accept my friend's explanation of the 7 context. Returning to page five of tab 11 of the 8 yellow book, we note that there is a similar line of 9 questioning on Mrs. Peden, and while I will not read 10 from it, it is our submission that we understand from 11 that line of questioning is that the plaintiffs have 12 rules that they enforce or practices within the 13 community only unless you are a member, unless you 14 participate you don't see them. They are not asserted 15 against any members other than those who participate. 16 And at paragraph 12, my lord, we say that the 17 plaintiffs' system of governance as exemplified by the 18 feast, is further limited to governance over those who 19 can and voluntarily do participate in feasting. 20 Mr. Joseph explained the limitations of the 21 plaintiffs' claim this way: 22 23 "Q Would you agree with me that in respect of 24 those activities you, that is to say Gisdaywa, 25 do not exercise jurisdiction over the 26 territory, nor have you exercised ownership of 27 the resources of the territory, again omitting 28 the question of trapping? 29 A I think I have exercised the rights to the 30 territory by -- through -- the Feast system, by 31 taking the resources from the trapping as my 32 grandfather and uncles did, saying that some of 33 the material, meat and monies that have come 34 from this resource is here in this Feast House, 35 and the berries that come from there are all 36 taken from the land of Gisdaywa. 37 Q And of course the Feast system is one that is 38 within your own community? 39 A Yes. 40 Q It doesn't include non-natives? 41 A Yes. It's in our -- within Wet'suwet'en 42 territory. 43 Q Yes. Within that territory. It doesn't 44 include non-natives. You agree with that 45 statement, do you not? 46 A There are spouses of natives that occasionally 47 come into the Feast House. 27087 Submissions by Ms. Sigurdson 1 Q But we are not talking about the ranchers or 2 the loggers or the people who operate the mine 3 or anything like that, are we? 4 A No." 5 6 Now, we carry on to say the plaintiffs' claim is 7 limited not only to jurisdiction against those who can 8 participate in the feast but also those who choose to 9 participate, and that's because, my lord, the methods 10 of enforcement of laws, the announcement and various 11 rules all centre on feast practices: if you don't go, 12 you're outside the system. 13 And following is an example of where laws -- the 14 enforcement of laws decided to take place at the 15 feasts: 16 17 "Q ...is there an indication of what would happen 18 to that person in the event of continued use or 19 how is continued violation dealt with? 20 A If it's continued, that person will have to -- 21 is invited to a Feast and it is taken up at 22 that -- in that place. 23 Q and if raised in a Feast, what would be the 24 consequences to the individual? What would 25 happen to that person? 26 A It would be -- it's just -- the person would be 27 there, but then the chief would say why the 28 Feast is held and he would be told that he 29 is -- he or she is not supposed to be at a 30 certain place, not supposed to be taking food 31 out of -- or food or any animals off that 32 territory in front of witnesses." 33 34 And I say that if the trespasser does not attend the 35 feast, or does not choose to attend the feast, that 36 kind of enforcement would have no effect. 37 And in paragraph 16 I refer to the fact that a 38 Shame feast has been -- may be a response required of 39 a person to clear his or her name. And again we say 40 that that mechanism would be ineffective against 41 persons who choose not to participate. 42 At paragraph 17 it is also suggested that denying 43 access to the feast hall is a method of enforcement, 44 and we say again that it is only a method of 45 enforcement against those who choose to participate. 46 In paragraph 18 we also note that not all Gitksan 47 and Wet'suwet'en persons attend feasts. Some of them 27088 Submissions by Ms. Sigurdson 1 live away from the community and attend only 2 occasionally, if at all, while others have chosen not 3 to participate. 4 And if I could ask your lordship to turn to tab 5 18, page one and two, and this is the evidence of 6 Irene Daum and she swore a territorial affidavit and 7 this is part of her cross-examination out of court. 8 And starting at line 43 on page one she was asked: 9 10 "Did your father — " 11 12 And I pause to say her father was Jimmy Andrew, 13 14 " --n have a chief's name? 15 A He did have a chief's name, but his Smogelgem, 16 he was that was taken away from him because 17 they have to live in a village and attend all 18 the potlatches in order to keep the chief name 19 so he was not living in a village. 20 Q I'm sorry. I don't think we got your father's 21 name that he had and that it was taken away. 22 What was his name again? 23 A Smogelgem." 24 2 5 And going down: 26 27 "Q So your father was Smogelgem and he had the 28 name taken away because he couldn't attend the 29 feasts? 30 A Yes." 31 32 Now, if I could ask your lordship to turn to page 33 three of that tab, this is the evidence of Stanley 34 Williams. And we're starting at line nine. He was 35 asked: 36 37 "Now as I understand it, you were about ten 38 years old when you were chosen to be Gwis gyen. 39 Do you know why you were chosen to be a chief? 4 0 A My -- I don't know how many times I've told you 41 this, but my uncle, James Ryan, was supposed to 42 be Gwis gyen. He was a minister in a church 43 and he did not want to take the name when my 44 grandfather died, and this is why they choose 45 me, I was the one that will be seating at -- on 46 this chair." 47 27089 Submissions by Ms. Sigurdson 1 And another point is that the Gitksan and 2 Wet'suwet'en languages are spoken at feasts so that 3 effective participation is denied to those who do not 4 speak the language. And although I will not ask your 5 lordship to refer to them, you can see from the 6 exhibits, tables 2205, 2206, 2208 and 2209 that are 7 cited there from Exhibit 901-4 that there is not -- 8 there is quite a substantial part of the population 9 does not speak the languages. 