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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-19] British Columbia. Supreme Court Apr 19, 1990

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 24662  Submissions by Mr. Grant  1 SMITHERS, B.C.  2 April 19, 1990.  3  4 THE REGISTRAR:  Order in court.  The Supreme Court of British  5 Columbia, this 19th day of April, 1990, Delgamuukw  6 versus Her Majesty The Queen at bar, my lord.  7 THE COURT:  Mr. Grant.  8 MR. GRANT:  Thank you, my lord.  My lord, I want to deal with  9 one of the issues that you raised yesterday.  But I  10 noted that, and thought of it afterwards, that one of  11 things that you raised it may have just been a general  12 comment.  But if it isn't, I may be of assistance.  13 When you raised the question about the evidence  14 relating to these triangles, you said -- and rather  15 than paraphrase, it is page 24646.  You said:  16  17 "There are various things that I have question  18 marks in my mind about and it's only fair that I  19 get your assistance on it."  20  21 And then you raised the question of that, which I'm  22 prepared to deal with now.  2 3 THE COURT:  Yes.  24 MR. GRANT:  I just wondered, my lord, although it may be -- if  25 there are, of course, during the course of the  26 plaintiffs' argument we hopefully will answer your  27 questions or concerns.  And this will probably be a  28 benefit to all sides.  But if there are specific  29 issues that you have concern with, it may be of  30 assistance to us to make sure that we answer them.  It  31 may be that things just come up in the course of our  32 argument.  33 THE COURT:  Well, that one did.  34 MR. GRANT:  Yes.  But if there are some specific issues, and  35 you've raised some yesterday, as well, that we are  36 going to come to later such as the band council.  It  37 may be of assistance to plaintiffs' counsel, and I  38 think to all counsel, that I think those issues -- you  39 may want to advise us of those issues so that we can  40 make sure that we encompass and deal with them in the  41 argument rather than spontaneously.  I know that's an  42 unusual request.  But given the context of the volumes  43 of issues here, it may be of assitance to us and  44 particularily to yourself.  45 THE COURT:  Well, I can't really respond to that very  46 conveniently I don't think, Mr. Grant.  I'm usually  47 not bashful about asking questions.  I used to think 24663  Submissions by Mr. Grant  1 that we should have had a sign in Supreme Court  2 chambers that said, "Warning, this judge may ask  3 questions."  But I must say I'm intimidated by the  4 length of your argument.  And I am not --  5 MR. GRANT:  This section of the argument?  6 THE COURT:  The whole thing.  I am not asking the questions that  7 sometimes I think I should because I have a rule that  8 says:  Every question I ask adds at least 15 minutes  9 to the length of the argument.  And when I am faced  10 with an argument as massive as this, I have to  11 restrain myself.  So I will not give any assurance  12 that I will ask a question about everything that  13 concerns me.  14  15 One of the problems I have found with judging is  16 that very often if you don't ask a question it gets  17 answered later anyway.  And so, for that reason,  18 I'm -- for me in argument I'm being unusually quite.  19 And I think in view of the time schedule that I've  20 heard about, I am going to continue to try and be that  21 way.  I will ask about things that trouble me as they  22 arise.  But I am not sure that I want to contribute to  23 the prolongation of the process any more than I  24 absolutely have to.  25 MR. GRANT:  No.  I have found that your questions, for example,  26 on some of these issues were -- hopefully I could  27 understand the flow of where your concern was.  And I  28 could, at least in parts that I am dealing with, not  29 dealing at length with things that it appears clear to  30 the court and focus on those other areas.  31 THE COURT:  All right.  32 MR. GRANT:  Now, I would like to, at this point, because I  33 believe it is an appropriate time to deal with the  34 triangle question, if I may call it that.  And I have  35 asked Madam Registrar to pull for your lordship volume  36 135 of the transcript.  37 THE COURT:  Yes.  Can you remind me where it was that we talked  38 about an open society in your argument that I -- that  39 brought this to my recollection?  40 MR. GRANT:  Yes.  It was with respect to page 81.  The reference  41 of Dr. Mills.  Yes, that's right.  At the top.  All right.  Now, before going to what Mr. Sterritt says, my  46 lord, I just want to set out, and this goes back to  47 what I was saying about training.  My lord, as I  42 THE COURT  4 3 MR. GRANT  4 4 THE COURT  4 5 MR. GRANT 24664  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  THE  COURT  18  19  MR.  GRANT  20  21  22  THE  COURT  23  24  MR.  GRANT  25  THE  COURT  26  MR.  GRANT  27  THE  COURT  28  MR.  GRANT  29  THE  COURT  30  31  32  MR.  GRANT  33  THE  COURT  34  MR.  GRANT  35  36  THE  COURT  37  MR.  GRANT  38  39  40  41  42  THE  COURT  43  MR.  GRANT  44  45  THE  COURT  46  MR.  GRANT  47  THE  COURT  endeavoured to explain, the hereditary system that we  view in terms of when you look at a monarchy type of  system of heredity, it is a system of status which by  status you acquire your position, that is by birth.  But in the Gitksan and the Wet'suwet'en system it is  by a chief status.  And in this sense it is similar to  what we view in terms of a democracy where you -- it's  by merit.  And that's what I was focusing on  yesterday.  Now, everyone has a role to play.  And I'm very  concerned about how that simplistic triangle schematic  may be overstated.  And I think that Mr. Sterritt's  explanation at volume 135, page 8380 may be of  assistance.  Now, my lord, in volume 134 this is first  introduced -- and you know the schematic --  No.  I haven't looked at this since September of  1988, I don't think.  Well, it's basically an appendix to the triangle.  And I didn't ask Madam Reporter to pull it, but what I  will do is -- I can't recall the exhibit number.  All right.  You don't know what exhibit number this  is?  It is right on the front, my lord.  Exhibit 734, tab 13.  Yes.  Yes, I recall it now.  Now, my lord --  I'm sorry, Mr. Grant, I don't think this is the one.  But maybe there is another one.  My recollection is  that there is another one that talks about power.  Right.  Now, if you go -- that is the one.  Is it?  It's authority.  It is lixgiget, without authority,  and the other with authority.  Oh, I see.  And in the transcription that that is appended to  the Penner Committee, I believe there is a tab where  the quote is put to Mr. Sterritt.  And he asks what it  is.  And he refers to lixgiget as people without  authority.  Yes.  Now, at page 8380 of the transcript of evidence, my  lord, Mr. Sterritt explains this.  8380?  Yes.  Volume 135.  Yes. 24665  Submissions by Mr. Grant  1 MR. GRANT:  Okay.  And I would just like to refer to his  2 explanation because I think his explanation clarifies  3 what was -- what was really intended here.  4 THE COURT:  Yes, thank you.  5 MR. GRANT:  Now, Mr. Sterritt was trying to finish an answer.  6 And at the top of the page the court says:  Well, let  7 him finish and then get on with the next question, and  8 rephrase it.  And at line 14 he says:  9  10 "Yes.  And the purpose of the comparison  11 with -- with this committee...",  12  13 that is the comparison of planning hierarchies, the  14 charts that you have in front of you,  15  16 "...was to demonstrate that there was a system,  17 there was a leadership system, that there were  18 hereditary chiefs were extremely knowledgeable  19 and extremely capable leaders, that because of  20 the language barrier the hereditary chiefs  21 insisted on meeting with the leaders of the  22 non-Indian society such as the Queen, the Prime  23 Minister, the Premiers of the province or the  24 Governor General, and for many many years the  25 only people that -- that the hereditary chiefs  26 were able to deal with were the people in the  27 lowest levels of the planning hierarchy of the  28 European system, people who were simply there  29 to do their job.  It wasn't entirely their  30 fault, but they were there to do their job,  31 they could not understand or appreciate what  32 the Gitksan and Wet'suwet'en, the complex  33 system that was in place, they did not  34 understand their language, they did not  35 understand that when the hereditary chiefs  36 insisted on meeting with their leaders, not  37 with them, it was a with a great deal of  38 frustration that Gitksan and Wet'suwet'en  39 encountered this system, and that frustration  40 went on well into the 1900's -- into the  41 1900's, the 20th Century, but that was — that  42 was why this -- these comparisons of planning  43 hierarchies was done, to show that the --  44 that's why the two triangles on the right-hand  45 side, is that the Simgiget, who were the  46 leaders and the rulers were encountering people  47 on the lowest levels in the hierarchy on the 24666  Submissions by Mr. Grant  1 other side, and the people at the highest  2 levels simply cast them off, and there is --  3 it's a tremendous problem, and that's what this  4 was for.  5 Q   Right.  The triangle on the left depicts the  6 people with authority, Simgiget, and people  7 without authority, the lixgiget, is that right?  8 A   Yes.  And the triangle on the right.  9 Q   Well, let me come to the triangle on the right  10 in a minute."  11  12 And there is an interjection.  13  14 "Q   I'm dealing with the triangle on the left.  15 A   Okay.  16 Q   And is the proportion of people without  17 authority to the people with authority  18 approximately that indicated in the triangle?  19 A   It was not necessarily.  I couldn't say,  20 it's -- it was an approximation.  21 Q   And then the -- the triangle on the right, the  22 approximation that you have, you depict there,  23 is that the apex of the pyramid is of Ottawa,  24 and that corresponds to the simgiget of the  25 Gitksan and the Carrier, is that right?  26 A   Yes.  27 Q   And the people in Vancouver, Hazelton and on  28 the band council all correspond to the people  29 without authority, the lixgiget?  30 A  Well, the -- no, no, you've got that wrong.  31 The triangle on the right, which I tried to  32 explain to you, shows the different hierarchies  33 within the federal system and the lowest levels  34 of the hierarchy for the federal system, which  35 could also include on the right-hand side a  36 provincial conservation officer, or someone of  37 that nature, were the people who dealt with the  38 simgiget -- well, dealt with the Gitksan  39 people, and there was simply -- they did not  40 have the knowledge or the authority or the  41 ability to resolve problems that should have  42 been dealt with at a nation level, nation to  43 nation level.  The simgiget wanted to deal with  44 the highest levels, and the people that were  45 sent out simply didn't know -- didn't have the  46 authority, they didn't -- they were there  47 simply to carry out a job. 24667  Submissions by Mr. Grant  1 Q   Well, let me put it this way:  Where in your  2 comparison is the line of the people without  3 authority to be placed on the large right-hand  4 triangle if it isn't to be placed at the line  5 that is marked Ottawa?  6 A  Well, in the highest level in there would be --  7 would include the Prime Minister of Canada or  8 the Governor General of Canada representing the  9 Queen, but then running on down through it  10 would be all the other levels.  11 Q   Yes.  And my question is if the level in the  12 right-hand triangle separating the people that  13 you characterize as without authority in the  14 the European system, where is that line to be  15 drawn?  Is it Ottawa, or Vancouver, or  16 Hazelton?  17 A   It would be at the Ottawa level.  18 Q   So everybody below that line is, in your  19 characterization, without authority?  20 A  Well, the people—  21 Q   I don't mean --  22 A   That's not my characterization.  The people who  23 should have been meeting and dealing with these  24 issues in the 1800's were the -- would be the  25 highest representatives of the Queen, and they  26 should have been dealing with the hereditary  27 chiefs, and that's the point of the exercise.  28 Q   All right.  Now, the proportion of -- in the  29 small triangle, which is to represent the  30 Gitksan-Carrier organization today, is that  31 right, or in 1983?  32 A   Yes.  33 Q   Is the proportion of people with authority,  34 namely the chiefs, to the people without  35 authority, namely the remainder of the Gitksan  36 and Carrier people, is that proportion as  37 represented in that small triangle?  38 A   No, not necessarily.  39 Q   Should the line be moved up or down?  40 A   I couldn't say.  It's -- this is a  41 representation, it's schematic, it's to  42 demonstrate, to give a comparison, but that's  43 all.  44 Q   Yeah, all right.  Now, over on the right-hand  45 side of the large triangle you have the words  46 "band council".  There are of course people who  47 are elected as councillors and chief 2466?  Submissions by Mr. Grant  1 councillors by each of the bands, is that  2 correct?  3 A   Yes.  4 Q   And you include them in the -- in the federal  5 hierarchy?  6 A   I include them to the extent that they are part  7 of the federal system or have been part of the  8 federal system.  They are -- and that's the  9 reason they're represented there, but it's more  10 complicated than that, but for the purposes of  11 this presentation, it was the reason they were  12 presented there.  13 Q   You lumped them in with the minor officials of  14 the Department of Indian Affairs, did you?  15 A   No, no, no.  I lumped them in -- I put them in  16 there because they -- Ottawa, this is a  17 presentation to a federal -- to a federal  18 commission, and I'm pointing out the -- in  19 terms of the relationships from Ottawa to the  20 local level, the -- that the band councils are  21 part of that system.  As I said, it's more  22 complicated than that, but the Hazelton --  23 where you see Hazelton would refer to the  24 Department of Indian Affairs, and then the Band  25 councils are within that."  26  27 Now, my lord, the suggestion made in  28 cross-examination which was, in my submission,  29 completely rejected by Mr. Sterritt, that there are  30 people with authority and without authority in the  31 sense that they have no power has to be looked at in  32 the context of this explanation.  The conservation  33 officer was his parallel in the European system to the  34 people without authority.  35  36 Now, let's look at the conservation officer.  The  37 conservation officer has no authority to enter into  38 treaties on behalf of the Queen.  The persons in the  39 House who are not named chiefs have no authority to  40 enter into treaties with the government.  It's the  41 chiefs who have that authority which is delegated to  42 them.  But the conservation officer, my lord, has the  43 authority and the power to vote.  And in our system,  44 he even has the authority, the power to become the  45 Prime Minister.  He can do that.  And similarly, and  46 he -- so, similarly, he can select the leaders and  47 also, ultimately, he could become the leader. 24669  Submissions by Mr. Grant  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  GRANT  COURT  MR.  THE  MR.  GRANT  COURT  GRANT  THE COURT  MR. GRANT  In the Gitksan system and the Wet'suwet'en system,  the lixgiget, the people "without authority" have the  power, and, in fact, the ultimate say in its selection  of the chief.  And as I will explain through Daxgyet,  the next section, the chief can't carry on, can't have  the power to be a chief, without those people coming  together and deciding they are going to raise that  person up.  And ultimately they can also through merit  become chiefs themselves.  So that's the sense in  which it is.  And it is not a people that are  powerless.  And I appreciated your question because I think  that there is an implication here that we have a class  system among the Gitksan and Wet'suwet'en.  And I say,  my lord, as with the Iroquois, as with others that you  have heard Mr. Jackson refer to, that in fact it is  not a class system.  And in fact it is a system in  which all of the members of the House come together to  lift that chief up.  But when that -- when that House  or that group of Houses says, we are going to deal  with Canada, it is on a chief-to-chief level.  That's  what the purpose of the diagram is, and that's all it  is .  :  I have a recollection, I don't have any more than  that, that this subject was dealt again somewhere  else.  :  By another witness?  :  I'm not even sure about that.  But I don't recall  where it was now.  Let me ask you something else now  that was just brought to mind.  Did I hear the  evidence of anyone except Marvin George who wasn't  himself a chief, himself or herself a chief?  I don't  think Marvin George had a chiefly name.  Was there  anyone else?  Glen Williams.  Oh, I think —  Okay.  You mean including those other than a head  chief, is what you are referring to?  Yes, didn't have a chiefly name.  He said he didn't  have a chiefly name.  But I think everyone else said  they did.  I believe, in fact I'm certain, my lord, that some  of the witnesses who testified under cross-examination  were not chiefs and did not have chiefly names.  I  believe a number of those witnesses did. 24670  Submissions by Mr. Grant  1  THE  COURT  2  MR.  GRANT  3  4  THE  COURT  5  MR.  GRANT  6  7  THE  COURT  8  MR.  GRANT  9  10  11  12  13  14  THE  COURT  15  MR.  GRANT  16  17  18  19  20  21  22  23  THE  COURT  24  25  MR.  GRANT  26  27  THE  COURT  28  MR.  GRANT  29  Q  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I would be grateful if you could tell me which ones.  I will review the list, and I will advise your  lordship of that.  All right.  Thank you.  And I can do that in a summary fashion by giving you  a list.  