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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-23] British Columbia. Supreme Court May 23, 1990

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 27110  Submissions by Miss Sigurdson  1 Vancouver, B.C.  2 May 23, 1990  3  4 (PROCEEDINGS RECONVENED AT 9:30 A.M.)  5  6 THE REGISTRAR:  Order in court.  7 THE COURT:  Miss Sigurdson.  8 MISS SIGURDSON:  My lord, I left off yesterday at page 23 and  9 the summary was going to resume at paragraph 46.  10 THE COURT:  Thank you.  11 MISS SIGURDSON:  And we say a third category in our discussion  12 on the laws of the Gitksan and Wet'suwet'en is that  13 the evidence shows that there is rationalization  14 rather than enforcement of the laws.  And we say in  15 other areas the evidence indicates that the plaintiffs  16 do not govern themselves according to their laws.  17 Rather, non-compliance is rationalized or "legalized".  18 Heather Harris expressed the opinion that, and I  19 quote:  20  21 The essential law involved in Gitksan marriage  22 partner choice is the proscription against  23 marriage within the clan; this is called gaats  24 by the Gitksan and incest by anthropologists.  25  26 In earlier times a person who married within his  27 or her clan was put to death.  Now, one spouse is  28 adopted into the house of another, house and clan of  29 another.  30 In the area of use and -- territories use of  31 resources, the law said to be a very important law is  32 that permission is required.  And in paragraph 50, we  33 submit that it was pointed out to Alfred Joseph that  34 Christine Holland's -- and that's -- she held the name  35 Knedebeas -- registered trapline extended into the  36 territory of Gisdaywa.  Mr. Joseph asserted that Mrs.  37 Holland had permission to trap there.  And if I could  38 ask you to turn to the yellow book, tab 50, and at  39 line 14, Mr. Goldie refers to Christine Holland and  40 then at line 18, the question is:  41  42 Q  Did she have your permission to trap?  43 A  Yes.  44  45 However, further on in the cross-examination, Mr.  46 Joseph said that Mrs. Holland had never asked him for  47 permission.  And if you could turn to the next page, 27111  Submissions by Miss Sigurdson  1 page 2 in the yellow binder, starting at line one:  2  3 Q  No.  I say does she --  4  5 And that refers to Mrs. Holland.  6  7 -- have permission?  8 A  Yes.  She's following her -- the same  9 territory that they've used in the past.  10 Q  Yes.  I appreciate that she is trapping  11 on a line which has been in her family  12 for some time, but that -- the trapping  13 on that line takes it into the territory  14 claimed by Gisdaywa, and did I understand  15 you correctly to say that so far as your  16 territory is concerned she has your  17 permission to trap there?  18 A  Yes.  19 Q  Do you recall when you gave her that  20 permission?  21 A  I have never given her permission, but  22 they've been using that territory as it  23 was for years and years.  24  25 And going down to line 32:  26  27 Q  Well -- and you tell me that when  28 Katherine Michell —  29  30 And I pause to say she is the present holder of the  31 name Knedebeas.  32  33 -- and whoever traps on her behalf, is  34 trapping on your territory she is doing  35 so because that's what she and her family  36 have done for many years?  37 A  There may have been arrangements between  38 my grandmother and Christine Holland.  39 Q  There may have been?  40 A  Yes.  41 Q  But that's -- if there is you don't know?  42 A  Yes.  43 Q  But you think there may have been?  44 A  There may have been, yes.  45  46 And we say by the assumption that permission was  47 granted without any knowledge of whether permission 27112  Submissions by Miss Sigurdson  1 had been granted, an apparently "unlawful" act was  2 simply assumed to be a "lawful" act.  3 What the plaintiffs assert as "laws" are perhaps  4 better described as moral or social principles.  This  5 can be seen from Stanley Williams' assertion that, and  6 I quote:  7  8 Ever since time begun when our people were  9 created, they made these laws and these laws  10 are -- still remain today, and there is no new  11 laws today.  12  13 And it is our submission that where the "laws"  14 are so vague that it cannot be determined what  15 constitutes a breach of the law, where allegedly  16 important laws are broken without apparent consequence  17 and where violations of laws are rationalized rather  18 than penalized, the evidence does not show that the  19 plaintiffs govern themselves according to the laws  20 that this court can give effect to.  That they attempt  21 to preserve a code of conduct limited to internal  22 relationships is immaterial to this case and does not  23 advance their claim.  24 In the next section we make submissions on the  25 institutions of the Gitksan and Wet'suwet'en.  26 The plaintiffs allege that they have maintained  27 their institutions and exercised their authority over  28 the claim area through their institutions.  And I  29 refer to the Statement of Claim, paragraph 57 (f).  30 And I leave the written summary to note that the  31 plaintiffs' counsel argued that it is these  32 institutions that round out the meaning of ownership  33 that they claim, and the reference I can provide your  34 lordship is transcript 330, page 25389.  35 THE COURT:  389?  36 MISS SIGURDSON:  Yes.  37 And I carry on to say that throughout the trial  38 several institutions were referred to.  And I will not  39 read that paragraph, but I will say that what we deal  40 with in these submissions is the feast and the system  41 of hereditary chieftainship, institutions such as the  42 kinship system or the house system have been the  43 subject of comment already.  Other institutions such  44 as gambling that Dr. Daly said was an important  45 institution, we say is not one that can go to a claim  46 of ownership and jurisdiction.  In any event, Dr.  47 Mills denied its importance. 27113  Submissions by Miss Sigurdson  1 Carrying on at paragraph 56.  The plaintiffs have  2 adduced a massive amount of evidence on the feast as  3 it is presently practised.  The plaintiffs argue that,  4 and have pleaded that in all its essential  5 characteristics the feast has been maintained since  6 time immemorial.  7 And we say the evidence of the current feast  8 system must be evaluated in the context of the society  9 in which the feasts have been held.  10 John Adams did his field work among the Gitksan in  11 the mid 1960's.  In his treatise "The Gitksan  12 Potlatch" published in 1973, he states, and I quote:  13  14 That the potlatch survives today in a state of  15 considerable complexity is undoubtably due to  16 its value in the Natives' eyes as a means of  17 furthering their land claims against the  18 government, but it is also a touchstone of  19 Indian identity in a world increasingly  2 0 dominated by the Whiteman's values.  21  22 Included in "The Gitksan Potlatch" are Mr. Adams'  23 "Notes on the Funeral Feast for Silas Inness, Eagle of  24 Kitwanga, " and that feast was held, apparently, on the  25 29th of October, 1965.  And as recorded in Mr. Adams'  26 notes that Harold Sinclair spoke of the "land  27 question."  28 And in 1973, Neil Sterritt was asked by the  29 Tribal Council "to prepare a submission to further the  30 land claim of the Gitksan-Carrier, as it was called  31 then, and to help out in putting together a  32 submission."  And in 1977, the Gitksan and  33 Wet'suwet'en filed the Comprehensive Claim with the  34 federal government.  35 The plaintiffs acknowledge that the "land  36 question" is "brought up at every feast in the last  37 ten years", and before that, as Mr. Joseph said, "it  38 was always raised by a few of the older chiefs."  39 Thus the plaintiffs' evidence with respect to the  40 present form of the feast (as with evidence of all of  41 their traditional culture) reflects the practices of a  42 society that is immersed in land claims; comprehensive  43 claims and negotiations.  44 It is not disputed that some Gitksan and  45 Wet'suwet'en people attend various formalized  46 gatherings called feasts.  47 However, a feast attended by both peoples -- and 27114  Submissions by Miss Sigurdson  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  by that I mean the Gitksan people and the Wet'suwet'en  people -- is neither a common event today nor is it  claimed to have occurred historically.  And we submit that the evidence shows that the  feast as it is presently practised is not what it was  at the time of contact in the claim area.  There are two bodies of evidence in the  maintenance or continuation of the feast system: the  assertions of the lay witnesses that the feast existed  before the arrival of Europeans and the historic  record.  Reverend Tomlinson and Mr. Turner-Turner describe  activities markedly different from the activities  described by the plaintiffs' witnesses.  Reverend Tomlinson refers to the competitive  nature of the potlatch, the destruction of property,  the beggaring of the family hosting the potlatch, and  dog-eating ceremonies.  Mr. Turner-Turner also notes  the dog-eating ceremony and the impoverishment  resulting from the feasts.  Mr. Loring commented on  the wilful destruction of the property and the dog-  eating ceremony.  In 1897, Mr. Loring —  MR. GRANT:  Sorry, my lord, I am a bit concerned about the  Tomlinson reference.  Much was made of it during --  when it was introduced and my friend, of course, has  put it in at tab 68.  But my recollection of that  evidence was that in fact what he -- although Mr.  Tomlinson was at Kitwanga, he was digressing and  discussing something that was happening on the Nass,  and it was clear from the evidence of the witnesses  that it was not with respect to the Gitksan.  So this  narration that my friend is relying on is not a  situation with the Gitksan only and Dr. Daly spoke to  that.  THE COURT:  What was the reference to tab 68?  MR. GRANT:  It would be Exhibit 901-21.  In the argument, my  lord.  THE COURT:  Oh, it would be in this tab 68?  MR. GRANT:  Yes, yes.  That is a reference -- his description  there is a reference to what was happening on the  Nass, although he was at Kitwanga at the time he was  talking about the event.  MISS SIGURDSON:  Well, my friend can raise that.  As I recall  the evidence, Mr. Grant raised that objection during  Mr. Daly's evidence -- Dr. Daly's evidence.  And the  reference to Tomlinson refers to being in Kispiox and 27115  Submissions by Miss Sigurdson  1 talking about the Nishga-speaking people, but being in  2 that area.  I took it from that that he is referring  3 to the area around Kispiox and the Nishga-speaking  4 people there.  5 THE COURT:  All right.  Well, I'll have to — I'll have to look  6 at it some time and see whether I think it applies to  7 this area.  8 MISS SIGURDSON:  Carrying on at paragraph 69.  In 1897, Mr.  9 Loring referred to "the holding of the festivals  10 described as the Potlach (sic)" to Mr. Vowell,  11 Superintendent of Indian Affairs, and I quote:  12  13 ...in regard to the festival the bands of the  14 Hoquel-get [Hagwilget] Indians do not observe  15 it, for reason, no doubt, having been for many  16 years under advices of the Roman Catholic  17 priests.  18  19 Each of the bands of Kit-Ksuns is divided in  20 respect to holding the feast.  The old of the  21 band favor it, whilst the younger of the  22 population are against it...  The majority of  23 the Indians [I say "were asking"] advice of the  24 new provisions for an enforcement of the Indian  25 Act greatly distracted, pleading they would be  26 deprived of their only diversion, during the  27 long winters, etc....  Seeing in the  28 potlatching only one objectionable feature that  29 of wilful destruction of property, I arranged  30 for quietly meeting in feast under modified  31 forms, and it is pleasant to reflect that the  32 parties interested met us half way by promising  33 the moose skins, blankets and other offerings  34 to the departed in spirit-land, instead of  35 being consigned to the flames, to be carefully  36 divided up amongst the poor and aged and that  37 agreement was carried out to the letter...  38  39 And your lordship may recall the evidence we  40 heard on the distribution of property in the case  41 these days.  42 And I leave the text to refer back to an earlier  43 tab which I will not ask your lordship to turn to, but  44 if you make a note that at tab 22 of the yellow book  45 there is the Dominion Order in Council 153, and at  4 6 that time --  47    THE COURT:  Tab 22 of this yellow book? 27116  Submissions by Miss Sigurdson  1 MISS SIGURDSON:  Yes.  The provincial —  2 THE COURT:  What volume is this?  3 MISS SIGURDSON:  Nine.  4 THE COURT:  Nine?  5 MISS SIGURDSON:  Yes.  6 THE COURT:  Thank you.  Yes?  7 MISS SIGURDSON:  And that is where the Provincial Government had  8 asked the Dominion to conduct an inquiry into the  9 potlatch ban.  And in Dominion Order in Council 153,  10 they had conducted the inquiry and concluded "that  11 the -- that in the Babine and West Coast Agencies  12 it" -- and that's the potlatch -- "still exists, but  13 without the degrading features of mutilation and dog  14 eating."  And then it says it did not carry on to the  15 same extent as former, and that's in February 22nd,  16 1898.  17 In paragraph 70 I say that in 1916, Mr. Loring  18 repeated that observation.  19  20 As wont - in a custom which not obtains with  21 the Hagwilgets of late years - during this  22 month the Kitsuns, by way of diversion, spent  23 some time in attending feasts in memory of  24 those of their number departed by death during  25 the year just ended; and happily thereat every  26 semblance of the whilom objectionable features  27 of the potlach [sic] is being departed from.  28  29 And in 1921, the Corporal in charge of the  30 Hazelton Detachment of the Royal Canadian Mounted  31 Police reported on a meeting with "many of the Indian  32 Chiefs of the Skeena River" at Hazelton and he said,  33 in part:  34  35 ...another Indian gave 9 instances of potalch  36 [sic] customs which had [been] dropped,  37 [namely] the eating of raw dog meat, the  38 burning of canoes and blankets, the burying of  39 live slaves etc, etc, and they all stated that  40 the potlatches did not impoverish them.  41  42 According to the plaintiffs' evidence, what  43 Loring described as the "objectionable" features of  44 the feast, the dog eating, the destruction of the  45 property, et cetera, are absent from the feast today.  46 And indeed, the feast as described by the plaintiffs'  47 witnesses bears little, if any, resemblance to the 27117  Submissions by Miss Sigurdson  1 events observed in the late 1800's.  2 Careful seating arrangements, orderly food  3 service, and the collection and distribution of money  4 to pay, for example, for the costs incurred in a  5 burial, appear to be the hallmarks of the present day  6 feast, and these features are not referred to in the  7 early recorded observations of potlatch activity.  And  8 we say that the present features are, however, in  9 keeping with the "modified" form of memory feast  10 referred to by Mr. Loring.  11 When the evidence as a whole is taken into  12 account, it appears that between 1886 and 1921, the  13 former practice of potlatching was replaced by  14 something resembling or called feasting.  The feast,  15 as described by the witnesses, has not been maintained  16 since "time immemorial".  17 It is also possible to consider the maintenance  18 of the feast system by comparing the practices within  19 the feast as the Plaintiffs say they should be to the  20 way they are: and this may be called the ideal or the  21 belief versus the reality.  And it is our submission  22 that in order to establish ownership and jurisdiction  23 over the claim area, as the plaintiffs have alleged  24 and must show, they must show that the territorial  25 aspects of the feast are practised.  26 And in paragraph 76 and 77 I gave examples from  27 the plaintiffs' opening and from assertions during the  28 course of the evidence of what they say are the  29 territorial aspects.  More recently, this has been  30 mentioned in the plaintiffs' argument, and I may refer  31 you to Mr. Jackson adopting Dr. Daly's definition of  32 ownership.  And in transcript 327 -- and this is not  33 in the written material, my lord.  34 THE COURT:  Where shall I put it?  35 MISS SIGURDSON:  If you can put it below paragraph 77.  3 6 THE COURT:  Yes.  37 MISS SIGURDSON:  And that is transcript 327 page 24988.  3 8 THE COURT:  Yes.  39 MISS SIGURDSON:  Mr. Jackson adopted Dr. Daly's definition and  40 the first point was ownership implies the concept of  41 exclusive possession.  Implicit in this aspect is a  42 delineation of boundaries.  43 And in transcript 328, page 25114 --  44 THE COURT:  25114?  45 MISS SIGURDSON:  Yes.  Ms. Mandell said, and I quote:  46  47 In any system which includes rights of 2711?  Submissions by Miss Sigurdson  1 exclusive possession, there must be a widely  2 dispersed knowledge of the persons or groups in  3 whom those rights of possession reside and of  4 the boundaries of the territories.  Among the  5 Gitksan and the Wet'suwet'en this announcement  6 of rights and boundaries is carried out, above  7 all else, in the feast hall.  8  9 At paragraph 78 we say that when the evidence is  10 examined, it is seen that the territories are the  11 subject of little comment in the feast.  12 Martha Brown who held the name Kliiyem lax haa  13 was asked in her examination in chief:  14  15 Q  Did anyone from the Wolf tribe talk about  16 your territories at the feast?  17 A  No, they don't talk about territory  18 things.  In the old days they used to  19 talk about it.  Nowadays is feast doesn't  20 talk anything about territory...  21  22 And later in her direct examination:  23  24 Q  ...Do you remember at any of the  25 Xhliimlaxha [Kliiyem lax haa] feasts in  26 your lifetime that the description of the  27 territories of Xhliimlaxha were given?  28 A  They don't remember the territory during  29 the feast.  30  31 And still later:  32  33 Q  They will speak about the territory at  34 the feast?  35 A  They don't usually discuss it in the  36 feast.  37  38 And on cross-examination, Mrs. Brown confirmed those  39 answers:  40  41 Q  I understood her to say that at feasts  42 today territory is not talked about, is  43 that correct?  44 A We don't talk about territories today.  45 Q  Why is that?  46 A We're forgetting, we're white people now.  47 Q  Is it because people no longer use the 27119  Submissions by Miss Sigurdson  1 territories that they are not talked  2 about at the feasts?  3 A  Yes.  4  5 And Mrs. Quaw was asked, "Have you ever heard  6 anyone describe the Honcaagh Ben territory in the  7 feast?"  And she said, "No."  8 And to the extent that territories are discussed  9 at feasts, the plaintiffs admit that they are not  10 described in detail, that there is no delineation of  11 boundaries.  12 Mr. Joseph said:  13  14 ...Usually our people when they give a  15 description of their territory at a Feast, all  16 they do is mention one area and the rest -- the  17 people that know the territory know what area  18 they are talking about.  19  20 Mrs. McKenzie said -- gave evidence to a like  21 effect, and also said that the last time she had heard  22 Gyolugyet's territory described at a feast was at  23 Marian Jack's feast in 1959.  24 Mary Joseph admitted they never described the  25 boundary at a feast.  26 And I also have a reference to Madeline Alfred's  27 evidence.  28 Now, Mr. Sterritt said he acquired detailed  29 information on territories during the course of the  30 feast.  That information was not part of the formal  31 business of the feast and said, rather, it was from  32 private conversations during the event.  And it was  33 suggested during his evidence that the "feast has a  34 multitude of functions", and that information  35 gathering was "part of the interaction that goes on  36 during the course of a feast."  And we submit that  37 that may be a part of the feast that Mr. Sterritt, as  38 a land claims researcher participated in, but chiefs  39 do not.  40 And if I could ask you to turn to tab 82.  41 THE COURT:  82?  42 MISS SIGURDSON:  82, my lord.  And pages — page 3, and this is  43 the evidence of Mary McKenzie who held the name  44 Gyolugyet.  And starting at line 33, Mrs. McKenzie was  45 asked:  46  47 Q  For how many years has Jeffrey Harris 27120  Submissions by Miss Sigurdson  1 held the name Luus?  2 A When his brother Chris Harris, the late  3 Chris Harris, died, and he was the one  4 that had the name of Luus.  5 Q  And was that ten years ago or so?  6 A About seven or eight years.  7 Q  And you've sat beside Jeffery Harris  8 senior at the Feast Hall ever since then?  9 A  Yes.  10 Q  And before that you've sat beside Chris  11 Harris for many years didn't you?  12 A  Yes.  13 Q  And did you ever during that time discuss  14 with Chris Harris or Jeffery Harris  15 senior the location of the territory of  16 the House of Luus?  17  18 And the next page:  19  20 A  No.  I don't discuss that with them at a  21 Feasting.  22 Q  And did you ever attend a Feast at which  23 either of those two gentlemen described  24 the location of their territory of their  25 House?  2 6                        A  No.  27 Q  Do you discuss matters of territory  28 outside the Feast Hall?  29 A We have to discuss it firstly by our own  30 wil'nat'ahl, then it goes to the Feasting  31 House.  32 Q  Outside the Feasting House, have you ever  33 had discussions with Jeffery Harris  34 senior or Chris Harris while they were  35 Luus, while they held that name, about  36 the territory of Luus?  37 A  No.  38  39 And Exhibit 702 contains Mr. Sterritt's notes of  40 73 feasts he attended between 1980 and 1988.  And  41 during his evidence he recalled that "territories were  42 spoken to in some of those feasts", and identified his  43 notes of 15 feasts.  Now, I reviewed those notes that  44 he identified and, in my submission, in seven of the  45 15 notes there were no recorded references to  46 territories.  In the other notes, the context in which  47 the reference to territory were made is unclear. 27121  Submissions by Miss Sigurdson  1 But it is my submission that in most of those, if  2 the plaintiffs' evidence on feast procedure is correct  3 and was followed, those feasts, then, it would not  4 have been part of the formal business of the feast.  5 And we say also that the confusion over  6 boundaries and ownership revealed in the mapping and  7 territorial affidavit process --  8 MR. GRANT:  Just if my friend could assist me.  I see that at  9 the tab, these -- these notes of 15 such feasts,  10 Exhibit 702, I know what she is referring to but the  11 notes of the 15 feasts aren't there.  I wonder if my  12 friend could provide me at least with the reference,  13 not right now, but later, as to which she alleges of  14 the seven there are no recorded references -- seven of  15 the 15 there are no references.  In other words, she  16 has made that statement -- that assertion, but when I  17 go to her binder, I have no way of knowing what she is  18 particularly referring to, except Exhibit 702 which is  19 a binder of all of his notes.  20 THE COURT:  Are they conveniently located -- collected together?  21 MISS SIGURDSON:  I could do the research again.  What I did is I  22 went to Mr. Sterritt's evidence, identified the 15  23 feasts that he referred to and read the notes.  I --  24 if my friend finds that he can't do that, then I can  25 do it, but I --  26 MR. GRANT:  Well, she didn't — if she doesn't have a list of  27 the seven where there are no recorded references -- I  28 thought that she would have made a list of such, but  29 it's okay.  30 MISS SIGURDSON:  I don't have a list handy, my lord.  31 THE COURT:  All right.  32 MISS SIGURDSON:  And we say the confusion over boundaries and  33 ownership revealed in the mapping and territorial  34 affidavit process and discussed in Part IV of Section  35 5 -- and you'll hear submissions on those later in the  36 day and tomorrow -- shows that the plaintiffs do not  37 know territorial boundaries or owners.  Public  38 delineation of territories does not occur in feasts.  39 Passing references to territories in feasts held  40 within a society immersed in land claims do not  41 support an assertion of ownership and jurisdiction  42 over the claim area.  43 The plaintiffs also argue that the feast is where  44 oral histories, their evidence of title, is told,  45 witnessed and validated.  And in this area, too, it's  46 our submission the practice falls short of the ideal.  47 And submissions on the oral tradition have been made 27122  Submissions by Miss Sigurdson  1 already and I've referred you to Part II, Section 3 of  2 the summary of argument.  3 And it is submitted that the elements of the  4 feast system which the plaintiffs say support a claim  5 of actual, effective ownership and jurisdiction over  6 an area of 22,000 square miles have not been  7 maintained.  8 Hereditary chieftainship has also been put forward  9 by the plaintiffs as an institution evidencing  10 ownership and jurisdiction.  11 The plaintiffs argue that the authority and  12 responsibility are vested in and exercised by the  13 hereditary chiefs, in accordance with a structure or  14 within an institution that has been in place since  15 time immemorial.  16 Submissions under this heading are directed to  17 two propositions which define the limited scope and  18 extent of the authority:  19 (1)   Management of "municipal" affairs on reserve  20 lands, which we say are the concerns of  21 everyday life, such as education, housing,  22 roads, health care, lies with Band Councils.  23 And the Council's authority derives from  24 federal legislation.  And off-reserve  25 neither the Bands nor the chiefs exercise  26 effective authority.  27 (2)   The authority of the hereditary chiefs is  28 limited to internal practices which are  29 unregulated at law, and is exercised by way  30 of moral suasion based on the respect  31 accorded them by members of the community  32 who attend feasts.  And that authority is  33 exercised on an ad hoc basis.  34  35 The effect of government regulation and resource  36 use is discussed later.  And there it is submitted  37 that the primary forms of resource use are regulated  38 by the federal and provincial governments.  And the  39 plaintiffs' acceptance of the government's authority  40 is demonstrated by their compliance with and  41 participation in the regulatory process.  42 And we turn now to band councils.  Many of the  43 tasks that, in the non-native community, are  44 considered to be governmental responsibilities are  45 handled by band councils in the land claim area.  And  46 I use for an example the Hagwilget Band Council, Mr.  47 Joseph's evidence.  Mr. Joseph explained that the 27123  Submissions by Miss Sigurdson  1 Hagwilget Band Council was responsible for housing,  2 sewage lines, water, fire, and other safety matters,  3 education (in part), large improvement projects, and  4 resolving disputes concerning competing claims to  5 reserve lands.  And except for an area of overlapping  6 responsibility for education, those matters are not  7 dealt with by hereditary chiefs in the feast hall.  8 The chiefs' authority is exercised through the  9 feast system and that system, Mr. Joseph explained,  10 deals with other concerns.  11 We say in paragraph 93, the hereditary chiefs'  12 authority is that of advisors or supervisors with  13 respect to cultural, social and family matters within  14 the community, in areas that are not regulated at law.  15 Like all citizens, the plaintiffs are at liberty to  16 maintain their internal practices, so long as those  17 practices are not in violation of provincial or  18 federal law.  19 While contending that Gitksan and Wet'suwet'en  20 laws prevail over provincial laws and that the laws  21 are made by the hereditary chiefs, the plaintiffs also  22 acknowledge that the hereditary chiefs have no  23 mechanism for making such laws.  And I refer to the  24 evidence of Mr. Sterritt, and if I could ask you to  25 turn to tab 94, and Mr. Sterritt has just explained  26 what he means by sovereignty, and his assertion that  27 the Gitksan and Wet'suwet'en have sovereignty within  28 the land claim area and has explained that "Gitksan  29 and Wet'suwet'en laws prevail over the laws of the  30 province within that territory."  31 And starting at line 37, your lordship asked:  32  33 THE COURT:  Well, Mr. Sterritt, what do you want  34 me to understand you mean when you say  35 that the Gitksan and Wet'suwet'en have  36 sovereignty and the power to make laws  37 for the territories?  Who makes the laws,  38 the chiefs, the houses, the clans, the  39 tribal council, the band councils, who?  40 THE WITNESS:  The hereditary chiefs.  41 THE COURT:  Each for his own territory?  42 THE WITNESS:  On behalf of the houses.  43 THE COURT:  But by that answer do you presuppose  44 the possibility of 50 or 60 different  45 laws within -- separate laws for each  46 territory?  47 THE WITNESS:  No, there are — based on the past 27124  Submissions by Miss Sigurdson  1 there have been -- laws have evolved over  2 time for the Gitksan and Wet'suwet'en,  3 and they -- they are similar laws from  4 one house to the next.  They apply  5 throughout the territory.  And in a  6 similar way laws passed by the Gitksan  7 and Wet'suwet'en would be common  8 throughout the territory.  And there may  9 be unusual circumstances in a given area  10 or situation, but those would have to be  11 dealt with as they arise, but the laws  12 would apply throughout the territory.  13 THE COURT:  Well, what is the mechanism that you  14 foresee for the making of these laws?  15 Just hereditary chiefs would get together  16 and make a law?  17 THE WITNESS:  The hereditary chiefs would have  18 to -- there might be a situation arises  19 where a law has to be developed.  In  20 the -- they might outline the parameters  21 for which they wish to consider that law,  22 but in the present times I think they  23 would resort to a secretariat of  24 advisers, who would provide them with  25 information based on which they would  26 make a decision about the law that is to  27 be incorporated.  28 THE COURT:  Well, if, for example, they decide  29 that there is some very choice timber  30 that they want to log in the upper  31 reaches of the Skeena, would the  32 Wet'suwet'en chiefs have a say in that?  33 THE WITNESS:  Not necessarily, but I wouldn't  34 exclude that possibility.  Similarly for  35 the Gitksan and the Wet'suwet'en  36 territories.  They wouldn't necessarily,  37 but it's possible that Gitksan and  38 Wet'suwet'en chiefs, hereditary chiefs,  39 would all be at the meeting in which they  40 laid out the -- the general concerns and  41 general goals and objectives that they  42 want a secretariat to work on and to  43 bring back and advise in terms of the  44 details that they could make a decision  45 on.  46 THE COURT:  I take it there is no such mechanism  47 in place at the moment, no secretariat or 27125  Submissions by Miss Sigurdson  1 equivalent?  2 THE WITNESS:  Well, no.  3  4 And we say at paragraph 95 that the institution  5 of hereditary chieftainship lacks the structure  6 necessary to make or enforce laws over the claim area.  7 And the lack of a decision-making process (be it of  8 Band Councils or Hereditary chiefs) is also apparent  9 from the unresolved disputes over estate properties.  10 And if I could ask you to turn to tab 95, and the  11 preceding page of the transcript explains what is  12 going on there, so if I could ask you to insert that  13 in your binder.  And this is Mr. Atkinson who was  14 called by the plaintiffs to -- with respect to the  15 estate files.  16 THE COURT:  Yes.  17 MISS SIGURDSON:  And at page 23439, which I've just handed up,  18 at line five, this series of questions explains what  19 the witness was talking about:  20  21 Q  Now, I want to take the situation then  22 where you had property left in a will to  23 certain people.  And I understand that  24 from time to time it would come to the  25 attention of your staff or yourself that  26 there were others who claimed an interest  27 in that property through the crest  28 system, as it is sometimes called, or the  29 feast system, are you with me?  30 A  Okay.  31 Q  So you have the possibility, at least in  32 theory, of two different sets of  33 claimants, at least in theory?  34 A  In theory.  