10 MR. GRANT: My lord, with respect to these exhibits, Exhibit 11 901-4 and I think I made this point when Mr. Plant 12 first referred to it over a week ago, we object to 13 these, because as I say, these are documents from this 14 census and they were put -- they were utilized and 15 referred to only once as I can recall in evidence and 16 that was -- they were put to Dr. Daly to see if he had 17 ever seen them before and he had not and he didn't 18 comment on them. He hadn't seen them and the 19 question -- they weren't put to any other witness as 20 to the accuracy of them or anything else about them. 21 So they were -- certainly on my view are objectionable 22 as not proving the truth of the contents. 23 MR. WILLMS: Well, my lord, I was there at the time and it was 24 put in cross-examination and Miss Koenigsberg put it 25 to him. He said it would be very useful information 26 for him to have. He would have liked to see that 27 information before he wrote his report. He was 28 surprised he hadn't seen it. Now, as to 29 admissibility, it's a plaintiff's document. The 30 Gitksan-Wet'suwet'en Tribal Council or the 31 Gitksan-Carrier Tribal Council, as they were then 32 known, did a census. And it came from the plaintiffs. 33 It was put in during the plaintiffs' case. The 34 plaintiffs didn't call anybody to say that it wasn't 35 accurate. Documents -- we have to presume that 36 documents mean what they say, especially when they are 37 the plaintiffs' documents, unless the plaintiffs want 38 to explain them. The document is in. It's an 39 exhibit. I can't recall if it was objected to at the 40 point that it was put in, but the objection, if it was 41 objected to, and I don't think it was, but if it was 42 objected to the objection was clearly overruled. So I 43 don't understand where my friend is coming from in an 44 objection to an exhibit that was marked over a year 45 ago, that the witness said this would have been very 4 6 helpful from my -- from my evidence. Very helpful. 47 THE COURT: Presumably assuming the truth of the contents of it. 27090 Submissions by Ms. Sigurdson 1 MR. WILLMS: Assuming the truth, my lord, and of course, there 2 is absolutely not a shred of evidence in my submission 3 that the contents are untrue. If my friend has got 4 some evidence that the contents are untrue that he 5 called, then he can point to that in reply. 6 MR. GRANT: Well — 7 THE COURT: Well, it's an awkward evidentiary problem. 8 Certainly the fact that it came out of the plaintiffs' 9 hands is a relevant consideration and that takes us 10 out of the problem there would be regarding 11 self-serving documents. The plaintiffs themselves 12 certainly couldn't approve of it, couldn't have put it 13 in without proving the underlying facts. The question 14 is can they -- can the other side? I would have 15 thought yes, but I did write a judgment about this one 16 time. It was about the itchiness or otherwise of a 17 bus driver's trousers. Charitably it never got 18 reported. It wasn't an appeal either. But that was a 19 case where the Transit Authority tried to put in their 20 own survey. They had sent a questionnaire to 600 bus 21 drivers and asked them if their pants were itchy. 589 22 of them said yes, they were itchy. And this was a 23 defendant claiming for a breach of warranty, fitness 24 and prudence for a particular purpose. The legal 25 problem is whether or not when the document on its 26 face shows that it's hearsay, it's based upon hearsay, 27 it cannot be put under the rule that Mr. Willms relies 2 8 upon to say well, it comes from your documents and 29 therefore it's admissible. If, for example, the 30 plaintiffs had a document in their file where it says 31 Stanley Williams came today and told me that X said 32 that his boundary is not where it's said to be on the 33 maps, I would think that on the face of it that would 34 be hearsay and it wouldn't be admissible no matter how 35 you tried to get it in. 36 MR. WILLMS: If it's a statement of a plaintiff to someone else, 37 my lord? Which -- 38 THE COURT: Oh, all right, then it's a statement by another 39 plaintiff. Yes. 40 MR. WILLMS: Yes. And these are all statements of the 41 plaintiffs, of course, because my friends allege that 42 they represent all of the Gitksan and the Wet'suwet'en 43 people. This is just a compilation of statements made 44 by the plaintiffs. 45 THE COURT: Well, the problem that I had with the itchy trousers 46 was simply that. There was no evidence to verify the 47 scientific or sampling sufficiency that was utilized 27091 Submissions by Ms. Sigurdson I referred to some cases where 1 in the survey. And 2 questionnaires have been put in when it was shown that 3 the sample group was properly chosen and that it 4 was -- it was a -- it comprised raw data to which a 5 reasonable level of statistical analysis can be 6 applied. And -- 7 MR. WILLMS: My lord, I am sorry to interrupt, but had my friend 8 made this objection when the evidence was going in, we 9 could have taken steps to find all of the 10 questionnaires that made up the exhibit and all of the 11 questionnaires individually would have been admissions 12 by the plaintiffs and could have been put in evidence. 13 And to come now and in final argument after the 14 document has on gone in, it's been cross-examined on, 15 my friend re-examined on the document, and for him now 16 to say that it's inadmissible for some purpose or 17 another, it's just too late. We can't do anything to 18 fix that up now and we sure could have done something 19 to fix it up had he made the objection in a timely 20 manner. We could have got the proof that the 21 questionnaire was appropriately done and that the 22 census was appropriately taken. But instead I say, my 23 lord, that maybe the short answer is that my friend's 24 objection is too late and the document is in and it 25 stands for what it says. 2 6 THE COURT: All right. 