All right.  Yes.  I'm quite certain of that.  Now, my lord, as another aspect of this, still  just completing this process, and you will see this in  the discussion of amnagwoyt and negedeldus, which are  the concepts of the rights of the fathers is the --  Just a moment.  Amnagwoyt is A-M-N-A-G-W-O-Y-T.  And negedeldus is  N-E-G-E-D-E-L-D-U-S.  What I have done here, my lord,  and I am going to refer to it in a minute, is I am  giving you a piece of -- an extract from Exhibit  884-2, Dr. Daly's report.  And I think that it is  illustrative of how matrilineal systems work in terms  of counteracting hierarchy.  This would be an extract  from 884-2.  What page are you on in your, or does this relate to  the same --  It relates to the issue at page 81.  I am finishing  that, of course.  All right.  Dr. Daly states:  "As pointed out earlier, in Chapter II,  matrilineal kinship and succession militate  against the formation and entrenchment of  social hierarchy and groups of kinsmen capable  of consolidating wealth and power generation  after generation.  Political power accruing to  any particular chief is scrutinized and  challenged constantly by other members of the  House group, who of course are related through  their mothers.  A young man raised on his  father's land possesses only use rights there.  If he seeks to make his mark on history he must  society, both in his mother's territories and  in the feast house, with persons to whom he is  related through his mother.  Similarly, the  tendency to marry into the House or clan of the  father creates inheritable possibilities for  the children of the man who is using his 24671  Submissions by Mr. Grant  1 father's land, for his own children have rights  2 there which are denied him, yet he is able to  3 teach his own children about their land and its  4 history."  5 Now, a classic example, my lord, is a situation of --  6 is the situation of Tenimgyet, of Art Mathews Sr. or  7 Jr., and his father, where his father of course is  8 from out of the House but taught his own -- his father  9 was raised on that territory, learned about it, was  10 not a member of the House.  And his father has passed  11 that information to his own son who is a member of the  12 House.  13  14 Now:  15 "On the other hand, a woman who goes to live  16 with her husband's House group after marriage  17 retains considerable status.  Today she may  18 marry outside the region altogether and still  19 retain her rights and standing in her House  20 group, especially if she chooses to remain  21 active socially and economiccally.  She loses  22 none of the rights due to her in her own House  23 after marriage.  Today she changes her surname  24 to that of her husband, but she remains the  25 permanent ambassador of her House and in the  26 residential group of her husband.  She is at  27 all times in a position to defend the interest  28 in her House and her children, who are members  29 of her own House.  30  31 If the husband's House has longstanding  32 marriage ties with that of his wife, the  33 children are actually living with their own  34 House father's side, the group with which the  35 House interacts most frequently and most  36 intensely.  The intersection of such interest  37 groups tends to thwart powerseeking by  38 individual House leaders.  Men must remain in  39 close touch with their mother's brothers, and  40 with territoriesof these brothers in order to  41 prosper in society.  42  43 But men are frequently raised away from  44 these uncles, by their own fathers on the  45 father's House lands.  The potential for the  46 entrenchment of a wealth-accumulating group of  47 men - which could lead to enduring political 24672  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  consolidation and intergenerational social  hierarchy - was extremely difficult to realize,  particularily in pre-European times.  Through  marriage, a man may solidify his rights to use  the land of the father's side.  Only so many  sisters' sons can be trained to inherit their  matrilineal uncle's name and land.  This  structural conflict between residential custom  and inheritance law continues to provide a  dynamic tension in the society, and militates  against the accumulated wealth of one  generation being consolidated by the next."  What you see here, my lord, is that you -- within  a matrilineal system, and these societies where you  have a stable resource base like the salmon are often  matrilineal.  And you have a conflict because you have  the tendency of -- of father going to son.  But you  have this -- they are on the other land and they have  to connect through the mother.  So the hierarchy and  the intergenerational succession session can't happen.  So that tension happens.  And that's where we get  amnagwoyt and negedeldus which are very active  principles of rights of use to the father's lands.  But it counteracts any tendency to the hierarchy.  :  I'm having trouble with your submission that this is  not a hierarchy.  I would have thought this was a  hierarchy.  Chiefs, sub-chiefs, and then those without  authority.  Isn't that a hierarchy?  :  Based on kinship.  Based on kinship.  And it is not  succession through birth.  And persons without --  that's what I'm saying about that diagram.  It is in  that context is the persons who are not chiefs do not  negotiate with the Federal Crown.  Just like under the  principles of aboriginal title --  :  Yes.  :  -- John Smith who comes to settle on a piece of land  doesn't negotiate on behalf of the Federal Crown.  It  is the same principle on the Gitksan or Wet'suwet'en  side.  In that sense they don't have the authority to  negotiate.  But they do have -- that's what I was  raising yesterday when you asked:  Do I have to decide  if chiefs are good chiefs or bad chiefs?  I said:  No.  But what you have to see as a part of the system is  the development of merit is an important part of the  selection of the chiefs.  When you have a merit  system, my lord, you don't have the hierarchy because 24673  Submissions by Mr. Grant  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  it means that a person --  THE COURT:  Are you confusing hierarchy with nepotism?  MR. GRANT:  Well, that type of succession in that sense, that's  right.  You don't automatically become a chief because  of your birth.  And a person can develop their power  and become a chief.  THE COURT:  I wouldn't call that hierarchical, but you  apparently do.  MR. GRANT:  I'm sorry, to the birth?  THE COURT:  Yes.  MR. GRANT:  Well, I mean the monarchy type of system where you  get --  THE COURT:  Well, it has hierarchical aspects to it, but this is  semantical, I guess.  MR. GRANT:  Well, it may be.  But the point is remember you have  the fundamental unit is your kinship unit, your House,  and you have all these houses.  And I may be  overstating it.  Within one House you would have a  hierarchy.  I was focusing on the method of selection.  But you do have a leader.  Just like in our country,  you do have a leader.  But when you look at the houses  together, the Gitksan together, you don't have a  hierarchy.  You don't have one Gitksan giant chief.  That's -- and that's the very essence of the kinship  system.  You don't have it.  So you have checks and  balances all the way through.  THE COURT:  All right.  MR. GRANT:  When I deal with the question of decision-making and  jurisdiction, when I deal with that we will point out  that the head chief can't make decisions of course on  his own.  And in that sense it is a consultative  system rather than an authoritarian system.  I go to  page 97 now, my lord.  THE COURT:  Yes, thank you.  MR. GRANT:  Before going into this section of diniizee/daxgyet,  some places in this and probably in the summary it  just uses the word daxgyet.  The word "diniizee" is  the parallel word and should be considered there  wherever "daxgyet" is discussed.  It is  daxgyet/diniizee.  Daxgyet you've heard much about and  is the concept among the Gitksan.  And the  Wet'suwet'en parallel term is diniizee which of course  is also the word for chief.  And I will come back to  that in a few moments.  I would like to summarize for you this concept of  power, authority and responsibility of the chiefs 24674  Submissions by Mr. Grant  1 which connects them intimately into their territory  2 and into the relationships with other chiefs.  3 daxgyet/diniizee may be described as including: the  4 power and authority of the House over the territory;  5 the spiritual power acquired by the House through  6 adaawk and nax nox; the power and authority of the  7 House as it is built up  through the proper conduct  8 and feasting of the House chief including the  9 maintenance of the crests of the House through the  10 poles; the power and authority of the House acquired  11 through the proper process of raising poles building  12 on the strength of former chiefs and the strength of  13 the father's side; the power and authority of the  14 House through the proper reciprocity (gift giving) and  15 exchange with other houses; the power and authority of  16 the House as developed through generosity to those in  17 need and the acknowledgment of that generosity through  18 the feast; the maintenance of the authority of the  19 House through the clearing of a name and the  20 protection of the name from shame.  And if you want a  21 synopsis of what those daxgyet/diniizee is, those  22 seven points are what I submit it is.  And they are  23 very important aspects of both the Wet'suwet'en and  24 Gitksan systems.  25  26 The concept, or daxgyet, reflects the power and  27 authority of the House deriving from the territory.  28 And I say it is a central component of Gitksan and  29 Wet'suwet'en it should say there, my lord, and  30 Wet'suwet'en societies.  The House must be able to  31 describe its territory to establish where its power  32 and authority is and where it arises from.  And we  33 will come back to this in dealing with the  34 territories.  35  36 But the bottom line is this, my lord, that Exhibit  37 646, the map of the territories, or 647, that we say  38 the boundaries of each House territory has been  39 described in evidence in this case and has been passed  40 down by -- from generation to generation.  And that  41 central knowledge of the territory is a key component  42 of the ownership, and we say we have established that.  43  44 Now, I go to the middle paragraph on 98.  It is  45 interesting to note that the Wet'suwet'en concept,  46 Diniizee, is the same as the name for chief.  Neither  47 the Gitksan or the Wet'suwet'en consider "chief" a 24675  Submissions by Mr. Grant  1 very accurate translation of simoighet or diniizee.  2 These concepts include not only this name holder, but  3 also the authority and the power of the House.  4  5 Now, the Gitksan explanation was given by Solomon  6 Marsden when he says:  7  8 "What we call Daxgyet is the person that will  9 pass the name in the territories on from  10 generation to generation."  11 And at the same place he refers to daxgyet as a  12 "firmly placed person".  He said that the daxgyet of  13 the chiefs is founded within the territory.  He  14 described the relationships as follows:  15  16 "I could talk about my own territory and when I  17 mention my territory, this is where the base  18 is, the foundation of my strength comes from.  19 So in order to show the Court that I do have  20 strength with the other Gitksan people, with  21 the territories I have to describe my land, my  22 territory where my power and my authority is."  23  24 Mary Johnson described daxgyet similarly when she  25 said, after describing her territory:  26  27 "So that all those territory covers my Dax  28 Gyet, that's Antgulibix."  29  30 Glen Williams referred to daxgyet as the authority  31 of the House and the head chiefs over the territory.  32  33 You may recall, my lord, the adaawk described by  34 Mary McKenzie by which Baskeylaxha obtained his nax  35 nox.  That was that supernatural event of him seeing a  36 vision through the sky which became the name  37 Baskeylaxha.  Through that event, which occurred on  38 this territory, Baskeylaxha has obtained the power  39 which he demonstrates in the feast.  This is part of  40 his daxgyet.  41  42 Mary McKenzie goes on to explain, and I quote from  43 her, my lord, that the power and authority exercised  44 by the Houses to protect and affirm their ownership of  45 the territory and the authority of the House is  46 related to spiritual power.  And this was described as  47 the nax nox.  And when asked by the court: 24676  Submissions by Mr. Grant  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  "Q  It's a ritual?",  on the next page she said:  "A   It's the power.  The nax nox is a living thing it is life and  it's not just a performance.  With this life we  feel it's in our spirit that we have to  approach the Head Chief with it so it's alive  in our sense, the Gitksan sense, and the  feeling of it.  We feel the nax nox is a living thing and so's  our territory. It connects the living things.  The beliefs in it that it's alive, like the  humans have a spirit so is the animals that is  on the territory, the fowl in the air, the fish  of the waters, the animals of the land, it all  connects with the ...daxgyet."  THE COURT:  "With the nax nox."  MR. GRANT:  I'm sorry, "with the nax nox."  As was described in evidence by Solomon Marsden:  "The power...",  again, we are talking of this term power of daxgyet,  " shared with all members of this clan and  feeds the other clans witnessing it.  So, also,  in everyday life, the power of the wilnat'ahl  spreads out and helps sustain all the people,  as does the power of all wilnat'ahl."  I conclude there, my lord, on this point, daxgyet is  here show to be connected to the authority to the  chief, the territory of the House and the spiritual  power of the chief.  It arises through the chief on  behalf of the House along with the nax nox.  THE COURT:  Well, Mr. Grant, there is something that has  troubled me arising from that quotation, and that is  this, that most of the literature that has been put  into evidence not invariably, but there seems to be a  large proportion of it hardly mentions House.  It  talks about clans.  Yet the heavy emphasis at trial  has been on Houses.  Now, I don't know that you can --  I know you can't be expected to respond to that  without checking my major premise that the literature 24677  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  deals more with clans than with Houses.  And much of  the literature never mentions House.  :  It is a terminology used as over the period by  anthropologists.  I believe Jenness is a classic  example, and Dr. Mills explained it.  Jenness when he  talked about clans, he uses the word "clans".  He is  referring to Houses.  When you look at what he is  saying, he is referring to what we call Houses.  When  he refers to clan -- when he is talking about what we  call clans he refers to it as phratries.  :  Yes.  :  And that's his reference to -- phratries is what we  call clans.  His reference to clans is what we call  Houses.  And I agree with your lordship that the  terminology in the field is confusing.  Why do we use  the word "House"?  Because of the -- and this is what  is -- we used use the word as wilp and as yex, the  Gitksan and Wet'suwet'en terms.  And they call it  House.  So to be true to how it's explained within  their own context, we have used the term House.  At the end of the day it makes -- I say it makes  little difference if Jenness called it clans when he  is referring to "the House in the middle of many", or  "the House on the top of the flat rock".  And he calls  this it "this clan" and "that clan".  What I say, my  lord, is that he is -- the term that he uses is  probably not accurate.  But he is referring to that  group, that kin group.  And what I say is that that  kin group is clear in the literature.  Now, I have to go back to some of the others.  Jenness is clear in my mind, but there is some of the  others I know.  And I agree with you that some of them  don't use that word.  :  Yes.  :  The terminology in the field seems to be always  changing, that is in the field of anthropology.  But  the question isn't:  What do they call it.  The  question is:  Who are they talking about?  :  What's in a name, that which we call a House in name  is important.  :  Right.  Now, on page 101, I just want to say the  integration of daxgyet and the context of explaning --  it says spiritual powers.  It should just be the  powers of the chief was best described by Art Mathews. 2467?  Submissions by Mr. Grant  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  And I think this is a powerful interconnection when he  says :  "The actual name of sewing your nax nox is in  our language...",  and he gives the name,  "...Luu hetxw halayt...which means you are  going" --  THE COURT:  Just a moment.  MR. GRANT:  Yes.  "...which means you are going to sew the power  which I described as Daxgyet - is going to be  transferred to another person, to exact its  rightful line of that name, so therefore this  had to take place."  Now, going down, then Mrs. Johnson explains it, as  well, that:  "...their hunting ground and all their crests  and the names, all the crests of their power,  everything is their power."  My lord, daxgyet is rooted in territory, the crest  and the names.  And I am going to come back to this  context of village which is made much of by the  provincial defendant.  And I will deal with it further  in this piece.  But in terms of daxgyet, there is a  way to understand this.  If you take a chief, Solomon  Marsden, for example, his power, his strength and his  authority is closest to his territory.  When he goes  to Gitanmaax, for example, he has less power or  authority among the chiefs there than he does among  those chiefs that are at Kitwancool because the  territory, his proximity to his territory, is  important for his power and authority.  Go over to the next page, my lord.  