35 Q  The will says one thing but you  36 understand that, independent of the will,  37 there is another claim to that property?  3 8 A  Um-hmm.  39  40 And then the witness explains what he had in mind  41 when he talked of traditional property.  And starting  42 again at line 40:  43  44 Q  All right.  Well, my understanding of  45 your practice in these situations is  46 this:  That if the various interested  47 parties agreed on what should be done 27126  Submissions by Miss Sigurdson  1 with the property, then you or your  2 department or your office, would give  3 effect to that agreement?  4 A  Yes.  5  6 And then turning to --  7 MR. GRANT:  Well, I certainly would ask that your lordship -- if  8 my friend isn't going to read in that answer at line  9 21 to 40 that she left out, that you make a note of  10 that as well, my lord, for reference.  11 THE COURT:  All right.  Yes.  12 MISS SIGURDSON:  And at the typed number 1, line 8:  13  14 Q  But if the parties did not agree on what  15 should be done --  16  17 And I pause to remind your lordship that they are  18 dealing with what they consider traditional property,  19  20 -- then my understanding is that the  21 practice in your district was simply to  22 do nothing until the matter was resolved  23 by them?  24 A  Yes, if there was no agreement of heirs  25 as to how the property should be disposed  26 of, then we tried to reach a consensus  27 and it wasn't that we did nothing, we  2 8 would have many, many meetings with the  29 family members to discuss this.  But if  30 you are familiar with the  31 consensus-making process of decisions,  32 it's a very time-consuming, lengthy  33 process.  34  35 And on line 29:  36  37 Q  That would explain, would it not, your  38 statement in paragraph 18 that you have  39 seen in your experience, lots of files  40 that were closed, lots of estate files  41 that were closed, without ever being  42 concluded in the formal sense?  43 A  Yes, that was one of the reasons, yes.  44 Q  Waiting around for agreement?  45 A  Part of the problem was, you would have a  46 turnover in staff and so the previous  47 estates officer who had been working on 27127  Submissions by Miss Sigurdson  1 this and trying to bring consensus within  2 a family would move on, a new estates  3 officer would come in and gradually it  4 would be forgotten and simply closed and  5 put away on the shelf and their property  6 situation never resolved.  7 Q  And there was certainly a prospect of  8 difficulty down the line?  9 A  Oh, yes.  There was the difficulties down  10 the line.  11  12 And over to the next page, my lord.  13  14 A  Yes, our -- I suppose you might say our  15 oversight in not more actively pursuing  16 the resolution of these created a number  17 of difficulties within the community,  18 with overlapping lots and people living  19 in, you know, ill-defined boundaries and  20 all that.  21 Q  Now, could you look at the first sentence  22 of paragraph 16 again.  And here you say:  23 "A further recognition of the Gitksan and  24 Wet'suwet'en laws by our department was  25 the acceptance by departmental officials  26 of transfers of traditional property to  27 the proper successor in the feast hall  28 notwithstanding the fact that the  29 property may have been referred in a will  30 as going to another person."  31 My first point, then, is this:  That  32 the transfers that you speak of here, the  33 transfers of traditional property, they  34 would only be accepted if the persons who  35 were apparently entitled under the will,  36 consented?  37 A  Yes, which they did.  38 Q  But not in every case, because in some  39 cases you have government files lying  40 around for 10, 20, 30 years waiting for  41 the parties to agree?  42 A  Yes, and there is always all sorts of  43 reasons why that agreement may not be  44 reached.  45  4 6 An and we say that --  47    MR. GRANT:  I just want to point out, my lord, that I think at 2712?  Submissions by Miss Sigurdson  1 line -- the 23440 line 41, when he says, "and their  2 property situation never resolved," the context of  3 that, of course, is never resolved by D.I.A.  When you  4 look at it, where he is talking about the change of  5 estates officers --  6 MISS SIGURDSON:  Well — and he also refers to the problems keep  7 popping up year after year after year.  8 And we say that's another example from the  9 government official of what they consider traditional  10 property.  There was a problem and it wasn't dealt  11 with for 10, 20, 30 years.  12 THE COURT:  By either system?  13 MISS SIGURDSON:  That's right.  Well, I probably should qualify  14 it and say primarily by the traditional system, if I  15 can call it that, because the -- Mr. Atkinson said it  16 was his policy to try to follow those rules.  17 It is submitted that the hereditary chiefs'  18 authority is directed to the preservation of cultural  19 integrity internal to the community.  And in this  20 area, the authority is exercised on an ad hoc basis.  21 The municipal matters within the community are dealt  22 with by band councils acting pursuant to and under  23 guidelines issued by the federal government.  The  24 proposition that the hereditary chief system is an  25 institution of exclusive authority is not maintained  2 6 on the evidence.  27 And in paragraphs 97 and 98, my lord, I refer to  28 oral tradition just to say that it's considered in  29 another part of the summary of argument, Part II  30 Section 3.  31 And on page 45 I continue:  32 The plaintiffs claim ownership and jurisdiction  33 over the claim area because they say they have lived  34 on the territory and have (in accordance with their  35 laws) harvested, managed and conserved the resources  36 on the territory.  37 And I should add, the clarification of that in  38 final argument I've already referred to is they claim  39 ownership based on possession.  40 The specific assertions are set out in Section 57  41 of the Statement of Claim and there they plead that  42 they have (a) lived within the territory; and (b) they  43 have harvested, managed and conserved the resources  44 within the territory; and (d) governed the territory  45 according to their laws and spiritual beliefs and  46 practices.  47 With respect to the claim -- they have lived 27129  Submissions by Miss Sigurdson  1 within the territory.  We say some Gitksan and  2 Wet'suwet'en persons live within the claim area.  Most  3 live on Reserves.  Many plaintiffs live outside the  4 claim area.  Many of those who live within the claim  5 area are recently descended from persons who came from  6 elsewhere.  And by that we refer to marriage with  7 neighbouring peoples, non-native peoples, and  8 adoptions.  And many persons who are neither Gitksan  9 nor Wet'suwet'en live in the claim area.  10 And I'll come back later to the present day  11 possession, but I will note here that the evidence of  12 past occupation of the claim area was considered in  13 Part IV, Section 3(a), and Mr. Willms made a  14 submission on that point on Friday and yesterday.  15 The plaintiffs assert that they governed their  16 territory according to their laws.  And the plaintiffs  17 say that one of their most important laws with respect  18 to territories is that resources cannot be taken from  19 a territory without permission from the head chief of  20 the territory.  And we say that law has been  21 repeatedly ignored.  22 Logging -- and I do this on a resource by resource  23 basis.  There are several instances where witnesses  24 said permission was not sought of the head chief to  25 log.  And I note that Mr. Basil Michell, Mrs. Emma  2 6 Michell, and Mr. Johnny David all gave evidence as to  27 that respect.  28 With respect to hunting, if I could ask your  29 lordship to turn to tab 104(b).  30 THE COURT:  104(a)?  31 MISS SIGURDSON:  104(b), my lord.  32 THE COURT:  Yes.  33 MISS SIGURDSON:  And these are some of the examples where there  34 is evidence that witnesses have not sought permission  35 to hunt.  The first one is Walter Joseph.  He is a  36 Wet'suwet'en chief of the House of Kloum Khun.  And at  37 line 39 of page 1, he was asked:  38  39 Q  And where do you hunt, Mr. Joseph?  4 0 A  You mean for game?  41 Q  Yes, I mean for game.  42 A Well, anywhere in Hazelton area, Telkwa,  43 or up the Babine -- Babine Trail.  That's  44 up towards the 24 mile, eh.  45 Q  And that's east of Hazelton as you  46 described to us?  47 A  Yes. 27130  Submissions by Miss Sigurdson  1 Q  Do you know in whose territory you hunt?  2 A  No.  If you're hunting for game, you  3 know, you can -- I can go hunt anywhere,  4 but if you had a trap and then it's a  5 different -- you have to have permission  6 before you go in there.  7 Q  I see.  So you don't need to ask  8 permission for hunting game, you just  9 chased the game?  10 A  No.  11 Q  Pardon me?  12 A  You just go wherever it takes you.  13  14  15 And on the next page, page 3, there is Charles  16 Austin who was of the House of Hag wil negh.  And at  17 line 43 of page 3, he was asked:  18  19 Q  And really you can hunt anywhere, can't  20 you?  21 A When we're hunting big game we usually  22 get them almost anywhere because within  23 the territories there's no fences.  24  25 And onto the next page, the cross-examination of Mr.  26 Austin continues at line 8:  27  2 8 Q  Now, when you're hunting for moose you  29 hunt all over the territories.  You don't  30 have to ask permission to go to hunt  31 moose, do you?  32 A  I never asked anybody in springtime when  33 I go hunting on a saddle horse.  When I  34 get any game nobody questions me, so I  35 don't say anything.  36  37 And the reference to Roy Morris, I had the  38 incorrect page and didn't replace it.  If you could  39 just cross out the reference to Roy Morris in  40 paragraph (b).  41 THE COURT:  Yes.  42 MISS SIGURDSON:  Thank you.  And thirdly, I turn to Solomon  43 Jack's evidence at page 5, starting at line 22:  44  45 Q  Okay.  Do you ask permission of that  46 chief before you go hunting in their  47 territory? 27131  Submissions by Miss Sigurdson  1 A  No.  We hunted on the road so we don't  2 ask their permission.  3  4 And with respect to prospecting, Mr. Wright  5 explained that permission was not sought to  6 prospect -- prospect according to the Whiteman's law.  7 With respect to purchasing land, Mr. Neil Sterritt  8 Senior explained that permission was not required to  9 purchase land.  10 For trapping, I've referred already in paragraphs  11 36 to 38 that David Gunanoot and Sylvester William  12 trapped on territories now claimed by other hereditary  13 chiefs because the Game Warden gave them permission to  14 do so.  15 And with respect to fishing, Walter Wilson gave  16 evidence in his out-of-court cross-examination that  17 chiefs would not control fishing because people relied  18 on the DFO, Department of Fisheries and Oceans,  19 permits.  And Solomon Jack who held the name Gwinin  20 Nitxw, and he was -- gave a territorial affidavit and  21 was cross-examined out of court and explained he "must  22 be fishing on different chiefs' territory", but does  23 not ask permission.  24 And we say these examples also show that resource  25 use has been controlled by the provincial and federal  26 governments and that the plaintiffs complied with  27 those laws.  28 I mention Sylvester William and David Gunanoot as  29 people who trapped by "permission" of the trapline  30 registrations issued pursuant to provincial  31 legislation.  And other examples of that are that:  32  33 When asked if Tommy Morris asks permission of  34 Goohlaht to have a trapline in the Honcaagh Ben  35 territory, Elsie Quaw replied, "Not after the  36 government registered them to trap.  37  38 [And] Mary Skin testified that the trapline in  39 the Skins Lake area was hers and not Goohlaht's  40 because the Game Warden had picked her family.  41  42 Charlie Austin registered a trapline in an area  43 that unbeknownst to him was in Goohlaht's  44 territory.  Mr. Austin registered the line in  45 response to a letter sent by the Game Warden to  46 the Hagwilget Band Council Office seeking a  47 registrant. 27132  Submissions by Miss Sigurdson  1 And Mr. Robert Jackson Sr. said that he didn't trap  2 full time in the territory until he was registered to  3 do so.  4 Trapline registration was implemented by the  5 Provincial government in 1926.  A registered trapper  6 (either an individual or a group or "company" of  7 trappers) was granted the privilege of exclusive  8 trapping rights to a designated area.  9 Mr. Boys, who was originally called by Canada and  10 then he was recalled for our cross-examination, was an  11 Indian agent -- or an Indian Superintendent of the  12 Babine Agency in the 19 -- from 1946 to 1951, and he  13 explained the registration process and he was asked:  14  15 Q  Can you describe the procedure which you  16 followed when you wished to have areas  17 within your Agency registered as  18 trapping areas?  19 A Well, the applicant for a trapping area  20 would come to my office and explain the  21 area as best he could that he would like  22 to register and we kept in the office  23 maps of all of the area of the Agency  24 that were kept specifically for trapping  25 purposes, for trapping registration  26 purposes.  And we would attempt to locate  27 to this map the area that the applicant  28 wished to register and then attempt to  29 describe the area to the applicant's  30 satisfaction.  We would then have him  31 sign an application and we would forward  32 a tracing of the map and a description of  33 the area together with his application to  34 the game department in Smithers.  35 Q  What happened after that?  36 A Well, if the application was acceptable  37 to the game branch, they would in most  38 cases redefine the area in a manner that  39 was acceptable to them, perhaps to make  40 it more easily identified and perhaps to  41 eliminate any possible conflict with an  42 adjoining trapline, and then they would  4 3 make out amended -- an amended  44 description and amended tracing from  45 their maps and return that to my office  46 for acceptance by the applicant.  We  47 would then contact the applicant and if 27133  Submissions by Miss Sigurdson  1 he accepted the amended trapline he would  2 sign the amended application and the  3 trapline then would be registered in his  4 name.  5  6 And I should note that it's Exhibit 1213F, my  7 lord.  8 MR. GRANT:  This is, I take it, the examination-in-chief of Mr.  9 Boys not his cross-examination in which he certainly  10 modifies that summary.  11 THE COURT:  Well, I think what Ms. Sigurdson said was that this  12 was the province's cross-examination of Mr. Boys.  13 MISS SIGURDSON:  That's correct.  14 MR. GRANT  15 THE COURT  16 MR. GRANT  He was called as their witness.  No.  He was called by Canada.  Yeah.  But he was -- the province was not entitled  17 to cross-examine him and they recalled him.  18 THE COURT:  Yes, yes.  19 MR. GRANT:  Oh, I see.  I understood the reference is that he  20 was examined in chief.  He was called by the province  21 as a provincial witness on the second occasion.  22 THE COURT:  Was he examined in chief?  23 MISS SIGURDSON:  Yes, he was.  24 THE COURT:  All right.  25 MR. GRANT:  Because your lordship directed that he could not be  26 cross-examined.  27 THE COURT:  All right.  Thank you.  28 MISS SIGURDSON:  My lord, the 21 volumes of trapline documents  29 marked during Mr. Brody's examination, marked as  30 Exhibit 995-41A and other trapline documents marked  31 throughout the course of the trial reveal a history of  32 participation in the trapline registration system by  33 Gitksan and Wet'suwet'en people.  34 Examples of early participation in the trapline  35 registration system include the registrations marked  36 as exhibits -- and I give the numbers there -- and  37 several of those are included in the 21 volumes.  38 It is submitted that the plaintiffs and their  39 ancestors acknowledged and acceded to the authority of  40 the Provincial Government in this regard.  The  41 evidence of Mr. Boys, Indian agent and superintendent  42 for the Babine Agency is apposite:  43  44 Q  You have described the process of  45 application for traplines and the  46 participation of the applicant in that  47 process.  During your time as 27134  Submissions by Miss Sigurdson  1 Superintendent in the Babine Agency, did  2 any person object to the authority of the  3 Indian Government over trapping in the --  4  5 I think that's an error.  Pardon me.  6  7 -- trapping in the Babine Agency so far  8 as you can recall?  9 A  No.  I don't recall any objection.  10  11 THE COURT:  What were the years of Mr. Boys' superintendence?  12 MISS SIGURDSON:  He was in the Babine Agency, my lord, from 1946  13 to 1951.  14 THE COURT:  Thank you.  15 MISS SIGURDSON:  Mr. Steventon and Mr. Marshall of the Skeena  16 Regional Office of the Fish and Wildlife Department  17 gave evidence of the present trapline registration  18 system, and that participation by the plaintiffs in  19 the system continues.  20 And I leave the text to note, my lord, that in  21 Part IV, Section 3(c), paragraphs 16 and 17 -- and  22 that was in the submission of Mr. Willms yesterday --  23 it was submitted that there was a linguistic confusion  24 between trapline and territory and that the two terms  25 meant trapline.  And you'll recall that he also  26 submitted that the traplines were the product of  27 the -- or as a response to the European fur trade.  28 And back to paragraph 113.  It was suggested by  29 Stanley Williams and has been repeated by the  30 plaintiffs in final argument, that the plaintiffs'  31 ancestors registered their "territories" only because  32 government officials promised that registration would  33 protect their territories for all purposes.  And if I  34 could ask your lordship to turn to tab 113.  35 MR. GRANT:  I think 111, the reference to that exhibit is that  36 1213 instead of 1713?  37 MISS SIGURDSON:  Yes.  Thank you, Mr. Grant.  38 THE COURT:  Where is that?  39 MISS SIGURDSON:  In paragraph 111 below the quote of Mr. Boys,  40 it should be Exhibit 1213F.  41 THE COURT:  1213?  42 MISS SIGURDSON:  Yes.  4 3 THE COURT:  Thank you.  44 MISS SIGURDSON:  And this is the evidence of Basil Michell, and  45 he was asked:  46  47 Q  Did the game warden -- do you know, did 27135  Submissions by Miss Sigurdson  1 he approach all the hereditary chiefs  2 about their territory?  3 THE INTERPRETER:  Bazil said that they weren't  4 notified when the government first came  5 and began registering the traditional  6 lands.  He doesn't know how they knew who  7 owned that territory.  When they first  8 registered the traplines they were told  9 by the government that they will not be  10 allowed to trap and this is why many of  11 them registered their traplines.  12  13 And to page 2 of that tab, at line 30, Mr. Michell  14 was asked this question:  15  16 Q  The last time that we were talking we  17 were talking about the registration of  18 the traplines and I have one more  19 question to ask before we pass on that  20 subject.  21 Bazil, were you told by anyone that  22 by registering your territory it would be  23 protected from being further taken over  24 by white man?  25  26   OFF THE RECORD DISCUSSION.  27  28 THE INTERPRETER:  No.  29  30 And if I could ask you to turn to page 3, to the  31 evidence of Mary McKenzie, and at line 6 she was asked  32 to:  33  34 Q  Describe what -- you were explaining why  35 you registered your trapline and you said  36 the Indian agent came around and told you  37 you would lose the trapline.  What did  38 you understand by that?  39 A Well, he said that it will be just  40 registered in the place of a trapline.  41 Well, at that time he only said the  42 trapline, so this is why my mother  43 registered Xsa'an Lo'op.  44 Q  Because she thought all that was required  45 was to register that part where Mediik's  46 trapline was?  47 A  Yes. 27136  Submissions by Miss Sigurdson  1 The acceptance of the provincial trapline  2 registration system can also be seen in the evidence  3 on how trapline disputes were handled.  When there are  4 conflicting claims to traplines or trespassers, the  5 plaintiffs turn to the Game Warden, or in some  6 instances to the Indian Agent, for assistance.  7 For example, Roy Morris, who holds the chief name  8 Woos, W-O-O-S, called the Game Warden about poachers  9 and he said:  10  11 I called the Game Warden because they deal with  12 white people, and they were destroying the  13 dams, beaver dams and things like that, that is  14 why we were -- we called the Game Warden.  15  16 Pete Muldoe acknowledged that he had a  17 registered trapline to protect his interests in  18 trapping and stated that:  "If anyone sets a  19 trap on my part territory all I have got to do  20 is go to the Game Warden, he picks up the trap  21 and gives it to me, whoever owns the  22 territory".  23  24 Solomon Marsden acknowledged that it is not in  25 accordance with Gitksan law to have trespass  26 disputes resolved by the Game Warden but that's  27 what the chiefs, in the situation he described,  28 chose to do.  29  30 Bazil Michell reported trespassers to the Game  31 Warden; and.  32  33 Dan Michell admitted that if a trespasser would  34 not leave when requested to do so, he would go  35 to the Game Warden and probably take him to  36 court.  37  38 And we say that it's not just recently that the  39 plaintiffs have sought the assistance of the Game  40 Warden.  Thomas George, Alfred Joseph's predecessor to  41 the name Gisdaywa, took his dispute with Matthew Sam,  42 who was Woos, to the -- and I ask you to change Game  43 Warden to Indian Agent -- in 1945.  A dispute  44 involving ancestors of the plaintiffs over who had  45 rights to trap in the Nangeese Valley was taken to  46 "court" before the Indian Agent in 1932.  47 And I've included several other examples of 27137  Submissions by Miss Sigurdson  1 earlier incidents where the plaintiffs' ancestors took  2 disputes or problems to the Game Wardens or the Indian  3 Agents over traplines.  4 And we say authority over trapping and other  5 resources in the claim area is exercised by the  6 Provincial Government.  Hereditary chiefs exercise  7 their authority, if at all, within the constraints of  8 provincial regulation.  And I ask you to turn to tab  9 116 and there is the evidence of Alfred Joseph  10 starting at line 23:  11  12 Q  Well, they trap according to where they  13 think they will get the best returns,  14 don't they?  15 A  They trap where -- an area where they not  16 use repeatedly.  They can't go into an  17 area and just stay there year after year.  18 They would have to keep moving to  19 replenish an area.  20 Q  The reason why they keep moving is that  21 if they stayed there their trapping  22 returns would go down?  23 A  Yes.  24 Q  Wouldn't they?  25 A  Yes.  26 Q  And they trap there because of the money?  27 A  Yes.  28 Q  And they do -- and this is all within  29 their registered trapline, they move  30 around within that area?  31 A  Yes.  Yes.  32  33 And it's not only in trapping, my lord.  We say  34 that acceptance of government authority can also be  35 seen in the logging activities carried out by the  36 plaintiffs.  Basil Michell was asked:  37  38 Q  Bazil, did you get Paul Ah'wagwus  39 permission to take logs from the land?  40 THE WITNESS:  The land where the trees stood on  41 used to be purchased from the government  42 people, Forestry, and the logs were paid  43 for similar to the way you pay for things  44 in stores.  45  4 6 And Emma Michell, of the House of Namox, was  47 asked: 2713?  Submissions by Miss Sigurdson  1 Q  You were taking poles off Gitksan  2 territory?  3 A  Yes.  Because the Forestry was given  4 permits out on that, or selling them.  5 Q  Did you know the Gitksan person that  6 owned that land that you were taking the  7 poles off?  8 A  They knew about it but we still took it  9 because the Forestry was giving  10 permission.  11  12 And we say the Gitksan and Wet'suwet'en people  13 have continued to log under permits and licences  14 granted by the Provincial Government.  The Moricetown  15 Band Council applied, successfully, for timber sale  16 licences and cutting permits, and logged and, so far  17 as the evidence goes, continues to log around the  18 Corya and Boulder Creek area.  Peter Muldoe had  19 several Timber Sale Contracts and related permits from  2 0 the Provincial Government.  And, my lord, you may  21 recall those are binders of documents on the contracts  22 and related papers and they are not included in the  23 yellow binder.  24 Thomas Wright did not ask permission to prospect,  25 and he said:  26  27 I knew Indian law.  But it was the government  28 that sent these prospectors out and it was only  2 9 the money that I wanted, that's why I went with  30 them.  31  32 And on re-examination, Walter Wilson, Djogaslee,  33 acknowledged that many native persons fish pursuant to  34 permits issued by the Department of Fisheries and  35 Oceans.  And he said in part, and the passage I would  36 commend to your lordship in its entirety, but this  37 part is:  38  39 What can we do when Fisheries do that, issuing  4 0 out permits to everyone.  As long as you have  41 dark skin and you ask for a permit, they will  42 write it out...  43  44 We can't control it now, because high chief ask  45 a certain person, "What are you doing in my  46 fishing hole?  You have no rights there", and  47 this person pulls out his wallet and give me a 27139  Submissions by Miss Sigurdson  1 permit.  "Fishery give me a permit to fish any  2 place on the river."  High chief got nothing to  3 say."  4  5 MR. GRANT:  Well, my friend -- that was an answer that -- that  6 all was -- this is taken out of context and my friend,  7 even in the extract, has only put in one page which is  8 a part of the answer, it's not the entire answer, and  9 I would ask if at this tab my friend would provide at  10 least the entire answer from which these two  11 paragraphs were taken out.  I think it's at least two  12 and a half or three pages.  13 MISS SIGURDSON:  If my friends undertake to do the same job for  14 their arguement I'll do that, but I have the reference  15 for your lordship if that's a concern and I do commend  16 the whole answer that he gave.  17 THE COURT:  And you've shown the three dots to show that it's  18 not complete.  19 MR. GRANT:  But when you go to the tab, my lord -- my friends  20 have chosen a process of using the yellow binders and  21 when you go to the yellow binder, the complete answer  22 isn't there, and I think my friend should put in the  23 complete answer.  That's how they've elected to do  24 this.  25 MISS SIGURDSON:  That's right, my lord.  26 THE COURT:  What is here?  27 MISS SIGURDSON:  It's one page from Exhibit 602A which is the  28 transcript of his out-of-court cross-examination and  29 re-examination.  3 0 THE COURT:  Yes.  31 MR. GRANT:  I can arrange to copy those extra pages for the  32 answer that my friend wants, that's no problem.  33 THE COURT:  You can do that if you wish, but I have noted it  34 here and I can look up the evidence if the plaintiffs  35 feel it necessary to do so.  36 MISS SIGURDSON:  We carry on at paragraph 123 and we note that  37 Exhibits 984-B to E -- and those are the volumes of  38 fishing permits your lordship may recall -- and  39 according to the count of plaintiffs' counsel, there  40 contain some 1,885 separate permits.  Counsel for the  41 plaintiffs admitted that the licensees in 95 to 99  42 percent of the permits issued from the Hazelton office  43 would be Gitksan or Wet'suwet'en persons.  And while  44 another percentage may apply to those issued from the  45 other offices, we say it is clear that many Gitksan  46 and Wet'suwet'en persons had fishing permits.  47 And since the imposition of provincial and 27140  Submissions by Miss Sigurdson  1 federal laws for trapping, fishing, hunting, logging,  2 and prospecting, the plaintiffs have complied with  3 those laws.  4 On occasion compliance was grudging, but it was  5 compliance nonetheless.  Evidence of noncompliance,  6 such as road blockades, for the purpose of furthering  7 their claims made in this litigation is self-serving  8 and of no evidentiary value to your lordship.  9 And we conclude by saying the evidence of the  10 plaintiffs with respect to ownership and jurisdiction  11 postulates the existence of rules which in almost  12 every instance are either contradicted or qualified by  13 the exceptions to the rules in the evidence, and the  14 result is neither self-government nor resource  15 management.  16 Now, I've added an addendum to respond to the  17 point of possession as the basis for ownership and  18 continuing ownership.  19 And we say that during the course of their  20 argument, the plaintiffs asserted that their ownership  21 arises out of possession.  Other factors, such as the  22 feast, are "an integral part of how they are on the  23 land" and "round out the meaning" of the ownership  24 that they claim.  But in other words, on the  25 plaintiffs' construction of their case, they contend  26 that possession is a necessary, albeit not exclusive  27 basis of their claim for ownership.  And it may be  28 better said that possession is a factual pre-condition  29 of their claim.  30 The exclusive possession required at law for a  31 claim of ownership has been considered in Part III,  32 Section 4.  And the nature of the occupation of the  33 claim areas as revealed in the historical and  34 archaeological record was addressed in Part IV,  35 Sections 3(a) and 3(b).  36 But as the plaintiffs claim continuing ownership,  37 it is necessary to consider the extent of the  38 plaintiffs' present day possession of the claim area.  39 And we note that the present day possession of  40 village sites that have been set aside as reserves are  41 not in issue.  42 We say the claim to ownership made in these  43 proceedings is that each house owns discrete  44 territory, and this was clarified in their -- the  45 plaintiffs' last day of their final argument.  And  46 your lordship said:  47 27141  Submissions by Miss Sigurdson  1 THE COURT:  So then you would say, yes, you would  2 want a separate declaration for each  3 chief and each house as to ownership?  4  5 And Mr. Grant explained:  6  7 MR. GRANT:  Yes, as to ownership.  But I say it  8 can be dealt with as two declarations.  9 One for the Gitksan and one for the  10 Wet'suwet'en.  And the delineation of the  11 houses is set out on 646 of 9A and 9B.  12  13 And we say that the assertion of exclusive  14 possession by house members of specific house  15 territories is not supported by the weight of the  16 evidence.  17 The evidence reveals that many resources are used  18 in common.  And the plaintiffs have acknowledged in  19 argument that there are several common-use areas in  20 the Wet'suwet'en territories.  For example, areas that  21 are abundant in goat, ground hog, caribou, berries and  22 other plants, or where there are minerals, are open to  23 all.  Johnny David described how people from Kitselas,  24 Babine Lake, the Skeena, Hazelton and Moricetown would  25 all come to the Kilwoneetz area -- and my lord, that's  26 an irregular area west of Moricetown and an area now  27 claimed, I think, by Hag wil negh -- for berries and  28 fish.  Witnesses testify that they hunted, trapped,  29 prospected, logged, fished and purchased lands on  30 territories claimed by other chiefs, and they did so  31 without permission of the claimant house chief.  And  32 I've made submissions and given your lordship some  33 examples of that this morning.  Therefore, we say that  34 as amongst the Gitksan and Wet'suwet'en themselves,  35 house members do not exercise exclusive possession as  36 against members of other houses.  37 Nor do house members exercise exclusive  38 possession against members of the neighbouring  39 nations.  Cheslatta, Nutseni and Carrier-Sekanni  40 people live in the reserves in the southern portion of  41 the claim area.  And my lord, I cite these as  42 examples.  There are many -- all of these types of  43 things.  Cheslatta persons such as the territorial  44 affiants Elizabeth Jack, Thomas K. Morris and Elsie  45 Quaw have travelled and trapped or otherwise used the  46 resources on the territories they describe in their  47 affidavits.  In the Petition of Right, the Kitwancool 27142  Submissions by Miss Sigurdson  1 chief Yak Yak claimed a fishing site in the present  2 claim area.  And Mr. Brody, amongst others, described  3 the overlapping claims in the Bear Lake region.  