27 MR. GRANT: Well — 2 8 THE COURT: Well, I am not going to rule on this at the moment. 29 I am going to give counsel a chance to see if there is 30 anything else they want to put forward in the way of a 31 considered response to what's obviously a delicious 32 evidentiary problem. 33 MR. GRANT: Yes. I just -- my lord, if I can just say one point 34 and it was my understanding all along that the 35 motivation of the Federal Crown when they put this to 36 Dr. Daly was a challenge on the credibility of his 37 expertise of his opinion. That is, you didn't see 38 this and he said I would like to have seen it and I 39 didn't and that's what I understood it was about. 40 THE COURT: Yes. There is no need on that basis to put the 41 document in. 42 MR. GRANT: Well, what happened at that stage of time is pretty 43 well anything that was ever referred to is put in. 44 There was no suggestion to me at that time that the 45 document was going in at that point for the truth of 46 the facts, but this is the document and I do believe I 47 objected to and I will come back to it, but this is 27092 Submissions by Ms. Sigurdson 1 the document that we put to Dr. Daly and you should -- 2 your lordship should see the document that Dr. Daly 3 didn't see. And I mean, I didn't think that the 4 document could be objectionable for that purpose. But 5 then nothing more has been said about the document 6 until we see this. 7 THE COURT: All right. Well, as I say, it's an interesting 8 admissibility problem and I'll reserve on it and 9 counsel can speak to it again if they wish, otherwise 10 I'll deal with it when the time comes. All right. We 11 will take a short adjournment. 12 13 (PROCEEDINGS ADJOURNED PURSUANT TO AFTERNOON RECESS) 14 15 I hereby certify the foregoing to 16 be a true and accurate transcript 17 of the proceedings transcribed to 18 the best of my skill and ability. 19 20 21 22 23 24 Laara Yardley, 25 Official Reporter, 2 6 UNITED REPORTING SERVICE LTD. 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 27093 Submissions by Ms. Sigurdson 1 (PROCEEDINGS RESUMED AT 4:50) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Miss Sigurdson. 5 MS. SIGURDSON: Miss Koeingsberg has something to say. 6 MS. KOENIGSBERG: I've been so quiet, my lord, I thought I would 7 say something about this exhibit, because I did put it 8 in in cross-examination of Mr. Daly, and in volume 191, page 12457, it was offered as an exhibit for identification, because at that time the witness had not seen it and Mr. Grant had not reviewed it, at least recently. The material is rather voluminous, and on that page it was said -- well, your lordship said: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 "THE COURT: MR. GRANT Your friend can put it in if she wants. My lord, the only thing is I had asked this with respect to other documents in the fall, and the practise we developed was that subject to my having an opportunity to review it, at which point it would go in as an exhibit proper. That was the only reason it was marked for identification right now, and that was the practise we developed with other documents with exactly the same question. That's the only reason I ask for it now. And subject to those comments ultimately it will go in." And it was then marked subject to Mr. Grant making some objection to it going in as an exhibit proper after he had reviewed it. There was no subsequent objection. In addition -- THE COURT: But it was marked. MS. KOENIGSBERG: It was marked as an exhibit proper. THE COURT: Yes. MS. KOENIGSBERG: In addition, in volume 195, during Mr. Grant's redirect of Dr. Daly, he asked -- THE COURT: Page? MS. KOENIGSBERG: Beginning at page 12792 and going on for many pages, Mr. Grant re-examined the witness on these documents, and in -- I don't wish to unduly -- to summarize unduly, but the tenure of the re-examination I think is encapsulated in question on page 12792, 27094 Submissions by Ms. Sigurdson 1 question starting at 2 THE COURT: 7 92? 3 MS. KOENIGSBERG: Yes, starting at line 38. He describes it, 4 asks him how long he had had to -- he looked over it 5 the lunch period, and I'm sorry, and then over to the 6 next page, page 12793, down again at the bottom of the 7 page, question at line 40: 8 9 "Q Now, the heading is "Number of Feasts 10 Attended In Preceding Year for Population 16 11 Years of Age and Older", and the second page is 12 for 15 years of age or less. Now, on the 13 assumption that the question there is how many 14 feasts have you attended in the preceding 12 15 months, if you were doing this study in order 16 to get data relating to feast attendance, would 17 you have formulated that in a different way?" 18 19 And then we had a lengthy exchange about whether we 20 were getting into an area of proper or improper 21 redirect, and he was allowed to go on and ask those 22 kinds of questions challenging or putting 23 qualifications, if you will, of the sort that Mr. Daly 24 felt should be put on the questions. In my 25 submission, for consideration of the admissibility of 26 this material, if I can put it that way, comprised in 27 Exhibit 901, it surely cannot stand for inferences 28 that might be drawn from the statistical analysis, 29 because that statistical analysis and what might flow 30 from it, what does this percentage mean, is untested, 31 and there's no evidence on it. However, it is a 32 compilation of information which for limited purposes, 33 in my submission, is admissible, as the evidence is 34 there of how many people were asked questions, in 35 other words the sample size, that they are all 36 plaintiffs. 37 THE COURT: Well, you're saying that the analysis is not 38 admissible because it's untested, but the raw data is 39 admissible. 40 MS. KOENIGSBERG: That's right. So one could look at this and 41 say of the 1,000 people who are plaintiffs who 42 answered this questionnaire, X number did not attend 43 feasts, and then it's for legal argument what one can 44 make from that. Those are all my submissions. 