The authority  and power, to assume the authority and power of the  daxgyet of the House, is a great responsibility.  When  Mary Johnson agreed to take her high Chief's name, she  made reference to an ancient phrase which was  translated as "if I just spend one night with my  mother's power" which is "what they say when they  undertake a great thing to do, a great 24679  Submissions by Mr. Grant  1 responsibility."  2  3 Once a chief assumes the power of daxgyet of the  4 House, it is in the personal control of the chief  5 during his or her lifetime to strengthen or weaken the  6 daxgyet of the House.  Now, this, my lord, is why the  7 selection of chiefs is so important because a House  8 can drop in authority in amongst its peers.  That is  9 the other Houses, if the chief doesn't live up to the  10 name, the chief doesn't participate in the feast, the  11 chief doesn't take care of the territory.  12  13 And I have explained there in that middle  14 paragraph what some of the things are the chief can  15 do.  And a dramatic demonstration of the daxgyet was  16 made at the pole raising feast which is the most  17 dramatic.  And the first cut ceremony that you saw the  18 video of and had the transcription was explained by  19 Fred Johnson, Solomon Marsden and Stanley Williams.  20 And the pole itself combined the strength of the  21 father's side to the crest of the father, and the  22 daxgyet of the former chiefs who are commemorated by  23 the pole.  24  25 And I have -- it is Exhibit 38.  But for  26 convenience, my lord, I have copied it because it is  27 not very long.  I will make reference and put it in.  28 MR. PLANT:  My lord, while my friend is doing that, I want to  29 give your lordship the reference to the transcript  30 where the extremely limited use to which Exhibit 30A  31 was ruled upon by your lordship.  That's volume 393.  32 And it's page 5927, 5928.  At one point your lordship  33 said -- line 5 on page 5928, referring to this  34 document:  35  36 "All of which proves practically nothing except  37 that he said it."  38  39 MR. GRANT:  Well, I don't have those transcripts in front of me.  40 I am not going to respond to my friend right now about  41 that.  42  43 My lord, this occurred after Fred Johnson gave  44 evidence.  Solomon Marsden who spoke, the piece was  45 put to him and he confirmed that he said it.  And  46 Stanley Williams, the piece was put to him, and he  47 confirmed he said it.  Now, I just want -- what's 24680  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  THE  COURT  13  14  15  16  MR.  GRANT  17  18  19  THE  COURT  20  21  MR.  GRANT  22  THE  COURT  23  24  25  MR.  GRANT  26  THE  COURT  27  28  MR.  GRANT  29  THE  COURT  30  31  MR.  GRANT  32  33  34  35  36  THE  COURT  37  38  39  MR.  GRANT  40  THE  COURT  41  MR.  GRANT  42  43  THE  COURT  44  45  MR.  GRANT  46  47  THE  COURT  important is how these three elders and chiefs  explained the connection to the pole.  And I'll just  say -- just take one part of each of them.  Lelt on  the first page described that:  "The law, the symbols and power and authority  you see before you.  The power and authority is  here on it.  The power is on it.  And this is  why the Chiefs exists."  You may recall that this was a transcription --  translation of what was said, my lord.  Yes.  I just am having trouble with your friend's  comment.  It's an out-of-court statement.  It really  has no evidentiary value, has it, except to the extent  mentioned?  Well, it was part of -- and there is more than what  my friend says, my lord, because it was part of the  event that occurred.  Oh, yes, there is no doubt that the video is  evidence of what happened.  Right.  But the plaintiff says it is out of court, and is  both hearsay and self-serving and has no evidentiary  value.  What's relevant is --  That's why I'm just wondering why you're -- why  you're dwelling on it now.  Well, I mean if it is --  Unless you're suggesting that there is some other  basis for admissibility.  Well, my lord, this is part of the event just as  much as the video.  If they had said this in English  and not in Gitksan it would be part of the event.  They are not here speaking to the court.  They are  speaking to the chief who is raising the pole.  Well, I have trouble getting my mind around the  rules of evidence, Mr. Grant.  You seem to be quite  prepared to sail right up the middle or the --  No, if it's —  -- side lines.  If it is a problematic area, I don't want to spend a  lot of time dealing with the evidentiary point on it.  Well, maybe the best thing to do is go ahead.  I see  the force of Mr. Plant's submission.  Well, yes.  I don't have that transcript, but I will  look at that.  All right. 24681  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  And may say something further about it later.  All right.  In evidence, my lord, as I refer to on the next line  of page 103, Ms. Ryan testified that pole raising  includes part of the daxgyet of the wiilxsiwitxw.  That's the father's side.  And that was explained that  the father's crest is put on a pole which, I've  already referred you to when I referred to wiltsiwitxw  and haldza yesterday.  She also testified as to why Hanamuxw's House  decided to raise the pole.  And I won't reiterate that  quote, but it is there for your reference.  And I say  that it shows, once again, that it is the power of the  pole.  I see Jeffrey Johnson spelled all different ways, G  and J.  Do you know how it is supposed to be spelled?  This is the right way, I understand.  J?  J.  Okay.  Among the Gitksan, my lord, the culmination of the  affirmation of authority arises at the time of raising  of a pole.  It is customary when the new pole has been  roughed out to transfer formally the daxgyet, which is  an integral part of the ancient history of the crests  House portrayed on the old pole and in the songs and  regalia into the new, green hole.  This continuity of  the transfer of daxgyet, affirmation of the authority  of the modern chiefs as flowing from the ancient  history by explained by Hanamuxw.  And I emphasize a  part of her statement where she says:  "It's a way of reaffirming and confirming the  power of Hanamuxw.  It's a way of establishing  that the property of Hanamuxw has not been  abandoned, nor will it be in the future.  It is  a way of telling the other chiefs that the  House is as strong as it was before, and that  it will continue to exist, because we do have a  fair number of people in our House who will  continue with the activities within the House  of Hanamuxw - who will ensure that it will  continue in the future."  And that, my lord, is illustrative of the importance  of the pole raising.  Dr. Daly commented that: 24682  Submissions by Mr. Grant  1  2 "...these words of Hanamuxw are applicable not  3 only to the k'otsgan or pole-cutting ceremony,  4 but also to the whole process of raising a new  5 pole to revitalize the House and venerate those  6 who have gone before."  7  8 Now, Ms. Wilson-Kenni referred to two situations, and  9 you may recall this in the evidence, my lord.  And  10 this goes to the concept that a chief by giving  11 receives more power.  And I'm just going to summarize  12 it for you rather than go through.  She and her House  13 live -- many of the members live at Hagwilget.  You  14 recall that the Hagwilget Rock was destroyed.  There  15 is no fishery there.  Stanley Williams, Gwis Gyen, has  16 provided them fish for many years.  This is what her  17 evidence was.  And what they did was in a feast hall  18 they made a vest and they gave it to Stanley Williams.  19 Similarly, Alvin Weget, another chief from Kispiox, in  20 that case gave them fish.  And they provided him with  21 mukluks.  22  23 But what's significant, my lord, is that this  24 happened in the feast hall.  And as Ms. Wilson-Kenni  25 said in conclusion at the top of page 105, His dax  26 gyet...", that is Gwis Gyen:  27  28 "His dax gyet is made more powerful in the eyes  29 of the people because it is shown publicly in  30 the feast that he is being acknowledged in  31 return for his generosity in providing these  32 fish to us."  33  34 Now, of course, my lord, there is also the example of  35 Spookw himself who gave rights of access to Hagwilget  36 to the Wet'suwet'en in 1820.  And the historical  37 record indicates that event occurring then.  And what  38 it refers to is that that is consistent, Ms.  39 Wilson-Kenni explained, with the increase of power or  40 authority of Spookw.  Mr. Grant, where was the rock slide?  Right in the canyon.  In the Hagwilget Canyon?  You may recall the photographs of the rock that  45 ultimately was blasted in 1958.  46 THE COURT:  Yes, but that's — that's a different situation.  47 MR. GRANT:  No, but the reason -- I am going to tie it back, my  41 THE COURT  42 MR. GRANT  4 3 THE COURT  4 4 MR. GRANT 24683  Submissions by Mr. Grant  1 lord.  My lord, that rock, okay, my understanding from  2 that -- that's where it happened.  So presumably, and  3 I'm saying presumably, I have always understood that  4 that rock would have been part of what was the slide.  5 THE COURT:  I see.  6 MR. GRANT:  So that's where it happened.  It would be right  7 underneath the bridge, right in the narrows of the  8 canyon.  9 THE COURT:  All right.  Thank you.  10 MR. GRANT:  And of course by being that, then, the fishery would  11 be to that place, and that's why Hagwilget would be of  12 value, Hagwilget Canyon would be utilized.  But they  13 couldn't get past there, as you will recall.  14 THE COURT:  Well, there is literature that talks about rock  15 slides at Roche de Boule.  I think they are using it  16 as a name of a location, a general location.  17 MR. GRANT:  That Roche de Boule at times, and I believe Mr.  18 Adams is going to refer to this when he refers to the  19 ethnohistorical material.  20 THE COURT:  I am not talking about the Chicago Creek Slide.  21 MR. GRANT:  No, you are talking about that rock slide in the  22 Hagwilget Canyon.  And Roche de Boule, my lord, there  23 is reference in the historical literature about Roche  24 de Boule.  25 THE COURT:  There is talk in the literature about a slide at  26 Roche de Boule which lead to the migration of the  27 Moricetown people to Hagwilget.  28 MR. GRANT:  That's right.  2 9 THE COURT:  All right.  Thank you.  And you are talking about  30 that as a general geographic area rather than a  31 specific location?  32 MR. GRANT:  Yes.  33 Now, as Glen Williams explained, my lord, and I  34 refer to this briefly on page 105, a chief or a wing  35 chief can lose power and a House lose power by not  36 attending the feasts.  And, for example, only a few  37 years ago Roddy Good was blown out, I think was the  38 phrase used in Gitksan.  Blown out in the sense that  39 the name was actually taken off of him because  40 although he had a chief's name he was not attending a  41 feast.  This of course was a sub-chief in the House of  42 Malii, M-A-L-I-I.  43  44 Now, one of the most dramatic examples, and I  45 think this is really helpful for us of what the  46 importance of daxgyet or power is this shame feast.  47 Now, as you've heard, if a chief has an accident, is 24684  Submissions by Mr. Grant  1 embarrassed, does something wrong and doesn't serve  2 properly as a role model, the daxgyet of his House can  3 be weakened.  And in order to rectify that, the chief  4 must put up a shame feast.  This shame feast permits  5 the chief, I am on page 106, to regain the daxgyet and  6 puts to rest any lingering question whether he is able  7 to fulfill his responsibilities.  8  9 And I am not going to read, my lord, except one.  10 We have much reference to this.  Lawrence Michell put  11 on a shame feast because he was assaulted by another  12 chief.  And this was described by Josephine as  13 klonelsas.  14  15 "These feasts are held when the high chief is  16 bloodied up or when there's a heated argument  17 between two chiefs."  18  19 Now, my lord, I would like to note here that it is  20 important for you to see that within the contemporary  21 Wet'suwet'en system there is a method for conflict  22 resolution.  That conflict resolution operates, still  23 operates today.  And the example with Lawrence Michell  24 and Murray Namox is an example of that.  25  26 Now, there is another example which was Mable  27 Forsythe, a sub-chief in the House of the  28 Wet'suwet'en.  She was falsely accused of shoplifting  29 in Smithers.  There was a criminal trial.  She was  30 acquitted.  The description is set out on the bottom  31 of 107.  She was in Smithers and obviously people were  32 shamed.  It was knowledgeable that this is what had  33 happened to her, and she was publicly humiliated.  34 She, after the acquittal, sued for false arrest.  And  35 Judge Boyle dealt with the case in 1987, and found  36 that:  37  38 "Mrs. Forsythe is a hereditary chief of the  39 Gitdumden, a role that carries with it an  40 obligation to serve as an honourable model for  41 her people, particularly the young.  According  42 to her custom, she must hold a shame feast for  43 her clan to absolve herself of the shame cast  44 upon her by these circumstances - a shame which  45 lies upon her despite her obvious innocence.  46 That feast will absolve her of shame within  47 native society but she is entitled as well to 24685  Submissions by Mr. Grant  1 damages for her humiliation in front of  2 non-native persons as well."  3  4 Now, Dr. Mills goes on to explain that here if it  5 was between two Wet'suwet'en it would not have been as  6 necessary to -- as with the case with Lawrence Michell  7 to -- it wouldn't have been necessary to go to the  8 courts because they would have dealt with both in the  9 feast hall.  But here what we have is an example of  10 the Wet'suwet'en, non-Wet'suwet'en interface.  And  11 what she has done is she has sued.  The officer hasn't  12 been involved, but the store, I believe, as part of  13 the order of the court made a public apology to her.  14  15 My lord, these examples are -- this example of  16 Mrs. Forsythe demonstrates that the chiefs together  17 exercise jurisdiction to settle disputes.  It also  18 demonstrates that there are parallels within the --  19 within our legal system and within the Wet'suwet'en  20 legal system and they can conjoin.  They don't have to  21 be separate or disparate.  22  23 And I was concerned because of a suggestion your  24 lordship have last week about the witnesses, the  25 Gitksan and Wet'suwet'en witnesses having no regard or  26 being ethnocentric on their side with respect to the  27 non-Indian.  And I say, my lord, that that's not  28 correct, with respect.  That, in fact, this example  29 here is -- the Wet'suwet'en and the Gitksan work  30 within the non-Indian system to everywhere -- to the  31 extent that they can and fit it in within their own  32 system.  33  34 And this is a classic example of where that has  35 been done.  Granted it was through a lawsuit, but it  36 was through no spite of the court system, or no  37 disregard of the non-Indian system that Mrs. Forsythe  38 came forward.  She cleared her name within the  39 non-Indian system of Smithers, and now she is clearing  40 her name within the Wet'suwet'en system as well.  41  42 It comes to my mind that the similar -- this is  43 just a continuity of the evidence of witnesses such as  44 Martha Brown and Pete Muldoe where they described  45 their close affinity to the -- or friendship with the  46 non-Indians.  I will just give you the page reference  47 or the volume reference.  It is at page 6353, volume 24686  Submissions by Mr. Grant  1 100.  Where he's asked -- 6352, 6353, where he is  2 asked about Bill Love.  And this is cross-examination  3 by Mr. McKenzie.  4  5 "Q   But you certainly know Bill Love, he's been  6 there since -- his whole life, hasn't he?  7 A   Yes, his whole life."  8 The Loves have farms in the Kispiox Valley, and have  9 been there for quite a while.  10  11 "Q   And do you know his wife, Lillian Love?  12 A   Yes.  13 Q   And in fact, you have good relationships with  14 them, don't you?  15 A   Oh, yes.  16 Q   You've been to visit them?  17 A   Yes.  18 Q   And you can agree with me they are very  19 hard-working people?  20 A   Yes.  21 Q   Bill Love is a guide outfitter, isn't he?  22 A   Pardon?  23 Q   He does guiding?  24 A   Yeah they in the guiding outfit.  Him and his  25 brother-in-law, Jack Lee.  26 Q   Yeah, Jack Lee, that's right.  You visited Bill  27 Love's home on different occasions?  28 A   Yes.  Just once sometimes -- once in a while.  29 Q   Once in a while?  30 A   Yeah.  31 Q   And will you agree with me that many people  32 from Kispiox are friendly with Bill and Lillian  33 Love?  34 A  Well, just about every people in the village  35 that know him, some of the older people that  36 knows him.  37 Q   But can you agree with me that you get along  38 pretty well with Helen Campbell?  39 A  We don't -- I know her but we don't visit her  4 0 that much."  41  42 The theory that the Gitksan and Wet'suwet'en have  43 lived in continual opposition and fighting with the  44 non-Indian community, and at that level of  45 ethnocentrism, I think may be a theory espoused by the  46 defendant, but I think it is wrongly placed.  I think  47 accomodation and trying to work things out happens 24687  Submissions by Mr. Grant  from the local level of the trade. For example, in  potatoes and fish right through to the resolution of  things like clearing her name of Mrs. Forsythe. And  that that interaction does occur. And I really -- I  believe that when we deal with the effect of recent  contact and intensification of resource use, we will  still see that up to today.  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  Now, my lord, the second reference to the shame  feast was given by Mrs. Gawa -- or Mr. Muldoe talked  about when he fell off of his boat and put up a feast  and that is referred to on 109  Now, I should state  that Mrs. Gawa, that is a case which I'm not certain  that we have in our authorities, but it is Gawa v.  Horton and Watson.  It was a case in which she did sue  them.  