4 And since the arrival of Europeans in the claim  5 area, the plaintiffs and their ancestors have not  6 exercised exclusive possession against the settlers.  7 For example, Mr. Shelford described how he and his  8 father fished, hunted and picked berries in the same  9 area as, and often with, Jimmy Andrews.  Mrs. Peden  10 described how her family hunted, trapped and fished  11 and picked berries in the Francois Lake area since the  12 1930's.  Dr. Steciw described his guiding expeditions  13 through the central and northern part of the claim  14 area.  And Mr. Fletcher described his trapping and  15 hunting activities in the Driftwood Creek area.  And  16 Dr. Steciw and Mr. Tourand and Mr. Fletcher saw little  17 sign of native hunting or trapping during their  18 travels.  19 It is this defendant's submission that activities  20 such as hunting, fishing (off reserve) and  21 berry-gathering are participated in by all persons,  22 native and non-native, in the claim area on a  23 non-exclusive basis.  24 Trapping by both native and non-native trappers  25 is done on traplines registered pursuant to provincial  26 legislation.  Registered trappers are granted  27 exclusive privileges to trap on unoccupied Crown lands  28 within their registered areas.  This privilege of  29 "exclusive use" is the product of provincial  30 legislation and is enforced by provincial regulation.  31 The plaintiffs and others have applied for and enjoyed  32 the benefits of the trapline registration system.  33 And we note that registration is evidence of a  34 privileged use but is not evidence of actual use.  35 And if I could ask that you insert these in the  36 yellow binder, my lord, I've given a few examples of  37 that to clarify what I'm saying.  3 8    THE COURT:  At the end?  39 MISS SIGURDSON:  Yes, my lord.  So by way of example we note  40 that Mary McKenzie, Gyolugyet, has a registered  41 trapline, and that is found at page 1 of the new tab  42 137.  4 3    THE COURT:  Yes.  44 MR. GRANT:  Is that one where the description was pasted on top  45 or is that not like that?  I can't tell from this  46 photocopy.  47 MISS SIGURDSON:  I don't recall, my lord. 27143  Submissions by Miss Sigurdson  1 And at page 2 of the yellow binder, Mrs. McKenzie  2 was asked at line 37:  3  4 Q  And there's a trapline registered in your  5 name isn't there?  6 A  Yes.  7 Q  But you've never trapped there yourself?  8 A  No, never been there.  9  10 And that is Exhibit 10, that trapline.  11 And indeed, at page 4 of the material I've just  12 given you, Mrs. McKenzie was asked:  13  14 Q  Can you explain to the Court why you have  15 not been out in Gyolugyet's territory  16 personally?  17 THE COURT:  Well, I'm sorry, is that true that  18 you have never been on the territory?  19 THE WITNESS:  No, I have never been there, but my  20 husband went there and I am familiar with  21 the names, and especially my husband  22 there, he draw a sketch or a map for us.  23  24 So there is an example of the plaintiff -- of a  25 plaintiff or chief having registered a trapline but  26 never having been on the territory.  27 And Vernon Smith -- and I won't direct you to  28 this, my lord -- recognized that Dora Morrison had a  29 registered trapline at Fiddler Creek, but so far as he  30 was aware he didn't think she had ever been there.  31 In any event, there is an abundance of evidence  32 of witnesses who said that the last time they trapped  33 was in the early 1950's.  34 And by way of example, at page 6 is Mr.  35 Morrison's evidence, and at line 42 where he was  36 asked:  37  38 Q  I think you said that you were last on  39 the territory at Xsi Maahla Saa Giiblax  40 or the northern Waiget territory in 1952?  41 A  Yes.  42  43 THE COURT:  Where is that, please?  44 MISS SIGURDSON:  That's at page 6 starting at line 42, my lord.  45 THE COURT:  Page 6?  Oh, of this tab?  46 MISS SIGURDSON:  In the new material.  4 7    THE COURT:  Yes. 27144  Submissions by Miss Sigurdson  1 MR. GRANT:  I think, of course, Mr. Morrison did give evidence  2 that he continued to trap after 1952 but not at this  3 specific place.  4 THE COURT:  Yes.  5 MISS SIGURDSON:  That's correct.  He stopped trapping in many  6 areas in the 1950's and probably -- the reason may  7 have been put by Mr. Richard Benson at page 7 of the  8 new material.  And at line 42, he was asked on his  9 direct examination:  10  11 Q  Okay.  Now, can you remember what time --  12 when you last trapped out on Gyolugyet's  13 territory?  What was the last year that  14 you were there?  15 A  The last time I was there is '51.  16 Q  Okay.  And did you remember why you  17 stopped going out there, why did you stop  18 trapping that year?  19 A Well, see, the reason why I stopped  20 there, you know, because, you see, the  21 Hudson Bay Company, I got stuff to take  22 out there like groceries and things like  23 that, and I was out there all winter.  24 Oh, gosh, I just about went through the  25 ground when I got home.  The price of fur  26 went down so low there is -- I just  27 actually get nothing for all the furs  28 that I got.  So that's the reason why I  29 stopped trapping -- everybody, not just  30 me, the whole works of us.  31  32 THE COURT:  "Of them".  33 MISS SIGURDSON:  Thank you, "of them".  34 And so we say we find that evidence is repeated  35 through the course of many witnesses' evidence that  36 the trapping did virtually stop in the 1950's when the  37 prices fell.  And so people may still have registered  38 traplines but that does not mean continuing use of  39 those traplines or continuing possession of those  40 areas, if I can put it that way.  41 Therefore, it is submitted that the plaintiffs  42 have not shown that "each chief and each house" enjoys  43 a continuing, exclusive possession of territory  44 sufficient for a declaration of continuing ownership  45 of what in total amounts to 22,000 square miles of  46 land now claimed.  The only form of exclusive use  47 shown to have been exercised by certain of the 27145  Submissions by Mr. Willms  1 plaintiffs is that afforded by provincial legislation  2 to registered trappers.  3 And those are my submissions, my lord.  4 THE COURT:  Thank you.  5 MR. WILLMS:  My lord, I have one short point before -- we might,  6 perhaps, take the break a bit early to get organized  7 for the next section.  8 THE COURT:  I can't.  I can take a long break but I've made —  9 I've made a commitment to deal with a matter at eleven  10 o'clock.  11 MR. WILLMS:  Yes.  Well, I'm suggesting that we break before  12 11:00.  13 THE COURT:  Well, I can do that, but I can't come back before  14 11:15.  15 MR. WILLMS:  That would be fine.  16 THE COURT:  That means a longer break.  17 MR. WILLMS:  Yes.  18 THE COURT:  Which we are all against.  19 MR. WILLMS:  Yes.  My lord, the point that I would like to come  20 back to is in Section 3(a).  21 THE COURT:  Roman three?  22 MR. WILLMS:  No, sorry.  Roman four, Section 3(a).  2 3 THE COURT:  Yes?  24 MR. WILLMS:  And you'll recall, my lord, on page 21, paragraph  25 33, I had made a submission about Downie travelling  26 through the area, and that is where Mr. Rush pointed  27 out that the -- a handwritten -- yes, and I'll deal  28 with that.  29 Mr. Rush had pointed out that the typed  30 version -- which is at the tab of the yellow book --  31 didn't include the words "village at the forks",  32 whereas a handwritten version mentioned the "village  33 at the forks".  And I have here, my lord, and this can  34 just be -- at the present time, if your lordship  35 wouldn't mind either making a note -- this is the  36 handwritten version that was reproduced in the typed  37 version, and this is the version from the Colonial  38 Office.  Now, the reason why I don't ask that your  39 lordship simply insert it in the yellow binder at the  40 appropriate place is it's not an exhibit in these  41 proceedings.  And Mr. Rush was here, and of course I  42 want to know whether Mr. Rush has got any  43 difficulties, and I've handed my friend a copy of  44 this.  4 5 THE COURT:  Yes.  46 MR. WILLMS:  But that copy which is in Downie's handwriting is  47 the version that went to the Colonial Office and was 27146  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  THE  COURT:  9  MR.  WILLMS  10  THE  COURT:  11  12  MR.  WILLMS  13  THE  COURT:  14  MR.  WILLMS  15  16  THE  COURT:  17  MR.  WILLMS  18  MR.  GRANT:  19  20  MR.  WILLMS  21  22  23  24  25  MR.  GRANT:  26  27  THE  COURT:  28  MR.  GRANT:  29  30  31  32  33  34  MR.  WILLMS  35  36  37  38  39  40  41  42  43  44  THE  COURT:  45  46  47  MR.  WILLMS  reprinted in the typed version.  So the version that  Mr. Rush referred to, which is an exhibit in the  proceeding, the other handwritten version, they are  both in Downie's writing, in Downie's hand.  One is  from the public -- they are both from the Public  Archives of British Columbia but this one was the one  that went to the Colonial Office.  And the typed copy is what exhibit number?  :  The typed copy is at Exhibit 1174-1.  And it's -- and what tab is it, do you know, in  which volume of the yellow?  :  Two will be in tab 33.  Of which volume of the yellow books?  :  Volume 3 -- I think it's volume 3, my lord, of the  yellow book.  And it would be tab?  :  Tab 33.  The problem with my friend's proposition here, my  lord, is this:  is that I think --  :  Oh, I don't need to deal with it now, my lord.  I'm  just alerting my friends to this and Mr. Rush can  speak to it, if he has got any objection to it, we can  speak to it at the time.  Perhaps Mr. Rush has no  objection to it.  Well, my friend shouldn't tender it until I have a  chance to talk to Mr. Rush about this matter, my lord.  He has asked me not to put it in the books.  Oh, he is not tendering it.  He said that he would  give us an opportunity to discuss this out of court  and then he stood up and now he has dealt with it,  because I think there is a serious -- potentially a  serious problem.  Maybe there isn't at all, but I  don't know why we are going through this process now.  :  Well, my lord, it's simply so that my friends have  ample notice of the submission that I am going to make  and perhaps Mr. Rush will have no objection when he  reads this document and sees the hand and traces it  line for line.  He can see it traced into the printed  version, and perhaps Mr. Rush will then say, "I have  no objection."  Perhaps he does, and that's why I'm  just suggesting, my lord, it needn't go in the yellow  book now, but it is the Colonial Office version from  Downie.  I'll leave it just loose on my table here and we'll  hear about it further in due course, I guess.  All  right.  Do you want to adjourn now?  :  Yes, my lord. 27147  Submissions by Mr. Willms  1 THE COURT:  All right.  I'll be back as soon as I can.  2 THE REGISTRAR:  Order in court.  Court stands adjourned.  3  4 (PROCEEDINGS ADJOURNED AT 10:55 A.M.)  5  6 I hereby certify the foregoing to  7 be a true and accurate transcript  8 of the proceedings transcribed to  9 the best of my skill and ability.  10  11  12  13    14 Toni Kerekes,  15 Official Reporter,  16 UNITED REPORTING SERVICE LTD.  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 2714?  Submissions by Mr. Mackenzie  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Mackenzie.  5 MR. MACKENZIE:  Thank you, my lord.  My lord, I have handed up  6 an addendum.  7 THE COURT:  Yes.  8 MR. MACKENZIE:  Which, as it says, is an addendum to Section IV,  9 part 5(b).  10 THE COURT:  Yes.  11 MR. MACKENZIE:  So that can be inserted just ahead of part IV,  12 Section 5(b) in your lordship's argument.  13 THE COURT:  Before 5(b)?  14 MR. MACKENZIE:  Yes, my lord.  At general comments on boundary  15 and territorial evidence, my lord.  16 THE COURT:  Yes.  All right.  17 MR. MACKENZIE:  I have also handed up to your lordship Volume 10  18 of the yellow binders which contains the source  19 documents and references.  20 THE COURT:  How long do you expect to detain us this afternoon,  21 Mr. Mackenzie?  22 MR. MACKENZIE:  My lord, as I understand it, we are scheduled to  23 sit until 4:30 today.  24 THE COURT:  Yes.  All right.  25 MR. MACKENZIE:  That is our intention.  I may not be finishing  26 my submissions today, but as part of the ongoing  27 schedule arrangements for the defendant's case.  2 8 THE COURT:  Yes.  All right.  29 MR. MACKENZIE:  I am handing up Section IV to go in the case  30 authorities.  This will eventually go in the  31 defendant's case authorities, my lord.  But I would  32 ask your lordship to keep it out because I will be  33 referring to it this morning as an authority.  34 THE COURT:  I am not sure what you mean by your case  35 authorities.  I have lost track.  Oh, that's the grey  36 books?  37 MR. MACKENZIE:  Yes, my lord.  38 THE COURT:  All right.  39 MR. MACKENZIE:  My lord, I take your lordship to the table of  40 contents at Part IV, Section 5 of the defendant  41 province's argument.  That's the very beginning.  42 THE COURT:  Yes.  43 MR. MACKENZIE:  That is the subject of my submissions, my lord,  44 the extent and significance of boundaries.  And in  45 that table of contents is set out the general areas  46 that I propose to cover in these submissions starting  47 with a general introduction, my lord, and general 27149  Submissions by Mr. Mackenzie  1 comments on boundary and territorial evidence.  2  3 And in that general section, part (b), I will be  4 discussing reputation evidence.  And then, my lord, at  5 Section 5(c) is set out chronology of the territorial  6 evidence.  And I don't propose to go over that in  7 detail, but I will refer your lordship to that.  Part  8 (d) of this, or Section (d) of the submissions deals  9 with territorial affidavits and a discussion of those  10 affidavits in general.  Part (e) then goes into the  11 question of traplines and their relationship to  12 boundaries.  Part (f) is overlapping claims.  And  13 there is a substantial appendix at part (f) not noted  14 in the table of contents.  Mr. Willms will deal with  15 that subject.  16 And then part (g) is a detailed analysis of  17 examples of the territorial evidence.  There are five  18 examples given in these materials.  I will be  19 concentrating on Slamgeesh Lake which is C in that  20 list.  And if your lordship might note now for  21 convenience under that last section, I will give your  22 lordship the page references for each of those  23 subsections.  So Gyolugyet, my lord, which is  24 subsection A is page 1.  Antgulilbix South which is B  25 would be page 13.  And Slamgeesh Lake which is C is  26 page 24.  And Samooh, Tatsa Lake is page 62.  And the  27 Madeek, Buck Creek is page 81.  All within that  28 subsection G.  29  30 Now, my lord, I pass on now to the general  31 introduction of this topic.  In the Statement of  32 Claim, my lord, paragraphs 56 and 56A, the Plaintiffs  33 assert that since time immemorial they have owned and  34 exercised jurisdiction over lands delineated by the  35 boundaries on Exhibits 646-9A and 646-9B.  And that is  36 the territory I referred to in the Statement of Claim.  37 And we have a map of the 9A and 9B set out before you,  38 my lord.  And I will be referring to that in some  39 detail in these remarks.  40  41 In section 2, paragraph 2, I note in the Statement  42 of Defence in paragraph 8 and 8A the Province denies  43 the allegations and at paragraphs 56 and 56A.  And  44 this general denial includes a denial of the  45 boundaries.  And the territory within those boundaries  46 is referred to in the Province's submission as the  47 claim area, and that is the way in which it will be 27150  Submissions by Mr. Mackenzie  1 referred to in these submissions.  2  3 My lord, in paragraph 3 I note the importance of  4 boundaries for the Plaintiffs' case.  And I don't  5 think it is necessary to go into detail.  The  6 Plaintiffs will agree that this case is about land.  7 And your lordship has made that very clear in your  8 lordship's comments throughout the Plaintiffs'  9 arguments that your lordship understands the land  10 aspect of this.  11  12 I have a digression, my lord, related to paragraph  13 3.1 direct your lordship to the claim area 9A and  14 9B.  Your lordship has seen a lot of that.  But that  15 is a mosaic of perfectly interlocking territories.  It  16 is said to be based upon precise detailed boundary  17 descriptions contained in the territorial affidavits.  18 My lord, this continues, these remarks related to  19 paragraph 3.  This case differs from previous  20 aboriginal title cases in this respect, no attempt was  21 made in previous cases to prove boundaries with such  22 precision.  23  24 In the Calder case there was an agreement between  25 counsel on the territory covered.  It did not arise as  26 an issue.  In Baker Lake the federal government  27 admitted the boundaries of the territory.  In Bear  28 Lake there was little or no discussion of boundaries  29 with such precision.  And in Milirrpum boundaries were  30 acknowledged to be vague and did not constitute a  31 subject of extended discussion by Mr. Justice  32 Blackburn.  33 THE COURT:  That was only about 35 square miles, wasn't it?  34 MR. MACKENZIE:  Yes, my lord.  In the Milirrpum case it was the  35 Gove, G-O-V-E, Peninsula which is the subject of the  36 claim resulting from, as I understand Mr. Justice  37 Blackburn's comments, permits which had been issued to  38 mining companies in that area.  39  40 And continuing this point, my lord, in this case,  41 in the case at bar, the Plaintiffs have assumed the  42 burden of proof of all these boundaries in the  43 Statement of Claim, particularily paragraph 57, and  44 more particularily paragraph 57G.  45  46 Carrying on to paragraph 4, my lord.  On the basis  47 of the evidence, many, if not most, of the chiefs are 27151  Submissions by Mr. Mackenzie  1 not familiar with these precise territorial  2 boundaries.  And I note as an example here, my lord,  3 Mary Johnson in her evidence identified maps which  4 conflict with the boundaries shown on map 9A.  That is  5 discussed in detail in these submissions at Section  6 5(g), pages 13 to 23.  7 THE COURT:  Of Roman IV?  8 MR. MACKENZIE:  Yes, my lord.  9 THE COURT:  You'll be coming to that?  10 MR. MACKENZIE:  I am not going to be going through that in  11 detail in these oral submissions, my lord.  12 THE COURT:  5(g)?  13 MR. MACKENZIE:  Yes, my lord, pages 13 to 23.  14 THE COURT:  What is the reference to page 220, page 15993?  15 MR. MACKENZIE:  That is the answers of Marvin George on  16 cross-examination to Mr. Willms' comments.  And that's  17 at tab 4.  18 THE COURT:  That's all I need to know.  19 MR. MACKENZIE:  And that relates to the point that many of the  20 affidavits are not sworn by the hereditary chiefs who  21 claim the territories.  22 THE COURT:  Thank you.  23 MR. MACKENZIE:  And I give examples of Pete Muldoe who spoke  24 about several territories of which he was not the  25 hereditary chief.  Walter Blackwater spoke about many  26 territories which were not claimed by his house.  And  27 on and on through the evidence.  28 MR. GRANT:  My lord, I would ask that you make a note to look at  29 the reference because although the answer of Mr.  30 George does contain the proposition set out by my  31 friend, there is a further explanation by Mr. George  32 in the answer at that tab 4, line 24 to 30.  33 THE COURT:  Thank you.  34 MR. MACKENZIE:  My lord, it is submitted that the chiefs called  35 as witnesses in this trial did not know the precise  36 boundaries of the territories which were claimed.  On  37 the evidence it is questionable whether these  38 boundaries as set out in the territorial affidavits  39 and on maps 9A and 9B in fact exist or existed.  40  41 So far as the evidence at trial goes, my lord, we  42 submit that these precise and contiguous boundaries  43 owe more to the industry of Neil J. Sterritt and  44 Marvin F. George than to the independent recollection  45 of the lay witnesses.  It is submitted that Mr.  46 Sterritt and the other researchers collected much  47 conflicting information from many informants, in 27152  Submissions by Mr. Mackenzie  1 addition to territorial affiants, as to ownership and  2 Indian names for geographical features within the  3 territories.  4  5 And I add a line here, my lord, in the face of  6 this conflicting opinion evidence, the information was  7 in our submission rationalized and transferred to  8 working maps by Mr. Sterritt and other researchers.  9 And I will get into that in detail, but an example of  10 that will be the Slamgeesh area and the research that  11 led up to the production of maps for that area.  Mr.  12 George took the working maps, amended them and then  13 prepared composite maps of the area.  My lord, it was  14 these composite maps which went to Mr. Skoda and  15 became the foundation, in our submission, of maps 9A  16 and 9B.  17  18 It is submitted, therefore, that the working maps  19 with some subsequent amendments are the true basis for  20 maps 9A and 9B.  To summarize, if these working maps  21 are deficient, it is submitted that maps 9A and 9B  22 have no foundation in admissible, reliable evidence.  23 If maps 9A, I add here, my lord, if maps 9A and 9B are  24 based on the territorial affidavits as alleged, and if  25 the territorial affidavits are deficient, maps 9A and  26 9B have no foundation.  27  28 Now, paragraph 6 and 7, my lord, I refer to the  29 Baker Lake case.  That reference to Baker Lake should  30 be after paragraph 6.  And your lordship is familiar  31 with the requirement in Baker Lake that the plaintiffs  32 to establish aboriginal title in that case, not the  33 ownership and jurisdiction, must prove that their  34 ancestors exclusively occupied a specific territory.  35 And the Plaintiffs, of course, have pleaded that  36 exclusive occupation, I am adding to paragraph 6 here,  37 my lord, as against other aboriginal peoples.  38  39 And carrying on in paragraph 7, my lord.  I have  40 dealt with the first sentence on the burden here.  The  41 boundaries, I say, are of fundamental importance to  42 the Plaintiffs' claim whether or not one accepts the  43 Baker Lake criteria.  And I add, my lord, exclusive  44 jurisdiction, exclusive ownership requires proof of  45 precise boundaries in the Plaintiffs' strategy, unlike  46 the more general claims in the other cases as I have  47 earlier commented. 27153  Submissions by Mr. Mackenzie  1  2 Now, my lord, I submit that without reliable  3 evidence of all house boundaries, the Plaintiffs'  4 claim must fail.  This is paragraph 8.  5  6 Carrying on at paragraph 9 with my argument, my  7 lord.  And I note in paragraph 9, as I have already  8 indicated, my lord, that this is fundamentally a claim  9 for territory.  And without a defined territory there  10 can be neither ownership nor jurisdiction.  The  11 Plaintiffs have taken the position that the houses and  12 their territories are inextricably linked.  I refer to  13 Dr. Daly's evidence.  14 THE COURT:  That means land base, not landed?  15 MR. MACKENZIE:  Yes, my lord.  That was the position repeated in  16 Plaintiffs' argument by counsel, my lord.  17  18 Paragraph 10, my lord, I think the Plaintiffs'  19 counsel would agree that the fundamental element of  20 the social structure alleged is the House.  And the  21 reference there, my lord, should be transcript 324,  22 page 24606, lines 12 to 14.  That's Mr. Grant's  2 3 argument.  24 MR. GRANT:  Instead of that?  25 MR. MACKENZIE:  Yes.  My lord, carrying on to the end of  26 paragraph 10, our submission is that to establish a  27 "hole" or a land for which there is no evidence of  28 claims in the territory claimed is to find that that  29 House claimed in that territory does not exist on the  30 Plaintiffs' theory.  31  32 Paragraph 11, my lord, I carry on with this  33 concept of the every House claiming a specific and  34 identifiable territory.  And Ms. Sigurdson dealt with  35 that.  And Mr. Grant dealt with that in his argument.  36  37 And in paragraph 12, my lord, I point out again,  38 the Plaintiffs have provided witnesses for every  39 territory.  I have dealt with paragraph 13, my lord.  40 Because of the mosaic character of this claim, all the  41 boundaries are interrelated in our submission.  42  43 Carrying on with paragraph 14, the Plaintiffs  44 purport to distinguish between "internal" and  45 "external" boundaries.  But in our submission all  46 boundaries must be are important on the Plaintiffs'  47 theory.  And we have dealt with the concepts in 27154  Submissions by Mr. Mackenzie  1 paragraph 14, my lord.  Pull one territory in our  2 submission is to lead to the collapse of all  3 surrounding territory.  That is the metaphor used as  4 pulling one thread and the fabric of the structure  5 unravels.  6  7 And so concluding with paragraph 15, my lord, as a  8 result of this analysis, our submission is that it is  9 not necessary to analyze every territory if it can be  10 shown, as I say in paragraph 15, serious deficiencies  11 for the boundaries of several territories or the way  12 that the Plaintiff has attempted to prove the case,  13 all territories in the structure must inevitably  14 follow.  15  16 Finally, my lord, in our submission this project  17 of territorial definition by map and affidavit conveys  18 a misleading picture of the way territorial  19 information is known and used by the Plaintiffs.  What  20 we have here is a jigsaw puzzle.  In fact, the  21 evidence shows that the world of the Plaintiffs was  22 lines and nodes and traplines and valleys.  23  24 Carrying on to general comments on the evidence,  25 my lord, in subsection 5(b) of this part.  I have  26 handed your lordship an addendum.  I refer before I  27 get to the addendum to paragraph 1 of section 5(b).  28 As your lordship has indicated, all the boundary  29 evidence adduced by the Plaintiffs in this case is --  30 your lordship may not have dealt with this.  Your  31 lordship dealt with the importance of territorial  32 evidence.  In this case most evidence is hearsay  33 evidence.  The only basis on which it can be admitted  34 is as reputation evidence, an exception to the hearsay  35 rule.  36  37 And, my lord, I am handing up an excerpt from your  38 lordship's reasons for judgment in July 1987.  And  39 that is now reported.  If your lordship would make a  40 note at paragraph 2 and section 5(b) at 1987.  41 THE COURT:  Are you in the addendum or 5(b)?  42 MR. MACKENZIE:  I'm sorry, my lord, I am in section 5(b).  I am  43 starting paragraphs 1 and 2 before I get into the  4 4 addendum.  45 THE COURT:  Where does 5(b) start?  46 MR. MACKENZIE:  It is just after the addendum which your  47 lordship has inserted. 27155  Submissions by Mr. Mackenzie  COURT:  How long is the addendum?  MACKENZIE:  16 pages, my lord.  COURT:  I'm having some trouble, Mr. Mackenzie.  You're in  Roman IV, 5(b)?  MACKENZIE:  Yes, my lord.  COURT:  Paragraph?  MACKENZIE:  Paragraph 1.  I have just run over paragraph 1.  I am referring to paragraph 2, my lord.  COURT:  Yes, all right.  MACKENZIE:  My lord, what you have in your binder are the  unreported reasons at pages 13 to 17 following this  paragraph 2.  I have handed up to your lordship the  reported reasons, pages 341 to 343.  Does your  lordship have that?  COURT:  Yes.  MACKENZIE:  Those should be substituted for the unreported  reasons, my lord.  COURT:  This is just a part of the judgment?  MACKENZIE:  Yes, my lord.  COURT:  What is the citation?  MACKENZIE:  The citation is 1987, my lord, 15 B.C.L.R. (2),  page 326.  That is in the case authorities as well,  the whole judgment.  COURT:  All right.  MACKENZIE:  My lord, I wish to direct your lordship's  attention now to this question of reputation evidence.  And your lordship dealt with that at pages 341 to 343  of your reasons for judgment.  And may I direct your  lordship to some comments.  And before I get into the  addendum which deals with this in more detail, on page  341 of the reasons for judgment, my lord, you set out  the common law rule.  And you note that:  "Declarations made by deceased persons of  competent knowledge, ante, A-N-T-E, litem  motam, are admissible in proof of ancient  rights of a public or general nature."  And I will be concentrating on that point ante litem  motam, my lord.  And further down when your lordship  continues with this excerpt from Phipson.  Your  lordship comments that:  "The grounds of admission are (1) death; and  (2) necessity."  I will be concentrating on that question of death as  1  THE  2  MR.  3  THE  4  5  MR.  6  THE  7  MR.  8  9  THE  10  MR.  11  12  13  14  15  THE  16  MR.  17  18  THE  19  MR.  20  THE  21  MR.  22  23  24  THE  25  MR.  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 27156  Submissions by Mr. Mackenzie  1 well, my lord, as an essential requisite.  2  3 And in these reasons your lordship follows Mr.  4 Justice Blackburn in holding that:  5  6 "Declaration by deceased persons relating to  7 interest in land or boundaries or house  8 territories is a declaration about a public  9 right".  10  11 As was found by Mr. Justice Blackburn, on page 342  12 your lordship cites the Milirrpum case.  And in the  13 third paragraph on that page 342 your lordship  14 concludes that reputations about interests and lands  15 and boundaries are admissible in this case, the case  16 at bar.  17  18 Another point I wish to draw your lordship's  19 attention to on page 342 of the reasons is the second  20 last paragraph which deals with the admissibility of  21 evidence questioning and casting doubt on the  22 reputation.  That will be mentioned again in some  23 detail in the section on overlap evidence.  And your  24 lordship dealt with that subject again in other  25 rulings on that topic.  This is also relevant to the  26 point I will be making in this argument on reputation  27 about the conflicting claims that abound in the  28 evidence.  There are many claims such as those -- such  29 as that to which your lordship refers in the case of  30 Mrs. Johnson.  And that will go to the point about  31 consensus which I submit is another basic element of  32 reputation evidence admissibility.  33  34 Referring your lordship to page 343 of your  35 lordship's reasons, at the end of the first paragraph  36 on page 343 your lordship discusses community  37 reputation.  And your lordship says:  38  39 "...it is important to remember that the  40 question is not, "What is the reputation in the  41 community?" as such a reputation may not be  42 based on grounds (declarations by deceased  43 persons) which alone make the evidence  44 admissible."  45  46 I would ask your lordship to make a note there because  47 that will be an important point to which I will refer 27157  Submissions by Mr. Mackenzie  1 in my argument on reputation.  2 THE COURT:  Where is this passage that you have just referred  3 to?  4 MR. MACKENZIE:  Page 343, my lord.  5 THE COURT:  Yes.  6 MR. MACKENZIE:  Of your lordship's reasons at the end of the  7 first paragraph.  Does your lordship have that  8 reference?  9 THE COURT:  The end of the first full paragraph?  10 MR. MACKENZIE:  Yes, my lord.  11  12 "But it is important to remember, my lord, that  13 the question is not, "What is the reputation in  14 the community?"  15  16 Does your lordship have that reference?  17 THE COURT:  No.  The end of the first full paragraph?  18 MR. MACKENZIE:  My lord, it is the end of the first full  19 paragraph at the top of the page.  20 THE COURT:  Yes, I have it now.  21 MR. MACKENZIE:  Sorry, my lord.  My lord, I was asking your  22 lordship to note that passage because I will refer to  23 it as an important point in dealing with the  24 territorial affidavits.  I will be submitting, my  25 lord, that the evidence does not show clearly that the  26 declarations in the affidavits are the only evidence  27 or the only information upon which the witnesses rely.  28 What I am saying, my lord, is that in our submission  29 there will be living persons as well who contribute to  30 the information.  And so the analogy will be exactly  31 the same as your lordship's point about community  32 evidence.  33  34 And finally, my lord, referring to the second  35 full -- the first full paragraph on page 343.  Your  36 lordship finds that -- your lordship states that:  37  38 "...I cannot find support for the admissibility  39 of declarations made by living or deceased  40 persons about specific use made of the  41 territories claimed by the plaintiffs."  42  43 My lord, I now will refer to the addendum to section  44 5(b), page 1.  And my lord, this is an argument on  45 admissibility.  