45 THE COURT: All right, thank you. Well, I will, as I said a 46 moment ago, I'll take it under consideration. If I 47 have to deal with it, I'll do so, unless in the 27095 Submissions by Ms. Sigurdson 1 meantime I've heard another submission from Mr. Grant. 2 MR. GRANT: Yes. I don't think that what my friend had referred 3 to, I hadn't looked at it, and that was one point and 4 it went in, but Miss Koenigsberg did not put her 5 objection to -- right after that question I asked -- 6 she set out the purpose for which she put it in, which 7 is what I understood was the purpose. She said, and 8 the objection on my cross-examination was A, did you 9 know about it; B, it contains the information of the 10 sort that would be of a quantitative source in answer 11 to certain questions. I don't think it is very 12 helpful at this time after cross-examination of this 13 document, which my friend chose to put in evidence and 14 not show to this witness, to now ask this witness, who 15 says he has had very little time to look at it, to 16 tell us how I might have asked questions differently. 17 Now, I understood from that objection that that was 18 the reason why I understood the reason for which it 19 went in, and I think it can go in to say something 20 that -- something Dr. Daly should look at. I will 21 deal with it after reviewing all of this. 22 THE COURT: All right. I once lost a big case in the Supreme 23 Court of Canada because the co-defendant put in some 24 documents, and once it's in, it's in for all purposes. 25 I'm sure you're caught by that, but there is a danger 26 to putting a bunch of documents in, and sometimes it 27 will come back and haunt you. 28 MR. GRANT: Of course. We didn't put in, it was all put in by 2 9 the Federal Crown. 30 THE COURT: All right, thank you. Miss Sigurdson. 31 MS. SIGURDSON: My lord, I had been making submissions on what I 32 might call the structural or institutional limits to 33 the plaintiffs' jurisdiction, and those are the limits 34 inherent in their system with their abilities to 35 enforce their laws or exercise their jurisdiction, and 36 I have not yet dealt with the way they enforce the 37 laws or exercise the jurisdiction in fact, and I will 38 come to that later. Now, at this point I'll turn to 39 paragraph 22 of my submissions, which are on page 11. 4 0 THE COURT: Yes. 41 MS. SIGURDSON: And say that, in any event, when the potlatch 42 was forbidden, at least in those aspects which were 43 considered undesirable by the Dominion Government, the 44 Province's view was the suppression of this custom was 45 unnecessary. The potlatch was not viewed by either 46 government as an "alternate" form of government. And 47 if I could ask your lordship to turn to tab 22 of the 27096 Submissions by Ms. Sigurdson 1 yellow book, at page 1 is the minute of the resolution 2 of the Legislative Assembly of British Columbia asking 3 the Dominion government to review the law banning the 4 potlatch, and the history of the matter and the 5 approach of the government is perhaps summarized in 6 the Dominion's response, and that starts at page 7 of 7 the documents at that tab, and this is the Dominion 8 Order In Council, P.C. 153. 9 THE COURT: Were they asking to repeal it? 10 MS. SIGURDSON: Yes. 11 THE COURT: Yes. 12 MS. SIGURDSON: And this is the Federal Minister states that he 13 had caused the inquiry to be made, that's the question 14 by the British Columbia government at page 7, and at 15 page 8, pursuant to the inquiry, the Minister, and I'm 16 starting at the second line: 17 18 "And he finds that the festival has a most 19 demoralizing effect upon the Indians who 20 participate in it; that through the efforts of 21 the missionaries and Indian agents it has, in 22 the Williams Lake agency entirely, and in the 23 Fraser River agency almost entirely, 24 disappeared; that in the Babine and West Coast 25 agencies it still exists, but without the 26 degrading features of mutilation and dog 27 eating, and not to the same extent in any way 28 as formerly; that in the other agencies it can 29 also be suppressed without much opposition from 30 the Indians if the law is administered with 31 prudence and good judgment. 32 The Minister further states that the 33 general consensus of opinion held by the Indian 34 agents, missionaries and others interested in 35 the welfare of the Indians is that the law 36 should not be repealed but that discretion 37 should be allowed and great care exercised by 38 the Indian agents in its enforcement. In this 39 way, it is believed that, as the young and 40 progressive Indians, who are for the most part, 41 opposed to the potlatch, obtain greater 42 influence in their tribes, and take the places 43 of the chiefs and older Indians who favour its 44 continuance, the custom will gradually die 45 out." 46 47 And we say that those documents do not give any 27097 Submissions by Ms. Sigurdson 1 indication of concern that the potlatch is an 2 alternate form of government, there are other concerns 3 in place that led to the -- 4 THE COURT: What is that exhibit number? 5 MS. SIGURDSON: That's Exhibit 1202-11, my lord. 6 THE COURT: Thank you. 7 MS. SIGURDSON: Therefore, we say that when the plaintiffs say 8 they govern themselves according to their laws, they 9 refer to a local system with rules that do not, and 10 are not intended to, extend to non-participants. 11 Participation, and therefore "jurisdiction" is both 12 voluntary and consensual. In these respects, the 13 jurisdiction of the plaintiffs is strikingly different 14 from the jurisdiction of the governments under the 15 Crown. And it is within those limitations that the 16 evidence with respect to the assertion of ownership 17 and jurisdiction will now be considered. 