And Justice Hutchinson, Judge Hutchinson at the  time made a decision in which he recognized, along the  same lines as Judge Boyle.  MR. PLANT:  Where are you in your argument?  MR. GRANT:  Page 109, 110.  The shame feast, my lord, is not something which  has happened just recently.  And there is exstensive  evidence by Stanley Williams which he really explains  in detail where he was engaged in a fence.  And I am  going to -- I don't have the reference right here, but  I will provide it to you.  But it goes on for several  pages of a shame feast that he held himself 40 years  ago where he himself had done wrong, and he corrected  it in the feast hall.  Now, my lord, without daxgyet and diniizee the  Gitksan and Wet'suwet'en chiefs have diminished  authority.  It is central to the institution of the  House, the chiefs and the clans as are the  institutions of the feasts and the poles.  The  authority of the chiefs and their abilities to apply  the laws and institutions of the feasts could not be  successful without daxgyet/diniizee.  Now, my lord, I may say that the joinder of those  chiefs from Kisgagas at the time that Weststar wanted  to cross the Babine, and that's in that reported  decision of Gwoimt v. Weststar, is another example of  protection -- protecting daxgyet and interacting with,  of course, the non-Gitksan system in terms of relying  on this Court.  Not your lordship, of course, but this 246?  Submissions by Mr. Grant  1 Court to protect them and to protect their power and  2 authority.  3  4 My lord, I would like now to move into the  5 economies.  Now, in this section the Wet'suwet'en and  6 Gitksan are dealt with substantially differently.  And  7 I am going to start with the -- well, I will start  8 with the introduction and go to the Wet'suwet'en.  And  9 I am going to use one of the models here, but I have  10 analyzed each of the clans of the Wet'suwet'en in this  11 part of the argument.  But I am going only going to  12 refer you to two of them.  13  14 The House unit of the Gitksan and Wet'suwet'en  15 joined together with other Houses connected through  16 the wilnadaahl and the clan to produce a material way  17 of life for the Gitksan and Wet'suwet'en people.  Now,  18 my lord, I think with modifications of the terms,  19 that's what we can consider as economy in any society.  20 It is a material way of life which the economies are  21 utilized for.  The most obvious way in which the  22 economics of Gitksan and Wet'suwet'en have operated is  23 through access to resources necessary for the people's  24 survival and the life cycle of those resources.  This  25 is something that has often been referred to as a  26 seasonal round.  27  28 Now, my lord, these economic systems have been  29 reflected in the language and in the oral histories.  30 And I have referred you to the language a couple of  31 weeks ago, the linguistics referred to by Dr. Kari and  32 the use of economic terms, that is terms of the  33 resources they use.  34  35 Notwithstanding the blockage and restriction of  36 access of the people to the territory and the  37 resources through the defendant's conduct, there is no  38 reason why the economic system of the Gitksan and  39 Wet'suwet'en rooted so deeply in their history and  40 their social organization cannot meet the challenge of  41 the future.  The only limitation is the refusal of the  42 defendants to recognize the unextinguished ownership  43 and jurisdiction of the plaintiffs to the territory.  44 In considering the economic system of the Gitksan and  45 Wet'suwet'en peoples today, the duress and impact of  46 the wider economy has certainly had an impact on their  47 economies.  Nevertheless, the Gitksan and Wet'suwet'en 24689  Submissions by Mr. Grant  1 maintain continuity with respect to the territory and  2 social organization which is rooted in that territory  3 as well as a viable economic system within the  4 society.  5  6 My lord, I submit that we have, the plaintiffs  7 have demonstrated a deep relationship of the people to  8 territories through utilization and protection of  9 particular resources.  The evidence relating to  10 seasonal round demonstrated the intensive integration  11 of the people with their territory.  12  13 I would turn you to the next page.  My lord, as  14 Dr. Daly has said:  15  16 "The Gitksan and Wet'suwet'en system of  17 ownership and authority is closely linked to  18 seasonal round of economic activities which  19 have for a very long time occupied the peoples  20 and informed their values, laws and world  21 view."  22 And even today, my lord, you will see in the evidence,  23 through the evidence that I will refer you to, that  24 seasonal round, although modified, continues.  It's  25 interesting to note, my lord, that both the Gitksan  26 and the Wet'suwet'en have specific names for the  27 months.  And though the Gitksan names, some of the  28 Gitksan names, are listed by Ms. Johnson in her  29 evidence on page 113, and the Wet'suwet'en names as  30 well are referred to by Johnny David and by Dr. Daly.  31 And these names refer to the specific types of things  32 that they are doing.  Johnny David testified that:  33 "Buningasxkas is for the month of August.  This  34 refers to the small birds being born and  35 they're unable to fly and they're just running  36 around on their legs."  37 This is a connection of the months and the seasons to  38 the time of the year and to the economies.  39  40 Now, my lord, if I may pause here, the  41 Wet'suwet'en, the Wet'suwet'en seasonal round is  42 focused on the clans.  And it's important to remember  43 there is a major distinction between these two  44 societies in seasonal round.  The Wet'suwet'en  45 villages, village sites or fishing locations, are the  46 summer villages.  Whereas with the Gitksan, they are  47 the winter villages.  There is a greater congregation 24690  Submissions by Mr. Grant  1 of the Gitksan traditionally within their winter -- in  2 the villages in winter, and among the Wet'suwet'en,  3 they come together in the summer.  And that's a major  4 distinction between these two peoples which is  5 demonstrated through their economy.  6  7 Now, Ny'yiin' is a Wet'suwet'en word referring to  8 land or territory.  It literally means "our land".  9 Now, Alfred Joseph was asked on cross-examination  10 about land holding.  It was suggested to him that this  11 was only hunting and trapping rights.  But he replied:  12  13 "When they talk of their land they also put in  14 the word Wa Ts'a wid'egh which means  15 'everything that came from that territory'."  16  17 It's not just the furs, my lord.  It is not just the  18 fish.  It is the resources.  Once again, when Mr.  19 Goldie cross-examined Mr. Joseph that Alfred Joseph's  20 uncle did not have the same understanding of ownership  21 and jurisdiction that Mr. Joseph does, Alfred Joseph  22 replied:  23 "He always ... talked about the land as the land  24 that belonged to the Kaiyexweniits and  25 Wet'suwet'en and they used it as a demand.  2 6 They had to meet the demands of the trade  27 before and after the coming of the Europeans.  28 They have trapped to trade before with other  29 natives before the coming of the whiteman and  30 then they traded with white trader that came  31 in.  So whatever came out of the land they  32 considered as our resource."  33  34 Now, my lord, this concept which, using the English  35 words of ownership, of authority and jurisdiction over  36 the territory, never -- does not lessen in any way the  37 concepts that the Gitksan and Wet'suwet'en have always  38 had with respect to their territories.  39  40 And, my lord, I say that these territories are  41 rich in resources and trade opportunities, and the  42 evidence suggests that the territories have been so  43 for thousands of years.  Now, much is made of the  44 fact, my lord, I may stop here, by the defendant that  45 Dr. Hatler couldn't go back from his records before  46 1860.  What I say, my lord, is there is nothing to  47 suggest in the evidence that there was a major change 24691  Submissions by Mr. Grant  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  in the resources before that time, and Dr.  the others said as much.  Hatler and  My lord, I just want to make some references to  you in terms of the rich in resources because there  has been the suggestion by the defendant, the  provincial defendant, and I will refer you in their  summary.  They refer to this at part IV, 3(b), pages  2-5, paragraphs 4-5.  The defendants say:  "There is no doubt from the evidence that the  climate in the Claim Area was colder during the  period known as the Little Ice Age which  extended into the mid-19th century.  However at  the very times that the "Little Ice Age"  wassupposed to be at its peak, the Hudson's Bay  traders were remarking on the mild climate in  New Caledonia.  "  This is their theory.  I will refer you to the  exhibits, Exhibit 913, page 241.  MR. PLANT:  Sorry, 913?  MR. GRANT:  Page 241.  This is not in my argument, my lord.  THE COURT:  Thank you.  MR. GRANT:  But it fits in here with what my proposition is  about the resources for thousands of year at page 115.  THE COURT:  Yes.  MR. GRANT:  And the provincial's argument where they suggest  that "the climate in the Claim Area was colder during  the Little Ice Age is at their summary IV, 3(b), pages  2-5, paragraphs 4-5.  MR. PLANT:  If my friend is moving on --  MR. GRANT:  I am not moving on.  I am just giving the judge a  chance -- his lordship a chance to write a note.  MR. PLANT:  You made a reference just a minute ago to say there  is nothing to suggest there was a major change in  resources before that time, and Dr. Hatler and the  others said as much.  I would like to know what the  others are that my friend attributes that statement  to?  MR. GRANT:  Well, I have already referred to that in earlier  argument, my lord.  It is on the last part, in part 1  of the ancient history.  It is Mr. Chilton who made it  clear that climatologically.  And I have referred that  in volume 1 of my argument, climatologically.  And Mr.  Mathews, Dr. Mathews.  There was no evidence of a  Little Ice Age affecting this area.  But I even have 24692  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  the historical record of Daniel Harmon, Exhibit 913,  page 241.  And this is at the very time that,  according to the defendants, the Little Ice Age was  supposed to be at its peak.  And he says, relating to  the 1810 to 1816 period:  "The weather" -- and I quote  from Exhibit 913, page 241.  "The weather is not very" --  :  I'm sorry, the reference again?  The reference to  Dr. Harmon again.  :  Exhibit 913, page 241.  He is referring to the 1810  to 1816 periods.  :  Yes.  "The weather is not severely cold, except for a  few days in the winter, when the mercury is  sometimes as low as 32 below zero, in  Faranheit's thermometer.  The remainder of the  season, is much milder than it is on the other  side of the [Rocky] mountain, in the same  Latitude."  That is consistent with Mr. Chilton who said that you  can't assume from what's happening in Europe at any  period what is happening in North America.  He said,  regarding the New Caledonia District, Report Exhibit  964-4, page 144:  "The climate is Commonly Mild, tho' the present  winter ... 1826 ... was quite the reverse.  The  cold was intense, and the snow deeper than I  ever before witnessed."  The same report:  "The Climate in this quarter is much milder,  than at any of the Establishments that I am  acquainted with on the East side of the  Mountains -- Some years Rain in the winter is  not infrequent, and in the summer the heat at  times is really oppressive -- The lower end of  the Lake..."  I believe this would be Babine Lake,  " generally fast in the latter end of  November -- But the upper end which is much  wider, and more exposed seldom before the first 24693  Submissions by Mr. Grant  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. GRANT  of January, and last fall not until the 25th.  The time of opening varies in the same manner,  the earliest since we have been here, was the  last spring when it was free of Ice on the 27th  of April, and the latest in the spring of 1823  when it did not break up until the 24th of  May. "  That is Brown's report of 1826, Exhibit 964-12.  I  will reproduce this extract so that you can put it  right in this place in the argument.  All right.  But, my lord, the suggestion that there was a Little  Ice Age that adversely affected this area is directly  related to the historic evidence as well as the  climatologist's evidence.  Now, the Hudson's Bay Company make reference to  the beaver hunt in the 1820's, and the difficulty the  trading post factors confronted when they tried to  persuade the senior chiefs to sell their beaver rather  than "stubbornly to conserve them" for feasts".  This  is, of course, Brown.  And Brown also refers to the  Bulkley, that the Babines and the Wet'suwet'en  assembled regularly at the villages on the river.  Now, Mr. Adams will be dealing specifically with the  nature of organized society and contact through the  eyes of these historians.  And I just allude to this  now, to that now.  Now, what I have -- my lord, I  wondered what time you were intending --  I was going to break any time.  It may be convenient because there was an exhibit I  was going to refer to.  Yes, all right.  We will take the morning  adjournment now.  Thank you.  THE REGISTRAR:  Order in court.  Court stands adjourned for a  short recess.  (PROCEEDINGS ADJOURNED AT 10:55)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  THE COURT:  MR. GRANT:  THE COURT:  LISA FRANKO, OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 24694  Submissions by Mr. Grant  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  (PROCEEDINGS RESUMED AT 11:15)  THE  THE  MR.  THE  MR.  THE  MR.  REGISTRAR  COURT  GRANT  COURT  GRANT  COURT  GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  just like to refer you  I've reproduced Exhibit  Order in court.  Mr. Grant.  Now, my lord, page 116. I'd  to Exhibit 1016, and I have --  897 tab 88.  Exhibit 897.  Tab 88.  And what is this?  Okay.  Exhibit 1016 is an enlargement, and my  friends agree that I can refer to theirs, because I  can't locate the exhibit right at the moment, but it's  an enlargement of the map attached to the McDougall  letter, which is Exhibit 897 tab 88, and if you look  at the last page of it, of Exhibit 897, tab 88 you see  a map, but it's rather hard to see.  And what this --  this was a 1910 map, and it's Exhibit -- this Exhibit  1016 was copied by Dr. Galois from the map on Exhibit  897 tab 88, and Dr. Galois put in parenthesis on 1016  what he believed these locations to be.  So those that  are in brackets, squared brackets, on Exhibit 1016,  such as on the -- half-way down on the left side,  Morice Lake, Tahtsa Lake, those were put in by Dr.  Galois, but places like Hazelton at the top are on the  original archive, my lord.  Now, I have also asked  Madam Registrar to pull Exhibit 2 -- or volume 2118,  because this was all explained in the evidence of Mr.  George.  It was referred to by Dr. Daly, Dr. Galois  and by Mr. George.  Now, Mr. George, on page 15834,  volume 218 --  This is Marvin George, is it?  Yes.  Yes, all right.  Mr. George was asked that this was the sketch  produced by Dr. Galois, and it's different than the  one introduced by Dr. Daly in the sense that it was a  copy, and Mr. Rush explains it to your lordship.  And  on page 15835 he asked Mr. George:  "Q  If you can site yourself with reference to  this sketch by your knowledge of  Wet'suwet'en territory and your knowledge  of course of the NTS government maps?"  A  Yes, I can locate myself by this notation  here which identifies Hazelton, that would  be at the confluence of the Bulkley River 24695  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  and the confluence of the Skeena, which is  identified on the NTS series as the  Suskwa."  Now, what Mr. George does then is he goes through and  refers and confirms the parenthetical notes of Mr. --  of Dr. Galois.  Now, what's important for you to  realize, of course, my lord, is of course this is a  schematic in the sense that it's not -- the size of  the lakes aren't all to scale, and this is what Mr.  George does.  And his evidence on this issue goes from  page 15835 to 15839, and I believe that that should be  noted with reference to the exhibit and the comments  on page 116 of my argument.  Now, my lord, what's interesting is the trails.  The marks on this map show the trails of the people,  and this is of the Wet'suwet'en people, into their  territories, and you can see trails leading out from  Moricetown to cabins up in the mountains behind, and  you can see the route going down through to McClure  Lake and Lacroix Lake, following down on the map, and  the comments made on the original are "The Indians  dwelled here, claimed some but white man burnt cabins  in Gook land".  Going down further, "An old Indian  settlement taken by whites", and we're now on -- you  see the reference to the Bulkley River, the old  hunting camp, and you see the Morice River has gone  off.  So there you see the junction, that would be in  the proximity of Houston, my lord.  You see the  reference half-way down the map to Bill Nye Lake and  Bittern Lake, and you see the routes of travel of the  Wet'suwet'en people through the dotted and dashed  lines.  :  What's the difference between a dot and a dashed  line; do you recall?  Oh, it's --  :  You see it's on the bottom.  It's "additions for  portions of map illegible or missing", and that's why  I've given you the other one, which is the archival  one.  You can see that it's just very hard to follow.  :  Yes.  :  But they connect.  I mean the two generally, they --  it's connecting two parts.  For example, at Bittern  Lake and Bill Nye Lake, you see a dash line and then a  connector going down through to the other dash line  along that route.  