And the references that I make in this  46 argument are set out in the yellow binder, volume 10.  47 At the pink tab called addendum which follows Roman 27158  Submissions by Mr. Mackenzie  Iv, subparagraph 5(b), page 7-2.  Does your lordship  have a pink tab saying addendum?  COURT:  What tab number?  MACKENZIE:  5(b) page 7-2, my lord.  Do you have is that?  COURT:  I only have tab 5.  I don't have 5(b).  MACKENZIE:  Does your lordship have Roman IV?  COURT:  Wait a minute.  I think I have the addendum.  MACKENZIE:  Yes, my lord.  It should be a pink tab addendum.  Does your lordship have that?  COURT:  No.  MACKENZIE:  Does your lordship have Roman IV,5(b) page 7-2?  COURT:  This print is so small I can barely read it.  I have  5(a)-5.  MACKENZIE:  And then it should go on to 5(b), my lord.  COURT:  My next tab is 5 (a)-7.  MACKENZIE:  Then you carry on to the end of the 5(a) until  you get to the 5(b).  COURT:  All right.  5(b) and what?  MACKENZIE:  Carry on in 5(b) until you get to page 7-2, my  lord.  COURT:  All right.  I'm getting close.  MACKENZIE:  And the next tab should be addendum, my lord.  COURT:  I have got an addendum.  MACKENZIE:  That's right, my lord.  COURT:  Now where do I go?  MACKENZIE:  Now, my lord, paragraph 1.  It says 1 and 4.  Now, these tabs now relate to the addendum that we are  dealing with now, my lord.  COURT:  But the first one after the addendum is --  MACKENZIE:  It should say paragraph 1 and 4, my lord.  COURT:  1 and 4?  MACKENZIE:  Yes, my lord.  COURT:  In that tab?  MACKENZIE:  Yes, my lord.  COURT:  All right.  MACKENZIE:  That starts the references now, my lord, on the  addendum.  And I will be referring your lordship to  those references.  COURT:  All right.  MACKENZIE:  Does your lordship have the addendum entitled  reputation evidence, my lord, in your argument?  COURT:  Yes.  MACKENZIE:  Thank you, my lord.  I am going to deal with  that argument now, my lord.  My lord, an example of  the hearsay evidence which is sought to be admitted by  the Plaintiffs is that contained in Walter  Blackwater's affidavit Exhibit 605, paragraphs 39, 40,  1  2  3  THE  4  MR.  5  THE  6  MR.  7  THE  8  MR.  9  10  THE  11  MR.  12  THE  13  14  MR.  15  THE  16  MR.  17  18  THE  19  MR.  20  21  THE  22  MR.  23  THE  24  MR.  25  THE  26  MR.  27  28  29  THE  30  MR.  31  THE  32  MR.  33  THE  34  MR.  35  THE  36  MR.  37  38  39  THE  40  MR.  41  42  THE  43  MR.  44  45  46  47 27159  Submissions by Mr. Mackenzie  1 43 and 44.  Those excerpts are at the tab to which I  2 have just referred your lordship.  If your lordship  3 will go to page 2.  If your lordship can see the page  4 numbers.  They are at the bottom right-hand corner.  5 THE COURT:  Yes.  6 MR. MACKENZIE:  Paragraph 38 starts off Mr. Blackwater's  7 testimony about the Slamgeesh area.  Paragraph 39, my  8 lord, Mr. Blackwater indicates deceased informants.  9 He names them starting with Dawamuxw, Moses Stevens.  10 Does your lordship see that?  11 THE COURT:  Yes.  12 MR. MACKENZIE:  And I will be referring to Moses Stevens again  13 in some detail.  And then carrying on, my lord, the  14 next one is Asgii, A-S-G-I-I, that's Ester Stevens.  15 Does your lordship have that?  16 THE COURT:  Yes.  17 MR. MACKENZIE:  And the next one is Mary Blackwater.  And then  18 Charles Stevens.  And, finally, Jimmy Blackwater.  And  19 I will refer to all of those people, my lord.  Now,  20 the final sentence in that paragraph, my lord, is:  21  22 "They told me this territory belongs to Gwinin  23 Nitxw."  24  25 Does your lordship see that reference?  2 6 THE COURT:  Yes.  27 MR. MACKENZIE:  Now, my lord, that is a classic reputation  28 statement such as the kind discussed in the Milirrpum  29 case by Mr. Justice Blackburn.  30 THE COURT:  I would have thought that was not a reputation  31 statement.  32 MR. MACKENZIE:  Well, my lord —  33 THE COURT:  You say it is?  34 MR. MACKENZIE:  Yes, my lord.  I say that that is alleged to be.  35 I say that that's produced as a reputation statement.  36 But it is not because it does not meet the criteria.  37  38 And paragraph 40, my lord, there is a detailed  39 description of the boundary, precise territorial  40 boundaries.  And I say again, my lord, that in my  41 submission the Plaintiffs adduced that as  42 representation evidence.  And it is boundaries and  43 rights of way and rights of common in the classic  44 English common law cases that are often the subject of  45 reputation evidence.  And we submit that that evidence  46 is not admissible as reputation evidence.  47 THE COURT:  Well, surely that is only evidence -- that's only an 27160  Submissions by Mr. Mackenzie  1 identification of the subject matter of his affidavit.  2 MR. MACKENZIE:  Yes, my lord.  That is one interpretation of  3 the -- of that paragraph.  Mr. Blackwater there  4 describes the territory in some precise detail and  5 then later says:  That's the territory of this house.  6 THE COURT:  But do you question that that in the context of this  7 affidavit flows from what these deceased persons told  8 him —  9 MR. MACKENZIE:  My lord — sorry.  10 THE COURT:  — as the subject matter of the subject that they  11 were discussing?  12 MR. MACKENZIE:  Well, my lord, in my submission the Plaintiffs  13 would argue that.  And as we see in the later  14 paragraphs, Mr. Blackwater says:  That's the territory  15 they told me was used by the house.  That's the  16 territory that belongs to the house from time  17 immemorial.  18 THE COURT:  But when —  19 MR. MACKENZIE:  So in that case — sorry.  20 THE COURT:  But when you've got a classic old English conveying  21 problem based upon reputation, the evidence could be  22 given of reputation.  But before you get to reputation  23 you've got to know what you are talking about.  And  24 surely if a person says:  The old people in the  25 village now deceased told me that it has always been  26 believed and understood in the village that Black Acre  27 belongs to the common.  Now, what do you understand as  28 Black Acre?  The answer is:  It is surrounded by x, y,  29 z and a, b, c river.  Surely in order to give  30 reputation evidence you have to identify the subject  31 matter of the reputation evidence first.  32 MR. MACKENZIE:  That's correct, my lord.  33 THE COURT:  If you can't give evidence of the identification or  34 the boundaries, you can't have a reputation.  So what  35 is it -- what is your submission on paragraph 40?  36 MR. MACKENZIE:  Well, our submission on paragraph 40, my lord,  37 is that -- our understanding of the Plaintiffs' case  38 is that these boundaries are part of the reputation.  39 Because that's the area precisely which the Plaintiffs  40 allege -- which Walter Blackwater alleges is the  41 subject of the reputation.  And that becomes clear in  42 my submission later on --  4 3 THE COURT:  Yes.  44 MR. MACKENZIE:  In paragraph 43, my lord.  4 5 THE COURT:  Yes.  46 MR. MACKENZIE:  If I can refer your attention directly to  47 paragraph 43. 27161  Submissions by Mr. Mackenzie  1 THE COURT:  Well, at the moment you're saying that paragraph 4 0  2 isn't just an identification of the close, as they  3 would have called it, for which the reputation is  4 proven, you say it is itself part of the reputation?  5 MR. MACKENZIE:  It is alleged to be part of the reputation, my  6 lord, in my submission.  7 THE COURT:  All right.  Away you go from there.  8 MR. MACKENZIE:  Paragraph 43, my lord, which is over the page at  9 page 5.  If you look in the lower right-hand corner,  10 paragraph 43, Walter Blackwater swears:  11  12 "The boundary of the ... territory described  13 above has remained the same through my lifetime  14 and the persons mentioned in paragraph 39 told  15 me that it has remained the same since long  16 before the arrival of European people here."  17  18 Now, that deals with boundary.  19  20 "They told me that the members of the house had  21 owned, harvested and looked after the territory  22 from generation to generation."  23  24 My lord, in my submission that is attempted reputation  25 evidence.  Because, my lord, in my submission Mr.  26 Blackwater says these deceased persons told him this.  27 And in my submission that's what the Plaintiffs are  28 trying to adduce as reputation.  29  30 Paragraph 44 in our submission is slightly  31 different.  And it says:  32  33 "I have heard the ... territory described in  34 the Gitksan feast as being owned by the House".  35  36 THE COURT:  What do you say that is?  37 MR. MACKENZIE:  Sorry, my lord?  38 THE COURT:  What do you say that is?  39 MR. MACKENZIE:  I am saying that is pure hearsay evidence, not  40 alleged to be reputation evidence and inadmissible.  41  42 Now, my lord, paragraph 41 which is at page 3 at  43 this tab deals with neighbouring territories.  Does  44 your lordship have that?  4 5 THE COURT:  Yes.  46 MR. MACKENZIE:  And paragraph 42 deals with geographical  47 features.  Now, it is not clear, my lord, whether that 27162  Submissions by Mr. Mackenzie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR.  THE  MR.  THE  MR.  MR.  is alleged to be reputation evidence.  If it is, we  submit -- if it is alleged to be reputation evidence,  I say no one -- in the affidavit it doesn't say the  old people told me this.  But if this is alleged to be  reputation evidence, we say it is inadmissible.  Well, I would take 42 to be based on personal  knowledge.  MACKENZIE:  Yes, my lord.  I would agree with that if it is  not adduced as reputation evidence then it clearly  appears to be personal knowledge.  COURT:  It is just saying in this area there are these  features.  MACKENZIE:  And if I can say this, my lord, the features and  the names, the Gitksan names of the features are a  fundamental element of the Plaintiffs' claim for  ownership and jurisdiction.  They say that's  fundamental evidence of their ownership.  And that is  the affiant's knowledge.  And if that is the argument  that is being made, then that argument does not carry  on beyond the lifetime, back before the lifetime of  the present affiant on your lordship's interpretation.  But that is the consequence of regarding that as  personal knowledge and not reputation evidence.  COURT:  Yes.  GRANT:  My lord, I am just not clear on that point.  My  friend maybe could clarify so I can deal with this, if  necessary, in reply.  But I am not sure why he says  that if that is personal knowledge then there is no --  then that means that it is -- there is no evidence of  it beforehand.  I am not sure.  He makes a quantum  leap, and I am not sure what follows.  I would like  him to explain that if he could.  MACKENZIE:  Yes.  My lord, as the cases -- as the cases on  reputation say, the reason for reputation evidence is  the lack of personal knowledge of the witness of  ancient rights and ancient matters.  That's the only  reason that reputation or hearsay evidence is  admitted.  Now, if paragraph 42 is regarded as purely  personal knowledge and not as reputation evidence,  then that restricts this to the knowledge at the  present time or during Walter Blackwater's lifetime.  It is not hearsay evidence.  It is not reputation  evidence.  Therefore --  It isn't based upon information -- it doesn't  purport to be based on information belief.  THE COURT 27163  Submissions by Mr. Mackenzie  1 MR. MACKENZIE:  That's correct, my lord.  2 THE COURT:  It purports to be knowledge of -- it purports to be  3 a declaration of his present state of mind.  For  4 example, if I say:  "That's Grouse Mountain," I am  5 stating that I know that is Grouse Mountain.  But one  6 knows that I have to have obtained that information  7 from some other source unless I happen to have named  8 it myself, which I didn't.  One couldn't get the  9 information any other way unless one was the explorer  10 or the person who named these locations.  But it does  11 not -- I think your point, Mr. Mackenzie, is it does  12 not travel with the alleged information, the alleged  13 reputation, from time immemorial.  14 MR. MACKENZIE:  That's my submission, my lord.  15 THE COURT:  Yes.  16 MR. MACKENZIE:  That's why, in my submission, it is important to  17 differentiate as your lordship is doing and identify  18 specifically in this affidavit what is the alleged  19 reputation evidence and what is the personal  2 0 knowledge.  And then we concentrate on the reputation  21 evidence.  22 THE COURT:  Yes.  You agree that paragraph 40 could be read in  23 two different ways, do you?  24 MR. MACKENZIE:  Yes, my lord.  I agree it can be read in two  25 different ways, my lord.  But I permit that paragraph  26 43 is persuasive for my interpretation of it as  27 purported reputation evidence.  And, my lord, the  28 reason that I go into this in detail is because this  29 is the format of all the territorial affidavits.  30 THE COURT:  And you would agree that the source of reputation in  31 40, if any, would be those deceased persons mentioned  32 in 39?  33 MR. MACKENZIE:  Yes, my lord, according to paragraph 43.  If  34 that is regarded as reputation evidence then the  35 allegation has to be that that boundary evidence came  36 from the deceased witnesses.  If it is regarded as  37 personal knowledge then there is no evidence as to the  38 source of that information.  39  40 Now, that deals with paragraphs 1 to 6 of my  41 addendum, my lord.  I do make the point that this is  42 an argument that deals with all the territorial  43 affidavits.  Now, does your lordship --  4 4 THE COURT:  Yes.  45 MR. MACKENZIE:  So I am on page 2 of my addendum, my lord, and  46 paragraph 7.  47 THE COURT:  All right. 27164  Submissions by Mr. Mackenzie  1 MR. MACKENZIE:  My lord, this evidence is not admissible, the  2 reputation evidence which we have identified, does not  3 meet the threshold criteria for admissibility of  4 reputation evidence.  As I have indicated, my lord,  5 this submission deals only with admissibility.  6 Questions of weight will be addressed later.  And I  7 will go into that in some detail depending on the time  8 available.  As I have indicated, your lordship has  9 reviewed this issue in earlier reasons for judgment.  10 Your lordship invited further submissions in  11 connection with further questions.  And in our  12 submission, there is now in the record trial basis for  13 these submissions.  14 THE COURT:  What did I say in that regard?  15 MR. MACKENZIE:  My lord, I will read to your lordship — this is  16 at -- it is not in the excerpt I have handed up to  17 your lordship.  It is at page 355 of that case.  18 THE COURT:  Yes.  19 MR. MACKENZIE:  Your lordship says:  20  21 "Everything I have said is of course very  22 general and counsel must be free to advance  23 such submissions as they may be advised in  24 connection with any specific questions of  25 evidence which may arise."  26  27 THE COURT:  All right.  28 MR. MACKENZIE:  Now, this was not argument again after that, my  29 lord.  There was a subsequent argument on  30 historical -- condition of historical evidence.  31 THE COURT:  But it could be argued now.  32 MR. MACKENZIE:  I submit it can be argued now, my lord.  33 THE COURT:  Yes.  I have said before, we common law judges don't  34 like to cross bridges even when we come to them.  35 MR. MACKENZIE:  Well, my lord, now I deal with the threshold  36 tests.  My lord, if your lordship looks in the yellow  37 binder at tab 9 just following what we are dealing  38 with.  Does your lordship see that, tab 9?  3 9 THE COURT:  Yes.  40 MR. MACKENZIE:  Your lordship will see the reference of your  41 lordship's comment at page 2 of tab 9.  Does your  42 lordship see that reference at the last paragraph?  4 3 THE COURT:  Yes.  44 MR. MACKENZIE:  I just mention that, my lord.  45  46 My lord, dealing with the question of  47 admissibility, three of the threshold tests for 27165  Submissions by Mr. Mackenzie  1 admissibility of reputation are on page 3 of my  2 submissions, my lord.  3 THE COURT:  Yes.  4 MR. MACKENZIE:  This is significant point, my lord, in these  5 submissions.  The declaration (not the reputation)  6 must have been made before the controversy in question  7 arose (not only before the commencement of  8 litigation).  And all the authorities are set out at  9 tab 10 in the yellow binder.  And I will be coming  10 back to the Phipson passage in more detail, my lord.  11 So I won't go through those in more detail now.  Did  12 your lordship find tab 10 in the yellow binder?  13 THE COURT:  Yes.  14 MR. MACKENZIE:  And the second point, my lord, subparagraph (b),  15 the reputation which is the subject of the declaration  16 must be undisputed, that is, a settled public  17 consensus, after the sifting of claim and  18 counterclaim.  And that is a reference to Wigmore.  19 That is also set out at tab 10.  And that is page 21  20 at tab 10.  And page 22, 23 and 24.  Did your lordship  21 finds those?  22 THE COURT:  Yes.  23 MR. MACKENZIE:  I am not going to go into those in detail  24 because I will deal with them later.  2 5 THE COURT:  Yes.  26 MR. MACKENZIE:  The third paragraph (c), the persons whose  27 statements are reported must be shown to be deceased.  2 8 I think that must be common ground, my lord.  Your  29              lordship pointed that out in your lordship's reasons  3 0 for judgment.  31 THE COURT:  Yes.  32 MR. MACKENZIE:  Carrying on, it is submited that these three  33 tests have not been met at the case at bar.  34  35 And my lord, paragraph 12, Mr. Justice Blackburn  36 in Milirrpum did not have to decide these issues.  He  37 made it clear, though, that neither the novelty of the  38 substantive issues, nor the unusual difficulties  39 associated with proof of matters of aboriginal law and  40 custom was any ground for deaparting from the rules of  41 the law of evidence.  42  43 And I am not going to read from the case, my lord,  44 but that reference is set out at tab 12 of the yellow  45 binder.  His lordship referred to the law on  46 admissibility of reputation evidence as described by  47 Phipson, 11th edition and Wigmore.  And Phipson, 11th 27166  Submissions by Mr. Mackenzie  1 edition is at page 3 of tab 10 in the yellow binder.  2 Does your lordship have that note just to refer your  3 lordship to that, page 3?  4 THE COURT:  Yes.  5 MR. MACKENZIE:  Yes.  And it is at paragraph 972, my lord.  Does  6 your lordship have that reference?  7 THE COURT:  Is that the top of the page?  8 MR. MACKENZIE:  972 on page 4, my lord, paragraph 972.  The  9 paragraphs are in there.  Do you have Phipson, my  10 lord?  11 THE COURT:  I don't see paragraph —  12 MR. MACKENZIE:  Sorry, my lord, if you are looking at the bottom  13 right-hand corner of the page, you will see that Roman  14 IV-12, page 3 is the cover page for Phipson, 11th  15 edition.  16 THE COURT:  Yes.  17 MR. MACKENZIE:  And page 4 is the reference.  Does your lordship  18 have that?  19 THE COURT:  No.  Page IV-10?  20 MR. MACKENZIE:  No, tab 12, my lord.  If your lordship goes into  21 tab 12.  Sorry, my lord.  I may have misspoken, my  22 lord.  23 THE COURT:  I have it now.  24 MR. MACKENZIE:  And the reference is in the yellow binder.  25 THE COURT:  972?  26 MR. MACKENZIE:  Yes, my lord.  2 7 THE COURT:  Yes.  28 MR. MACKENZIE:  My lord, Mr. Justice Blackburn cited that  29 paragraph in the Milirrpum case, but he left out the  30 reference to ante litem motam in his citation in the  31 Milirrpum case.  And I say that -- I am saying that in  32 paragraph 12 of my submission, my lord, his lordship  33 omitted the reference to ante litem motam in his  34 citation from Phipson, 11th edition.  And it would  35 appear, therefore, that this issue was not argued in  36 Milirrpum.  It was no doubt unnecessary.  37 THE COURT:  Why was it unnecessary?  38 MR. MACKENZIE:  Because the issue of whether the deponents were  39 deceased or not -- sorry, the issue of whether there  40 was a controversy or whether declarations were made  41 after the beginning of the controversy did not arise  42 in that case, my lord.  43  44 Ante litem motam which I deal with in some detail,  45 my lord, deals with whether the declaration or the  46 statement was made after the beginning of the  47 controversy.  Ante litem motam meaning before the -- 27167  Submissions by Mr. Mackenzie  1 THE COURT:  Death before litigation, isn't it?  2 MR. MACKENZIE:  Yes.  Before the issue in question, my lord.  It  3 doesn't mean before the litigation.  4 THE COURT:  Before the controversy.  5 MR. MACKENZIE:  Before the controversy arose.  6 THE COURT:  But it is a remarkable submission that Mr. Justice  7 Blackburn would leave out of a quotation the  8 qualification as you suggest.  9 MR. MACKENZIE:  Yes, my lord.  Well, if I could refer your  10 lordship to that.  It is at tab 12 where your lordship  11 is already in tab 12 in the yellow binder at page 2.  12 Does your lordship have that?  13 THE COURT:  Yes.  14 MR. MACKENZIE:  It is a reference from Milirrpum page 154.  15 THE COURT:  Yes.  16 MR. MACKENZIE:  Is your lordship's copy marked?  17 THE COURT:  Yes.  18 MR. MACKENZIE:  If your lordship will go down to the bottom of  19 154, you will see where the marking starts Mr. Justice  20 Blackburn saying:  21  22 "A well-known exception had of course to be  23 considered..."  24  25 Does your lordship have that?  2 6 THE COURT:  Yes.  27 MR. MACKENZIE:  28  29 "It is described by Phipson, Law of Evidence,  30 11th ed. (1970), par. 972, in these words:  31 'Declarations made by deceased persons of  32 competent knowledge  ..."  33  34 THE COURT:  Oh, I see.  I rather thought you suggested he  35 misquoted it.  But he put in three dots?  36 MR. MACKENZIE:  Yes, he omitted it, my lord.  37 THE COURT:  Well, my faith in Mr. Justice Blackburn has been  38 restored.  39 MR. MACKENZIE:  I wasn't saying that he wasn't aware of this  40 problem.  41 THE COURT:  All right.  42 MR. MACKENZIE:  Your lordship can see the basis of my submission  43 that it probably didn't arise in that case because he  44 chose to omit it from that reference.  45 MR. GRANT:  Well, is there some reference where he does say that  46 it is not an issue in that case, or is it just the  47 three dots that my friend is using as the assumption? 2716?  Submissions by Mr. Mackenzie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR.  THE  MR. MACKENZIE:  Well, my lord, it is not mentioned in the  reasons for judgment.  And it is omitted in this  citation from Phipson.  And that's the basis --  THE COURT:  Of course the evidence may have been such that there  was nothing to suggest otherwise.  MR. MACKENZIE:  That's our submission, my lord.  THE COURT:  All right.  MR. GRANT:  Well, that's where I have the difficulty, my lord,  because certainly my reading of Milirrpum is that the  claim there and the controversy there was probably,  you know, arose from -- in the same time depth as your  lordship has to deal with --  Well, I wonder, Mr. Grant, whether in that case the  controversy didn't arise when the mining leases were  granted.  GRANT:  Well, I will review that.  COURT:  I am just speculating now.  Because it may have been  that no one ever questioned those aboriginal -- those  aborigine rights, I don't know.  But they didn't have  a controversy going back to the middle of the last  century I don't think in Milirrpum like we have here.  MR. GRANT:  Well, I will review it and consider that reply, my  lord.  THE COURT:  Yes.  Just read the Milirrpum case over the lunch  hour, Mr. Grant, and see if you can get something out  of it.  MR. MACKENZIE:  Your lordship has a point that is made here.  And your lordship also clearly referring to the  controversy in the case at bar really foreshadows the  argument that is going to be made in this submission.  And, my lord, at paragraph 14 I set out, in my  submission, the correct principle which your lordship  referred to Phipson, 13th edition which is at tab 13  of the yellow binder.  I have set it out in my  submissions, my lord, at page 5.  I am reading from  page 5 of my submissions, my lord.  Yes.  THE COURT  MR. MACKENZIE:  "The declarations, must, in order to prevent  bias, have been made ante litem motam, that is  before the commencement of any controversy, and  not merely before the commencement of any suit,  involving the same subject-matter."  And following on, my lord: 27169  Submissions by Mr. Mackenzie  1  2 "Declarations made after a dispute has arisen  3 are inadmissible, although the dispute was  4 unknown to the declarant, for that is a  5 collateral issue which it might be impossible  6 to prove."  7  8 And The Berkeley Peerage case is given as the  9 principle authority, my lord.  And I will go into that  10 case in some detail.  But in summary, in The Berkeley  11 Peerage case, as I say in paragraph 15, the judges  12 discussed this principle with respect to the pedigree  13 problem for them.  But also in general they dealt with  14 the question of the admissibility of reputation  15 evidence in the classic cases dealing with rights of  16 way and prescription.  And the Court's concern is with  17 the trustworthiness of the evidence if the declaration  18 is made after the origin of the controversy.  19  20 Now, my lord, I say the safeguard against the  21 unconscious shaping of evidence according to the  22 interest of the witness is cross-examination.  And  23 declarations of a deceased person must have been made  24 "...when his mind stood in an even position...."  25 And that reference is to Baron Wood's judgment at tab  26 15 of the yellow binder.  I will just perhaps refer  27 your lordship to that.  Does your lordship have tab  28 15?  2 9    THE COURT:  Yes.  30 MR. MACKENZIE:  In the yellow binder.  There is several judges  31 of the House of Lords who gave judgment in this case,  32 my lord.  And as I say, they dealt with this question  33 of the admissibility and reputation evidence  34 generally.  And Baron Wood is at the bottom of the  35 page there, my lord.  About three quarters of the way  36 down he starts his reasons.  Does your lordship have  37 that?  38 THE COURT:  Yes.  Perhaps we will consider what Baron Wood said  39 at 2 o'clock, Mr. Mackenzie.  40 MR. MACKENZIE:  Yes.  41  42  43  44  45  46  47 27170  Submissions by Mr. Mackenzie  1 THE REGISTRAR:  Order in court.  Court stands adjourned.  2 (PROCEEDINGS ADJOURNED AT 12:30)  3 I hereby certify the foregoing to  4 be a true and accurate transcript  5 of the proceedings transcribed to  6 the best of my skill and ability.  7  8  9  10  11    12 Lisa Franko,  13 Official Reporter,  14 UNITED REPORTING SERVICE LTD.  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 27171  Submissions by Mr. Mackenzie  1 (PROCEEDINGS RECOMMENCED AFTER LUNCHEON RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Mackenzie.  5 MR. MACKENZIE:  Thank you, my lord.  My lord, I would like to  6 turn to page 4 of my summary of the addendum.  I  7 missed a paragraph I wanted to deal with.  Paragraph  8 13.  9 THE COURT:  Yes.  10 MR. MACKENZIE:  And I ask your lordship in the yellow binder to  11 turn to tab 13.  Just before page 4.  12 THE COURT:  Yes.  13 MR. MACKENZIE:  Your lordship have that?  This deals with the  14 plaintiffs' submissions on this point, my lord.  15 I am just reading at paragraph 13 of the summary.  16 The plaintiffs' submission on this point are set out  17 at that reference, and then it is submitted that  18 counsel for the plaintiffs incorrectly interpreted  19 Wigmore when counsel said that the reputation as  20 opposed to the statement of the reputation must have  21 arisen before the commencement of the litigation.  And  22 that's the passage in the yellow binder, tab 13, page  23 4, starting at line 35.  Referring your lordship --  24 Does your lordship see that?  2 5 THE COURT:   Yes.  26 MR. MACKENZIE:  Now, my lord, on the last of the principles  27 Wigmore, in dealing with the principle ante litem  28 motam, said this:  29  30 "The limitation, already noticed as obtaining in  31  32  33 And that should be "other", my Lord.  34  35 "... other hearsay exception, that the  36 reputation to be admissible must have arisen  37 ante litem motam ..."  38  39 And then Mr. Rush then says:  40  41 "And that's to be distinguished as from the  42 statement of the reputation."  43  44 Now, my lord, without taking your lordship to the  45 actual passage in Wigmore, I propose to tell your  46 lordship where that passage is in our materials, and  47 then explain to your lordship what Wigmore was saying 27172  Submissions by Mr. Mackenzie  1 there.  The passage in Wigmore is found at tab 10 of  2 this addendum section, page 6.  So it's just two tabs  3 earlier.  4 THE COURT:  Yes.  5 MR. MACKENZIE:  And it is set out at the top of the page, my  6 lord, but Mr. Rush has read with the correction that I  7 have made.  I just point out to your lordship that  8 Wigmore refers to the Berkeley Peerage case as the  9 authority for that statement.  And, my lord, I am  10 pointing this out to your lordship just to explain  11 that there is no inconsistency between Phipson and  12 Wigmore in this case.  What Wigmore means by ante  13 litem motam is just what the cases say; that is,  14 before the controversy has arisen.  And I say that in  15 his submissions Mr. Rush didn't note that.  So that's  16 the —  17 THE COURT: Where was Mr. Rush's statement again?  18 MR. MACKENZIE:  It was at —  19 THE COURT: I have it.  Yes.  Thank you.  20 MR. MACKENZIE:  It was at tab 13, page 4.  21 THE COURT:  Well, he says the reputation to be admissible must  22 have arisen before the controversy.  What's different  23 from that from what Wigmore says?  24 MR. MACKENZIE:  Mr. Rush says ante litem motam.  2 5 THE COURT:  Yes.  26 MR. MACKENZIE:  And then Mr. Rush says:  27  28 "And that's to be distinguished as from the  29 statement of the reputation."  30  31 So Mr. Rush is interpreting that as the reputation  32 must have arisen ante litem motam.  And then if you go  33 to the next page, my lord, page 5, you will see that  34 Mr. Rush interprets that to mean before the litigation  35 commenced.  It's at the line 33 to 36.  36 MR. GRANT:  Which page?  37 MR. MACKENZIE:  Tab 12, page 5.  38 THE COURT:  Is your distinction between the litigation and the  39 controversy?  40 MR. MACKENZIE:  Yes, my lord.  41 THE COURT:  All right.  Yes.  42 MR. MACKENZIE:  And it's also between the reputation and the  43 statement, my lord.  44 THE COURT:  Do they both have to be made before the litigation  45 arises?  46 MR. MACKENZIE:  I say, my lord, the reputation has to be made,  47 that is the statement of the reputation has to be made 27173  Submissions by Mr. Mackenzie  1 before the controversy arises.  2 THE COURT:  Well, what you're saying, then, is that the  3 declaration --  4 MR. MACKENZIE:  Declaration has to be before the controversy  5 arises.  6 MR. GRANT:  I am a bit lost, my lord.  Where is my friend  7 referring to in Wigmore for that proposition that the  8 statement has to be before the controversy?  I see the  9 statement he's referred to that says the reputation as  10 Mr. Rush quoted, but I want to be sure I understand  11 you.  12 MR. MACKENZIE:  I am saying, my lord, that Wigmore means the  13 same thing as Phipson.  That is, when he says the  14 reputation to be admissible must have arisen ante  15 litem motam, I say that Wigmore's relying there on the  16 Berkeley Peerage case, which is the principle  17 authority for Phipson.  18 THE COURT:  But this statement from Wigmore on page 5 and 6 of  19 your tab 11 doesn't say that the declaration must be  20 made before the controversy arises, does it?  21 MR. MACKENZIE:  Wigmore says the reputation to be admissible  22 must have arisen ante litem motam.  23 THE COURT:  Yes.  That doesn't say the declaration —  24 MR. MACKENZIE:  No.  I am suggesting, my lord, that that really  25 means the same as Phipson, because it's -- he is  26 relying, Wigmore is relying on the same case that  27 Phipson relied on.  28 THE COURT:  All right.  Where is the — I have just looked at  29 the statement from Wigmore, and it doesn't mention the  30 declaration.  31 MR. MACKENZIE:  Yes, my lord.  32 THE COURT:  Where is Phipson again?  33 MR. MACKENZIE:  Phipson is — the actual reference is at tab 12,  34 page 6.  35 THE COURT:  All right.  36 MR. MACKENZIE:  Does your lordship have that?  37 THE COURT:  Yes.  38 MR. MACKENZIE:  Does your lordship see that?  Paragraph 24.  39  40 "declarations made by deceased persons ante  41 litem motam."  42  43 MR. GRANT:  This is Phipson?  44 MR. MACKENZIE:  Yes.  45 THE COURT:  All right.  46 MR. MACKENZIE:  My lord, it's my submission that passage from  47 Phipson is the statement of a common law. 27174  Submissions by Mr. Mackenzie  1 THE COURT:  You say that's extracted from the Peerage case?  2 MR. MACKENZIE:  Yes, My Lord.  3 THE COURT:  Let's go to it.  