18 Much evidence has been led about the laws of the 19 Gitksan and Wet'suwet'en people, and the enforcement 20 of or compliance with those laws. And the evidence 21 will be considered in relation to two questions: (1) 22 do the plaintiffs have an identifiable system of laws 23 and law enforcement; and (2) do they govern themselves 24 in accordance with their laws as they see their laws? 25 And before I turn to paragraph 25, I will refer you to 26 plaintiffs' counsel's definition of law, which they 27 made in their final argument, and volume 327 at page 28 25025, the plaintiffs provided this definition of 2 9 laws. 30 THE COURT: I'm sorry, where is it? 31 MS. SIGURDSON: This is a digression from the argument. 32 THE COURT: You're still on paragraph 24? 33 MS. SIGURDSON: Yes. And the reference I wish your lordship to 34 note is volume 327, page 25 -- 35 THE COURT: Sorry, volume? 36 MS. SIGURDSON: 327, page 20525, and the quote is this: 37 38 "Now, the people speak about trespass as a law, 39 and when we deal with jurisdiction in greater 40 depth, the concept of the laws is more fully 41 explained, but at least in this context may we 42 say that when there is a law referred to, we 43 say that it's a general understanding and 44 system which permeates through the houses, 45 through the houses acting together and at the 46 feast, and when there is that global permeation 47 of this tenant or belief system and structure, 27098 Submissions by Ms. Sigurdson 1 then it's referred to as a law." 2 3 4 THE COURT: Who's speaking there? 5 MS. SIGURDSON: It's Miss Mandell. 6 THE COURT: Oh, that's in argument. 7 MS. SIGURDSON: Yes. And we submit that a tenant or a belief 8 system is not a law that this court can give effect 9 to. 10 And resuming in my argument at paragraph 25, we 11 say that a "law" must be distinguished from a 12 practice, or a tenant or a belief, and without 13 embarking on an essay in jurisprudence, it is 14 suggested that a practice becomes legal in character 15 where a violation or neglect of the practice is 16 regularly met by application of a coercive force by a 17 person or group acknowledged as having the authority 18 to do so. And from this working definition it is seen 19 that a "law" includes two components: An identifiable 20 practice, and regular enforcement. 21 It is submitted that the plaintiffs' evidence does 22 not meet this definition. 23 And the first area I would turn to is we say there 24 is uncertainty as to the practice. In some cases the 25 purported law is so vague or variously defined that it 26 cannot be determined what conduct is considered 27 unlawful. 28 Many witnesses suggested that there is a law 29 regarding children's use of their father's territory. 30 The law was called amnigwootxw by Gitksan witnesses 31 and neg'edeld'es by Wet'suwet'en witnesses. And the 32 paragraphs following I set out variations on the "law" 33 as described in the evidence. First is Mr. Marsden's 34 explanation, that's: 35 36 "Amnigwootxw is when the son travels with his 37 father on the territory, he will be with his 38 father until his father dies. But after his 39 father dies he does not say he owns this 40 territory. He leaves and if he wants to go 41 back there he has to get permission from the 42 head chief of that territory before he goes 43 back on to the territory where him and his 44 father were before." 45 46 The first variation I cite that the neg'edeld'es 47 rights extend to grandchildren, and in paragraph (c), 27099 Submissions by Ms. Sigurdson 1 this is the proposition that neg'edeld'es rights last 2 during the lifetime of the father only, and paragraph 3 (d) there's the statement by Mrs. Quaw that 4 neg'edeld'es rights last forever. And if I can turn 5 you to page 5 of tab 29, and this is Mrs. Quaw, and 6 she swore a territorial affidavit, and this is her 7 out-of-court cross-examination. Starting at line 9, 8 the question is: 9 10 "Q Okay. About the Neg'edeld'es right, that 11 is a right that dies with the father, when 12 the father dies, does that right die as 13 well? 14 A No. 15 Q No? 16 A No. 17 Q How long does it last, Mrs. Quaw? Perhaps 18 you can explain. 19 A Forever. 20 Q So if the right to use the territory is 21 gained through the father then the sons 22 then have the right to trap on the father's 23 territory, is that how it works? 24 A Well, all the children are on their 25 mother's side. 26 Q Yes. The children have the right to trap, 27 they are part of their mother's clan, isn't 28 that correct? 29 A Yes. 30 Q And they, of course, can trap in the 31 territory that goes to their mother's clan, 32 right? Do they have a right to trap on 33 their father's territory through 34 Neg'edeld'es? 35 A Yes. 36 Q They do? 37 A Yes. 38 Q Does that right last forever then? 39 A Yes. 40 Q So when the father dies the children can 41 continue to trap in the father's territory? 42 A Yes." 43 44 Mr. Joseph, however, said that neg'edeld'es rights can 45 only be extended beyond the life of the father with 46 permission. Now, Warner Williams added another twist. 47 He says that -- said that the rights can be extended 27100 Submissions by Ms. Sigurdson 1 without permission, at least until the "name is taken 2 up". And in subparagraph (g) I'm referring to Mr. 3 Smith's evidence, Sakxum higookx, who said that it is 4 the son's privilege to trap on his father's land, even 5 where the son did not ask permission. And if I can 6 turn you to pages -- page 9 of the tab, starting at 7 the bottom of page -- line 46, this is Mr. Macaulay's 8 cross-examination, and: 9 10 "Q I see. What about Gerald Harris? Do you 11 know him? 12 A Yes. That's their — 13 Q Son? 14 A Son, yes. 15 Q Is he registered on that trapline now 16 around the Shandilla Lakes? 17 A I wouldn't know. 18 Q He may be? 19 A He may be. 20 Q But if he is, he's trapping on eagle 21 territory, is he? 22 A Yes. That's his privilege if -- it's a 23 son's privilege to trap on their father's 24 land or make sustenance, food sustenance on 25 the father's land." 26 27 And then turning to page 11 is the re-examination of 28 Mr. Smith, and at line 35 Mr. Smith was asked: 29 30 "Q Mr. Macaulay asked you about the area 31 around Shandilla Lakes and he asked you 32 about Gerald Harris, Tommy Harris' son, 33 trapping on that territory. And you said 34 it was the son's privilege to get 35 sustenance from his father's land. My 36 question is: Does Gerry Harris have 37 your permission to trap on that territory?? 