And you can see the route going all  the way from Moricetown, you can see there's a place  there right below Moricetown that's missing on the 24696  Submissions by Mr. Grant  1 original, it's just not legible, and you can see going  2 all the way down to Decker Lake and to Burns Lake and  3 over to Francois Lake, Takysi, Skins Lake, Ootsa Lake,  4 and Whitesail.  And you can see the reference to  5 "Andrew Indian wood and beaver lands", and of course  6 that's a reference, and you can see the trail route.  7 That would be in the area of Jimmy Andrew, who was  8 referred to by the father of Irene Dome, and also was  9 referred to in evidence by Mr. Cyril Shellford or his  10 father.  11 Now, this map, my lord, is a dramatic -- I would  12 submit, a dramatic depiction of the Wet'suwet'en  13 utilization of the resources showing rivers, trails,  14 cabins and other features of Wet'suwet'en economic  15 activity in 1910.  It also details permanent cabins,  16 trails and camp sites for the whole Bulkley River  17 system as well as Ootsa, Francois and Burns Lake.  18 Now, my lord, it's not coincidental that of course  19 that map really encompasses in a sketch form the  20 Wet'suwet'en portion of the territory that's being  21 claimed, coming from Moricetown all the way down to  22 Francois Lake and Burns Lake, Whitesail Lake is  23 referred to, Ootsa Lake, all of the entire territory  24 is reflected on that sketch map, given that it's not a  25 map made by our modern cartographic standards.  And I  26 urge on you, my lord, that that map is dramatic  27 evidence that at that period of time the Wet'suwet'en  28 people were utilizing their entire territory.  What's  29 further interesting, my lord, and of course this  30 meeting is of -- from Mr. McDougall, in terms of the  31 position of the Wet'suwet'en people when the -- at  32 that time, term of discussions, of course you can  33 perceive in timing is before McKenna-McBride is set  34 up, but when the Indian Reserve Commission was really  35 somewhat at a standstill in the sense that the  36 Federal-Provincial discussion as to what to do were  37 back reconsidering what the Indian Reserve Commission  38 was doing.  39 THE COURT:  Mr. McDougall, I gather, was identified in the  40 evidence as an Indian Affairs officer of some kind?  41 MR. GRANT:  I believe that's correct, my lord.  He's the — just  42 a moment, my lord.  He was identified in the evidence,  43 my lord, and I just can't recall.  44 THE COURT:  Well, that's all right, I can find it.  45 MR. GRANT:  Yes.  But he was an official.  Now, and ones again,  46 I think the reflection that "we have no objection to  47 the white man coming into this country though it all 24697  Submissions by Mr. Grant  1 belongs to us, but we expect the Ottawa government to  2 see we are justly dealt with and our future secured to  3 us" is the kind of statement and the kind of  4 reflection of openness and willingness to share and  5 willingness to work together that's been reflected in  6 the evidence of the history of the Wet'suwet'en people  7 and of the Gitksan.  8 Now, Dr. Daly I refer to later on page 116 and  9 117, my lord.  He comments on the annual cycle of the  10 Wet'suwet'en, and he said, and this is from his review  11 of the ethnohistorical and the oral histories:  12  13 "While the people were on their way to their  14 camps from Moricetown; while they were hunting  15 caribou, beaver and bears; while they were  16 consuming the ever-present hare; while they  17 caught fish, took trout at the lakes and dried  18 their flesh and eggs; while they dug wild  19 potatoes and ate them with fish eggs; and while  20 they dried spring salmon at Moricetown Canyon.  21 This oral tradition also reveals a  22 preoccupation with food shortages in winter,  23 and with the importance of guarding and sharing  24 whatever dried food remained in times of  25 shortage.  In years of shortages, journeys were  26 undertaken to obtain end-of-winter foods from  27 the coast:  seaweed and dried clams, oolichan  28 and oolichan grease - either from the Nass or  29 from the Haisla peoples at Kemano and Kitimat."  30  31 Now, this is all reflected through the oral histories  32 of both the Wet'suwet'en and the Gitksan, is the  33 utilization of all these multiple resources.  And Dr.  34 Daly looked at them particularly to see what they  35 referred to, and Mrs. Johnson, in referring to the  36 Mediik adaawk described the use of resources:  37  38 "After all the fishing is finished and all the  39 hunting -- for mountain goats and groundhogs  40 and the mountain and all the berry picking is  41 finished" --  42  43 That's when the maidens went to the camp at the base  44 of Stekyooden, and they caught some grouse.  Again in  45 the snowfall adaawk you see it's the first spring  46 salmon, And it is also they make reference to the  47 fishery resource. 2469?  Submissions by Mr. Grant  1 Now, my lord, on the basis of the ancient  2 histories, the interviews and testimony of the chiefs,  3 the historical archaeological and climatic data, Dr.  4 Daly reconstructed the Gitksan and Wet'suwet'en  5 seasonal round, which was followed from pre-contact  6 and continued in the prescribed manner until  7 approximately 1950.  And the term "reconstructed", my  8 lord, I don't want that to be taken in any negative  9 sense.  "Reconstructed" here is what he did was  10 analysed the data, put it together, and said "This  11 appears to be what was happening", and put it together  12 in a cohesive form, but it wasn't a rebuilding of some  13 fiction, it was based on the data that he had.  I've  14 already focused you on the distinction of the seasonal  15 round as characterized by the summer gathering of the  16 people of the villages  close to the salmon harvest,  17 and the winter dispersal throughout the territories.  18 Dr. Mills identified the similarities and differences  19 between the Wet'suwet'en seasonal round with other of  20 the Indians throughout most of the interior of Canada  21 and the Gitksan.  She stated:  22  23 "The Wet'suwet'en differ from the Interior  24 Indians in that the abundance of salmon in the  25 river in summer made it possible for them to  26 live in a large village with cedar plank houses  27 during the summer months.  The Wet'suwet'en  28 differ from the Gitksan and other coastal  29 groups in the extent of the winter dispersal  30 and the total abandonment of the summer fishing  31 village.  This unique feature of Wet'suwet'en  32 life may well have given rise to the Gitksan  33 name for Moricetown, Laxilts'ap, which means  34 'abandoned village', for indeed it was  35 abandoned regularly every winter."  36  37 Now, my lord, I'm going to just briefly focus on the  38 Wet'suwet'en seasonal round by season and then go to  39 one clan and show what they did.  The Wet'suwet'en's  40 largest villages, Dizkle, Moricetown and Hagilget were  41 traditionally occupied during the summer salmon run  42 only.  And I explain further there what's done in the  43 summer season, and it's described by Dr. Mills.  In  44 the fall, on page 121, the Wet'suwet'en left the  45 summer village, even before the salmon stopped  46 running, to hunt animals that had fattened over the  47 summer:  Mountain goat, grizzly, black bears, deer and 24699  Submissions by Mr. Grant  1 caribou, as well as small game, such as rabbit, grouse  2 and whistler.  And of course, my lord, if you recall  3 the ecological zones, it's a required access to all of  4 them in the winter under the leadership of the head  5 chiefs they went to the house territories, and this is  6 what's rather unique, because I think it's important  7 for you to recognize this in terms of the  8 Wet'suwet'en, because they would call -- often were  9 called as a group by the name of their region:  The  10 bewani wuten is one example, "people of the bewani",  11 kilwoneetswuten, "people of kilwoneets".  Now, the  12 names of the summer houses, which have already been  13 seen, the "house of the little money", the "house on  14 the top of the flat rock" and other such names, were  15 not used as names of the house in the outlying  16 territory, even when there was a substantial house in  17 the winter site.  The names the winter groups referred  18 to what people who own or have a certain territory,  19 just as the name for the Wet'suwet'en as a whole means  20 people who have or own the lower drainage.  21 Now, then I go on to summarize what they have done  22 in the winter in their winter houses in the  23 hinterlands, fishing through the ice for char and  24 whitefish.  In the spring they move again to the lakes  25 where they can catch trout before returning in July.  26 And then at the bottom of 121 I focus on this annual  27 cycle, including trips to trade the specialties of the  28 land, something to which I will return.  The  29 Wet'suwet'en traded not only with the Gitksan and  30 Tsimshiam, but with the Nishga on the Nass and the  31 Kitimat or Northern Kwakiutl to their southwest.  I  32 have diagramatically presented that later in this  33 section of the argument.  The Wet'suwet'en chiefs  34 described the seasonal round when they testified to  35 the fact that Moricetown and Hagwilget were primarily  36 summer villages used for fishing -- for feasting and  37 fishing during the summer months.  38 And Emma Michell gave that evidence, Mrs. Alfred  39 on the next page, Dr. Daly's conclusion, Madeline  40 Alfred's description of Jack Joseph's house, Dan  41 Michell's description of -- when asked -- this is a  42 good example, I'll refer you to this one, whether  43 Moricetown was the true village or headquarters of the  44 Wet'suwet'en.  This fits into the defendant's context  45 that let's just look at the villages, that's really  46 what we're talking about here, the bands or villages.  47 His testimony corresponded to that of his mother, Emma 24700  Submissions by Mr. Grant  1 Michell.  He said:  2  3 "Well, to my knowledge, from what I've been  4 hearing, and all the people that live there, this  5 has been their place where they have lived.  When  6 they came back from their territories that's where  7 they gathered.  It would soon be like their  8 headquarters where they conduct their business  9 together with each other, and when that's finished  10 then they will go back into their territories."  11  12 So some of them did live on their territories, like I  13 was explaining before, but they were forced off those  14 territories and put back into a reserve.  15 Now, as Dr. Daly said, this is not to suggest that  16 Hagwilget and Moricetown were not important places,  17 and he summarizes it:  18  19 "Hagwilget and Moricetown pulsated with activity  20 through July and August, both in terms of  21 production and processing of foodstuffs, and  22 concentrated feast-giving.  Jenness recorded  23 what the Wet'suwet'en told him about the month  24 of July."  25  26 And I won't quote that, but the other important point  27 is that, you know, there's a suggestion that the  28 Wet'suwet'en only had Moricetown and Hagwilget.  Well,  29 that's a creature of the department of the creation of  30 reserves.  As Mr. Joseph testified, Houston was also a  31 village, and he said:  32  33 "(Houston) is a junction of a river, people will  34 live there, the same as they do in Hagwilget  35 and Moricetown.  From there they go to their  36 territory.  Some people live right there ...  37 Moricetown may be situate in a chief's  38 territory but for the fishing purposes they  39 live there.  Same in Hagwilget.  And Houston is  40 the same way.  There is a junction and then  41 there is a spawning area right there.  So  42 people stay there."  43  44 And of course Houston was never protected for them,  45 and it's not a reserved area, although some of the  46 witnesses referred to it as a reserved area, because  47 that's what they believed, it was a protected village. 24701  Submissions by Mr. Grant  1 Now, my lord, I would like to take you through one  2 seasonal round and just quickly refer to the others,  3 because I think that once you see the concept of the  4 clan seasonal round, then it's the same for all  5 groups.  And I'll refer you to the Tsayu, the first  6 one I have there.  Alfred Mitchell described the  7 Wet'suwet'en would leave their territories in the  8 springs and all gathered at Aldermere, where they  9 would wait for each other and go to the villages in  10 the summer.  This occurred in the lifetime of Alfred's  11 father.  Now, he said:  12  13 "As soon as ready to leave here, to leave this  14 area, they go north."  They go to Houston.  15 There was no roads in them days, just trails.  16 They use pack dogs in earlier days.  There were  17 no horses in them days.  They would all gather  18 at Aldermere.  That's just behind the present  19 Telkwa.  20 That's where everybody from different trapping  21 territory they gather there, they wait for each  22 other.  Within a week they all gather there,  23 even from Ootsa lakes, Oonis to d'en, that's  24 Morice River Nanika, Caspit, all the trappers  25 from different trapping territory, they all  26 gather in Aldermere.  They wait there for each  27 other.  After everybody gathers then they move  28 down to Hagwilget or Moricetown, whichever way  29 they are going."  30  31 So you see the conjunction of people coming together  32 in that area.  Alfred identified people with cabins  33 and camping places on the Namox territory who trapped  34 there throughout the winter and spring.  And he  35 described his family fishing in Moricetown at Namox  36 and Kweese fishing sites.  He spent the summers there.  37 Now, Emma Michell, of course, and Florence -- Emma  38 Michell, Dan Michell's mother, and an older generation  39 than Alfred, and Florence Hall also described the  40 seasonal rounds they experienced in their lifetimes.  41 According to both witnesses, the people would leave  42 Moricetown at the end of the summer and move  43 south-west to the Burnie Lake territories.  Florence  44 Hall's family would stay on their territory and trap  45 marten, hunt bear and mountain goat.  Emma Michell  46 testified to her family moving in the late fall to the  47 Goozly Lake territory south of Houston and here 24702  Submissions by Mr. Grant  1 spending the winter fishing for trout, sucker, hunting  2 and trapping.  In the spring they would make their way  3 eastward to Decker Lake, where they trapped rainbow  4 trout and took sucker.  They would arrive in  5 Moricetown to prepare for the salmon.  6 Now, my lord, just to sort of depict this, what  7 you see happening is the dispersal of these people  8 coming down from Moricetown, is that Kweese is going  9 down into this area on the south-western or on the  10 western boundary of Wet'suwet'en territory, that's  11 one -- that's from the Tsayu clan, and meanwhile you  12 find that from Moricetown Emma Michell's group comes  13 down here, comes into the Goosly Lake territory of  14 Namox, then they move over towards Maxan and Decker  15 Lake into this area on their way out, and the reason  16 for that was described in evidence because they could  17 get certain species there which they would utilize on  18 their trip back up to Moricetown in the summer months,  19 and of course then, as Alfred Mitchell describes,  20 there's a conjoining there in this area here,  21 Aldermere, and you can see how these different groups  22 are coming together and then they travel north to  23 Moricetown together.  That understanding of this  24 seasonal round, my lord, is very important for you to  25 appreciate what is meant by the ownership, because you  26 may say "Well, gee, Moricetown is way up there and  27 there's all this huge territory of the Wet'suwet'en,  28 but when you see how all the clans move out, utilize  29 their territories and come back in, you see how the  30 territory is used seasonally.  And I say, my lord,  31 that that is possession in law, that is ownership, or  32 the evidence of it.  The round also included  33 harvesting from the territory of the father's clan on  34 the Kilwoneetz territory, "We would also go into  35 Kilwoneetz territory and the meat it would dry for  36 feasts", and this is Emma Michell.  She talks about  37 trapping Beaver, weasel, marten, fox, mink, otter,  38 lynx, and all the other animals that were in the  39 territory.  They stayed in the territory until the  40 snow fell, and then they moved to Telkwa, where they  41 had a big tent set up.  This was usually around  42 November.  43 Now, I was -- I'll come back to the Kilwoneetz  44 territory, which Johnny David describes, but you see  45 that once again it may be most easy, you see the  46 father's side and the mother's side connection very  47 dramatically here, because you see Namox, this is Emma 24703  Submissions by Mr. Grant  1 Michell's own house territory, and then she says,  2 "Well, we go into the Kilwoneetz' territory over here  3 in this area, the Hagwilnegh area".  So the chief has  4 access to these two territories, and she described in  5 her evidence the different kinds of resources she gets  6 from both.  That's why -- that's why the territories  7 of the Wet'suwet'en are so large.  They have to get  8 access to all of the resources that they need, they  9 needed and they need today.  Now, on the bottom of 127  10 and the top of 128 I refer to the timing of the  11 leaving of Sam Goosly, footprints at Goosly Lake for  12 going to Decker Lake.  You saw those footprints,  13 they've been photographed and are in evidence, and  14 Emma Michell's own family used them.  Her own house,  15 when I say family.  Now, on page 128 Florence Hall  16 testified to her life with her family on the Burnie  17 Lake territory as a young person.  She says this  18 territory is the Kweese territory south of Topley.  It  19 is the territory on which Kweese's son was killed by  20 the Haisla.  And you can see there when you look at  21 where that Kweese territory is which lead to the  22 famous Kweese raid, it's right on the border with the  23 Haisla, and you can see why that happened there, and  24 the description of the Kungax she described the travel  25 through those territories over to Haisla territory.  