And do what you were going to do  4 when you were so rudely interrupted for lunch.  5 MR. MACKENZIE:  I can assist your lordship by doing that,  6 because I have set out the passage from the Peerage  7 case.  8 THE COURT:  Well, that's all right.  Where did you set out the  9 passage?  10 MR. MACKENZIE:  I have set out the passage from the Peerage case  11 on -- at paragraphs 27 and 29 of my submissions.  12 THE COURT:  Paragraphs what?  13 MR. MACKENZIE:  Paragraphs 27 and 29.  14 THE COURT:  All right.  Barron Wood at page 130 says:  15  16 "But declarations to be receivable in evidence  17 ... must have been the natural effusions of the  18 mind of the party making them, and must have  19 been made on an occasion when his mind stood in  20 an even position, without any temptation to  21 exceed or fall short of the truth.  Upon this  22 principle it has been the general rule, as far  23 back as my experience and knowledge go, to  24 reject hearsay evidence of the declarations of  25 deceased persons, not only relative to matters  26 in actual suit, but in dispute and controversy  27 prior to the commencement of judicial  28 proceedings."  29  30 And then paragraph 2, my lord, Chief Justice  31 Mansfield sets this out again:  32  33 "General rights are naturally talked of in the  34 neighborhood ... therefore, what is thus  35 dropped in conversation upon such subjects, may  36 be presumed to be true.  But after a dispute  37 has arisen, the presumption in favour of  38 declarations fails; and to admit them, would  39 lead to the most dangerous consequences.  40 Accordingly, I know of no rule better  41 established in practise than this, that such  42 declaration shall be excluded ...."  43  44 That is the declarations after the commencement of  45 the controversy.  And Chief Justice Mansfield carries  46 on:  47 27175  Submissions by Mr. Mackenzie  1 "I have now only to notice the observation, that  2 to exclude declarations you must show that the  3 lis mota was known to the person who made them.  4 There is no such rule.  The line of distinction  5 is - the origin of the controversy, and not the  6 commencement of the suit.  After the  7 controversy has originated, all declarations  8 are to be excluded, whether it was or was not  9 known to the witness."  10  11 That's the common law, in my submission, my lord.  12 And my submission is that is different from what  13 counsel for the plaintiffs were saying when he  14 interpreted Wigmore at the passage that I referred to  15 in paragraph 13 of my submissions.  16 THE COURT:  All right.  Then what did Chief Justice Dickson have  17 in mind in Simon when he spoke on this question saying  18 that history has to be admissible in these cases or  19 could not otherwise be proven?  Are you saying that  20 that statement of his should be read in light of this  21 limitation?  22 MR. MACKENZIE:  Yes, My Lord.  In my submission we are not  23 talking about history here.  We are talking about  24 history, but we are talking about reputation evidence  25 really.  We are talking about evidence as to  26 territorial matters which is adduced as reputation  27 evidence, but in this case we have a controversy.  The  28 controversy has arisen, and as your lordship pointed  29 out, that distinguishes it certainly from --  30 apparently distinguishes it from Milirrpum.  In this  31 case if it can be shown, and in any case under the  32 common law, if it can be shown that a controversy has  33 arisen relating to the subject matter in the lawsuit,  34 then the statements are subject to the -- or presumed  35 to be subject to the influence of that controversy,  36 and can't be regarded as natural effusions of the  37 witnesses, that is the deceased declarant's mind.  38 THE COURT: Well, then, reading that together with Chief Justice  39 Dickson's dictum, would mean that the history of which  40 the Chief Justice spoke could not be proven as to  41 historical matters, as to declarations of historical  42 matters made beyond the lifetime of a living person.  43 MR. MACKENZIE:  Well, my lord, if there was a controversy that  44 had arisen --  45 THE COURT: Before the lifetime of the witness?  46 MR. MACKENZIE:  Yes, that's right.  47 THE COURT:  Before the birth of the witness — 27176  Submissions by Mr. Mackenzie  1 MR. MACKENZIE:  That's right.  2 THE COURT:  — could be proven.  3 MR. MACKENZIE:  If it could be shown that the deceased  4 declarants were influenced or presumed to be  5 influenced by the controversy.  6 THE COURT:  I would have to look at Simon again to see what his  7 facts were, and what declarations were being relied  8 upon there.  Will you be covering that in your  9 submission?  10 MR. MACKENZIE:  No, my lord, but I will certainly deal with  11 that.  12 THE COURT:  Yes, I think you better, because it seems to me that  13 the authorities that you are citing would severely  14 limit what Chief Justice Dickson seemed to suggest was  15 admissible under the heading of necessity.  16 MR. MACKENZIE:  Simon has been dealt with to some extent, as I  17 understand, my lord, in the argument, the defendants'  18 argument, Roman II, section 3, page 9 at paragraphs 22  19 to 27.  2 0 THE COURT:  What's the —  21 MR. MACKENZIE:  Roman II.  22 THE COURT:  Yes.  23 MR. MACKENZIE:  Part 3, page 9.  That passage distinguishes  24 Simon as being a treaty case.  2 5 THE COURT:  Yes.  26 MR. MACKENZIE:  As I understand criminal prosecution, where the  27 accused raises a treaty right in his defence, as Mr.  28 Plant noted --  29 THE COURT:  All he is really talking about is history there.  30 MR. MACKENZIE:  Yes.  31 THE COURT:  Not talking about title.  32 MR. MACKENZIE:  Doesn't deal with title.  As I understand, it's  33 not an ownership and jurisdiction case.  This case is  34 different from all the cases, as your lordship has  35 been told many times, in that we are dealing in the  36 case at bar with ownership and jurisdiction and the  37 title to land.  So that's a distinguishing factor,  38 which in our submission affects the use by which --  39 for which reputation evidence can be adduced.  One  40 must -- one is going to rely on reputation evidence,  41 it should meet the tests that is set out for  42 trustworthiness in the Berkley Peerage case and since  43 then.  4 4 MR. GRANT  4 5 THE COURT  4 6    MR. GRANT  With respect, my lord, this was a right of hunting.  No, but the --  But it was the reputation, a reputation as to  47 geneaology, and that was necessary to establish that 27177  Submissions by Mr. Mackenzie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Simon had that right.  So certainly the controversy --  THE COURT:  No, but he based his right on the fact he was  registered.  So that's nothing.  MR. GRANT:  He based it on the presumption of genealogy.  THE COURT:  Yes.  By registration.  MR. GRANT:  As he being the present occupant -- presumably the  descendant of the previous occupants.  THE COURT:  I don't read the case on a very cursory reading as  suggesting that it depends upon the admissibility in  any way of declarations of deceased persons.  I don't  think it does.  I'll read it again, but it seems to me  what he was saying was as the historical fact I accept  there is a treaty in 1756, and I accept the fact that  he is registered as a member of a band of Indians  having the same name as the signatory to that 1756  treaty.  That's good enough for me.  Is that all he is  saying in Simon?  MR. GRANT:  Well, I think so.  I think he is also making a  presumption of geneaology, which of course geneaology  is generally established through reputation, and if my  friend is right, that could never be done in a case,  because of course the controversy would have arisen  from the time at least of the first reputation of the  hunting --  MR. MACKENZIE:  In my submission, my lord, the question didn't  arise in Simon.  THE COURT:  Until he shot the moose.  If it was a moose.  MR. MACKENZIE:  But the point should be made, in my submission,  my lord, that the plaintiffs are relying upon the  common law reputation, and its been my respectful  submission misstated or misinterpreted inadvertently  in the plaintiffs' argument.  It's my submission the  Berkeley Peerage case, which is the leading case in  this area, sets out the law very clearly; and this  question of one statement has to be made is very  important in the judgments in that case, and they all  talked about it as being the practice and the law on  the basis of principle, as well as what had actually  been done in the courts in England.  I'll go into that in some detail, my lord. I am  going to analyze that in some detail with a specific  declaration.  THE COURT: Yes.  All right.  MR. MACKENZIE:  And so —  MR. GRANT:  Can I ask my friend, when he does analyze it  specifically, I would like to be very clear as to when  my friend submits, if he says the statement must be 2717?  Submissions by Mr. Mackenzie  1 made before the "controversy arose", when he says the  2 controversy arose before the statement was made.  He  3 may deal with that in the context.  4 THE COURT:  I'm sure he will.  5 MR. GRANT:  I would like to have that very clear.  6 MR. MACKENZIE:  My lord, just carrying on with the submissions  7 on page 6 of the submissions, paragraph 16, starting  8 to deal with the declarations in this case.  9 All the declarations sought to be introduced in  10 the case at bar were made during the lifetime of the  11 affiants.  I am talking about the territorial  12 affidavit, and virtually all cases after 1900.  I am  13 saying, my lord, that in this case virtually all the  14 statements relied on are after 1900.  15 The plaintiffs' witnesses, both lay and experts,  16 have portrayed the land question in terms of we  17 against them, with the province identified as them.  18 It is submitted that the plaintiffs' claim of  19 ownership of lands in the claim area has been in issue  20 and the subject of controversy in the claim area from  21 the 1880's.  Declarations then and later have been  22 made by persons whose interests lay in preserving the  23 title claim.  As such they are unlikely to have been  24 free of conscious or unconscious bias or uninfluenced  25 by the dispute.  The plaintiffs' counsel acknowledge  2 6 furthermore that some reputation statements were made  27 after October 1984, the commencement of this  28 litigation.  2 9 And an example of that is David Gunanoot's  30 statements in Neil Sterritt's affidavit.  That's an  31 example of statements made after the commencement of  32 this litigation, which is a much stronger case, but  33 equally as valid.  34 So then I now go into a specific deceased  35 informant, my lord, and that title should read Moses  36 Stevens' statement post litem motam.  Our submission  37 that his statement was made after the controversy  38 arose, post litem motam.  So if your lordship would  39 change that heading to post litem motam.  40 Paragraph 18.  According to Exhibit 605, paragraph  41 39, which your lordship has reviewed, Moses Stevens  42 told Walter Blackwater that the Slamgeesh territory  43 belongs to Gwinin Nitxw.  The dates of that  44 declaration is not in evidence.  45 Moses Stevens was born in 1861, and he died in  46 1971.  Walter Blackwater was born in 1923.  Moses  47 Stevens' statements, therefore, must have been made 27179  Submissions by Mr. Mackenzie  1 between, say, 1928, when Walter Blackwater was 5 years  2 old, and 1971 when Moses Stevens died.  3 The circumstances of the declaration are not in  4 evidence.  Assuming that Moses Stevens made this  5 statement, there is nothing in the evidence about the  6 reason why he made such a statement.  I note there is  7 much evidence which suggests that he probably did not  8 make that statement, my lord.  But assuming that he  9 did make that statement, it cannot be tested by  10 cross-examination.  The plaintiffs rely upon it to  11 prove ownership of the Slamgeesh territories against  12 the Crown.  It is not known from the evidence whether  13 Moses Stevens made the statement for this purpose.  It  14 is not known from the evidence whether Moses Stevens  15 meant this statement to apply only as among the  16 Gitksan chiefs and not as against the Crown.  He may  17 have accepted the Crown's ownership of the territory,  18 but have wished to clarify the allocation of  19 responsibilities in the Gitksan context.  20 It appears to be a statement against Moses  21 Stevens, Dawamuxw's interest, but it cannot be  22 determined whether it is a statement against his  23 interest in relation to the Crown or in relation to  24 Gwinin Nitxw or neither of those.  25 It is relied upon by the plaintiffs as a statement  26 in the interest of Gwinin Nitxw as against the Crown.  27 It is a statement made during a time when, according  28 to the plaintiffs, the Gitksan had not ceased to  29 assert their territorial claim as against the Crown.  30 And that's the statement of claim, paragraph 72.  It  31 was made after the origin in the 1880's of the  32 controversy about Indian ownership of the claim area.  33 Moses Stevens lived during the years of Gitksan  34 protest from 1884 to 1927 analyzed in the evidence of  35 Robert Galois.  According to Galois the Gitksan  36 continued during these years to assert their title to  37 the claim area as against the Crown.  Reference is  38 made particularly to the Kispiox petition of 1924  39 signed by the chiefs of the village.  40 My lord, that petition is set out at tab -- is at  41 tab 25.  Does your lordship have that?  42 THE COURT:  Yes.  43 MR. MACKENZIE:  And that is a petition signed by many of the  44 chiefs or all the chiefs of the village of Kispiox.  45 And in the first paragraph, this is 1924, the chief  46 says:  47 27180  Submissions by Mr. Mackenzie  1 "In view of the fact that our forefathers were  2 the occupants and possessors of the lands of  3 this country in the days before the coming of  4 the white people and in view of the fact that  5 for that reason we are now the proper  6 inheritors of this land ..."  7  8 And so on.  And then they deal with the Indian  9 land question and the unsatisfactory resolution.  10 Now, these chiefs, my lord, it is assumed from  11 the -- on the plaintiffs' case, represented the people  12 at Kispiox, and some of these are deceased declarants.  13 For example, deceased informants -- for example, Moses  14 Morrison, who is the fifth chief on the list, is the  15 declarant Gitludahl.  He told -- he is one of the  16 people upon whom Peter Muldoe relied for the ownership  17 of the Gitludahl territory.  So -- and some of the  18 other chiefs who signed there may also be actual  19 informants, deceased informants upon whom the  20 territorial affiants rely.  21 Now, it's not known from the evidence whether  22 Moses Stevens knew about this, but this is an example  23 of the concerns that were being expressed in the  24 controversy that was in the claim area and in the --  25 and in the area where Moses Stevens passed his life or  26 lived his life.  27 THE COURT:  This is what exhibit?  28 MR. MACKENZIE:  This is Exhibit 995-12.  It was put in by Mr. —  2 9 came in during the evidence of Mr. Brody.  30 There are many other examples of this, my lord, but  31 this is just an example of -- it may show the  32 controversy in the area around this -- around Moses  33 Stevens' place of -- where he lived over these years.  34 THE COURT:  I don't understand your submission relating to the  35 question against whom the declaration is intended to  36 be made.  Does it really matter?  37 MR. MACKENZIE:  It does, in the sense that — the point is that  38 one can't cross-examine Moses Stevens.  39 THE COURT:  If he made it with a specific purpose in mind, would  40 it not still be admissible for all purposes?  41 MR. MACKENZIE:  No.  It would not be admissible — I mean, if  42 its introduced the controversy and arises after the  43 controversy --  44 THE COURT:  I appreciate that.  But apart from the time when it  45 was made, I am not sure that I understand the  46 distinction you draw between declaration made against  47 other Indians or against the Crown. 27181  Submissions by Mr. Mackenzie  1 MR. MACKENZIE:  Well, my lord —  2 THE COURT:  I am not sure that it makes any difference.  3 MR. MACKENZIE:  But it may not make any difference, my lord, but  4 in our submission it's significant, because it's being  5 relied upon as expressing the interests of the Gitksan  6 against the Crown.  If it wasn't used for that purpose  7 at all, then it would be of no evidentiary value to be  8 used in the case as against the Crown.  If Moses  9 Stevens was saying 'I am only concerned with the  10 chiefs' ownership of the land in this area' -- for  11 example, in 1945, as Ms. Sigurdson pointed out, Thomas  12 George wrote to the Indian Agent and said, 'I have a  13 dispute with Matthew Sam.'   When Thomas George was  14 talking about his dispute with Matthew Sam, he wasn't  15 talking about title as against the Crown.  16 THE COURT:  Well, that depends on a construction of what the  17 statement is or what the declaration contains, and  18 that will always be if a person said "I heard 'x' now  19 deceased now say that Black Acre is common way in the  20 village of Epping", a favorite English town, and then  21 the village sells it to that person, and then there is  22 an argument about whether that person is entitled,  23 surely the declaration as part of the chain of title  24 would be admissible for all purposes, wouldn't it?  25 MR. MACKENZIE:  Well, my lord, I think if you can show by  26 cross-examination, because there is --  27 THE COURT:  You can't prove the — you can't show by  28 cross-examination the deceased -- what he had in mind.  29 I am just questioning whether it makes any difference  30 what his purpose is.  It seems to me the relevant  31 thing is what did he say?  What did he declare?  32 MR. MACKENZIE:  In my submission it does make a difference.  All  33 the judges in the Perrage case point out that it makes  34 a difference, because once the controversy arises, you  35 don't know -- because he may be influenced by the  36 controversy in this case.  37 THE COURT: I am conceding for the purposes of argument that it  38 makes a difference about whether the controversy arose  39 or not.  I am focusing now on whether it makes any  40 difference for what purpose the declarations made.  41 MR. MACKENZIE:  In my submission in this case it does, my lord,  42 because you are talking about a different interest.  43 If the interest as against the other chiefs, that's  44 among the chiefs themselves.  That has nothing to do  45 with the matter at issue in this case.  46 THE COURT:  But if there was a dispute between the chiefs, and  47 somebody made a declaration that this property belongs 27182  Submissions by Mr. Mackenzie  1 to chief A, assuming there is no controversy at that  2 time -- well, no, I'm sorry.  Let's assume there is no  3 controversy and a deceased person now deceased  4 declares that belongs to Chief A.  Surely that  5 declaration could be used for any purpose -- that  6 could be used on A's behalf in any dispute that  7 arose -- what difference would it make if he was only  8 thinking of it as between which chief it belonged to,  9 assuming there was no controversy?  If there was a  10 controversy, then it wouldn't be admissible anyway.  11 MR. MACKENZIE:  Well, my lord, the submission has to be made  12 that -- we are making the submission that it's really  13 a public versus private right distinction, although  14 that was -- that was determined by Mr. Justice  15 Blackburn and your lordship that reputation generally  16 was admissible to prove house territories.  But we are  17 talking about a private matter between the chiefs as  18 opposed to a public matter as against the Crown, and  19 if there is any question about that, then its -- then  20 that is going to cause a problem with determining how  21 the evidence is to be used and can be used in our  22 submission.  23 THE COURT:  Are you challenging my tentative finding that the --  24 that this is a sufficient general right to qualify as  25 admissible declarations and ownership of title?  26 MR. MACKENZIE:  My lord, Mr. Justice Blackburn certainly — to  27 answer your question, my lord, in these submissions we  28 have not challenged that, but the argument, as I  29 understand, was not made in detail before your  30 lordship on that occasion about public and private  31 rights.  It's not being made here.  32 THE COURT:  All right.  Thank you.  33 MR. MACKENZIE:  Except, as I have already noted, your lord, this  34 is a slight distinction from what Mr. Justice  35 Blackburn was speaking about, and is the whole point  36 of the problem in this particular case, is it's public  37 in the sense as against the Crown and private as  38 against the other chiefs.  That doesn't deal with your  39 lordship's point and Mr. Justice Blackburn's point  40 about the number of people involved.  41 THE COURT:  Yes.  42 MR. MACKENZIE:  But it's a different aspect of the argument  43 using the terms public and private, my lord.  44 So, my lord, I think we dealt with paragraph 26  45 and paragraph 27, and I point out, as the judges in  46 the Berkley Peerage case pointed out, that it's a  47 problem of conscious or unconscious bias.  And in our 27183  Submissions by Mr. Mackenzie  1 submission in this case it cannot be said that Moses  2 Stevens' statements was the natural effusion of his  3 mind or that a statement was made on occasion when his  4 mind stood in an even position, because the  5 controversy was raging.  6 And Chief Justice Mansfield points out, as we  7 already read at paragraph 29, that because of the  8 problem determining whether the person -- the problem  9 of determining whether the person knew or not, the  10 line of distinction is the origin of the controversy,  11 and one doesn't have to show that the controversy was  12 known to the person.  13 And, my lord, these arguments, moving onto  14 paragraph 31, apply to all the statements of deceased  15 informants in the territorial affidavits.  16 Some of them, even more strongly of course,  17 because the statements were made after the  18 commencement of the litigation, after 1984.  And, my  19 lord, a paragraph I think we dealt with in the  20 Berkeley Peerage case, several of the judges referred  21 to the hardships that might result from their  22 decision.  23 And moving on to the second threshold test,  24 dealing with consensus.  I am not aware that the  25 plaintiffs differ from us on this question, that the  26 reputation really is a consensus, must be a single and  27 definite consensus after conflicting claims had been  28 sifted and settled down into reputation.  29 Paragraph 35 we point out that in the case at bar  30 there is much evidence of inconsistent claims to the  31 territories which are the subject matter of the  32 declarations.  33 THE COURT:  What is the source of that quotation?  34 MR. MACKENZIE:  Wigmore, my lord, and it's at —  35 THE COURT:  The top of page 12?  36 MR. MACKENZIE:  Yes, my lord.  Wigmore describes the general  37 law.  38 THE COURT:  Yes, all right.  39 MR. MACKENZIE:  I set it out there at paragraph 33, and also  40 found at -- the passage is found at tab 33 in the  41 yellow binder.  42 THE COURT:  Yes.  All right.  43 MR. MACKENZIE:  Going to paragraph 35 on this point of  44 consensus.  In our submission the conflicting claims  45 are contemporaneous with the declarations of the  46 reputation.  Because in our submissions these claims  47 have been made throughout the times -- throughout the 27184  Submissions by Mr. Mackenzie  1 period that -- after, as far as we can tell, after  2 1900.  The conflicting claims in some cases are  3 reflected in declarations to Neil Sterritt by the  4 deceased named informants, such as Arthur Kusick.  5 Arthur Kusick told Neil Sterritt something different  6 about the Slamgeesh territory, it conflicted with  7 Walter Blackwater's affidavit, and the statements that  8 Walter Blackwater got from Moses Stevens.  And I point  9 out that's dealt with in detail later in the argument.  10 Henry Wright made statements to Neil Sterritt,  11 which conflicted with reputation evidence in James  12 Morrison's affidavit.  13 There are conflicting claims also in prior  14 inconsistent statements to Sterritt by major affiants  15 such as Walter Blackwater and Steven Robinson.  That  16 is the actual affiants made statements that conflict  17 with the reputation evidence.  18 In other cases the inconsistent claims are those  19 of long standing advanced by neighbouring Indian  20 groups, such as the Nishga and the Tahltan in feasts  21 and at meetings attended by the plaintiffs.  Mr.  22 Willms will deal with those.  We have set out the  23 references in this argument.  24 Paragraph 36.  In addition, there is evidence of  25 long-standing inconsistent and overlapping claims by  26 the Kitwancool, whom the plaintiffs acknowledge as  27 members of their community in which the alleged  28 reputation exists.  The Kitwancool overlap is  29 discussed in detail at the reference I indicate.  30 On this point about consensus I added after paragraph  31 36 that the evidence shows that there was little or no  32 discussion of these boundaries at feasts --  33 THE COURT:  Well, do you say that any allegation amounting to a  34 conflicting claim destroys the consensus for  35 reputation that might otherwise be established?  36 MR. MACKENZIE:  My lord, it shows that there is no consensus, if  37 the -- if there are conflicting claims and disputes.  38 THE COURT:  Well, consensus doesn't mean unanimity, consensus  39 means a weighted agreeing opinion.  40 MR. MACKENZIE:  Yes, that's right.  41 THE COURT:  Well, if four deceased declarants said that Black  42 Acre belongs to "x" -- says there is a reputation that  43 Black Acre belongs to "x", and there is one reputable  44 deceased declarant who said there is doubt in the  45 community about whether it belongs to 'x' or 'y', do  46 you say that there is no consensus, or do you say that  47 it then becomes a matter of weight, or what do you say 27185  Submissions by Mr. Mackenzie  1 is the result of that?  2 MR. MACKENZIE:  Well, my lord, if there is evidence of  3 considerable dispute, that means that there is no  4 consensus and no reputation.  5 THE COURT:  Right.  So it would be a matter of weight for the  6 kindly trial judge to say before declarations here to  7 qualify as reputation evidence.  And I got one that  8 says there is a dispute about it, but I can accept  9 that there was a sufficient consensus on reputation to  10 make the declaration.  11 MR. MACKENZIE:  Well, my lord, that is — as your lordship has  12 articulated, that is a weight problem.  You have to  13 pass the threshold of determining there was a  14 consensus, and then there may be other people who  15 dispute it, but the argument here on admissibility is  16 that we don't reach the threshold state of consensus.  17 THE COURT:  I understand that.  All right.  18 MR. MACKENZIE:  But your lordship — I agree with your lordship  19 that once you pass the consensus point, then it's a  20 question of weight as to whether --  21 THE COURT:  I'm sorry, you say once you pass the consensus  22 state --  23 MR. MACKENZIE:  Once you have reached the threshold test, that  24 there is a consensus.  25 THE COURT:  All right.  Then you're saying that any adverse  26 claim wouldn't destroy the reputation?  27 MR. MACKENZIE:  That's right, my lord.  Because reputation is  28 assumed to be consensus.  If that becomes disputed --  29 THE COURT: Surely you have to weigh the evidence before you  30 decide whether there is a consensus or not.  31 MR. MACKENZIE:  Well, my lord, once you get the disputes rising  32 to a level where you have no consensus, you have no  33 reputation.  34 THE COURT:  Surely you have to wait before you can say that it's  35 at that stage, don't you?  36 MR. MACKENZIE:  Well, I think, my lord, as we pointed out, the  37 definition of reputation is that the consensus has  38 been sifted or at least the claims and counter-claims  39 have been sifted in the community, and the reputation  40 is settled into a consensus.  So if there is evidence  41 that that hasn't occurred, that's a threshold test in  42 our submission.  43 THE COURT:  Well, then, you're saying that any inconsistent  44 evidence to the reputation would destroy consensus?  45 MR. MACKENZIE:  I am saying substantial evidence of disputes  46 would show that it hadn't been sifted and hadn't  47 settled into a -- and hadn't developed into a settled 27186  Submissions by Mr. Mackenzie  1 reputation.  2 THE COURT:  But you are not saying it must be -- not saying  3 there must be unanimity?  4 MR. MACKENZIE:  No, my lord.  5 THE COURT:  All right.  Thank you.  6 MR. MACKENZIE:  And carrying on with this question of consensus,  7 my lord, or sifted consensus.  But being Wet'suwet'en  8 are members of the plaintiffs' community as well, but  9 there is no evidence that they agree with this  10 reputation.  In fact there is evidence that there was  11 traditionally no boundary there along the eastern  12 border between -- on the eastern areas as between the  13 plaintiffs and the Babine territories.  14 In our submission, my lord, it can't be said that  15 there was a consensus or a settled reputation in the  16 plaintiffs' community, even if the plaintiffs  17 restricted definition of community were accepted.  18 The plaintiffs, as we have indicated, have undertaken  19 to prove detailed precise boundaries to support their  20 claims, unlike the general claims in Milirrpum.  21 This is another point on reputation, my lord, and  22 in paragraph 40 we point out that Neil Sterritt  23 testified that boundaries are not static, therefore  24 unchangeable boundaries since time immemorial could  25 not be regarded as reputation of fact, because  26 boundaries shift.  Territorial affiants purport to  27 give reputation evidence that the boundaries have  2 8 remained the same since time immemorial.  29 In our submission this evidence of the boundaries  30 shifting directly contradicts the evidentiary  31 requirement that reputation is a distillation of  32 opinion, which approaches a degree of certainty.  33 These declarations therefore about boundaries since  34 time immemorial should be regarded as statements about  35 a belief, and these beliefs are subject to substantial  36 change, therefore despite their appearance, these  37 affidavits and the reputation evidence about -- I am  38 in paragraph 41, my lord.  3 9    THE COURT:  Yes.  40 MR. MACKENZIE:  Despite their appearance, these affidavits do  41 not support the plaintiffs' claim as to community  42 consensus.  43 And the third threshold test --  44 MR. GRANT:  My lord, I just ask, with respect to the comments on  45 paragraph 40, that you make a note to look at what Mr.  46 Sterritt actually said.  Of course he was talking  47 about the Tsiix, and giving of territory for helping 27187  Submissions by Mr. Mackenzie  1 in a burial.  Those are the two situations that he is  2 referring to there.  My friend doesn't make that clear  3 in his argument.  4 MR. MACKENZIE:  Well, my lord, I disagree with my friend's point  5 in relation to that evidence.  I'll leave it for your  6 lordship.  7 THE COURT:  All right.  8 MR. MACKENZIE:  The third threshold test on page 15, My Lord,  9 deals with -- and plaintiffs' counsel at paragraph 44,  10 my lord, dealt with this in the following way:  11  12 "The deponents to the affidavits testified that  13 the persons who were the sources of information  14 are deceased.  This was not under mind in  15 cross-examination, nor, in many cases, was it  16 challenged at all."  17  18 My lord, in argument, as set out at paragraph 45,  19 we reviewed the evidence to support the proposition  20 that the plaintiffs have not shown that the alleged  21 reputation came solely from named deceased informants.  22 In summary, in cross-examination Mr. Sterritt agreed  23 that the chiefs may have had living informants, and  24 may have discussed their boundary information with  25 living informants as well as the deceased informants.  26 And then the conclusions follow from these  27 submissions, my lord.  The declarations made after the  28 origin of the controversy relating to the subject  29 matter of the declarations are unlikely to be free  30 from bias, and do not meet the test of  31 trustworthiness.  32 Declarations about matters in dispute at the time  33 of the declarations are not evidence admissible as a  34 settled reputation or consensus.  35 Paragraph 48.  