38 A He never asked permission." 39 40 So in my submission, what Mr. Smith was saying is that 41 he has the right to do that, whether or not he asked 42 permission. With respect to the proposition that 43 amnigwootxw can only be extended by permission, there 44 is a further proviso that permission cannot be denied. 45 And I refer to Mr. Marsden's evidence that: 46 47 "This person could not be refused if he goes to 27101 Submissions by Ms. Sigurdson 1 the chief and asks permission. He would not be 2 refused, because when his father dies all the 3 deceased person's children are taken by the 4 Wil'na't'ahl as their own children and this is 5 why they don't refuse them to go on to the 6 territory." 7 8 And I've also added a reference to Art Mathews, Jr.'s 9 evidence, who said the same thing, and although I 10 don't have the reference, your lordship has heard that 11 Joan Ryan, Hanamuxw, has said the same thing, that 12 permission cannot be denied. Turning to page 15, 13 Sarah Layton, who holds the name Knedebeas, and her 14 grandmother refused to give Roy Morris permission to 15 trap seems to be in contravention of the earlier 16 proposition. However, Mr. Morris did continue to trap 17 there. Beyond the father's territory, according to 18 Stanley Morris, neg'edeld'es rights can be acquired to 19 the mother-in-law's territory, and according to Mrs. 20 Quaw, neg'edeld'es gives one rights to use a spouse's 21 territory. And Mr. Michell said that neg'edeld'es 22 rights are limited, I quote: 23 24 "Like my children would be allowed to go there 25 as Neg'edeld'es, but they don't inherit the 26 territory like on the mother's side." 27 28 However, Johnny David, speaking about the Smogelgem 29 territory, and I should pause to say Mr. David seemed 30 to have two theories about his rights to be in the 31 Smogelgem territory. One was that he assisted with 32 the burial of the previous Smogelgem, he had full 33 rights to the territory. The other one, and this is 34 not from your material, this is Exhibit 74-D, page 44. 35 That's the direct examination of Mr. David on 36 commission: 37 38 "Q After your father died who took over 39 Smogelgem's territory? 40 A Okay, he had told me that I look after the 41 territory and I stayed there most of the 42 time. 43 Q Did you take care of it as a yinyanlay or 44 caretaker? 45 A Okay, I looked after it and it became mine. 46 Q Okay. Is there such a concept in 47 Wet'suwet'en society of a caretaker 27102 Submissions by Ms. Sigurdson 1 of the land? 2 A Okay, the children of the chief are 3 entitled to the land and they end up 4 looking after it and people from the -- 5 other people from the clan with permission 6 are able to hunt on the territory, hunt and 7 trap on the territory." 8 9 And I won't carry on, but they discuss for a long time 10 at various parts of his commission how he had been 11 raised on the territory and trapped on the territory 12 with his father and he acquired rights that way. 13 THE COURT: I'm not sure I got that right. Is it Exhibit 74 14 page 44 -- 74-D, rather, page -- 15 MS. SIGURDSON: Yes. That's from Mr. David's commission. 16 THE COURT: That's page 44? 17 MS. SIGURDSON: Yes. So if Mr. David is right in that 18 explanation of his rights, he then appears to adopt a 19 very broad view of his neg'edeld'es rights, because he 20 says he has a right to choose a successor to the 21 territory and to challenge the head chief's authority 22 over the territory. And I refer to Mr. David's 23 statement that: 24 25 "Leonard George is Smogelgem and also I can't 26 agree with him taking the territory, but he can 27 utilize it." 28 2 9 THE COURT: And would you put that down as subparagraph (m), 30 would you? 31 MS. SIGURDSON: Yes. And that's — yes. And in paragraph (n) I 32 say the right may extend to the territory of the 33 father's house or clan, and I refer to the evidence of 34 Henry Alfred. And my lord, if you can -- the Alfred 35 Mitchell reference is incorrect, it should be crossed 36 out. 37 THE COURT: Alfred Mitchell, paragraph (m)? 38 MS. SIGURDSON: That's right. 39 THE COURT: Yes. And I say the laws as these people described 40 their laws permits such a broad range of activity and 41 prescribes so little that it's hard to say that that's 42 a law that can be given force and effect. 43 And in any event, I say in paragraph 30 when the 44 "wrong" people at locations are found trapping in an 45 area, is usually assumed they are trapping there by 46 right of neg'edeld'es or amnigwootxw or by permission. 47 In paragraph 32 I start submissions on the point 27103 Submissions by Ms. Sigurdson 1 that there is no regular enforcement of the laws. 2 Allegedly important laws are broken with impunity. 3 Solomon Marsden was called to give evidence on Gitksan 4 law. He said "one of the strictest laws is that no 5 hunting ground can ever be cut in half and given to 6 anyone", and "no one is allowed to make any such 7 hunting ground smaller or larger, even if they own or 8 have power over it", and "There are no laws that allow 9 the chiefs to change the boundaries of their 10 territories. 11 But Mr. Marsden describes how the surviving member 12 of the house of Yal allegedly gave Ant Ga'1 Bakw, a 13 mountain near Cedarvale in the territory now claimed 14 by Wii Hlengwax, to Guxsan for burying the chief of 15 Yal. If I can just ask your lordship to make a note 16 of that in the annotation with reference to the 17 plaintiffs' page 101, I note Mr. Marsden's version is 18 a different one from Mr. Ryan's version of that, in my 19 submission. 20 Walter Wilson described how Djogaslee acquired the 21 territory at Irving Creek from the adjacent territory 22 of Skiik'm Lax Haa, and many other examples could be 23 given. Common sense suggests, I say, that ownership 24 could not "lawfully" be acquired in a transfer that is 25 in breach of what Mr. Marsden called the "strictest 26 law" of the Gitksan. Either the present claimants 27 cannot claim ownership under Gitksan law or there is 28 no law as alleged by Mr. Marsden. 