26 Mrs. Hall also described the harvesting from Kweese  27 territory at Burnie Lake and who was involved.  You  28 can see Frank Bazil from her own house, Big Tommy from  29 the House of Namox in the same clan, so you have the  30 clan connection, Peter and Francis Alfred, the  31 grandchildren of the former Kweese, Mooseskin Johnny,  32 also harvested from the territory.  Joshua Holland,  33 the person in line for the name Kweese, also harvested  34 from the territory.  35 Now, I go on in this section, my lord, to refer to  36 Kweese's evidence in detail, and I'm not saying it's  37 not important, I think you should review it in the  38 context of the understanding that this seasonal round  39 the demonstration and utilization of the different  40 resources, but I'll take you over to page 131.  Now, I  41 told you yesterday about the connection of clan  42 territories together, and that was a general  43 proposition.  Particularly we have with the Frog  44 clans, which move into this area here, and they're all  45 connected, and this Hl'oos, Mediik, Gisdaywa, are all  46 very close, but when you see Kweese, you have Kweese  47 in two widely disparate areas, and the Tsayu clan 24704  Submissions by Mr. Grant  1 doesn't follow that model, and of course this little  2 area here, which is south of Topley, is the Elwyn Lake  3 territory.  I said I think in my argument it's  4 referred to as Burnie Lake just south of Topley, but  5 that's not correct, it's the one to the far west.  6 Now, Mrs. Hall testified to spending time in summer  7 and fall at the Elwyn Lake territories, where they  8 visited August Pete, who had a territory there, had a  9 house on the territory.  Before August Pete, Mooseskin  10 Johnny had a house by the big meadow, before him the  11 former Kweese, Binii, lived there.  According to the  12 oral history, the former Kweese lived there a long  13 time before that, even before Binii, and Florence was  14 taught this by her grandmother.  So what she had was  15 the same house, same clan, but different sides, my  16 lord, using different parts of the territory, and  17 that's what you find happening here.  What I've done  18 is I've highlighted the other clans, their movements,  19 so I've got the first paragraph on 132 you have the  20 Gilseyhu clan, the Frog clan members from the  21 headwaters country, who are known as the Oonustoten,  22 They left Moricetown annually in August and moved down  23 to the headwaters of the Morice and its tributaries  24 for autumn hunting, then they worked eastward for  25 different combinations of their own and their in-laws'  26 land, to Ootsa Lake and Francois Lake before returning  27 to Moricetown once again for the brief salmon fishing  28 season.  This evidence of course was given by Miss  29 Layton, the present Knedebeas, and you can see again,  30 if you just -- without having to go through all the  31 transcripts, my lord, the description they go through  32 from once again from Moricetown, and you take -- they  33 go down through to their territory, they follow down  34 their territory and through the Morice River, this map  35 is through the Morice River down here, and into this  36 territory and then they come through and back up  37 through here.  Again, you find a reference to in-laws  38 in our argument, and we see the evidence, it's a  39 connection, the marriage relationships are important,  40 because you have these cross-over marriages so that  41 they get access to other territories that are  42 approximate.  Well, it makes perfectperson sense,  43 people who spend the entire winters in territories  44 very close to each other are more likely, just in  45 common-sense point of view, to intermarry, and that  46 also assists in the access to the resources.  47 THE COURT:  Is it not the Layton family who had the large and 24705  Submissions by Mr. Grant  1 substantial home at Pack Lake?  2 MR. GRANT:  That's right.  3 THE COURT:  When did you suggest that was built?  4 MR. GRANT:  The Pack Lake house?  5 THE COURT:  Yes.  6 MR. GRANT:  Sarah Layton — it was — I'm trying to recall if it  7 was built in her lifetime or before.  I believe it was  8 built -- it certainly was where she lived, and she is  9 in, as I recall, about '65 or thereabouts.  10 THE COURT:  And they abandoned it in 19 — in the 50's?  11 MR. GRANT:  In the 50's, yes.  The whole — the decline of  12 the -- the decline of value of furs was of course one  13 of the impacts on them as well as on others.  That  14 wasn't alone of course.  That combined with the  15 families being encouraged to move their children into  16 communities where they were in school year round.  17 THE COURT:  Yes, right.  18 MR. GRANT:  The Laxsamshu or Fireweed-Killer Whale clan members  19 wintered on their respective territories, including  20 the important village of Cee tai North of Houston and  21 south of Grouse Mountain, and they also wintered in  22 the area between the Parrott Lakes and Francois Lake,  23 along the south shore of Francois Lake, and between  24 Tahtsa and Troitsa Lakes.  The Fireweed or Laxsamshu  25 territories are probably amongst the most disparate,  26 that is, they don't fit that model that I was saying  27 yesterday, of the Frog and Wolf clan of being close  28 together, so that you see they travel in quite  29 different areas.  Bazil Michell was one of those who  30 described it, and I will take you to page 135, part  31 way down, and once again, Bazil reiterates over and  32 over again the resources, but just as an example, my  33 lord, about access to the mountains, he says, in  34 describing the territory around Barrett Lake, Bazil  35 said they harvest the berries near Grouse Mountain,  36 blueberries and rasberries, and that there are still a  37 lot of berries there today.  There were medicines  38 which the people took from the Barrett Lake territory,  39 and he describes those medicines, and you know, it's  40 interesting how he says it:  41  42 "The bark of the balsam was also used for  43 various kinds of medicines similar to what we  44 buy in the drug stores today."  45  46 And the analogy, my lord, is that even today Art  47 Matthews talked about his territories, the banquet 24706  Submissions by Mr. Grant  1 table, I believe what some of the witnesses referred  2 to as their supermarket, that people go to their  3 territory to get their resources, it's their bank  4 account, it's where their wealth is, and that still  5 happens today.  6 Page 136, my lord, Bazil Michell described that in  7 the fall and in the winter they hunted for caribou in  8 the mountains, and there's still caribou in the  9 northern mountain ranges. It's interesting that a man,  10 my lord, as elderly as Bazil Michell and clearly was  11 not himself well enough to go out now, still was  12 knowledgeable about where the caribou were located.  13 You heard there was much evidence of that, and the  14 change in the caribou's area where they lived or where  15 the caribou reside, the herds are, from the early part  16 of the century to now, given by Dr. Hattler.  In the  17 fall, Bazil hunted for mountain goat, and at all  18 seasons Bazil described people hunted groundhog to  19 prepare for their own consumption.  On a prominent  20 mountain peak called Naydeena, Bazil used to hunt  21 caribou, groundhog, mountain goat, and bear.  This  22 area, the Naydeena, my lord, of course is right at, it  23 may be called the four corners of the Wet'suwet'en in  24 some senses.  It's right in the junction of the  25 Gisdaywa territory.  I remember it, we flew right by it.  Good.  Large free-standing mountain with valleys all around  29 it.  30 MR. GRANT:  That's right.  It's quite prominent, you can see it  31 flying to Vancouver, you fly right by it.  I would  32 like to refer you to the summary of the Laksilyu on  33 page 137.  The Laksilyu, which are the Small Frog  34 Clan, moved to their own specific winter lake sites:  35 Wah Tah Kwets at Round Lake, Gitdumskanees, who  36 travelled from Hagwilget to Burns Lake, and Hagwilnegh  37 to his territory at Dennis Lake.  Of course, Johnny  38 David gave evidence of the seasonal round for the  39 people of his clan, and he describes how they fished  40 in the canyon at Moricetown Canyon, and he also talked  41 about again growing up on his father's territory,  42 Smogelgem's territory, and the territory of Johnny's  43 own clan is the Kilwoneets.  And this again is just a  44 dramatization with respect to Johnny David, another  45 example of fairly -- he had access to this territory  46 here, the Smogelgem territory, he also had access to  47 this territory up in McDonald Lake area and utilized  2 6 THE COURT  2 7 MR. GRANT  2 8    THE COURT 24707  Submissions by Mr. Grant  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.  COURT  GRANT  COURT  GRANT  COURT  GRANT  MR.  MR.  MR.  PLANT  GRANT  PLANT  MR. GRANT  both those areas.  Where do you say the Smogelgem territory is?  It's in this area right around -- sorry, here, this  area in here, in the Bulkley, that area up in there.  East of Houston?  Yes, north-east of Houston.  Thank you.  And that's the territory utilized by his father, and  it was a territory that he, because of his payment  taking care of the funeral, he operates to this day.  He caretakes it to this day.  Now, in this case Johnny David described that they  would hunt and fish in the kilwoneets area.  Now, my  lord, the kilwoneets area is rather interesting,  because it is one of the -- it is in a way like  Houston.  It's one of those areas that nobody refers  to as a fishery, that is in general parlance or  concept, but as Johnny David explained, it is a very  important fishery.  The Kilwoneets is the headquarters  of the Copper River and the McDonald Lake area and  into these areas is spawning grounds, so there was --  and Johnny David gave evidence of this -- there was  evidence that he -- in his evidence that they fished  there in the summer months, so it was a very important  fishery. It's also a very important trading juncture  going up the Copper River, you see the connection with  the people to the east, the Kitselas people, and that  was one of the trading trails that we'll refer to  later in this section.  And David Dennis, on page 138,  my lord, that photo Exhibit 202, is not the photo of  David Dennis's cabin, so I'll just delete that, but  evidence was given that he did build the cabin there.  That in fact was the Goosly cabin of the Namox house.  Sorry.  That is Exhibit 202?  Yeah.  So Exhibit 202 is the Goosly cabin of the Namox  house.  Page 139, my lord.  Again Johnny David refers to the  fishery, fishing in the autumn, and this is for some  of the stronger salmon that were spawning, some were  turning red in the McDonald Lake area, and he says  the Killwoneetz, and they did most of their fishing in  the Kilwoneets territory, and this of course is  Hagwilnegh that we're talking about here.  There was  hunting for caribou in the kilwoneets area, at page  140.  And now I would like to turn you to Gitumden, the 2470?  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  wolf clan.  As I set out in the introduction to the  section, my lord, the Wolf clan house members moved in  a narrower circuit, closer to the Bulkley and the  Morice Rivers, from Moricetown to Lake Kathlyn near  the present Smithers airport, to Tyee Lake at Telkwa,  up the Morice River system and to Bulkley Lake at the  Bulkley headwaters.  If you follow the map, the route  I show you through for Knedebeas going through the  Gitumden territory route, you see that following the  Morice River and the Bulkley Lake, then you would  encompass in that route all of the Gitdumden  territories.  The evidence of course was given by a  number of witnesses, one of the most prominent  evidence was of course the present Gisdaywa, Alfred  Joseph.  I just want you to note that Bii Wenii C'eek was a  winter village and a gathering place of the  Wet'suwet'en people, and Alfred's grandfather trapped  there, and Thomas George lived a bit further, so that  was also an important place of meeting amongst the  trappers.  My lord, in summary, before moving to the Gitksan,  what I am endeavouring to demonstrate to your lordship  is a concept that -- that I think it's important for  you to appreciate, and that is this wide disparate  territory is not arbitrary.  These territories were  utilized as part of the seasonal round to access the  resources necessary for the people's survival and for  trade.  The Wet'suwet'en in this sense, like the  Gitksan, had a surplus, and that's why they could  engage in trade.  Now, I would like to move to the Gitksan seasonal  round, and I am not talking here about the clans in  the same way.  It says in the first sentence analysis  of the Gitksan seasonal round is more appropriate than  analysing the general activities of each of the clans.  It says "seasons", it should be "clans", my lord, on  page 143.  I'm sorry, where is that?  Page 143.  Yes.  The first sentence it's an analysis of the general  activities of each of the "clans" rather than  "seasons" in the first sentence there under the  Gitksan seasonal round.  An analysis of the Gitksan seasonal round?  Is more appropriate than analysing the general 24709  Submissions by Mr. Grant  1 activities of each of the clans.  2 THE COURT:  Oh, I see.  Instead of "seasons", okay.  Thank you.  3 MR. GRANT:  The Gitksan, unlike the Wet'suwet'en, were not as  4 distinguishable in terms of the development of  5 particular seasonal rounds on a clan basis.  A similar  6 analysis house by house would have entailed an  7 enormous amount of evidence for each house group.  8 However, the evidence clearly establishes that the  9 Gitksan seasonal round was similar for all of the  10 Gitksan houses.  I don't say identical, but similar.  11 The analysis of this seasonal round is based on the  12 evidence of different chiefs discussing different  13 houses, and much of this evidence is incorporated, my  14 lord, I should say in the analysis of each house  15 territory.  But I shall take as a model the Tenimgyet  16 seasonal round, where the seasonal round was followed,  17 and this was done by other chiefs as well.  Art  18 Matthews explained how his house stopped fishing when  19 the pink salmon started to arrive in August.  When  20 they stop fishing for sockeye it's:  21  22 "generally the signal to go out picking berries,  23 and the first site or the first place we go is  24 on the Tsihl Gwellii (Cedar River) side where  25 we pick salmon berries.  I think that's the  26 only part of our territory that carries these  27 berries is up...that place."  28  29 After the berries are picked his House members  30 returned to Wilson Creek, where Tenimgyet's mother and  31 father stay all summer, and they process these berries  32 at Wilson Creek.  The family went up on the Wilson  33 Creek territory for huckleberries in the middle of  34 August.  And I believe Exhibit 355 has been marked  35 with a "W" as showing where they picked the berries.  3 6    THE COURT:  Yes.  37 MR. GRANT:  The utilization of the fishery, and this is of  38 course a very wealthy fishery, many other persons are  39 given permission to use their fishing sites, is  40 described by Mr. Matthews in his evidence.  At the end  41 of each season all of the House members gather at the  42 Wilson Creek smokehouse.  The surplus catch is  43 distributed to pay off debts.  The fish are set aside  44 even if they cannot make it to the feast at the end of  45 the fishing season.  The debts are paid before the  46 members of the House distribute the balance of the  47 goods among themselves.  Now, what I'm saying there is 24710  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  what they did is they paid off people.  You may recall  that evidence to help them out, and they made sure to  set it aside in bundles of forty, something they still  do today.  The traps in the winter are kept, and after  the close of the smokehouse in October the house  members go above Wilson Creek to hunt for goats.  Art  Matthews has done this a number of times and continues  to do it to the present.  They follow the trail on the  Wilson Creek territory shown on Exhibit 349 and  continue on up to Siiyum.  I'm not sure madam  registrar, if 349 is here.  It's the sketch map that  follows this.  It's the sketch map, I'm referring to,  my lord, so -- although I believe that's in a separate  binder.  I'm not sure it's here.  It's the sketch map.  Yes.  That's 349, yes.  Now, you see what's -- this is the trail that is  shown going up towards Siiyuum that is used where the  "S" is, my lord.  Yes.  And that's the trail that they used, and they went  up hunting in there in the -- in 1986 in that area,  they -- that was a large hunt, but they did go up  there on earlier years, and Art Matthews, Jr. did as  well.  Now, I'm going to come back to 349 in a moment,  but the interesting depiction on 146 of my argument,  my lord, is that what they do with the resources.  Now, it's interesting how Mr. Matthews described the  distribution.  He goes to the goat meat of a very  prominent hunt, he goes to people on his mother's  side, including Christine Wesley from the House of  Sxgogimlaxha, George Daniels, father of Phillip  Daniels, from Wixa's House, Art Mathews' mother's  father's House, Fred Johnson, Lelt, because he is  Tenimgyet's niidil.  All of the kin relationships are  demonstrated here, my lord, and it's not just village,  it is house, clan, Wihlnadaal, father's side.  That's  how the distribution of resources goes, just as you  will recall Florence Hall describing the similar kin  relationships are the basis of access in her evidence  of the utilization of the Kweese territories.  Then of  course there's the picking of cranberries in the Tsihl  Gwellii territory, the restriction of access, use of  the territory amongst the Gitksan if there's a death  of a chief occurs, and Geoffrey Morgan -- and that is 24711  Submissions by Mr. Grant  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  think it matters ,  it was 1986.  