Declarations which assert the  36 static nature of a boundary since time immemorial are  37 contradicted.  The basis for consensus is lacking.  38 Paragraph 49.  Reputation which is not based  39 solely upon declarations by deceased persons is not  40 admissible.  41 The reputation evidence, as we have analyzed it in  42 Mr. Blackwater's affidavit and in all the other  43 affidavits, does not comply with the reputation  44 exception to the hearsay rule.  45 MR. GRANT:  Just to be clear on that paragraph 49 of my friends.  46 I want to understand.  Is he saying that a  47 reputation -- for reputation evidence to stand, it 271?  Submissions by Mr. Mackenzie  1 cannot be discussed by people who are presently alive,  2 but only by those who are deceased?  I just don't  3 understand the proposition he is making there.  4 MR. MACKENZIE:  Paragraph 43, My Lord, I refer to your  5 lordship's reasons, and I say by analogy that that  6 applies here.  What your lordship said in paragraph  7 43:  8  9 "... the question is not, 'What is the  10 reputation in the community?' as such a  11 reputation may not be based on grounds  12 (declarations by deceased persons) which alone  13 make the evidence admissible."  14  15 So if there is evidence that the information comes  16 from probably -- information comes from probably  17 deceased and living informants, and that's unclear as  18 to what comes from living informants and what comes  19 from deceased informants, then you have the same  20 situation.  You do not have a situation where it is  21 declarations by deceased persons only.  22 THE COURT:  Well, if it comes from living persons, then it's  23 inadmissible.  But why would that poison admissible  24 evidence?  25 MR. MACKENZIE:  Well, because my lordship can't tell which came  26 from deceased declarants and which came from the  27 living informants.  28 THE COURT:  All right.  Well, then, if a witness said my great  29 uncle told me that there was a reputation in the  30 community that his property belonged to "x", that's an  31 admissible declaration?  32 MR. MACKENZIE:  Yes, my lord.  33 THE COURT:  Then in cross-examination that witness could be  34 asked:  35  36 'Q   That statement was made to you a long time ago  37 before your great uncle died?  38 A   Yes.  39 Q   Since that time have you discussed this  40 question with anybody else?  41 A   Yes.  42 Q   Who else?  43 A  A, B, C and D.  44 Q   Did they tell you the same thing?  45 A   Yes, they did.'  46  47 You say that poisons the otherwise admissible 27189  Submissions by Mr. Mackenzie  1 declaration?  2 MR. MACKENZIE:  No, my lord.  If I may, my lord, what poisons  3 the otherwise admissible declaration is one, did you  4 get your information -- sorry, one, have you changed  5 your views after the death of that informant?  6 THE COURT:  If he says no.  7 MR. MACKENZIE:  Well, if he has changed his views, as is the  8 case with several informants, after the death when  9 this case -- Walter Blackwater and Steven Robinson  10 changed their views after the death of their  11 informants, clearly got the information from --  12 THE COURT:  If it changed their view, then they are not relying  13 on the informants.  14 MR. MACKENZIE:  That's true, but in the affidavits they purport  15 to rely on the informants for different evidence.  And  16 then in the case that your lordship pointed out, there  17 is another case here where -- in cross-examination the  18 affiant says 'No, I didn't get that information from  19 that deceased declarant.  He never told me that.'  20 That's what happened in the case of Richard Benson and  21 Peter Muldoe.  22 THE COURT:  It seems to me that if they got anything from  23 somebody after the death of the informant, even if  24 they subjectively said 'I believe that rather than  25 what my great uncle told me', that you would -- their  26 belief, it seems to me, would be irrelevant.  It  27 doesn't matter what they believe.  The Court has to  28 disregard the inadmissible, and it seems to me that  29 leaves the admissible.  Maybe a matter of weight to  30 show that the community view had changed.  31 MR. MACKENZIE:  My lord, in my submission we may have to look at  32 this a bit more carefully, but it's inextricably  33 intertwined.  Which came from the living informants  34 and which came from the deceased informants, in our  35 submission, cannot be determined from the affidavits.  36 THE COURT:  But if they change your mind, you know that it came  37 from the living ones, and therefore it's inadmissible.  38 MR. MACKENZIE:  Except where the -- except where the information  39 alleged to come from the deceased informant is  40 different.  That's alleged to be the reputation  41 evidence.  42 THE COURT:  Yes.  That's all the Court has to go on.  It seems  43 to me what you are raising now is a different  44 question.  It's the question of what is the  45 reputation?  Or is there a consensus, because its been  46 challenged by other opinions, although they are  47 inadmissible, and maybe they should just be deleted 27190  Submissions by Mr. Mackenzie  1 from one's consideration of the question.  2 MR. MACKENZIE:  I should deal with that in a specific example,  3 my lord.  For example, David Blackwater or Walter  4 Blackwater in his affidavit says the -- says 'Moses  5 Stevens told me this area belongs to Gwinin Nitxw'.  6 There is evidence that he made -- that Walter  7 Blackwater made conflicting statements after to Neil  8 Sterritt after the death of Moses Stevens.  So it's  9 unclear where the information came from.  And then  10 Neil Sterritt says, 'Well they may have got this  11 information from other people.'  I'll look at that  12 evidence in more detail to give your lordship specific  13 examples.  14 THE COURT: All right.  15 MR. MACKENZIE:  I think my friends would not disagree on the law  16 it must be shown that the information relied upon came  17 from the deceased, solely from the deceased persons.  18 THE COURT:  I'm not sure, because I don't know if it matters  19 what the witness relies upon.  It's the question, what  20 is the evidence of the witness, and if the evidence of  21 the witness establishes a reputation based upon  22 declaration of a deceased person or otherwise  23 qualifies, that evidence, it seems to me, stands there  24 separate and apart from what happened later, unless  25 you can say that it goes to the question of whether  26 there is a consensus, which it seems to me is a  27 different question.  28 MR. MACKENZIE:  Well, my lord —  29 THE COURT:  It's not one of admissibility, a question of whether  30 a threshold test has been made.  31 MR. MACKENZIE:  Well, my lord, in my submission the  32 cross-examination establishes a basic problem, in that  33 there are other informants besides the deceased  34 informants who gave the information.  35 THE COURT:  Well, I seem to recall that cross-examination.  It  36 was Mr. Goldie cross-examining Neil Sterritt, wasn't  37 it?  38 MR. MACKENZIE:  Yes, my lord.  39 THE COURT:  It seems to me that the sum total of that is that I  40 would have to disregard what Mr. Sterritt said or  41 what -- disregard his evidence insofar as it was a  42 repetition that had not been received from living  43 informants.  44 MR. MACKENZIE:  That's true if you can determine what had been  45 received from living informants.  But if you can't  46 determine, then you have the evidence, and it comes  47 from -- 27191  Submissions by Mr. Mackenzie  1 THE COURT:  What I thought it really went to is the credibility  2 of the informant.  We are saying on one hand that it  3 was received from a deceased informant, and on the  4 other hand from a living informant, and really what  5 Mr. Goldie was establishing, I thought, was that this  6 information at first blush seems to have come from a  7 deceased informant, and could have been admissible and  8 in fact came from a living one and could not be  9 admissible.  10 MR. MACKENZIE:  That's correct, my lord.  Yes.  That's correct.  11 But there were general statements made that this  12 information may all have come or much of this  13 information may have come from living informants, this  14 alleged reputation information.  15 THE COURT: I think that's a matter of weight, but I'll try and  16 sort it out.  17 MR. MACKENZIE:  Well, my lord, I agree to some extent that it's  18 a matter of weight.  These submissions deal with the  19 question of admissibility, and if your lordship can  20 find as a general finding on the basis of Mr.  21 Sterritt's cross-examination that generally speaking  22 the reputation, the territorial affidavits are  23 comprised of information from living and deceased  24 informants, if your lordship finds that your lordship  25 cannot determine from the affidavits whether the  26 information came from deceased persons or living  27 persons, then, my lord, in my submission that's  28 admissible.  That's a question of admissibility.  2 9 THE COURT:  Yes.  30 MR. MACKENZIE:  Did your lordship wish to take the —  31 THE COURT: I thought we would go to about 3:15, if that's all  32 right.  Madam Reporter would like to stay a little  33 longer.  34 MR. MACKENZIE:  Well, my lord, that completes the addendum and  35 the argument on admissibility of this reputation  36 evidence.  And if your lordship could turn past the  37 end of the addendum to the continuation of section --  38 I'll just move over to section 5b, page 3.  Does your  39 lordship have that?  I want to complete this in a  40 summary matter.  These submissions deal with weight in  41 a very summary matter; that is, if the evidence is  42 admissible, in our submission the boundary, and  43 relying at paragraph 5 now, my lord, if this evidence  44 is admissible, the plaintiffs' boundary evidence is  45 unreliable and entitled to more weight.  And as will  46 be apparent, much of the boundary evidence is found  47 at -- well, as I indicated, in the territorial 27192  Submissions by Mr. Mackenzie  1 affidavits.  Some of these affidavits contain false  2 statements, and some of this affidavit evidence is  3 contradicted by others sworn evidence.  4 Paragraph 6.  Neil Sterritt and Marvin George and  5 Richard Overstall devised a common format and prepared  6 most of the territorial affidavits.  In our submission  7 their evidence revealed serious shortcomings in their  8 methodology, and it supports the proposition that the  9 resultant affidavits are unreliable.  10 My lord, I am going to deal with this in more  11 detail in the next section.  12 Paragraph 7 dealt with that diluted by evidence of  13 conflicting claims.  14 Paragraph 8 dealt with that -- I have dealt with  15 that generally, my lord.  This all deals with  16 admissibility, and the territorial affidavits dealing  17 with paragraph 8 allege that the boundaries have  18 remained unchanged from time immemorial, but there is  19 evidence again going to weight that the occupation in  20 this area is relatively recent.  21 Paragraph 9 deals with the fur trapping areas  22 established in the 18th and 19th century.  Paragraph 9  23 continuing.  This deals primarily with recency; that  24 is, the house boundaries appear to coincide with the  25 boundaries of registered traplines which were based on  26 the old trapping grounds.  27 And paragraph 10 deals with overlaps, and Mr.  28 Willms will deal with that, neighbouring Indian  29 groups.  30 Paragraph 11, the plaintiffs' assert they are a  31 community within the reputation exception.  This is a  32 different argument from the argument I just made on  33 admissibility, my lord.  The argument on the overlaps  34 is the proper aboriginal community must include  35 neighbouring peoples, and in paragraph 11 people on  36 both sides of the boundary constitute a community, and  37 therefore the plaintiffs assertions as to territory  38 are not community assertions and not evidence of  39 reputation.  That will be dealt with in the overlap  40 section.  41 Skip over now, my lord, to refer your lordship to  42 section 5c, going past 5b, page 10, over to section  43 5c.  That's the territorial evidence chronology.  I am  44 not going to deal with that in detail, my lord, but  45 that's a chronology there.  I will be handing up an  46 erratum sheet, which will correct some of the  47 references in that chronology. 27193  Submissions by Mr. Mackenzie  1 And continue over to section 5d, which is the  2 territorial affidavits, my lord.  3 And this section I deal in general with the  4 problems in the territorial affidavits, and I think  5 it -- generally speaking these could be said to be  6 generally weight questions -- questions of weight and  7 problems with the evidence and the format in the  8 territorial affidavits.  9 MR. GRANT:  Maybe I can interject now, my lord.  5b, paragraph  10 6, my friend referred to the proposition that Richard  11 Overstall, Marvin George and Neil Sterritt develop the  12 affidavit format.  But when you look at the evidence  13 upon which he relies, and which is in the tab, and  14 which I have recalled, it was those three as well as  15 the lawyers develop the affidavit format.  And my  16 friend doesn't refer to the fact that the lawyers were  17 involved in the preparation of that format.  18 THE COURT:  Pleading guilty, are you, Mr. Grant?  19 MR. MACKENZIE:  I'm pleading guilty.  I will wait to hear the  20 rest of the argument before I speak to sentence on it.  21 MR. MACKENZIE:  I don't disagree with Mr. Grant's comment.  22 THE COURT:  I would like to see the indictment.  23 MR. GRANT:  That's right.  24 MR. MACKENZIE:  So, my lord, dealing with territorial  25 affidavits.  These are the most important part of the  26 plaintiffs' boundary evidence, as the plaintiffs' case  27 developed after June, 1987.  And the plaintiffs  28 assert, Marvin George asserted again and again that  29 map 9A and 9B are based on the territorial affidavits.  30 That's an addition to paragraph 1 of my  31 introduction.  32 Carry on to paragraph 2.  33 MR. GRANT:  My friend mislead — left out, I should say, that  34 not only the southern Antigulilbix territory and the  35 Hanamuxw territory were not sworn to by territory, but  36 the Gisdaywa territory as well.  And Mr. George relied  37 on the oral evidence in all three of those cases as  38 well as cross-examinations.  39 MR. MACKENZIE:  Yes, Gisdaywa should be added to that list.  4 0 THE COURT:  All right.  41 MR. MACKENZIE:  And again I don't disagree with Mr. Grant's  42 comments.  With respect to all the other territories,  43 I think -- in my submission Mr. George asserted that  44 the territorial affidavits were the principle basis of  45 his drawing the map 9A and 9B in cross-examinations.  46 Paragraph 2, my lord, the territorial affidavits  47 as we have seen contain detailed precise descriptions 27194  Submissions by Mr. Mackenzie  for the boundaries, and also house names and  geographical features.  Paragraph 3 I refer to your lordship's comments on  ownership in the territorial affidavits, and your  lordship noted that your lordship would interpret that  as meaning claimed.  Paragraph 4 your lordship raised the question  whether there can be a reputation for ownership, and  your lordship concluded that without argument --  without extensive argument there, that ownership was a  multi-meaning name, and probably there could not be a  reputation of ownership.  And paragraph --  COURT:  I'm sorry, I don't remember this passage quoted at  the bottom of --  MACKENZIE:  Paragraph 3, my lord.  COURT:  Yes.  Did I have territory affidavits before me at  that time?  MACKENZIE:  Yes, my lord.  That was the first — that was  after the first three affidavits had been filed.  COURT:  I see.  All right.  We weren't taking evidence then.  GRANT:  It was in Chambers, my lord.  MACKENZIE:  In Chambers, yes, my lord.  COURT:  I had forgotten this.  So I had -- what counsel  understand is that where the affidavits say owned,  that that --  MACKENZIE:  Well, your lordship commented on that -- this is  at Tab Roman IV, 5d-3.  I'll read your lordship's  comments, just as I have indicated there, my lord.  Your lordship says:  "I don't think I want to strike anything out of  these affidavits.  I think 'owned' means  'claimed' where it's a matter of identification  of a property."  COURT:  I said "I don't think I want to strike anything out  of these  ..."  MACKENZIE:  "... affidavits".  The submission being made by  the defendant of that case, my lord, was that  references to ownership could not be included in the  territorial affidavits.  COURT: Yes.  MACKENZIE:  Because your lordship had given an order  permitting the plaintiffs to file affidavits relating  to boundaries and geographical features on the  territories.  1  2  3  4  5  6  7  8  9  10  11  12  13  14  THE  15  16  MR.  17  THE  18  19  MR.  20  21  THE  22  MR.  23  MR.  24  THE  25  26  27  MR.  28  29  30  31  32  33  34  35  36  37  THE  38  39  MR.  40  41  42  43  THE  44  MR.  45  46  47 27195  Submissions by Mr. Mackenzie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT:  Yes.  All right.  GRANT:  I don't -- I think my friend mis-characterized it,  and I have a note, Mr. Rush and I were checking this,  as to -- and I don't have the full transcript, my  lord, but neither Mr. Rush nor myself understood that  your lordship -- I was on a conference call, I believe  in your own Chambers, and other counsel were present.  No ruling was made, but directions more or less as to  how to proceed with the affidavit process.  And I  think that the -- in that extract that my friend has  put in, the comments of Mr. Rush at the end of that  page, line 28, demonstrates what the plaintiffs' saw  as a difficulty, and that we saw were within the  context of your ruling of your earlier ruling.  I  don't believe there was a ruling at that time.  COURT:  All right.  MACKENZIE:  Well, in my submission that was a ruling, my  lord, because that affected the entire  cross-examination after that point.  As your lordship  points out, that's the reason why you are giving  directions in that Chambers occasion.  COURT:  Look and see —  MACKENZIE:  Yes, my lord, Tab Roman IV, 5d-3.  COURT:  IV 5d, are we?  MACKENZIE:  Yes, my lord, page 3.  COURT:  And which tab number?  MACKENZIE:  Page 3 of tab 3, my lord.  It's tab 3, my lord,  Roman IV, tab 3, page 1.  COURT:  Oh, tab 3.  Page 1?  MACKENZIE:  Yes, my lord.  The only one page at that tab, my  lord.  It's Roman IV, 5d-3.  COURT:  What are we talking about here?  "I have to tell you  here that I don't think it is admissible."  MACKENZIE:  The question of ownership, my lord.  I interpret  that to refer to what your lordship just discussed,  which was the subject of the defendants' submissions  there, that is ownership and allegations of ownership  should not be included in the territorial affidavits.  Well, it seems to me that I clearly did not make a  ruling there.  I said:  "I'm saying that without the benefit of argument  or research by counsel or myself and with the  benefit of never having thought of it before."  What troubles me greatly is the fact that I doubt  if a declaration made by a deceased person that  THE COURT 27196  Submissions by Mr. Mackenzie  1 someone owned a piece of property would be admissible.  2 And it's not -- that's not -- that's not evidence of  3 the reputation of ownership.  It's a statement of  4 fact.  I think that's what I was saying in that  5 passage.  But I have to say that I haven't thought of  6 it since, but it seemed to me that I said there I  7 don't think it's admissible.  I said I didn't want to  8 strike it out.  I suggested that "owned" maybe means  9 "claimed" --  10 MR. GRANT:  You see, Mr. Rush explained our position on that in  11 that same page, my lord, which is that even if its  12 said that my mother told me this was Kweese's  13 territory, rather than this territory was owned by  14 Kweese, the reputation is whose territory was it.  15 That's why I say there wasn't a final ruling on that.  16 THE COURT:  Yes.  17 MR. MACKENZIE:  If I may, my lord, I regard that as a procedural  18 decision, that your lordship would determine ownership  19 as a result of the evidence before your lordship.  2 0    THE COURT:  Uh-huh.  21 MR. MACKENZIE:  And that the territorial affidavits would have  22 reputation evidence as to people claiming certain  23 areas, and your lordship would determine as a matter  24 of law whether that was ownership or not, and  25 therefore that qualified the term "ownership" as found  26 in the affidavits for the purposes of conducting the  27 proceedings.  That's the submission as to the  28 interpretation of your lordship's reasons.  29 THE COURT:  Well, you see, what I think I had in mind, and I  30 have come across this problem in many other similar  31 situations, and that is that we have some rules of  32 evidence which are very difficult to apply, and  33 reputation evidence is one of them, where you say that  34 a person is allowed to give as reputation evidence  35 what a person's reputation is in the community for  36 honesty and integrity.  But witnesses don't think in  37 those terms, and they immediately launch into saying  38 'Well, he's a good person, and he goes to church  39 regularly, and he contributes to various charities,  40 and coaches the baseball teams', all of which is  41 inadmissible.  And we judges have generally tended to  42 overlook that, as to say well, witnesses can't be put  43 into straight-jackets and say they have to say things  44 in certain ways.  And we short-cut the process by  45 saying well, they've told us specific acts, but we  46 treat that to be as statement of reputation.  And I  47 think what I was saying at the top of this page was 27197  Submissions by Mr. Mackenzie  1 that -- and if an elder now deceased had said to a  2 witness this is owned by Delgamuukw, the witness  3 giving evidence of the declaration shouldn't be  4 stopped from repeating the exact words that were used  5 and were treated as a statement of reputation.  6 I think that's what I had in mind at the top of  7 page 14 there.  But I also said later on that without  8 the benefit of argument I had some doubt about whether  9 it was admissible to say that somebody owned  10 something.  As I said, I have some difficulty whether  11 it can be reputation of ownership, but I don't have --  12 I don't have any doubt about that, that it would not  13 be admissible as evidence of reputation to say that  14 somebody owns something, yet I wouldn't stop somebody  15 from saying 'Well, that's what he told me'.  16 Now, I don't know how much good that is to you,  17 but I don't think you should treat that, Mr.  18 Mackenzie, as a considered ruling.  I expressly said  19 it was not.  20 MR. MACKENZIE:  My lord, I certainly agree with that.  That was  21 the -- I think it reflects what your lordship has just  22 said.  That was the basis on which the  23 cross-examinations were conducted.  24 THE COURT:  I confess that I was somewhat troubled when I saw  25 these affidavits all coming in with these statements  26 of ownership, and I had forgotten about this  27 discussion here, and I assumed that this would all be  28 straightened out at some time, as we are doing now.  29 I think I'll go and consider this shortly.  No,  30 I'm going to leave it to counsel to consider what this  31 all means, and take a short adjournment.  32 THE REGISTRAR:  Order in court.  Court stands adjourned.  33  34 I HEREBY CERTIFY THE FOREGOING TO BE  35 A TRUE AND ACCURATE TRANSCRIPT OF THE  36 PROCEEDINGS HEREIN TO THE BEST OF MY  37 SKILL AND ABILITY.  38  3 9    4 0 LORI OXLEY  41 OFFICIAL REPORTER  42 UNITED REPORTING SERVICE LTD.  43  44  45  46  47 2719?  Submissions by Mr. Mackenzie  1 (PROCEEDINGS RECONVENED AT 3:30 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Well, I hope you are not as confused as I am, Mr.  5 Mackenzie.  6 MR. MACKENZIE:  I don't know how to respond to that, my lord,  7 except to say --  8 THE COURT:  Perhaps it would be helpful if I try to restate  9 again what I think the present position is; and that  10 is, simply, that while I was not prepared to disallow  11 or rule inadmissible these affidavits because they  12 stated that someone said that a territory was owned by  13 a particular person, I was raising the question of a  14 general admissibility as evidence of reputation.  I  15 wasn't prepared to rule it out because there was going  16 to be other evidence.  In fact, there already had been  17 other evidence.  And what I was saying was that I'm  18 not going to rule the affidavit inadmissible because  19 it's phrased in language which does not strictly  20 comply with the requirements of reputation evidence.  21 I wasn't passing in any way upon the effect of that  22 kind of a statement in that kind of an affidavit.  I  23 think that's what I was attempting to convey to  24 counsel, and I think, subject to being persuaded  25 otherwise, that's what I think is the present  26 situation.  27 I must add that I did expect that I would hear  28 further from counsel about this before now, but here  29 it is.  30 MR. MACKENZIE:  Well, my lord, in my submission, that your  31 lordship stated -- stated the law in this case in your  32 tentative -- your lordship's tentative conclusions  33 that ownership is a multi-meaning word and really a  34 question of law.  And in my submission, your  35 lordship -- although your lordship did not have the  36 benefit of extended argument at that time, was stating  37 what the common-law is, that the reputation is not --  38 is not of a legal matter or a question of law, it's a  39 matter of custom or right in the community that  40 something a normal witness could give if he were a --  41 if he were a witness to it.  And witnesses can't give  42 evidence about ownership as a matter of law.  I would  43 deal with it -- I interpret your lordship's comments  44 that way.  45 THE COURT:  All right.  46 MR. MACKENZIE:  My lord, in view of the time, would it be  47 possible in your lordship's schedule to sit 'til 5:30 27199  Submissions by Mr. Mackenzie  1 today?  2 THE COURT:  I don't know about Mr. Grant, whether he wants to  3 sit longer today.  How are you feeling, Mr. Grant?  4 MR. GRANT:  If your lordship can handle my coughing and hacking  5 I would.  I had asked my friend at two o'clock and he  6 said that he would go 'til 4:30, but I understand if  7 he wishes to continue.  8 THE COURT:  We'll go to 5:30.  9 MR. GRANT:  Far be it for me to slow down the progress of the  10 case, my lord.  11 THE COURT:  We'll take a break at 4:30 and go on after a very  12 short break and go on to 5:30.  13 MR. MACKENZIE:  Thank you, my lord.  I understand the reporters  14 are prepared and have made their arrangements.  15 THE COURT:  Thank you.  They are always very obliging.  16 MR. GRANT:  My lord, we will speak on this point further.  I  17 want to look at the whole transcript of those  18 proceedings.  19 THE COURT  2 0 MR. GRANT  21 THE COURT  22 MR. GRANT  Yes.  And we'll make clear our position as to this issue.  Thank you.  In due course.  23 MR. MACKENZIE:  So my lord, it follows from my submissions on  24 ownership, that the affidavit evidence, if it's a  25 question of weighing the evidence, there is only one  26 factor in your lordship's determination of whether  27 there is actual ownership as a matter of law, or  28 whether these are the actual boundaries as a matter of  29 law.  30 And your lordship, as I indicated in paragraph 5,  31 has stated that it's your lordship's role to determine  32 whether the evidence amounts to reputation, and that  33 case -- and that particular passage is at tab 5, there  34 was a -- is your lordship at tab 5?  35 THE COURT:  Yes.  36 MR. MACKENZIE:  Your lordship was dealing with the question of  37 whether Mr. Sterritt could give evidence of reputation  38 as an expert.  And your lordship pointed out at line  39 34 -- 33:  40  41 THE COURT:  The most an expert can say was that  42 ten people say that that's a boundary.  43 Well, that's usurping the function of the  44 court.  That's my responsibility to  45 decide whether that amounts to a  46 reputation or not.  47 27200  Submissions by Mr. Mackenzie  1 And your lordship was dealing with a slightly  2 different subject there, but in my submission, that  3 applies to your lordship's reception and consideration  4 of the territorial affidavits as well.  5 In weighing the evidence, assuming that there is  6 admissibility, your lordship will determine whether  7 that evidence does amount to a reputation.  8 And moving over to paragraph 7, my lord, we dealt  9 with the point of the maps being based primarily on  10 the territorial affidavits and we dealt with the rest  11 of paragraph 7.  12 Moving to paragraph 8.  13 THE COURT:  Well, the maps take it no further than the  14 affidavits.  15 MR. MACKENZIE:  That's correct, my lord.  16 THE COURT:  Yes.  17 MR. MACKENZIE:  As your lordship said, the maps are based on the  18 affidavits and if nothing else is shown, then we will  19 assume that it is evidence of the material of the  2 0              boundaries on the map.  21 THE COURT:  Yes.  22 MR. MACKENZIE:  That is — I say that in paragraph 9, my lord.  23 Your lordship has pointed out:  24  25 ...that depictions on the maps accord with the  26 territorial descriptions in the affidavits then  27 I think in the absence of anything else the map  28 would then be evidence which was admissible for  29 the truth of those facts.  30  31 And as a note there, my lord, "anything else" are  32 these submissions and the evidence that the affidavits  33 are either inadmissible or of little weight, which is  34 dealt with in these submissions.  35 THE COURT:  Yes.  36 MR. MACKENZIE:  Now, I summarize in paragraph 10 the problems  37 with the affidavits, and I go into detail later in  38 these submissions on these points.  I'll just run  39 through them in summary:  40 (a)   The affidavits do not name all the sources  41 of information upon which the deponent  42 relies.  43 (b)   Some of the information has probably been  44 obtained from living informants.  45 (c)   Mr. Sterritt and Mr. George drafted the  46 affidavits based upon their and other  47 research with various informants and from 27201  Submissions by Mr. Mackenzie  1 other sources, including archival materials,  2 prior to 1987.  3 (d)   The affidavits have a common format, and I  4 set out the different phrases in that.  5 The common format itself, in our submission, leads  6 to problems of weight and credibility when the common  7 format is shown not to apply to the particular  8 circumstances of the affiant, despite the fact that  9 the common format has been followed.  10 (e)   The affiants all purport to describe the  11 claim area boundaries, as I say, in a  12 detailed description, the use of which  13 conveys misleading impression, in our  14 submission, of the way in which this  15 information is actually known.  16 (f)   Many of the affidavits contain evidence  17 which conflicts with earlier statements by  18 the affiants or other apparently  19 knowledgeable persons about the house claim  20 area.  21 And as an example here I point out, as a note,  22 Walter Blackwater made statements in 1983 -- this is a  23 note to be made just as an example of (f), my lord.  24 THE COURT:  Is that the note there at page 138?  25 MR. MACKENZIE:  At transcript 138 is an example of this  26 situation, and -- and I'll just check that, my lord.  27 THE COURT:  No, I was wondering if that was Walter Blackwater's  28 example but it isn't, is it?  29 MR. MACKENZIE:  Yes — well, I'll just have to check that, my  30 lord.  It's Neil Sterritt but it may be dealing  31 with --  32 THE COURT:  All right.  33 MR. MACKENZIE:  Yes, it's transcript 138, page 8667, lines 22 to  34 27.  It's at tab 10 in the yellow binder, page 11, and  35 it deals with Walter Blackwater.  And Neil Sterritt  36 agreed that Walter Blackwater made statements in 1983  37 which conflicted with his territorial affidavit of  38 1988.  Now, does your lordship have that reference?  39 Does your lordship --  4 0 THE COURT:  I don't think so.  41 MR. MACKENZIE:  It's tab 10, my lord.  42 THE COURT:  Tab 10?  43 MR. MACKENZIE:  Because this is -- we are dealing with paragraph  44 10 here.  It's Roman four, 5(d), tab 10.  4 5 THE COURT:  Yes.  46 MR. MACKENZIE:  And if your lordship then goes to page 11.  It's  4 7 Roman four -- 27202  Submissions by Mr. Mackenzie  1 THE COURT:  Yes.  I'm just trying to find the page number.  2 MR. MACKENZIE:  It's page 11, my lord, at the lower right — if  3 you look at the lower right-hand corner of the page --  4 THE COURT:  Yes.  I'm just wondering why — yes, all right.  5 MR. MACKENZIE:  Does your lordship see that?  