29 THE COURT: A whole division of the Wah tah k'eght's property I 30 suppose would be used -- 31 MS. SIGURDSON: Pardon me? 32 THE COURT: The division of Wah tah k'eght's property would 33 breach Mr. Marsden's definition, of course that's a 34 Wet'suwet'en property. 35 MS. SIGURDSON: Well, yes, it is. 3 6 THE COURT: Mm-hmm. 37 MS. SIGURDSON: There is — 38 THE COURT: Maybe it isn't divided in the sense that there's 39 reversionary interest in Wah tah k'eght's property. 40 MS. SIGURDSON: I think there's two points. One is that the 41 Gitksan and Wet'suwet'en have common laws. There may 42 be some variations, but there is abundance of evidence 43 that they have common or very similar laws. And the 44 second point about Wah tah k'eght's territory, the 45 plaintiffs have argued that they have a live interest. 46 I say if you look at Bazil Michelle's evidence, his 47 evidence is that he owns the west side. If the laws 27104 Submissions by Ms. Sigurdson 1 are similar, and if Bazil Michelle can be accepted his 2 evidence is true, then that's another -- that is 3 another example. 4 Turning to paragraph 35, my lord, another 5 "important law" is said to be that the right to trap 6 on the territory of a hereditary chief can only be 7 granted by the hereditary chief. However, David 8 Gunanoot, who held the name Nii Kyap, acquired the 9 right to trap at Treaty Creek, in an area now claimed 10 by Skiik'm Lax haa, from the game warden. And I 11 digress to say that the trapper before him was William 12 Scott, it was a non-native person. And the question 13 asked of Mr. Gunanoot: 14 15 "Q So the game warden gave you that Treaty 16 Creek trapline area? 17 A Yes." 18 19 And it should also be noted that David Gunanoot 20 registered the Treaty Creek area against the wishes of 21 Daniel Skawil, who took the name Skiik'm Lax haa and 22 the house that now claims that territory. 23 Gerald Gunanoot, who is the present Nii Kyap, 24 says that he got the rights to trap at Treaty Creek 25 from his uncle. And if I can ask your lordship to 26 turn to page 4 of tab 36, and this is the 27 cross-examination of Gerald Gunanoot. Gerald Gunanoot 28 swore a territorial affidavit, and this took place at 29 the court. Starting line 3: 30 31 "Q Are you aware that in answer to some 32 interrogatories that were answered by John 33 Wilson as Skiik'm Lax Haa he stated that 34 David Gunanoot and Gerry Gunanoot have 35 trapped in my territory without permission? 36 A No, I never heard that. 37 Q Had you ever discussed that with Johnny 38 Wilson, Skiik'm Lax Ha, that you were 39 trapping in that area without permission? 40 I'm talking about the area in paragraph 5 41 of your affidavit? 42 A I have full rights in that area. 43 Q How do you get your full rights in that 44 territory? 45 A I was born in there. 4 6 Q All right. Any other way do you get them 47 through? 27105 Submissions by Ms. Sigurdson 1 A I was raised there. 2 Q And did those rights come to you through 3 your Uncle David Gunanoot? 4 A Yes. Through our own Indian traditional. 5 That's our proper way. That's the reason 6 why the land is taken care of from 7 generation to generation. 8 Q Perhaps you could just explain that to me a 9 little bit. Your rights to trap in this 10 area you've described then come through 11 your uncle, David Gunanoot? 12 A Yes. 13 Q And would your sons then have a right to 14 trap in this area that you described near 15 paragraph 5? 16 A As long as I live. 17 Q Well, was your right to trap in this area 18 as long as your uncle, David Gunanoot, was 19 alive? 2 0 A No. 21 Q That right continues forever? 22 A Yes, because it's on my mother's way. 23 We're on the same side." 24 25 David -- Gerald Gunanoot holds the name Nii Kyap, and 26 he's a wolf person, and I'm not sure what he meant by 27 it being on his mother's side. Skiik'm Lax haa is not 28 a wolf territory. 29 Now, in paragraph 37 I continue. Sylvester 30 William, who held the name Hagwilnegh, continued to 31 trap on the Blunt Creek trapline, without seeking 32 permission from the chief of the territory, on the 33 strength of permission from the game warden. And on 34 the page following there is part of his examination 35 for discovery, which was read in: 36 37 "208 Q Did you have William Caspit's 38 permission to trap on that trapline? 39 A When he passed away, that is when the 40 game warden passed it on to me. 41 209 Q And who became Caspit after William 42 Caspit passed away? 43 A Jimmy Thomas took the name and after 44 he passed on Stanley Morris took the 4 5 name. 46 210 Q Did you ask Jimmy Thomas' permission 47 to trap on that trapline? 27106 Submissions by Ms. Sigurdson 1 A No. The game warden took it upon 2 himself to register me there. 3 211 Q And from your point of view, Mr. 4 William, that was good enough to 5 permit you to trap there; is that 6 correct? 7 A He told me I was old enough and he 8 gave, registered the territory to me. 9 212 Q And then you began trapping there? 10 A Yes." 11 12 And those -- the matter was raised on re-examination, 13 and question 365 shows it's the same matter, and 14 turning to question 366: 15 16 "366 Q Under Wet'suwet'en law did you have 17 any rights to use that territory? 18 A I had those rights. 19 367 Q Were those rights announced at a 20 feast or any other way? 21 A They didn't give it to me through the 22 feasts, the game warden assigned it 2 3 to me." 24 25 And we submit that David Gunanoot and Sylvester 26 Williams, two head chiefs, one of the Gitksan and one 27 of the Wet'suwet'en, acknowledged that they trapped 28 pursuant to permission granted them by the game 29 warden, not from the hereditary chief of the territory 30 on which they trapped. The rule that the right to 31 trap can only be granted by the -- and must be granted 32 by the head chief was violated, but there was no 33 apparent curtailment of Mr. Gunanoot's or Mr. 34 Williams' activities. I ask the rhetorical question: 35 How can this rule be considered a law? And we say it 36 can't be. 37 MR. GRANT: Well, on the second incident, Mr. Williams, my 38 friend seems not to have referred to Mr. Mitchell's 39 evidence about the same territory, and I will provide 40 the court with a reference, but Alfred Mitchell 41 testified this territory was returned at the feast of 42 Sylvester Williams' death -- or I'm sorry, at the time 43 that he was alive. 