the spelling for Geoffrey Morgan -- died in 1985, and  although the year was a very good year for fishing,  everything shut down.  THE COURT:  I thought it was '86.  MR. GRANT:  I'm sorry.  THE COURT:  I thought it was 1986.  I don't  think we had it just this morning  MR. GRANT:  No.  THE COURT:  I don't think it matters.  It matters to him.  MR. GRANT:  I'm pretty sure it's '85.  I was in the middle of  leading his evidence in another case when that  happened.  THE COURT:  That should be a reminder.  MR. GRANT:  So I remember it is — I'm pretty sure it's '85, my  lord.  And what he describes is interesting, my lord.  Mr. Matthews describes what occurred when Tenimgyet --  or when Axtii Hiikw died.  He died at the height of  the fishing:  We had a very good year, a bonanza that year,  and we had to stop everything -- everything has  to stop.  When I say everything, I mean bang  that next day you just look after it.  All the  nets came out, everything stops.  In our  spritual beliefs you do not do these things,  then a curse, like I said, siiyen, yesterday,  would be upon you.  So we would do these  things.  I'm talking about our house."  And when asked how "Long did you stop", he says:  "A  At the time of the death of Geoffrey we had  to stop for a month, because it was within  our own house.  Q   And was anyone fishing in the month  of August on your fishing grounds?  A   No, everything stopped.  Q   Did the berry picking stop in August of  that year?  A   Like I said, everything stopped, and then  when this happens, the other people which  we helped then, in turn share with us what  they have from their territory.  Like some  of our fruit at that time came from  Gitsegukla, I believe, from my mother's  wilksiwitxw."  Q   That would be Guxsan's House? 24712  Submissions by Mr. Grant  1 A   Guxsan's House."  2  3 Now, Art Matthews described how in the first week  4 of November they start hunting moose.  Hunting goes on  5 until the end of December unless there is a tremendous  6 need or shortage in Tenimgyet's House, and of course,  7 then it goes on longer.  In Tenimgyet's House, either  8 Tenimgyet or Axtii Hiikw grant permission for other  9 members of the House to hunt moose on their territory  10 after the end of December.  And then he describes the  11 trapping and the winter trapping, and Art Matthews  12 himself, Jr., himself, traps on Wilson Creek  13 territory, and his grandfather Geoffrey Morgan trapped  14 until shortly before his death on the other side.  15 There's another small lake above Wilson Creek where  16 they still get fish.  Now, that's a depiction of the  17 round of one house.  After the berry season, this is  18 dealing with hunting, the people around Kispiox would  19 make trips up the mountains for groundhogs and goats.  20 For example, Martha Brown's grandfather regularly  21 hunted mountain goats.  Richard Benson described this  22 as well, going up the Cranberry River in Kitwanga and  23 Kitwancool, and their hunting of mountain goats.  24 Now, at the bottom of 149 I focus on beginning of  25 the feast season among the Gitksan, my lord, as  26 opposed to Wet'suwet'en.  The late fall and the  27 beginning of winter mark the start of the Gitksan  28 feast season.  Most people were and are home in the  29 village at this time, from the fishing sites, from  30 their hunting and trapping, and seasonal employment on  31 the coast.  They generally carry out fall hunting in a  32 series of short trips from the village, rather than  33 moving into the territory for extended periods of  34 time.  After the snow, trapping also began, and  35 begins, on the territory and is intensified in the new  36 year.  These pursuits are still followed, though less  37 intensive.  38 Dr. Daly identified winter as the season of most  39 of the Gitksan major feasting.  My lord, if you may  40 recall, Geoffrey Morgan died in July of '85, and there  41 was a small feast at that time, but because it was  42 July it was just very small, and the main feast  43 occurred in that fall and winter of '85.  So this  44 concept among the Gitksan of focusing that period of  45 time on the feasting to settle matters still occurs  46 today.  It's not to say that there are no feasts at  47 other times of the year, but generally the big feasts 24713  Submissions by Mr. Grant  1 occur in the fall.  The discussion is always the pole  2 raising of Guxsan was in October.  I mean it's always  3 in that fall, early winter period.  And I refer you to  4 Dr. Daly's analogy or description of the winter  5 feasting.  In the winter on the territory, on page  6 151, still dealing with the Gitksan here, the eastern  7 and northern Gitksan wintered in their territories in  8 the early decades of this century after they had moved  9 south from their home villages to settle at Gitanmaax  10 and Kispiox.  Each year in the period from 1900 to  11 1950 a large group of people would leave Kispiox  12 together around August 20th with pack horses.  Once  13 the people had reached their destination in the  14 distant territories to the north, some of the young  15 men would take the pack horses back out to winter them  16 at Kispiox.  They would then hike in again to rejoin  17 their families.  18 Now, Mrs. McKenzie testified that she went with  19 her husband onto her husband's territory in November  20 and was there until March, and they would come back  21 out.  You see that -- you see here -- we will have to  22 move this down.  You see here, my lord.  23 THE COURT:  It's all right, I can see it.  24 MR. GRANT:  It was lower than I thought.  Here of course is  25 Hazelton, Gitanmaax, she would end out in this  26 territory here.  Her territory is much further north.  27 Earlier all the people of Kispiox would move out to  28 those territories, and that's what the evidence was  29 with respect to some of the territorial evidence of,  30 for example, the Gwininitxw and the Wiiminoosik  31 territories and the Wii Gaak territories, people would  32 go out there in the winter months.  So just as you  33 would find the Wet'suwet'en moving out to their  34 territories in that sense, later in the winter after  35 the feasting season you find the Gitksan moving out  36 into their territories.  37 MR. PLANT:  My lord, I think just to clarify something here,  38 this discussion at 152-153 appears to be from Dr.  39 Daly's report rather than from the evidence of David  40 Blackwater at trial, so it would appear to be almost  41 purely hearsay.  42 MR. GRANT:  I haven't referred to that.  What I'm dealing with  43 is I'm talking about this page on 151.  Now, I agree  44 with my friend that there is an example given by Dr.  45 Daly in his report, and that example deals with the  46 particular utilization by David Blackwater.  Dr. Daly  47 relied upon what David Blackwater told him to come to 24714  Submissions by Mr. Grant  1 his conclusions about the utilization of the seasonal  2 round.  That's what that's there for, but that's just  3 one example.  We have much evidence, my lord, of the  4 utilization of the seasonal round by the witnesses  5 such as Pete Muldoe, James Morrison, and other  6 witnesses who were cross-examined, Walter Blackwater,  7 David's brother, talked about the same thing, and they  8 utilized the resources in that way.  9 Now, Dr. Daly concluded that the northern Gitksan  10 would go ice fishing in the northern territories.  I'm  11 on page 153 of my argument.  And Martha Brown also  12 gave evidence that in her childhood earlier in the  13 century -- earlier this century, the late winter was a  14 time for lake and river ice fishing, char, Dolly  15 Varden, whitefish and other species would be taken  16 either by gaffing or with nets.  17 And now I would like to go into the Oolichan  18 fishery, where -- and Richard Benson gave evidence  19 with respect to the going over to the Nass from  20 Kitwancool.  Of course Richard Benson's evidence,  21 Richard Benson was trapped and his family was at  22 Meziadin, but that was similar to many other  23 witnesses, such as Art Matthews, Sr., who explained,  24 and I quote on page 155:  25  26 "We'd go over the trail in early spring.  27 Everyone did their own fishing.  There was so  28 much oolichan that it was more or less open to  29 people from different places."  30  31 On page 155, my lord.  32 THE COURT:  Yes.  33 MR. GRANT:  34 "They would share forty-foot nets.  The nets  35 were set between two canoes and then pulled in.  36 The fish were dip-netted out.  If the river was  37 was still iced in, the net would be pushed  38 underneath between two holes and tied.  The  39 oolichan were left to sit four or five days in  40 a vat or tub, then boiled with some water.  The  41 bones drop to the bottom and the oil was  42 skimmed off.  It was put in big grease boxes  43 and the lids were sealed with crushed fish eggs  44 to make them leak-proof.  Some of the oolichan  45 were dried on racks, others were salted.  We  46 had to pack it all the way back from the Nass -  47 two or three loads in relay." 24715  Submissions by Mr. Grant  1  2  3  MR.  PLANT  4  5  6  MR.  GRANT  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  THE  COURT  34  35  MR.  GRANT  36  37  38  THE  COURT  39  40  MR.  GRANT  41  THE  COURT  42  MR.  GRANT  43  44  THE  COURT  45  MR.  GRANT  46  47  THE  COURT  Now, Art Matthews, Jr., in his evidence, described it  as follows --  :  Could I just interrupt to ask for the reference from  Art Matthews, Sr.'s evidence for where that passage  appears that Mr. Grant just read?  "They were four-gallon square cans with around  hold on top.  I've seem them.  And they would  put these into these four-gallon cans.  They  would have a number of them.  And they would do  what we call stages.  That's taking one past  the other like a relay or passing.  You put on  back here and go by the other and then so on.  And they would travel this way until they would  hear the grease starting to melt, and you could  hear it slushing back and forth, and then that  means that's time to stop and put that down and  go back to the other.  And they would put these  grease -- if there was snow on the ground, they  would put it in there to cool it down again.  If they didn't do this, then the -- the  oolichan grease would spoil.  And you know how  butter is when sunlight hits it, it doesn't  taste good any more, and that's why they had to  keep going in this rotation."  Now, that's demonstrative of the whole trade network,  which is very important to demonstrate the exchange by  the Gitksan and Wet'suwet'en with other groups.  And  the fact that they had an economy that allowed for  surplus and not just basic survival.  This of course happened after contact with the  Europeans.  Use of four-gallon cans for sure, because Art  Matthews, Jr. is now describing it, and he's not that  old a person.  And the other one, the forty-foot nets, do you say  that's pre-contact?  Which -- just a moment, my lord.  Oh, no.  On top of page 155.  The notes -- the forty-foot nets that were set  afterwards, that would be post-contact.  Yes, okay.  Now, talking about the fishery, my lord, the  importance of the salmon runs --  I'm sorry.  What did Dr. Daly say about this? 24716  Submissions by Mr. Grant  1 Didn't he say that because of the distance and the  2 weight that it had to be -- I don't think he used the  3 word "symoblic", but he reduced the volume very  4 substantially from what he had previously estimated.  5 Do you remember what that was?  6 MR. GRANT:  The general concensus, because of the importance of  7 the oolichan trade, and I'll deal with it in the  8 evidence of trading pre-contact, was a -- was that  9 oolichan was very important.  What Dr. Daly concluded  10 was that the grease was an essential part of the diet,  11 but a very small part of the diet.  12 THE COURT:  Yes, I remember.  13 MR. GRANT:  But a huge amount came across in the trade, but when  14 you distribute it per capita, it was per capita that  15 it was a small amount.  That's in his report, Exhibit  16 884, and I -- I will give you the chapter reference  17 for that.  18 THE COURT:  You're going to be coming to this in the trade, all  19 right.  Thank you.  20 MR. GRANT:  Yes.  Now, the importance of salmon runs to both the  21 Gitksan and Wet'suwet'en is expressed by the locations  22 of the villages at strategic fishing sites along the  23 Skeena at some of its tributaries.  All able-bodied  24 persons participated in the harvest of the salmon runs  25 and berry crop.  As Dr. Daly concluded in his report:  26  27 "Much energy was and still is invested in the  28 summer food fishery - in catching, processing  29 and preparing salmon for winter storage.  Even  30 in the course of economic change these  31 activities are still organized such that salmon  32 remains part of the Gitksan diet.  Today, river  33 gillnetting disperses families along the rivers  34 in the summer months as in the past.  People  35 enjoy getting away from the villages to their  36 fishing sites.  Mary McKenzie, Kathleen  37 Matthews and Audrey Woods all told me that  38 going to the river in the summer is more than  39 just fishing; it's part of their very identity  40 as Native people.  They said that camping along  41 the river is more than an outing.  It offers a  42 respite from the tensions of reserve life.  43  44 Martha Brown testified that her grandmother would take  45 300 steelhead from their special fishing site on the  46 Kispiox River.  This was that -- that would be, my  47 lord, in the last century: 24717  Submissions by Mr. Grant  1 "It freezes over but right about now as it gets  2 colder the old people use to see on top river  3 almost like a plastic.  This is why they called  4 it Xsitsihl'niit'in."  5  6 And people stayed at these fishing sites through  7 spring and summer catching and preparing each species  8 of salmon as it came through.  Also during the summer  9 they did their berry picking and harvesting other  10 plants.  Martha Brown testified again to her  11 travelling to Kispiox Valley in the late summer to  12 fish for coho, steelhead and the picking of crabapples  13 and swamp cranberries.  And the reference under  14 "Berries" is at the next page, and that's the  15 reference where she explained also that they provided  16 fish and berries to the early settlers that came in  17 and exchanged and also was giving them.  In the late  18 summer, dealing with the berries, the women of the  19 western Gitksan villages would spend a few weeks in  20 the mountains at their well-attended blueberry patch,  21 and I highlighted the types of species they got, many  22 of which are on the exhibit, the map atlas series.  23 The blue huckleberries on the sites where their  24 grandmother picked them before them, with perhaps  25 trips down the valleys for swamp cranberries, wild  26 crabapples, saskatoon and soapberries, and thornberry  27 and rosehips were also used and dried.  The same  28 procedure was carried out by the northern and eastern  29 villages.  In fact, it was common at least in the  30 northern villages for everyone available to  31 participate.  32 Now, my lord, the very fact that the Gitksan names  33 for these berries is not derived from English, French  34 or Russian testifies in my submission to their  35 utilization of these resources and control over the  36 territory where they are located since pre-contact  37 times.  This is, I say, quite important in the  38 linguistic evidence that they use their own terms, and  39 of course there would be no reason for society to have  40 a term for something that was irrelevant to them or  41 was not part of their -- of their life.  Mrs.  42 Wilson-Kenni described the occasion when she and her  43 family travelled to Blue Lake when see was a child,  44 and that description is given there, but she pointed  45 out that the women would pick the berries and the men  46 hunted for the mountain goats.  Mary Johnson testified  47 it would take a whole week to pick the berries and 2471?  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  store them in a cool place, and she referred to Miinhl  Antselda, a mountain near her fishing site, where it  took her to two hours to walk up the mountain and to  pick the berries, and she could see the smoke from  Haaxw's smokehouse near the river from her berry  picking site.  That smokehouse, as I recall, is on the  far side of the river.  Not far from Kitsegukla is the  territory of Hanamuxw on the other side of Red Rose  Mountain, which is used by Hanamuxw to pick berries.  When Olive was young the people of Kitsegukla would go  to her berry grounds camping there around September  when they pick berries, and they would dry their  berries there.  Now, my lord, you've raised -- and this is an  appropriate place, one of the questions about Gwaans'  evidence, and I could not locate the phraseology that  you used in the transcript, but I recall it as you do,  and I think on that basis, but I think it's really  important for you to appreciate that the ownership of  the territories in the House, Hanamuxw, but chiefs  within the House manage or take control of a territory  or a portion of a territory.  In this sense, there's  two points, Mrs. Ryan, the second or third witness,  was asked to give evidence on behalf of Hanamuxw and  was told -- said in evidence that she was speaking for  Hanamuxw.  That's the first point.  The second is she  was asked about Hanamuxw's territory and she described  his place, but she also said, as you did, "This is  mine, this is Gwaans', and she's saying there, "I am  Gwaans, a sub-chief in Hanamuxw's house, the territory  belongs to Hanamuxw, I'm in charge of this territory,  this is my territory".  I would have to see it, Mr. Grant, but that's not  the way I recall it.  I thought one of those cases  where the witness just wouldn't say what the lawyer  expected her to say and wanted her to say.  But it was  a long time ago, and I would -- I would like to be  refreshed about that.  I can deal with that at some other time.  I can find it.  Yep.  Mr. Justice Mackoff in such a situation one time  said finally the witness said "Tell me in my own words  what you saw".  It was almost that bad.  