That — if your  6 lordship looks at that, your lordship will see that  7 that is transcript 138, page 8667.  8 THE COURT:  Yes, and it's?  9 MR. MACKENZIE:  The passage should be marked in your lordship's  10 copy at lines 22 to 27.  11 THE COURT:  Yes, it is.  12 MR. MACKENZIE:  And at any rate, my lord, that's the example I  13 was given there.  14 THE COURT:  All right.  15 MR. MACKENZIE:  And that's the way that the yellow binder  16 continues to work, in general, just giving examples.  17 I won't go into examples now because I deal with them,  18 my lord.  19 (g)   Many of the affidavits are not sworn by  20 hereditary chiefs or members of the house  21 which claims the territory.  22 And there are many examples of that.  Elizabeth  23 Jack swore the affidavit, she is a Cheslatta person  24 who swore the affidavit for the Tahtsa Lake territory.  25 I think I've already dealt with that, my lord.  2 6 THE COURT:  Yes.  27 MR. GRANT:  Which paragraph is that?  28 MR. MACKENZIE:  Paragraph (g) — subparagraph (g).  29 MR. GRANT:  Thank you.  30 MR. MACKENZIE:  (h)  The affidavits, while purporting to provide  31 reputation evidence as to the boundaries, do  32 not contain evidence supporting the  33 characterization of the boundary evidence as  34 reputation.  35 Well, that's a reference to the point that your  36 lordship just pointed out, that they do not say that  37 this was given by -- arguably say this was given by  38 deceased persons.  And in addition, there is no  39 evidence of consensus or public discussion.  40 (i)  Every affiant purports to have received the  41 boundary information from deceased persons.  42 And at first sight that doesn't look like a  43 problem, my lord, but the point is that the  44 arrangements have been that every single affiant has  45 apparently selected deceased persons to receive the  46 information relating to the boundaries, and that in  47 itself, we submit, is a cause for concern about 27203  Submissions by Mr. Mackenzie  1 credibility and we'll deal with that in the section.  2 THE COURT:  But, of course, if they -- if they had done that you  3 would have said it was inadmissible in any event.  4 MR. GRANT:  That's correct, my lord.  We could have put many  5 more affidavits in, my lord, I'm sure, of people who  6 relied on living witnesses, but my friends would  7 certainly have taken objection to that.  8 MR. MACKENZIE:  Yes.  Well, my friend is probably right in that.  9 The point here is that the submission will be made  10 that it appears that living informants have been  11 deleted or removed or left out of the affidavits.  12 That is, the actual sources of the information, that's  13 the submission.  14 (j)   The information was obtained for land  15 claims negotiations or litigation purposes.  16 This is related to some extent to the ante  17 litem motam point, my lord.  Mr. Sterritt's  18 information, which was the basis of the  19 first drafts of the affidavits, was obtained  20 after 1975, generally speaking, when the  21 land claims were a political concern.  And  22 also, I'll point out all the informants to  23 whom Alfred Joseph spoke were aware of the  24 fact that he was obtaining information for  25 the purposes of the lawsuit.  26 MR. GRANT:  I just wondered if my friend -- he may be coming  27 back to this, because he says he is coming back to  28 some categories.  But (h) -- subcategory (h), my lord,  29 appeared to me to contradict what my friend earlier  30 has argued, when he went to paragraph 43 of the  31 Blackwater affidavit, and he said that ties back to  32 the boundaries.  And I just wonder if he is saying  33 what -- what he means by "not containing evidence  34 supporting the characterization of the boundary  35 evidence as reputation"?  That appears to conflict  36 with what I understood he earlier argued.  37 MR. MACKENZIE:  Well, my lord, the point there, as I mentioned,  38 was that there is no evidence of consensus, in our  39 submission, or public knowledge or public  4 0 acknowledgement.  41 THE COURT:  Yes.  All right.  42 MR. MACKENZIE:  My lord, paragraph 11, I think in my submission,  43 is self-evident.  The plaintiffs have tried to produce  44 evidence to comply with the reputation exception to  45 the hearsay rule, and in our submission, if it can be  46 shown that that evidence was probably obtained from  47 living witnesses, your lordship's comments apply.  And 27204  Submissions by Mr. Mackenzie  1 this is what -- your lordship brought this up in Mr.  2 Joseph's cross-examination -- Mr. Joseph's  3 examination.  I think that follows from the arguments  4 we've already made that the source must be deceased  5 persons.  6 So if we can show a probability of the  7 information having been obtained from living  8 witnesses, in our submission, that evidence is  9 inadmissible.  10 Paragraph 12, the plaintiffs had initially  11 intended to have Mr. Sterritt testify as to the  12 boundaries, based upon information he obtained from  13 various informants.  And when the court ruled that it  14 had no discretion to admit that hearsay evidence, the  15 plaintiffs proposed to adduce the boundary evidence by  16 affidavits in place of Mr. Sterritt's testimony.  17 Now, my lord, there is a correction to the  18 reference there.  It should be tab 137 -- sorry,  19 transcript 137, page 8567, line 29, to page 8568, line  20 47.  And that's set out at tab 12 in the yellow  21 binder.  I'm not going to go into it.  22 Mr. Sterritt said that this was a way -- a  23 digression and note related to paragraph 12:  Mr.  24 Sterritt said that the affidavits were an attempt to  25 resolve the hearsay problem, but of course the  26 affidavits contained hearsay evidence.  The only  27 difference is they purport to be reputation evidence  28 and purport to rely only upon deceased informants.  29 That's the way —  30 THE COURT:  Is that quotation at the bottom of page 8 included  31 in your chronology?  32 MR. MACKENZIE:  Yes.  It's at tab 11, my lord, in the yellow  33 binder.  34 THE COURT:  No, sorry.  Is it in the chronology that you skipped  35 over?  36 MR. MACKENZIE:  Oh, the chronology doesn't deal with events  37 during the trial, my lord, it deals primarily with the  38 collection of evidence leading up to the trial.  39 THE COURT:  All right.  Thank you.  40 MR. MACKENZIE:  And I think it also refers to the — my friend  41 is correct, it also refers to the date that the  42 affidavits -- the commencement of preparation of  43 territorial affidavits.  44 THE COURT:  Where is that chronology again, please?  45 MR. MACKENZIE:  It's at 5(c), my lord.  And my friend is —  46 has -- is referring to 5(c) page 4, I take it, at the  47 bottom, where there is a reference to the commencement 27205  Submissions by Mr. Mackenzie  1 of the territorial affidavit project in 1987.  2 THE COURT:  Yes.  3 MR. MACKENZIE:  Should be June 1987.  Yes, my lord.  4 Is your lordship at paragraph 12?  5 THE COURT:  Yes.  6 MR. MACKENZIE:  I'm just pointing out, my lord, that the  7 territorial affidavits are designed to replace Mr.  8 Sterritt's testimony on the boundaries -- hearsay  9 evidence on the boundaries.  10 Paragraph 13.  After June 1987, Mr. Sterritt  11 started preparing the affidavits, and all his  12 interviews after that date related to the affidavits.  13 And Marvin George carried out the same  14 responsibilities with respect to the -- with respect  15 to the Wet'suwet'en witnesses.  16 Paragraph 14, this deals with the preparation of  17 the affidavits.  Mr. Sterritt and Mr. George prepared  18 drafts and then they brought the drafts to the  19 affiants.  Mr. George already had maps which he had  20 prepared based on other information, and he brought  21 those to the affiants.  In -- carrying onto page 10.  22 Mr. Sterritt balanced the need for Mr. George's  23 requirements with respect to mapping information and  24 the need to explain the affidavit to the chief.  Mr.  25 Sterritt explained to the chief what the words in the  26 affidavit meant.  27 And the reference there, my lord, should be  28 changed to transcript 137, page 8572 lines 5 to 15.  29 I'll be handing up an errata, my lord, for these sorts  30 of changes.  31 THE COURT:  Fine.  Thank you.  32 MR. MACKENZIE:  The point of these paragraphs, of 15 and 16, is  33 that Mr. Sterritt was, in our submission, suggesting  34 this information to the chiefs for the chiefs'  35 response.  And Mr. Sterritt indicated he would say the  36 name of the feature and the chief would say, "Yes".  37 Paragraph 16.  38 Paragraph 17.  This relates to all the other  39 sources of Mr. Sterritt's information.  He spoke to  40 many informants living and later deceased at the time  41 of the trial.  And he obtained information from  42 archival and historical documents, the Barbeau-Beynon  43 papers, and I might add there, my lord, paragraph 17,  44 the D.I.A. files, adding to paragraph 17, and Polly  45 Sergeant also was one of his informants.  46 And carrying onto paragraph 18, I think this is  47 the mapping procedure.  Mr. Sterritt collected 27206  Submissions by Mr. Mackenzie  1 geographical and ownership information and, in our  2 submission, often conflicting, about the claim areas  3 from many informants.  For example -- this is an  4 example to be noted in paragraph 18 -- for the  5 Slamgeesh area, some people said it belonged to  6 Dawamuxw, some people said it belongs to Niist and  7 eventually some people said it belonged to Gwinin  8 Nitxw.  9 THE COURT:  What's the third one?  10 MR. MACKENZIE:  Gwinin Nitxw, G-W-I-N-I-N, new word, N-I-T-X-W.  11 THE COURT:  Yes.  12 MR. GRANT:  I'm sorry, my lord.  In paragraph 15 my friend makes  13 a reference to -- and he has it in his tab, page 8674,  14 line 23 to 42.  What's germane there is, in our  15 submission, is immediately before that, where Mr.  16 Sterritt explained an answer that the chief --  17 hereditary chief changed the boundary according to his  18 knowledge of where the boundary was, and that same  19 proposition applies -- that same principle applies  20 with respect to paragraph 16.  In other words, I say  21 that you should look at the evidence surrounding those  22 two transcript excerpts, because my friend, I say, has  23 truncated the answer to such a large extent that it's  24 misleading.  25 THE COURT:  Judges never look at what counsel refers to, we  26 always look at the question before and the question  27 after.  28 MR. GRANT:  I assumed that, my lord, but I wanted to be sure of  29 that.  In this case, it's quite important.  30 THE COURT:  Yes.  It's instinctive.  Often the page before and  31 the page after.  32 MR. MACKENZIE:  My lord, I appreciate my friend's comment.  I  33 can anticipate his reply now, he has given great  34 assistance; he has given it.  35 Tab 15 -- perhaps just to respond to my friend's  36 comment, at tab 15 in the yellow binder, I haven't --  37 is your lordship at tab 15?  3 8 THE COURT:  Yes.  39 MR. MACKENZIE:  At lines 23 to 32, Mr. Goldie's question is:  40  41 Q  So the source of his information with  42 respect to the wording in the affidavit  43 was you?  44 MR. RUSH:  The first draft of the affidavit?  45 MR. GOLDIE:  46 Q  Yes, the first draft affidavit?  47 A  The first draft. Q  Yes.  A  Well,  Q  Yes.  yes?  A  Yes.  27207  Submissions by Mr. Mackenzie  1 Q  Yes.  That's correct, is it not?  2 A Well, I want to be clear.  3 Q  Yes.  Well, first draft your answer is  4  5  6  7 And that was the basis for the paragraph 16 in my  8 submissions, my lord.  9 I was at paragraph 18, my lord.  The information  10 was recorded on data sheets and working maps.  11 Paragraph 19.  The data was given to Mr. George  12 and he used it to prepare composite maps.  And these  13 composite maps and this data was used as a basis for  14 drawing all the maps, all the plaintiffs' maps in the  15 Exhibit 646 series, including the various versions of  16 Schedule "B" to the Statement of Claim.  Mr. George  17 also prepared individual house claim area maps which  18 became the interrogatories maps.  19 Paragraph 20.  Every one of the maps in the 646  20 series -- that should be corrected, my lord, 646 --  21 including Mr. Sterritt's 1977 map, that was the first  22 declaration -- is inconsistent with the Exhibit 646-9A  23 and 646-9B boundaries.  24 THE COURT:  Do you mean anything more than that they are  25 different?  26 MR. MACKENZIE:  They are all different, that's correct, my lord.  27 THE COURT:  All right.  28 MR. MACKENZIE:  And they all have differences, to some degree or  29 another, of ownership attribution.  30 MR. GRANT:  Well, I take it my friend is only talking about the  31 ones on the 646 series that have been referenced to  32 internal territories, if he is saying that there is  33 differences there.  34 MR. MACKENZIE:  Yes, my lord.  35 THE COURT:  Because most of them don't have that.  36 MR. MACKENZIE:  The early maps did not have internal boundaries  37 until, as my friend noted, June or May of -- June  38 1987, when Exhibit 5 was produced.  That was the first  39 time we saw the internal boundaries.  Although there  40 is another map of internal boundaries which is Exhibit  41 102 and Exhibit 101, those were produced in 1985.  42 Exhibit 102 was produced in 1985 and Exhibit 101 was  43 produced for 1986, April 1986.  44 MR. GRANT:  And the defendants had them before trial.  45 MR. MACKENZIE:  Mr. George asserted that all the prior  46 information had come from the hereditary chiefs,  47 through the researchers' data sheets and working maps. 2720?  Submissions by Mr. Mackenzie  1 And the reference there should be transcript 218 page  2 1584.  3 THE COURT:  218?  4 MR. MACKENZIE:  Yes, my lord.  Page 1584.  5 THE COURT:  1584?  6 MR. MACKENZIE:  Yes, my lord.  15854, I beg your pardon.  7 THE COURT:  Yes.  8 MR. MACKENZIE:  I dealt with paragraph 21, my lord.  The  9 territorial affidavits were drafted on the basis of  10 this accumulated information.  11 Paragraph 22.  Mr. Sterritt and Mr. George  12 followed similar procedures during the affiant  13 interviews, and I think we dealt with that.  14 And paragraph 23, we dealt with that.  It is  15 asserted that the claim area maps were based on the  16 territorial affidavits.  And in our submission though,  17 the maps originated from the working maps, the data  18 sheets and the composite maps.  And it is submitted  19 that Mr. Sterritt and Mr. George reconciled  20 conflicting information, discarding that which did not  21 coincide with their view of the claim area.  I've  22 already mentioned in the case of the Slamgeesh area,  23 Mr. Sterritt received several conflicting statements.  24 And then I give some examples of information that  25 Mr. Sterritt had but did not pass on to be  26 incorporated.  For example, Mr. Sterritt had  27 information given to Chris Harris -- that should be  28 changed -- given to Chris Harris by Arthur Sampson  29 that Miluulak owned part of the Ingenika River.  30 That's well to the east of Bear Lake and outside of  31 the claim area.  32 MR. GRANT:  Given to Chris Harris?  33 MR. MACKENZIE:  Yes.  And that the transcript reference there is  34 transcript 141, page 8947, line 14.  There was  35 information from Moses Brown that Wiigyet owned land  36 in the Nass River Valley.  It did not find its way  37 into Sterritt's working maps or Mr. George's Schedule  38 "B" maps.  And the reference is given there and it's  39 in the yellow binders.  40 MR. GRANT:  My recollection is that's outside the area of claim.  41 MR. MACKENZIE:  Yes, that's correct.  My friend is correct.  42 MR. GRANT:  So there would be no need, of course, to put it on  43 any map of the area claimed.  44 MR. MACKENZIE:  Thank you.  My friend is making the point that I  45 was making as well.  46 Paragraph 25, it's the -- paragraph 25, the note  47 to add is it is the reconciliation of these conflicts 27209  Submissions by Mr. Mackenzie  1 that is the significance here.  There are conflicts  2 between Mr. Sterritt's and other researchers' notes  3 and the territorial affidavits.  They are analyzed in  4 detail, for example, in Section 5(g).  There are  5 conflicts between maps 9A, 9B, and all previous  6 plaintiffs' maps.  There are conflicts between  7 non-chiefly affiants and notes of interviews with  8 hereditary chiefs relating to the chiefs' claim areas.  9 THE COURT:  What non-chiefly affiants are there?  I didn't think  10 there were any.  11 MR. MACKENZIE:  Well, for example, my lord — sorry, non-chiefly  12 affiants would be Elizabeth Jack, for example, and  13 Thomas Moore.  Mrs. Elizabeth Jack was Cheslatta --  14 was a Cheslatta person who sworn the affidavit for  15 that Tahtsa Lake area which is down in the  16 south-western corner of the land claims area.  17 THE COURT:  Yes.  18 MR. MACKENZIE:  And many of the chiefs are also not the head  19 chiefs of the house.  And as I've already indicated,  20 there are in some cases chiefs of other houses and  21 there are conflicts between their affidavits and the  22 actual chiefs who claim the territory.  23 Several of the informants, in our submission,  24 were not produced for cross-examination.  Several of  25 the informants referred to in the researchers' data  26 sheets, for example, David Blackwater, Andrew George  27 and Nancy Superneault.  Leonard George, one of the  28 principal researchers, was not produced, and Alfred  29 Joseph's research materials, including all of his data  30 sheets -- that's an addition to that paragraph -- were  31 not produced prior to his cross-examination.  It's our  32 submission that the information which forms the  33 foundation of the entire mapping, research and  34 affidavit process is untested, conflicting and totally  35 unreliable.  36 And paragraph 27 I've already dealt with, my  37 lord, but the plaintiffs have a fundamental obstacle:  38 the creation of a vast interlocking mosaic of  39 individual claim areas based upon second and  40 third-hand hearsay information.  41 Paragraph 28, we deal with Walter Blackwater's  42 affidavit, and we've already referred to that to some  43 extent.  And the evidence confirmed -- this is  44 paragraph 28 -- that Walter Blackwater had deposed to  45 matters in his affidavit which contradicted earlier  46 statements which he had made to Mr. Sterritt in a 1983  47 interview. 27210  Submissions by Mr. Mackenzie  1 And then I give examples of that in paragraph 29.  2 I won't go into details in the examples except to say  3 one.  Mr. Sterritt -- sorry, Mr. Blackwater swore that  4 the Slamgeesh area was claimed or owned by Gwinin  5 Nitxw, and in the interview in 1983, Mr. Blackwater  6 said several times that it was owned by Dawamuxw.  And  7 there are other areas of conflict dealing with that  8 Slamgeesh territory which I will deal with in further  9 submissions.  10 Paragraph 30 deals with other conflicts between  11 Mr. Blackwater's 1983 interview and the 1988  12 affidavit.  I won't go into those.  13 Paragraph 31, I get into this question now, my  14 lord, of the deceased informants.  Paragraph 31:  The  15 only sources of information given for Mr. Blackwater's  16 knowledge about this territory were Jack Tait, Thomas  17 Sampson and Mary Blackwater.  And these informants had  18 all died prior to 1983.  19 But Mr. Blackwater changed his mind -- changed  20 his views as to ownership of that territory between  21 1983 and 1988.  In our submission, paragraph 32, those  22 changes could not be attributed to the people whom he  23 listed as informants of his affidavit.  24 And that's the same with respect to the Slamgeesh  25 area.  All the informants were deceased by 1974 and  26 yet Mr. Blackwater continued to change his -- he gave  27 different evidence.  Paragraph 33, that's dealing with  28 that.  29 Paragraph 34, Mr. Sterritt explained that the  30 territorial affidavits were put forward to avoid the  31 problem of hearsay.  That was the reason why the  32 informants had to be dead at the time the affidavit  33 was sworn.  And I'm going to refer to this, my lord,  34 at tab 34, this section in the yellow binder.  And  35 this is paragraph 34, this is lines 15 to 29, my lord:  36  37 Q  The territorial affidavit was put forward  38 to escape what you understood to be a  39 problem with hearsay evidence?  40 A  I don't know why you use the word escape.  41 I understood from the discussion partly  42 from, I guess, you and from the judge on  43 the bench and the discussions from our  44 lawyers over the issue of hearsay that if  45 a person was living, that they -- then it  46 could only be hearsay.  It had to be from  47 dead persons, and that I could not -- I 27211  Submissions by Mr. Mackenzie  1 myself could not come forward with  2 information if those people were living,  3 and they should.  4 Q  Yes.  5 A And as I understand it, that's the  6 situation.  7 Q  Yes.  8  9 Then at the bottom, lines 42 to 46:  10  11 Q  Well, I am asking you to confirm that for  12 every territorial affidavit the  13 informants that the deponent relied upon  14 had to be deceased at the time the  15 affidavit was sworn.  16 A  That's my understanding, yes.  17  18 And continuing over the page, my lord, to page 2  19 in that tab, the yellow binder, at lines 9 to 26:  20  21 Q  Well, do you agree or disagree with my  22 suggestion to you that the territorial  23 affidavits are defective?  24 A Well, define the sense.  25 Q  In not naming the source of information  26 upon which the deponent relied.  27 THE COURT:  Not naming all sources?  28 MR. GOLDIE:  29 Q  Not defining all sources of information.  30 That's correct.  Thank you, My Lord.  31 A  Yes, but our understanding was that  32 because of hearsay that they couldn't.  33 That was my understanding.  34 Q  Well, that may be your understanding, Mr.  35 Sterritt, but is that the reason why  36 certain sources of information were left  37 out?  38 A  Out of the affidavits, yes, because if  39 the people are living, then it's hearsay.  40 Q  All right.  So you —  41 A  That's right.  42  43 And that -- I deal with that in paragraph 34 in  44 my submissions, my lord.  45 THE COURT:  Why is Mr. Goldie saying the affidavits are  46 defective?  Because they don't disclose all the  47 sources of information? 27212  Submissions by Mr. Mackenzie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE COURT  MR.  MACKENZIE:  Well, my lord, I interpret him to be saying that  affiants, people who swear affidavits, should rely on  the sources of information from which they get the --  the source from which they get the information used in  the affidavits.  Surely that's only required where secondhand  information is admissible as in applications in  chambers.  Those affidavits are full of, "I'm informed  by such-and-such and verily believe," but that  wouldn't have been admissible here.  MACKENZIE:  That's correct, my lord.  But the analogy is —  and in these reputation affidavits, the only evidence  that's admissible is from deceased people.  And so I  suppose what Mr. Goldie is saying -- well, it's sort  of a reverse meaning of defective.  They would be even  more defective if these other informants, the living  informants were included.  I think what Mr. Goldie is also saying is that  reputation evidence affidavits have to -- in our  submission, have to be solely the information received  from deceased informants.  And if there is any  question that there are other informants, then the  affidavits are defective.  It doesn't deal  specifically with the point your lordship was making.  All right.  My lord, I think on that point you can see that Mr.  Rush objected and your lordship intervened at that  point and Mr. Goldie -- on the very concept of  defective, where you said:  THE COURT:  I think the word defective, Mr.  Goldie, does imply the application of  legal and evidentiary principles to facts  which are now pretty clear.  In this exchange, the -- I think the question of  what was defective is a very open issue.  That's not  even clear now, having heard my friend's argument, not  clear to me.  MR. MACKENZIE:  Well, my lord, I am not relying on the question  of defective, I am relying on the point here that  sources of information were left out and that --  certain sources of information were left out, and I  submit that this cross-examination is intended to show  that sources relied -- sources which were the source  of the information were left out in order to produce a  document that appeared to be complying with the  THE COURT  MR. GRANT 27213  Submissions by Mr. Mackenzie  1 reputation exception, that the information came solely  2 from deceased informants.  3 MR. GRANT:  Well, I think that's answered after that exchange  4 then by the last part of that page and onto the next  5 page of the transcript it goes back to another topic  6 of Mr. Blackwater's own affidavit.  But Mr. Sterritt  7 does say he couldn't agree with that source of  8 information being left out.  9 THE COURT:  Yes.  I think the problem is well stated in the  10 penultimate answer on that page.  11 MR. MACKENZIE:  Yes.  I deal with that in paragraph 35, my lord.  12 THE COURT:  All right.  13 MR. MACKENZIE:  Mr. Sterritt did not know to what extent Mr.  14 Blackwater might have talked to other people.  He  15 stated that "it's a process that all of the hereditary  16 chiefs" -- I'm referring to paragraph 35.  Mr.  17 Sterritt stated that "it's a process that all of the  18 hereditary chiefs like to engage in, to go to other  19 people and confirm and verify what they know or what  20 they understand..."  And that's -- that reference is  21 set out at tab 35 in the yellow binder.  22 The question has to be asked, in our submission,  23 my lord, in addition to confirming and verifying,  24 there is also correction in the times of provision of  25 newer information relied upon in the affidavits.  This  26 is paragraph 35.  27 Now, I carry on with this point, my lord, in  28 paragraph 36.  Reference was made to Mr. Stanley  29 Williams who was a person to whom Mr. Sterritt spoke  30 frequently and who referred in his affidavit to the  31 greatest number of territories.  Mr. Williams swore  32 two affidavits: the first in 1987, the second in 1988.  33 With respect to Mr. Herbert Burke's claim area, Mr.  34 Williams' informants, Charles Smith and Mathias Wright  35 had died prior to January 1987.  However, Mr.  36 Williams' evidence as to the location of a tributary  37 of Insect Creek changed between 1978 and 1988.  In his  38 1987 affidavit, he located the creek in Herbert  39 Burke's territory whereas in his 1988 affidavit, it  40 was located in Arthur Matthews' territory.  41 Paragraph 37, the cross-examination on this  42 question continues:  43  44 Q  Does that not suggest that Mr. Williams  45 received information about the ownership  46 of a feature within the property after  47 the 25th of January, 1987? 27214  Submissions by Mr. Mackenzie  1 A  He may have.  2  3 My lord, I submit that that's an important point to  4 note.  5  6 Q  And that could come only from somebody  7 other than the informants that he names  8 in his affidavit, Charles Smith, Mathias  9 Wright?  10 A  Yes.  That's possible.  11  12 THE COURT:  Well, it seems to me the plaintiffs are in an  13 impossible position:  If they put in other live  14 sources of information that's inadmissible, and if  15 they leave it out it's possibly misleading if it  16 contributed to the understanding of the chief.  17 MR. MACKENZIE:  Well, I agree, my lord, except to the extent  18 that the argument here is that information did not  19 come from the deceased sources.  It probably did not  20 come solely from the deceased sources because --  21 THE COURT:  I was saying if it didn't come solely from a  22 deceased informant, then it seems to me that that  23 doesn't make the evidence which came from the deceased  24 source inadmissible, but it affects the quality of the  25 affiant's knowledge because it's impossible to know  26 what -- how much did you learn from legitimate or  27 admissible sources and how much did you learn from  28 inadmissible sources.  29 MR. MACKENZIE:  Yes, my lord.  That's the argument that's being  3 0 made.  31 THE COURT:  Yes, all right.  32 MR. GRANT:  On this point, my lord, my recollection is that  33 these questions, although of course my friends had  34 both affidavits of Mr. Williams before their  35 cross-examination of him, this point was not raised  36 with him as to why that change and what source --  37 living source, if any, he got it from.  38 MR. MACKENZIE:  And moving to paragraph 39, my lord, we already  39 made the point in my first sentence.  Some other  40 examples I give there, Peter Muldoe and Richard Benson  41 stated that they did not discuss the claim area or  42 travel in the claim area with certain of the alleged  43 deceased informants referred to in their respective  44 affidavits.  45 Now, as a note, I say that is an example of a  46 case where the affiants mentioned deceased affidavits  47 in their affidavit -- or deceased -- sorry.  Deceased 27215  Submissions by Mr. Mackenzie  1 informants were included in the affidavit but in fact  2 they were not the source of the information.  3 And my lord, paragraph 40 follows from this:  The  4 receipt of such information from living informants  5 disqualifies the affidavit evidence as reputation  6 evidence.  In our submission, the failure to identify  7 the sources of the information not mentioned in the  8 affidavits makes it impossible to determine which  9 information was received from living informants and  10 which from named deceased informants.  It was  11 therefore impossible to determine whether the  12 territorial affidavit boundary evidence complies with  13 the requirements for admissibility as reputation  14 evidence.  And your lordship has already pointed that  15 question out.  16 Paragraph 41 gives another example of this.  17 Steven Robinson -- I won't go into it in detail -- but  18 it's a similar example where there seems to be a  19 change in evidence and more information apparently  20 obtained after the death of the deceased informants.  21 Paragraph 43, dealing with these changes in  22 evidence after the death.  The premise of the  23 plaintiffs' case is that information has been known  24 (and has remained unchanged) within the community of  25 the plaintiffs since time immemorial.  The  26 significance of short-term changes in boundaries,  27 particularly as substantial as those in the case of  28 that Spookw territory -- that's Mr. Robinson's  29 territory -- is apparent.  The new information may  30 have been manufactured by Mr. Sterritt or by someone  31 else or it may be a process of giving substance to  32 that which is ordinarily understood in terms of the  33 highest degree of generality and uncertainty.  34 THE COURT:  Shall we take a short adjournment, Mr. Mackenzie?  35 MR. MACKENZIE:  Yes, my lord.  36 THE REGISTRAR:  Order in court.  Court stands adjourned.  37  3 8 (PROCEEDINGS ADJOURNED AT 4:30 P.M.)  39 I hereby certify the foregoing to  40 be a true and accurate transcript  41 of the proceedings transcribed to  42 the best of my skill and ability.  43  44  4 5    46 Toni Kerekes, O.R.,  47 UNITED REPORTING SERVICE LTD. 27216  Submissions by Mr. Mackenzie  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Mackenzie.  5 THE REGISTRAR:  My lord, I received this letter.  6 THE COURT:  Ms. Thompson brought to my attention a letter that I  7 received from Mr. -- well, I'm sorry, that the  8 registrar in Smithers has received from Mr. James  9 Sterritt which I will pass down to counsel.  I have  10 received various communications from Mr. Sterritt from  11 time to time.  And I am not sure that I have shared  12 every one of them with counsel.  There was one quite  13 long one about a month ago.  And I am not sure that I  14 gave it to counsel.  15  16 I would be grateful if counsel would tell me what  17 they think I should do about that letter, that is what  18 response I should cause the registrar to make to it,  19 if any.  They seem to want to file some kind of  20 intervention.  I am rather disposed to tell the  21 registrar to have them send in whatever he wants in  22 writing at any time.  Counsel can talk about it and  23 let me know.  There is no rush.  24 MR. GRANT:  We probably won't be far removed from what your  25 general comments are, but I would like to discuss this  2 6              with Mr. Rush.  27 THE COURT:  Yes, certainly.  You may take that with you, Mr.  28 Grant, as long as we see that we get it back some  2 9 time.  3 0 MR. GRANT:  Yes.  31 MR. MACKENZIE:  Maybe we could get a copy also, my lord.  32 THE COURT  33 MR. GRANT  34 THE COURT  Yes.  I'll take it and make a copy for myself.  Perhaps Ms. Thompson can go do that right now.  Make  35 three copies, thank you.  36 MR. MACKENZIE:  My lord, as I say, I am not going to deal with  37 paragraph 41.  