44 THE COURT: At the time he was alive. 45 MR. GRANT: Yes. Sylvester Williams actually did return the 46 territory to Caspit at a feast during his lifetime. 47 THE COURT: After he gave the evidence. 27107 Submissions by Ms. Sigurdson 1 MR. GRANT: I'm not sure if it was before or after, my lord, but 2 that evidence is in, that's why 3 MS. SIGURDSON: That's fine. The point is I made here is he 4 trapped for many years with permission of the game 5 warden, and specifically in his statement did not ask 6 the chief during that period of time. And another 7 aspect of the laws, I'm at paragraph 39, my lord, is 8 that there must be a predictable response to the 9 violations of the law. In some instances the 10 plaintiffs' evidence shows that there is no such 11 predictable response. 12 Some witnesses have said there was no longer any 13 penalty for trespassing. Emma Michell explained that 14 long ago they used to punish people for trespassing, 15 but now, and I quote: 16 17 "They don't do nothing, they just laugh at 18 him....A long time ago they used to kill one 19 another but as a result of the present law, 2 0 they don't do that." 21 22 Others have said that there is a penalty. Stanley 23 Williams said the penalty for trespass was death. I 24 quote: 25 26 "Our law is that if a person has trespassed on 27 your land and he has been warned and the third 28 time he is caught there, he will be killed 29 instantly." 30 31 However, Mr. Williams said the penalty had not been 32 applied in his lifetime. And if I could ask your 33 lordship to turn to tab 42, page 1, and this is the 34 evidence of Solomon Marsden with respect to the death 35 penalty for trespass. Starting at line 8, the 36 question is: 37 38 "Q There has been evidence that the chiefs 39 under the Gitksan law could kill persons 40 who trespassed on their territory. This 41 has been given by other witnesses. And 42 your description of what you did in the 43 fishing sites relates to a seizure of 44 equipment or goods. Is that decision that 45 you made to seize goods rather than kill a 46 person, is that -- is it part of the 47 chiefs -- is it recognized in Gitksan law 27108 Submissions by Ms. Sigurdson 1 that chiefs can punish persons for trespass 2 in different ways? 3 A The chief could use this law. It's still 4 there but the government laws have greatly 5 interfered with our laws, the Gitksan law. 6 And this is -- this is why it's not used 7 today. 8 Q When you say this is why it's not used 9 today, are you referring to the penalty of 10 killing for trespass? 11 A Yes." 12 13 And Mr. Sterritt's paper he described as recently as 14 the 1930's where there were what he called accidents, 15 but, as he said, I quote: 16 17 "People were in the wrong area and they got some 18 buckshot". 19 20 Pete Muldoe -- Mr. Muldoe explained that there were 21 several possible responses to the trespass, the choice 22 being that of the individual catching the trespasser. 23 Now, in his cross-examination he had been asked "if 24 anyone" -- pardon me: 25 26 "If anyone sets a trap on my territory all I got 27 to do is go to the game warden, but that it 28 could be a little different." 29 30 And he was re-examined with respect to the "could be a 31 little different" part of the answer, and Mr. Muldoe 32 said: 33 34 Well, you see, some of persons, they don't all 35 have the same temper. When Victor Mowatt 36 caught Marty Allen's son on the territory, if 37 he was mad enough he could have taken him and 38 beaten him up and leave him there on the 39 territory." 40 41 There was an objection and Mr. Rush asked: 42 43 "Q Well, what do you mean by that example that 44 you're just talking about? 45 A Well, they could beat him up, give him a 46 licking or something like that, and just 47 leave it right in there. 27109 Submissions by Ms. Sigurdson 1 THE COURT: What you're saying is that some 2 people will act differently from others, 3 aren't you? 4 THE WITNESS: Yes. 5 MR. RUSH. 6 Q And what about yourself if you caught a 7 trespasser? 8 A Well, a lot of the time you can just send 9 them off the territory. If it's the second 10 time he gets in there, you can have to put 11 him up to the court or something like 12 that." 13 14 And in our submission, from Mr. Muldoe's explanation 15 it can be seen that the penalty for trespass is 16 determined on an ad hoc basis, if at all, by the 17 trapper who catches someone on his trapline. There is 18 no procedure or structure or system for determining 19 whether there has been a violation of the law and, if 20 so, what penalty is appropriate, and the matter, as 21 far as we can see from Mr. Muldoe's evidence, is not 22 aired in the feast hall. 23 And in our submission, if the penalty for a 24 violation of the law is unknown, nonexistent or not 25 applied, the existence of the law, or anything 26 resembling a law, is questionable. 27 Now, my lord, I'm in your hands about starting 28 this section. 2 9 THE COURT: I think we'll adjourn until tommorrow morning as 30 close to 9:30 as possible. 31 MS. SIGURDSON: Yes. 32 THE REGISTRAR: Order in court. Court stands adjourned. 33 adjourned. 34 35 (PROCEEDINGS ADJOURNED) 36 37 I hereby certify the foregoing to be 38 a true and accurate transcript of the 39 proceedings herein transcribed to the 40 best of my skill and ability 41 42 43 44 45 Graham D. Parker 46 Official Reporter 47 United Reporting Service Ltd.
Delgamuukw Trial Transcripts
[Proceedings of the Supreme Court of British Columbia 1990-05-22] British Columbia. Supreme Court May 22, 1990
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