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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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 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 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.


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