But I did hand up some material which  38 was put at your lordship's tab 41 in the yellow  39 binder.  And I am not going to deal with it except to  40 explain to your lordship what it is at tab 41 in the  41 yellow binder deals with Mr. Steven Robinson.  And I  42 have handed up an excerpt from his territorial  43 affidavit, Exhibit 592.  44 THE COURT:  And that's in the yellow binder?  45 MR. MACKENZIE:  In the yellow binder in tab 41.  4 6    THE COURT:  Yes.  47    MR. MACKENZIE:  And I handed up a copy of Exhibit 807 which is 27217  Submissions by Mr. Mackenzie  1 one of Mr. Sterritt's topographic survey data sheets  2 in which there is apparently a statement made that  3 contradicts Mr. Robinson's territorial affidavit.  And  4 that was the subject of the cross-examination.  And  5 that's already at tab 41.  6 THE COURT:  Yes, all right.  7 MR. MACKENZIE:  Thank you, my lord.  Carrying on to paragraph  8 46, my lord, in my submissions.  And this submission  9 deals with this question of consensus and public  10 discussion, paragraph 46.  In most cases, the evidence  11 relates to one territory for which boundary  12 information is known only to a small number of people,  13 that is the territorial evidence.  Mr. Alfred Joseph  14 stated:  15  16 "They are very reluctant to talk to other  17 Wet'suwet'en about their territory.  That's --  18 each clan have their own territories."  19  20 Mr. Arthur Matthews stated that it is hard to follow a  21 chief's boundary descriptions because "they have a  22 language unique of their own".  This is another  23 example at paragraph 46, Thomas K. Morris testified  24 that he had never heard the boundaries of his -- of  25 the land described in his affidavit discussed at  26 feasts.  That's Exhibit 671A, page 17, line 36.  27 THE COURT:  671A is an exhibit?  28 MR. MACKENZIE:  Yes.  It's a cross-examination on territorial  29 affidavit.  30 MR. GRANT:  Who?  31 MR. MACKENZIE:  Thomas K. Morris.  Ms. Sigurdson dealt with this  32 at some length in her argument, my lord.  And the  33 submission at paragraph 47 is that the Plaintiffs did  34 not call evidence of community, real community  35 reputation.  There is no -- this is an addition to  36 paragraph 47.  There is no evidence of reputation from  37 non-native people or non-plaintiffs.  In our  38 submission, the real community reputation is that the  39 land in the claim area is Crown land.  And that  40 evidence was called from lay witnesses called by the  41 Provincial defendant.  The community -- this is an  42 addition to paragraph 47.  The community includes  43 non-natives and non-plaintiffs.  44  45 Paragraph 48, my lord, deals with this question of  46 ante litem motam.  I think we have pretty well dealt  47 with that.  The land claims have been the subject of 2721?  Submissions by Mr. Mackenzie  1 concern.  2  3 Paragraph 49 deals with the collection of evidence  4 by Mr. Sterritt during the years that land claims were  5 contemplated as to be negotiated or litigated.  6  7 And I will pass on to paragraph 50.  And I would  8 also say here, my lord, that just following paragraph  9 49, Mr. Sterritt testified that his informants were  10 aware that he was collecting information in  11 preparation for the land claim.  And that's transcript  12 131, page 8097, line 37.  13 MR. GRANT:  Can you say that again?  14 MR. MACKENZIE:  Transcript 131, page 8097, line 37.  Yes, that's  15 found in the yellow book at tab 49A, pages 1 and 2.  16 Yes.  17  18 Pressing on to paragraph 50, my lord.  I have made  19 this point, my lord, that due to the conflicting  20 evidence and the conflicting information the boundary  21 evidence should be accorded little or no weight.  22  23 Now, the question of the interrogatories at 51.  24 Many of the Plaintiffs swore affidavits verifying  25 answers to the Interrogatories prior to trial.  26 Attached to many of the Interrogatories were maps  27 alleged to show the boundaries of territories claimed  28 by the House of that Plaintiff.  These Interrogatories  29 answers and maps conflicted generally with the  30 territorial affidavits and maps 9A and 9B.  And that  31 general statement is Mr. Sterritt's evidence at that  32 reference given in paragraph 51.  Mr. Sterritt  33 testified that in 1987 he believed the interrogatories  34 maps accurately depicted the territorial boundaries.  35 And that's set out in the evidence at -- in the yellow  36 binder.  At the trial he agreed that the territorial  37 affidavits were to be preferred over the  38 interrogatories responses where the two differ.  And  39 there is a correction to the transcript reference  40 there.  It should be transcript 134, my lord.  It is  41 submitted, however, that the significant conflicts  42 between these two sets of sworn boundary and ownership  43 evidence make both unreliable.  44  45 During Mr. Marvin George's cross-examination it  46 was pointed out that Mr. George's interview notes with  47 hereditary chiefs relating to the Hagwilnegh-Burns 27219  Submissions by Mr. Mackenzie  1 Lake territory contradicted boundary evidence in the  2 territorial affidavits sworn by Mr. Simms and Mr.  3 Austin.  The transcript reference there should be  4 lines 23 to 35.  The reference there was to interview  5 notes with Salina, S-A-L-I-N-A, John relating to that  6 Burns Lake territory.  Her information in those notes  7 differed from the territorial affidavits.  Even where  8 Mr. George's interview with hereditary chiefs about  9 their territories conflicted with affidavits by other  10 persons about those same territories, Mr. George  11 asserted "the affidavit is right".  12  13 And that is set out at tab 52 in the yellow  14 binder, page 2.  I will just refer to that passage, my  15 lord.  It is tab 52, page 2 at lines 31 to 36:  16  17 "Q  But you will agree with me this far, won't you,  18 that when you have an interview note with a  19 hereditary chief about his territory and that  20 interview note conflicts with an affidavit, the  21 interview note is probably right?  22 A  No, the affidavit is right."  23  24 And, my lord, dealing with paragraph 53, I have  25 referred to the methodology.  In our submission,  26 viewed objectively, the process followed amounts to  27 this:  Mr. Sterritt and Mr. George pulled fragmentary  28 pieces of information together, eliminated the  29 inconsistencies and through extrapolation, conjecture  30 and selection, presented a ready-made product for the  31 affiants to approve.  32  33 And carrying on paragraphs 54 and 55, my lord, I  34 referred to this question of individual circumstances  35 differing from the general format.  And that's the  36 case with Mr. Benson.  I have referred to Mr. Benson.  37 He testified that certain informants mentioned in his  38 affidavit had not in fact advised him of that  39 information.  And the reference there should be line  40 16 to 42 at that page.  41 THE COURT:  I'm sorry?  42 MR. MACKENZIE:  The reference at paragraph 54, if you could add  43 line 16 to 42 to that transcript reference, please.  4 4    THE COURT:  Thank you.  45 MR. MACKENZIE:  That's a cross-examination transcript.  46 MR. GRANT:  Well, that was one only, wasn't it?  That was only  47 the case of Phillip Brown.  You say "certain of the 27220  Submissions by Mr. Mackenzie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  informants."  One of the informants is the way the  evidence is, as I understand it.  MR. MACKENZIE:  Yes.  This case I have given an example of  Phillip Brown.  MR. GRANT:  And that was the only one that he said had not, in  fact, advised him of information of the territory.  MR. MACKENZIE:  I will advise my friend on that.  I am not clear  on that at this point, my lord.  MR. GRANT:  That's my understanding of the evidence.  MR. MACKENZIE:  As far as this transcript reference is  concerned, paragraph 54 should say "one of the  informants named in the affidavit had not advised him  of the information."  And so, my lord, I would submit at the end of  paragraph 55 that in conclusion it could hardly be  suggested that the word of the affidavit in Mr.  Benson's case were those of the affiant.  And I refer  also to a similar situation of Mr. Muldoe.  And the conclusions, my lord, the Plaintiffs  assert that the territorial affidavits are the basis  for maps 9A and 9B.  And the actual basis, in our  submission, is all the conflicting hearsay information  obtained over the years.  A note to be added to paragraph 57, if the  Plaintiffs' assertion is accepted, that is that the  map 9A and 9B are based on the affidavits, the  affidavits simply are an attempt to avoid hearsay  evidence.  They do not avoid the problem, in our  submission, they exacerbate the problem because they  purport to be sworn evidence in conflict with a mass  of other sworn and unsworn evidence about the  territories by the chiefs.  I refer to the flaws of  the content in the methodology.  In our submission, my lord, this last paragraph 59  deals with admissibility.  I have already argued  admissibility.  Certain of the reputation evidence in  the affidavits is, in our submission, not admissible.  But if admissible should be given little, if any,  weight.  Well, is there a problem here.  Did I not give leave  to the plaintiff to file these affidavits?  GRANT:  Yes.  THE COURT  MR.  MR.  MACKENZIE:  Yes, my lord. 27221  Submissions by Mr. Mackenzie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  COURT:  So it can't be said that they weren't admissible,  can it?  MACKENZIE:  Well, my lord, I can respond to that point.  There is a general objection.  Mr. Goldie made a  general objection to hearsay evidence during the  evidence of Mr. Alfred Joseph.  COURT:  Yes.  MACKENZIE:  And your lordship permitted -- excuse me, my  lord.  Your lordship permitted the Plaintiffs to file  these affidavits:  "To be at liberty to file evidence of facts or  documents relating to the location of  boundaries and geographic landmarks of the  territories claimed by the Plaintiffs in their  houses."  And that's in your lordship's order of October 23,  1987.  And your lordship continues:  "The Plaintiffs are not to be precluded from  arguing from such facts or based upon such  facts that an inference of ownership be drawn."  In my submission, my lord --  THE COURT:  What was the liberty that was given to file  affidavits?  MR. MACKENZIE:  The liberty was given to adduce by affidavit —  THE COURT:  To adduce, yes.  MR. MACKENZIE:  "Evidence of facts or documents relating to the  location, boundaries and geographic landmarks  of the territories claimed by the Plaintiffs  and their houses."  And I noted the qualification:  "But that the Plaintiffs not be precluded from  arguing from such facts or based upon such  facts that an inference of ownership be drawn."  THE COURT:  Yes.  All right.  MR. MACKENZIE:  And so, my lord, if I may say, that was the  basis for the Provincial defendant's submissions in  that chambers application.  THE COURT:  Can you give me the reference to that?  It is a 27222  Submissions by Mr. Mackenzie  1 transcript of the proceedings on October 23, 1987?  2 MR. MACKENZIE:  It is an order, my lord.  And I will provide a  3 copy of that to your lordship first thing.  4 THE COURT:  Yes.  I would like to have a copy of that.  5 MR. MACKENZIE:  It was entered November 23, 1987 after being  6 settled by your lordship on those chambers proceedings  7 in 1987.  8 THE COURT:  Yes.  9 MR. GRANT:  That was other chambers than my friend has referred  10 to because that was another matter that came up.  11 THE COURT:  Well, in liberty to adduce evidence by affidavit  12 doesn't mean that everything that is put in and filed  13 is conclusive.  It still has to -- it would still be  14 open, I should think, to the defendants to say that  15 the affidavits do not amount to proof of these facts  16 because of the various rules of evidence which should  17 be applied to them.  18 MR. MACKENZIE:  That's my submission, my lord.  19 THE COURT:  Well, I would be surprised if your friends think  20 otherwise.  21 MR. MACKENZIE:  My lord, I have completed my submissions on that  22 section.  And I will hand up now the next yellow  23 binder, Volume 11.  My lord, in the interests of  24 conserving time, I am handing up to your lordship an  25 outline of the argument.  These are detailed  26 submissions in this section.  I have handed up an  27 outline of the argument so it will enable me to  28 summarize.  If your lordship could place that at the  29 beginning of this new section.  3 0 THE COURT:  Yes.  31 MR. MACKENZIE:  My lord, this section deals with traplines and  32 territorial boundaries.  And I start, my lord, with  33 the introduction at paragraph one.  It is submitted  34 that the boundaries shown on maps 9A and B coincide to  35 a large measure with the boundaries of registered  36 traplines as shown on Exhibit 24A.  That was the  37 province's trapline map, my lord, in the alienations  38 project.  That was identified by Mr. Steventon.  39  40 The Plaintiffs' evidence also disclosed the  41 general fact that in many of the Plaintiffs' minds  42 trapping grounds or traplines were synonymous with the  43 alleged House territories upon which the claim is  44 based.  45  46 It is submitted that these territories are  47 vestiges of trapping grounds originally developed in 27223  Submissions by Mr. Mackenzie  1 response to the European fur trade.  I say,  2 parenthetically, Mr. Willms has dealt in some detail  3 on this in his argument.  4  5 The recency of these boundaries, in our  6 submissions, belies the Plaintiffs' allegations of  7 their present location since time immemorial.  The  8 fact of their relationship to trapping accounts, in  9 our submission, for the vagueness of informants'  10 knowledge of their location, that is the boundaries  11 location.  After fur trapping virtually disappeared as  12 a source of income in the claim area after the 1940's,  13 and Ms. Sigurdson went into that in quite a bit of  14 detail in her argument, the question of trapping  15 declining after the 1940's.  16  17 In his book The Gitksan Potlatch, Professor John  18 Adams independently arrived at conclusions which are  19 supported by the evidence in this case.  I set out  20 Professor Adams' comments that the Indians in -- I'm  21 sorry:  22  23 "...the Gitksan claim approximately the area  24 registered with the Game Warden, together with  25 whatever land within that general area still  26 registered to White trappers."  27  28 Mr. -- Professor Adams says:  29  30 "As sources of revenue today the lines are  31 almost worthless, but the land-values they  32 symbolize, especially timber and mineral  33 rights, are considerable."  34  35 THE COURT:  When was Adams writing?  36 MR. MACKENZIE:  My lord, that was in 19 — researched in the  37 1960's and published in 1973.  38 MR. GRANT:  He doesn't give any sources for that proposition, my  39 lord.  And as I recall, it is just in his preface as  40 introductory remarks.  41 MR. MACKENZIE:  It is set out at — it is contained at the tab 5  42 of the yellow binder, my lord.  4 3 THE COURT:  Tab 5?  44 MR. MACKENZIE:  Yes.  I think your lordship has that, has the  45 reference handy.  That's correct.  4 6 THE COURT:  Oh, yes, tab 5.  47 MR. MACKENZIE:  And my lord — 27224  Submissions by Mr. Mackenzie  1 MR. GRANT:  I believe it is in his introduction.  2 MR. MACKENZIE:  Yes, that's correct.  And, my lord, just  3 following my outline of argument.  Dealing with the  4 point, the traplines were allocated in the early 19th  5 century, I am handing to your lordship a copy of  6 Exhibit 88A which I would ask be inserted at the end  7 of tab 5 which your lordship has open.  Yes, just  8 following Professor Adams.  9  10 Now, my lord, Ms. Sigurdson referred to this  11 matter.  In my submission this is a significant  12 exhibit.  And I propose to refer your lordship to  13 certain portions of it.  This letter is to the Indian  14 agent, Mr. McMallinson, as Ms. Sigurdson pointed out.  15 And it relates to trapping places as indicated in the  16 title on page 1 of the letter, Exhibit 88A on  17 September 7, 1945.  In summary, this deals with the  18 trapping place dispute as Mr. George -- this is a  19 letter from Thomas George:  20  21 "...trapping place dispute",  22  23 as he says in the first sentence,  24  25 "...between I and Matthew Sam."  26  27 And the second paragraph, Mr. George says:  28  2 9 "Mr. Matthew Sam does not know how that  30 trapping place stands from olden times nor how  31 it became ours."  32  33 And then Mr. George refers to hearing in Telkwa  34 apparently with respect to the dispute.  Carrying  35 over to page 2 of the letter:  36  37 "Remember at the meeting at Telkwa when the  38 older people who knew better swore to prove  39 that the lower lake was given to our ancestors  40 according to Indian rights years and years ago  41 and lately was known as my uncle Joseph's  42 trapping ground.  Our uncle Joseph now is the  43 fifth generation from the time this trapping  44 place was given to our ancestors."  45  46 My lord, on the basis of that, on the basis of that  47 passage and also other evidence which came out during 27225  Submissions by Mr. Mackenzie  the cross-examination of Dr. Antonia Mills, that takes  us back about 125 years, 120 years before 1945.  COURT:  That's 25 years to the generations?  MACKENZIE:  Yes, my lord.  And I understand Mr. Willms read  from that passage as well.  COURT:  Do we know what lake he is talking about here?  MACKENZIE:  He is talking about a lake in the western part  of the Gisdaywa territory, my lord.  And I don't know  exactly which lake it is right now.  It was known  apparently then as Muscrat Lake.  There is a lake  shown in the Gisdaywa territory in the western portion  there, my lord.  COURT:  Is this the same Matthew Sam that Mr. Shelford  talked about?  MACKENZIE:  This is the Topply Matthew Sam, my lord.  This  is Woos.  COURT:  All right.  MACKENZIE:  And also this Matthew Sam had the trapping  territory around McBride Lake.  And apparently,  according to this letter, he overlapped to some extent  on Thomas George's, Gisdaywa's area.  COURT:  All right.  MACKENZIE:  The Matthew Sam that Mr. Shelford referred to  lived at Francois Lake.  COURT:  Yes, that would be a different one.  MACKENZIE:  At the Tatler Reserve.  COURT:  All right.  McBride Lake, as I recall, is just north  and east of Morice Lake.  MACKENZIE:  Which lake, my lord?  COURT:  Morice Lake?  MACKENZIE:  McBride Lake is —  COURT:  Yes.  MACKENZIE:  Right, my lord.  Just slightly to the east of  Morice Lake.  COURT:  Yes.  All right.  MACKENZIE:  I might also say that at that time Matthew Sam  from Francois Lake was trapping near Tahtsa Lake.  There was quite a bit of evidence on that.  COURT:  All right.  MACKENZIE:  Now, this letter is significant also because the  constant -- several references to this area's trapping  place, and as trapping grounds.  And so the submission  is that what Mr. George, Thomas George is talking  about here is trapping grounds.  And that area, on  page 3, Mr. George says was then registered as a  trapline.  And that's about halfway down page 3.  "We  have decided," does your lordship have that paragraph?  1  2  3  THE  4  MR.  5  6  THE  7  MR.  8  9  10  11  12  13  THE  14  15  MR.  16  17  THE  18  MR.  19  20  21  22  THE  23  MR.  24  25  THE  26  MR.  27  THE  28  29  MR.  30  THE  31  MR.  32  THE  33  MR.  34  35  THE  36  MR.  37  38  39  THE  40  MR.  41  42  43  44  45  46  47 27226  Submissions by Mr. Mackenzie  1 THE COURT:  Yes.  2 MR. MACKENZIE:  3 "We have decided among our own family that part  4 of the said grounds be registered under my name  5 and the other part be registered under my  6 brother Joseph George's name.  (I mean the  7 ground that was registered under our uncle  8 Joseph's name be turned over to him)  By doing  9 this we will be able to hold the entire grounds  10 that was rightfully belonged to our family."  11  12 So, my lord, the submission as indicated in my  13 outline of argument and as indicated also in paragraph  14 63 of my submissions, is that the emergence of  15 trapping ground boundaries in the claim area is  16 relatively recent, about five generations or 150 years  17 before 1940.  18 MR. GRANT:  What page?  19 MR. MACKENZIE:  Page 21, paragraph 63.  20  21 And Mr. Willms, of course, discussed this.  But  22 this point is corroborated by Professor Steward's  23 research at Stuart Lake, S-T-U-A-R-T.  This is in  24 paragraph 63, page 21.  25 THE COURT:  I'm sorry, where are you putting this note?  26 MR. MACKENZIE:  My lord, this note can be put just at paragraph  27 2 of my outline of argument.  You see, my lord, in  28 paragraph 2 my outline of argument refers to page 21,  29 para 63?  3 0 THE COURT:  Yes.  31 MR. MACKENZIE:  And there is a reference there to Thomas  32 George's letter.  33 THE COURT:  Yes.  34 MR. MACKENZIE:  Which is Exhibit 88A.  And Professor Steward's  35 research at Stuart Lake.  And that's found in Exhibit  36 955-13.  That was Professor Steward's letter to Dr.  37 Jenness.  38  39 Now, my lord, referring to my outline of argument,  40 paragraph 3, after the 1920s the trapping grounds were  41 registered as traplines.  Mr. George referred to that,  42 and Ms. Sigurdson referred to that in some detail in  43 her argument.  And the Plaintiffs' witnesses as I  44 indicated on page 10, paragraph 29 of my submissions,  45 the Plaintiffs' witnesses testified that they  46 registered their traplines to prevent the loss of  47 their areas.  Mrs. Mackenzie said: 27227  Submissions by Mr. Mackenzie  1  2 "We had to have our traplines registered or  3 else we lose them."  4  5 So it is my submission there is exstensive  6 evidence on that point.  And on this point also, Ms.  7 Sigurdson referred to Mr. Boys' evidence.  This is  8 continuing on the outline of argument at paragraph 3.  9 Mr. Boys evidence on the registration of traplines  10 during his time as Indian agent at Hazelton.  And  11 that's set out at page 22, paragraph 64 to 66 in my  12 submissions.  13  14 Paragraph 4 in the outline of argument, in the  15 1950s fur trapping declined considerably.  That was  16 also dealt with in Ms. Sigurdson's argument.  And I  17 refer to it at page 22, paragraph 65 of my  18 submissions.  I am just carrying through the outline  19 of argument, my lord.  2 0 THE COURT:  Yes.  21 MR. MACKENZIE:  And referring to the paragraphs in the detailed  22 submissions.  23 My lord, carrying on with paragraph 5 of my  24 outline of argument, to many Plaintiffs the registered  25 traplines were synonymous with the territories.  And  26 there are several references in the detailed  27 submissions to that point, my lord.  I wish to refer  28 to one particular reference which is the reference at  29 paragraphs 30 to 40 dealing with the Chief's  30 Resolution, the Gitksan chief's resolution in 1975.  31 And now I am going to refer your lordship to that  32 resolution which is at tab 30 in my yellow binder.  33 THE COURT:  Which tab?  34 MR. MACKENZIE:  Tab 30 in the yellow binder, my lord.  35 THE COURT:  Yes.  36 MR. MACKENZIE:  Does your lordship have that reference?  37 THE COURT:  Yes.  38 MR. MACKENZIE:  Now, my lord, this is a document entitled  39 "Resolution Presented to the Special General Assembly  40 of the Union of B.C. Indian Chiefs by the Hereditary  41 Gitksan Chiefs of the Kispiox and Skeena Valleys."  It  42 is dated April 3, 1975.  And the evidence is that Mr.  43 Sterritt drafted this resolution.  And in that  44 resolution at the second paragraph it states:  45  46 "Whereas the Nishga tribes are claiming certain  47 tribes which are rightfully the lands of the 2722?  Submissions by Mr. Mackenzie  1 Gitksan,"  2  3 and certainly we will refer to that in the overlap  4 argument,  5  6 "be it hereby resolved that we direct our  7 elected representatives on the Gitksan-Carrier  8 tribal council to make land claims a priority  9 issue, and ensure that the Gitksan's hereditary  10 lands as defined by all their registered  11 traplines be made known to the B.C. Land Claims  12 Co-ordinator."  13  14 Now, my lord, the point of referring to this  15 Exhibit 116 is the identification between the  16 hereditary lands and the registered traplines.  And,  17 my lord, I have many other references in these  18 detailed submissions as set out in my outline of  19 argument indicating this identification in the  20 Plaintiffs' minds between the registered trapline  21 areas and these territories.  22  23 Now, carrying on to paragraph 6 of my outline of  24 argument, my lord.  In order to prepare a map of the  25 territories, Neil Sterritt Jr. relied on maps of  26 registered traplines.  If you recall, my lord, he  27 obtained these maps from the Department of Indian  28 Affairs' files.  In connection with that paragraph 6  29 in my outline of argument, my lord, I am going to  30 refer your lordship to Exhibit 22 which is a map.  I  31 have copies here for your lordship.  I am just about  32 to hand that up.  And my discussion of Exhibit 22  33 starts at paragraph 12 on page 4.  I am handing up to  34 your lordship the map binder.  My lord, Exhibit 22 is  35 the second map in that binder.  36 THE COURT:  Do you want to look at this?  37 MR. MACKENZIE:  Yes, my lord.  Now, my lord, the reason I am  38 referring to this exhibit is for the point in my  39 outline of argument that Mr. Sterritt relied on maps  40 of registered traplines in preparing a map of the  41 territories.  This is the first map that Mr. Sterritt  42 saw.  He received it from Chris Harris.  And then Mr.  43 Sterritt made additions to it.  And that is at  44 paragraph 11 on page 4 of my submissions.  45  46 I am going to be referring to this map and my  47 submissions at the same time, my lord.  But looking at 27229  Submissions by Mr. Mackenzie  1 the area up around Bowser Lake, my lord, your lordship  2 will see a dotted line west, southwest and south of  3 Bowser Lake marked David Gunanoot.  Does your lordship  4 see that?  5 THE COURT:  No.  I haven't found Bowser Lake yet.  6 MR. MACKENZIE:  It is in the top left-hand corner, my lord.  7 THE COURT:  Bowser is north of Meziadin?  8 MR. MACKENZIE:  Yes, my lord.  Top left-hand corner.  9 THE COURT:  Yes.  I found it.  10 MR. MACKENZIE:  Does your lordship see the dotted line, the  11 boundary line?  12 THE COURT:  The dotted line, yes.  13 MR. MACKENZIE:  Mr. Sterritt said that he drew that line.  And  14 your lordship can see that Mr. Sterritt has noted  15 there:  16  17 "This boundary is drawn from the outline of the  18 Gunanoot and Skawil traplines."  19  2 0 THE COURT:  Yes.  21 MR. MACKENZIE:  Does your lordship see that note?  22 THE COURT:  Yes.  23 MR. MACKENZIE:  Mr. Sterritt said that he put that note on  24 there, and he also put the dotted lines on there.  And  25 your lordship can see that the boundary is noted as  26 following the external boundaries of the traplines in  27 those areas.  Does your lordship see that reference?  28 Just talking about the Bowser Lake area, my lord, west  29 and south of Bowser Lake?  30 THE COURT:  You mean this note:  31  32 "This boundary drawn from outline of Gunanoot  33 and Skawill traplines?"  34  35 MR. MACKENZIE:  Yes, my lord.  36 THE COURT:  Yes, I see that.  37 MR. MACKENZIE:  And, my lord, Mr. Sterritt also drew the  38 boundary, the dotted line that goes across the  39 northern part of the map.  Does your lordship see the  40 dotted line going north?  41 THE COURT:  Yes.  42 MR. MACKENZIE:  North across past the Niist territory?  4 3 THE COURT:  Yes.  44 MR. MACKENZIE:  That's paragraph 14 of my submissions.  Now, my  45 lord, those dotted lines that your lordship has just  46 looked at appear to coincide generally with the  47 boundaries as depicted in all the subsequent 27230  Submissions by Mr. Mackenzie  Plaintiffs' maps until there was a change in the  northern boundary after discussions with the Tahltan  in 1987.  COURT:  But it includes the Kitwancool territory, does it  not?  MACKENZIE:  No, it doesn't, my lord.  If you look south of  Bowser Lake, my lord.  COURT:  Is Meziadin Lake all within the claim territory?  MACKENZIE:  Yes, my lord.  COURT:  I didn't think it was.  MACKENZIE:  Meziadin Lake is Kitwancool territory.  COURT:  Yes.  MACKENZIE:  I'm sorry, my lord, Mr. Sterritt has noted the  Kitwancool, Nishga boundary going down the western --  COURT:  Yes.  Well, I said this map seems to include the  Kitwancool territory.  MACKENZIE:  Yes, my lord.  GRANT:  He reflected the Kitwancool Nishga territory on this  one.  COURT:  Yes.  MACKENZIE:  So your lordship is correct.  And my submission  is related to the relationship of the Plaintiffs claim  area boundaries to the trapline boundaries.  COURT:  Yes.  MACKENZIE:  That apparently originated in this map by Mr.  Sterritt which he noted when he was drawing as a  result of information from the trapline files.  And I  am suggesting, submitting to your lordship that the  boundaries are just the same, they are trapline  boundaries.  And that's in paragraph 15 of my  submissions.  And then I point out that in paragraph  16 of my submissions that in the legend Mr. Sterritt  characterizes the dotted line -- sorry, my lord,  paragraph 16.  COURT:  Yes.  MACKENZIE:  Characterizes the dotted line as a territorial  boundary.  So in my submission, my lord, Mr. Sterritt,  up in that Bowser Lake area that we've been looking  at, equated the trapline boundaries with territorial  boundaries.  COURT:  Yes.  MACKENZIE:  That's the point, my lord.  COURT:  All right.  MACKENZIE:  I have added that submission to paragraph 16.  COURT:  Now, is this Exhibit 22 at the trial?  MACKENZIE:  Yes, my lord.  We are looking at Exhibit 22.  And my friend has a question.  1  2  3  4  THE  5  6  MR.  7  8  THE  9  MR.  10  THE  11  MR.  12  THE  13  MR.  14  15  THE  16  17  MR.  18  MR.  19  20  THE  21  MR.  22  23  24  THE  25  MR.  26  27  28  29  30  31  32  33  34  35  THE  36  MR.  37  38  39  40  41  THE  42  MR.  43  THE  44  MR.  45  THE  46  MR.  47 27231  Submissions by Mr. Mackenzie  GRANT:  I take it that this is as of the time drawn by Mr.  Sterritt where he drew these dotted lines was in 1976;  is that right?  I'm going from memory on that.  MACKENZIE:  My lord, my friend is referring to the date.  COURT:  It says '76 in the legend.  GRANT:  I am just wondering is he saying the dotted lines  were drawn in 1976 at the time, or subsequent to that,  that is Mr. Sterritt's lines?  MACKENZIE:  My lord, in my submission that doesn't appear  clear in the evidence.  The evidence is clearly that  the additions are Mr. Sterritt's, not Mr. Harris'.  And this continues to the north and northeastern  boundary of this map as well.  And so I can't answer  my friend, except to say that that is the date given  for the drawings or additions by Mr. Sterritt.  COURT:  All right.  MACKENZIE:  And I would say, my lord, that Mr. Sterritt's  evidence is that after the 1975 Resolution, Exhibit  116 to which we have just referred, that is the  resolution.  COURT:  Yes.  MACKENZIE:  Mr. Sterritt began to review the trapline files.  COURT:  Yes.  MACKENZIE:  Because the chiefs had directed him to do so  because they were the same as the hereditary  territories.  COURT:  All right.  Shall we continue this tomorrow?  MACKENZIE:  Yes, my lord.  COURT:  Tomorrow we will start at 9:30.  And what is your  pleasure, 5:30 and then back at 7:00?  MACKENZIE:  My lord, we would request the option of an  evening sitting.  And we would request to be able to  inform your lordship halfway through the morning or  just before noon how the schedule is going.  GRANT:  Well, is my friend assuming that we will go to 5:30?  That will help me.  MACKENZIE:  Yes, normally.  GRANT:  We would go to 5:30, in any event?  MACKENZIE:  Yes, my lord.  COURT:  And possibly not come back?  MACKENZIE:  Possibly.  COURT:  All right.  Thank you.  1  MR.  2  3  4  MR.  5  THE  6  MR.  7  8  9  MR.  10  11  12  13  14  15  16  THE  17  MR.  18  19  20  21  THE  22  MR.  23  THE  24  MR.  25  26  27  THE  28  MR.  29  THE  30  31  MR.  32  33  34  35  MR.  36  37  MR.  38  MR.  39  MR.  40  THE  41  MR.  42  THE  43  44  45  46  47 27232  Submissions by Mr. Mackenzie  1 THE REGISTRAR:  Order in court.  Court stands adjourned until  2 9:30 tomorrow.  3 (PROCEEDINGS ADJOURNED TO MAY 24, 1990)  4 I hereby certify the foregoing to  5 be a true and accurate transcript  6 of the proceedings transcribed to  7 the best of my skill and ability.  8  9  10    11 Lisa Franko, Official Reporter,  12 UNITED REPORTING SERVICE LTD.  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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