Now, my lord, I submit, as Mr. Muldoe says even  today, they use the berries in the feast hall, and  many witnesses described that, that these berries have 24719  Submissions by Mr. Grant  1 been an important source of food of the Gitksan over  2 time, and that just goes back to the utilization of  3 the different ecological zones within the territory.  4 You can't get them all by the river, you can't get  5 them all on the top of the mountain, you have to have  6 access to all of these zones.  The summer and early  7 fall is also the time of annual harvests of the most  8 important and common medical -- medicine tonics, and  9 Dr. Daly explained that.  Mrs. Johnson identified  10 devil's club, which is used for medicine.  They gather  11 and scrape off the outside and the inside, and they  12 dry for future use, and she gave an example where it  13 was used to cure tuberculosis.  Mrs. Ryan identified  14 medicines used by her and her grandmother, including  15 devil's club, water lily roots, and mulgwasxw, which  16 is Indian Hellebore.  There was the wild celery roots,  17 there was the balsam tree and the spruce and the jack  18 pine, and that quote there would be from Mrs. Ryan's  19 evidence, which is further below.  Mr. Muldoe  20 described that he still uses spruce, the bark of the  21 balsam and the bark of the devil's club, and he makes  22 a liquid medicine.  Mrs. Wilson-Kenni described her  23 uncle picking certain plants in the mountains which he  24 used to prepare himself for the hunt.  And of course  25 Mrs. Ryan explained in detail about the use of  26 mulgwasxw.  And much of this evidence was synopsized  27 in the sense that Dr. Daly gave an overview of the  28 utilization of different medicines, which I repeated  29 on pages 161 and 162, and I ask you to refer to that,  30 because that reflects published sources as well as the  31 witness' evidence and the utilization of the different  32 medicines.  33 And the third major area, having dealt with the  34 seasonal round, under "Trade" -- under -- this is  35 "Trade".  I've hidden the clock, my lord, I think this  36 is a large area I'm going to get into, it might be  37 convenient to break now.  38 THE REGISTRAR:  Order in court.  Court stands adjourned until  39 two o'clock.  40  41  42  43  44  45  46  47 24720  Submissions by Mr. Grant  1 (LUNCHEON RECESS TAKEN AT 12:25)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein transcribed to the  6 best of my skill and ability  7  8  9  10    11 Graham D. Parker  12 Official Reporter.  13 United Reporting Service Ltd.  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 24721  Submissions by Mr. Grant  1 (PROCEEDINGS RECONVENED AT 2:00 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 MR. PLANT:  My lord, before my friend continues, there is a  5 concern I wanted to raise with your lordship.  6 Tuesday when we began -- Tuesday of this week,  7 there was a discussion about scheduling.  Your  8 lordship asked me if I thought that the 15 days was  9 going to be adequate for our argument, and at the time  10 I said I thought so.  11 Since the commencement of the submissions  12 yesterday under the heading of "Organized Society",  13 the volume of inadmissible evidence that has been  14 referred to is causing me some concern about whether  15 or not the statement that I made continues to be one  16 that I can rely on.  17 I wanted to give your lordship just a couple of  18 examples of areas where it's not simply  19 inadmissibility, but what appear to be demonstrably  20 incorrect propositions.  The first is at the top of  21 page 95 of the submissions in which my friend spoke to  22 late yesterday.  That's the paragraph that begins,  23 "There may be a close blood relationship," and in the  24 last line of that reads, "Yagosip is the daughter of  25 Spookw."  Well, according to the Spookw genealogy  26 which is Exhibit 853-12, Yagosip is the sister of  27 Spookw.  28 MR. GRANT:  I believe I said that although I said — I think I  29 said that orally yesterday, that it was the sister of  30 Spookw.  31 THE COURT  32 MR. PLANT  33 MR. GRANT  I didn't notice that if you did.  I didn't make that note either.  I said that orally, but I probably didn't say it  34 correct at that point in time.  35 MR. PLANT:  The second sentence in that line is equally  36 incorrect, at least according to Exhibit 853-37,  37 according to which, Tsabux, Wilber Johnson, is not the  38 son of Kathleen Wale.  So the evidence that we were  39 able to look at in the time between when Mr. Grant  40 made this submission and now, doesn't appear to be --  41 doesn't appear to support that statement either.  42 Now that's really one category of problem.  The  43 next category of problem is the question of admissible  44 evidence, and I can jump ahead now to 154, which is  45 much more recently.  46 Now, there is a passage here dealing with the  47 subject of oolichan fishery, which comes from Dr. 24722  Submissions by Mr. Grant  1 Daly's report, Exhibit 884.  Now, the reference there  2 is dash one which should probably be dash two, but I'm  3 not sure of that.  This is Volume 2.  But at any rate,  4 the passage that is quoted there, begins with the  5 words, "Richard told me," and then it continues.  In  6 other words, the dot-dot-dot obscures the fact that  7 the sentence begins, "Richard told me".  So, that's an  8 incidence where, on the face of it, the statement  9 repeated there is pure hearsay and inadmissible.  10 If you turn the page over -- I haven't been able  11 to find the Art Matthews Sr. reference that appears at  12 the top of page 155, but the bottom reference I have  13 been able to find and that's the long passage  14 described -- reporting -- the quote from Art Matthews  15 Jr. evidence, and there are a couple of things I  16 wanted to point out to your lordship here.  17 First, your lordship asked this morning whether  18 the events occurring or relating -- related here  19 occurred after contact, and my friend made the  20 observation that as Mr. Matthews Jr. is describing it,  21 he is not that old, I inferred it was events that  22 couldn't have taken place all that long ago.  Well, if  23 you go to the transcript of Volume 76, pages 4738,  24 line 38, the question which generates this evidence  25 is, "And did your grandfathers tell you about how they  26 fished for oolichan or how the oolichan was  27 transported back in the earlier days?"  Now that's  28 really a minor point.  29 My second point is I'm not sure how Art Matthews  30 Jr. could give admissible evidence of what his  31 grandfathers described to him of how they brought  32 oolichan back from the Nass.  I say that there is an  33 admissibility issue there also, and my concern is,  34 really, when are we going to deal with these problems?  35 I don't really want to have to use up all of our  36 argument time responding to some of this material, a  37 lot of which is not seriously in dispute.  But the  38 difficulty I have is that I don't want your lordship  39 to be relying on assertions which are inadmissible or  40 not supported by the evidence.  41 And just if you turn the page over, one last  42 example of this problem, on page 156, "Dr. Daly  43 observed that", and then we see down in this paragraph  44 about eight or nine lines down, "Mary McKenzie,  45 Kathleen Matthews and Audrey Woods all told me that,"  46 and so on.  Well again, that seems to me, with  47 respect, to be pure hearsay.  There is no expression 24723  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  of opinion there.  It's simply repeating -- Dr. Daly  repeating what others have told him.  And my  understanding is that Dr. Daly was permitted to give  that kind of evidence on the basis that it went to the  methodology of the research project undertaken by him,  but not to the truth of the statements made or  purported to be made by others.  So, I don't have an inspired solution for this  difficulty.  One of the problems I have is that we are  not -- I don't expect my friend to have 320 volumes of  evidence in his head, and I certainly don't either, so  I'm not in a position where I can respond to some of  these things as we go along page by page and nor do I  want to.  I don't want to interrupt the flow of my  friend's argument anymore than is absolutely  necessary, but I want to bring this concern to your  lordship's attention now, rather than allow it to drag  on too much longer.  :  All right.  Well, I'm sorry that you had to say all  that, Mr. Plant, but I do recognize the difficulty  that it creates.  I wish we didn't have this problem.  I don't have an inspired or any answer.  Someone will  have to alert me to the areas that are objectionable  or I must check all the references myself.  You people  have larger teams than my team of one to do that sort  of thing.  I can't keep all these things in my head  either, and I will -- it will be your problem, Mr.  Grant, if, later on, when I come to consider this, I  come across something and I just discard it on that  ground, if there is some other basis upon which it  might be admissible.  :  Yeah.  Well, first of all, my lord, the -- the first  reference was one that I thought, in terms of  something like the blood relationship --  :  Yes.  :  -- was one that I intended, if there is an error on  this, that I thought I had noted it.  And it's my  intention to note -- to advise if there is some  correction and to make that correction in the hard  copy and advise you.  The page 156 reference is that Dr. Daly's opinion  is in the first part of that statement.  The basis  upon which his opinion is made is in the second part  of the statement.  That is all that is.  It's not --  what he is saying is he is talking about -- he  explains what his conclusion is about the use for the  salmon fishery and then he makes reference to some of 24724  Submissions by Mr. Grant  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.  MR.  PLANT  GRANT  THE COURT  MR. GRANT  THE COURT  his sources.  This is -- we are back to the chemist  and the anthropologist analogy, I believe, referred to  in Milirrpum, and it's a question -- and of course  part of it's through the interviewing and the  participant observation technique.  That's the nature  of the -- the nature of the field.  But, I'm not really disputing with my friend and I  don't think we have a major dispute that the statement  of Audrey Woods is admissible in itself as the truth  of that statement.  It's just a foundation of his  opinion.  And in this context, that's part of what his  conclusion is, the important part of this particular  quote.  And probably -- I mean, I'm not sure which way  to go because sometimes -- I've certainly tried to  delete these from the argument.  Here I thought, well,  it would make sense so that the source of why he was  saying that was there so you could weigh that.  But,  the important part of the statement is the first half  of the statement which is his conclusion and that's  what I've endeavoured to do.  Well, I'm not sure that the authorities go so far as  to allow an expert to obtain subjective views of  various people and then express an opinion on them.  What the expert can do is dig up facts and express an  opinion on that, such as the appraiser can give the  facts of the comparable sales, the price and the size  of the property and things like that.  But when you  are talking about something as subjective as liking to  go to the river in the Summertime and an expression  that it's part of one's identity as a native person,  that's not the sort of thing that an expert can  usually use as the basis for an opinion.  So I think that there may be a problem there, but  I don't know how to deal with it and Mr. Plant is  entitled to check these out if it wasn't -- and he  will have to be given time to do that if he needs it,  if this wasn't part of the summary that was furnished  to him.  I gather that it was not.  Well    Several parts of this -- this, as I said, is a  restructuring of the summary.  The section on the  economies has been edited.  There were -- there were  citations in the summary that on review were --  All right.  Well —  -- mistaken, so --  Well, you both know the problem and you've told me  about it and if Mr. Plant needs more time then we will 24725  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  have to give him more time.  I hope that can be done  between now and the time that this has to be done, and  I hope also that if his submission is going to take  longer than expected then he will have to treat us to  the pleasure of his voice on longer hours like we are  having here.  It seems to me there is no escape from  that, so we might as well steel ourselves to the task  at hand.  Mr. Grant, the passages about Gwaans and owning  territory will be found in the evidence June 16th,  page 1340, and June 17th, page 1361, and at other  places around there.  It was mentioned several times  during the course of the evidence.  What page were you at, Mr. Grant?  I was at page 162, my lord.  Yes, thank you.  All right, please proceed.  What I've asked Madam Registrar to do -- and I  believe she has arranged to have on your desk --  before I move right into trade, is to refer directly  to the Daly report, Volume 1.  It's Exhibit 884-1 at  page 296.  The first reference -- I would like to note  these for you, my lord.  296?  296.  This deals with the reasons, the foundation --  the longevity of the seasonal round as being  pre-contact and also that it wasn't a -- and the basis  for it.  Page 296 on the bottom, the second last paragraph,  Dr. Daly states:  It appears, then, that one may assume the main  contours of the kinship organization used to  combine --  Yes, I have it.  Yes, thank you.  Sorry, my lord.  Yes.  I couldn't find it but I have it now.  It appears, then, that one may assume the main  contours of the kinship organization used to  combine land and labour at the time of European  contact had a long tradition in the region.  And this is after he has talked about the  archaeological basis.  And he said: 24726  Submissions by Mr. Grant  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  THE  MR.  THE  MR.  This assumption is reinforced by the oral  history of the Gitksan insofar as the ada'oxs  narrate the harvesting, preparation, and  exchanges of many products in ancient times -  products which continued to make up the main  production activities of the Gitksan, the  Wet'suwet'en, and their neighbours during the  post-contact nineteenth century.  The ada'oxs,  although told to Beynon in abbreviated form,  abound with references to the produce of  fishing, hunting, gathering and exchange.  I  have selected, as an example, the ada'oxs of  one of the four Gitksan clans, the Lax Se'el or  Ganeda (Frog/Raven clan)  And of course that's the collection of Barbeau and  Beynon is referred to as the Frog/Raven.  And he  states:  These ada'oxs refer to clan history over  the region, without respect to the linguistic  boundaries of the present-day communities.  Therefore, I have limited my selection to those  events which occurred roughly in the area of  the Gitksan: the Skeena, the upper Nass, the  Headwaters country between the two rivers,  Kisgagas, Bear Lake, Kispiox and Hagwilget.  And he then lists the adaawk.  Now Exhibit -- my lord, 887, which you have and  I'm not going to refer to it, it's, I believe, in one  of the other binders, the blue one.  COURT:  Yes.  GRANT:  And it may -- because I think it's illustrative.  I'm not sure what tab it was at, my lord.  I  think we were numbering each tab a separate exhibit.  COURT:  Yes.  GRANT:  Exhibit 887.  COURT:  Oh, 887.  GRANT:  It may be listed on the front, my lord.  COURT:  I jump from 886 to 888.  887 isn't here.  REGISTRAR:  Tab 45, my lord.  GRANT:  Tab 45.  COURT:  Oh, they are not in sequence?  I'm sorry, yes, they  are.  Yes.  GRANT:  Now, here, what Dr. Daly did in these several pages,  he took -- he listed the resource, and the first one, 24727  Submissions by Mr. Grant  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.  COURT  GRANT  COURT  GRANT  COURT  GRANT  THE  MR.  COURT  GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  of course, is the Frog/Raven clan adaawk and then how  it was used, and the technology, if any, that was  used, and the location, and the adaawk number out of  these -- each of these adaawk.  Now, of course, all of  these adaawk have now been filed in evidence and you  can go through and -- the listing on the right-hand  side indicates the wide-spread utilization of all of  these resources pre-contact, my lord, from eagle down,  moose hide, bear robes, and he goes down.  There is  bear, and going over to the next page, crabs, mountain  goat, and he refers to where they are.  And that, my  lord --  None of these seem to be in the claim territory, are  they?  They certainly -- there are some that are at the  coast of the Tsimshian.  The snowshoes on page 3,  fifth from the bottom, is in the claims area.  On page 3?  Yeah, page 3.  Snowshoes, yes, all right.  The Hemlock is on the Nass.  You'll note that  there's a reference to hunting of beaver although it's  at Gwinadoix.  That's up in the Nass area.  On page 4 you have the fishing at Kispiox, the  salmon fence at Kispiox, the game and berries at  Kispiox.  But surely you don't need this to persuade me that  there is fishing in Kispiox, Mr. Grant?  No.  What I need this to show -- what this  demonstrates, my lord, is that all of the resources  I've talked about have been gathered pre-contact.  This is exactly the kind of material that Dr. Robinson  did not take into account at all in her opinion with  respect to the lack of the use of these resources.  And it's much more than fishing, that's the point,  because there is -- as I say on page 4, I know -- I  mean -- I find the very proposition rather -- with all  due respect -- that the Gitksan didn't utilize all of  these resources --  Well, who says they didn't?  -- pre-contact.  Well, that's the tenor of the  Robinson opinion.  It focused on the fact that they --  they relied principally on the fishery until the  contact.  Yes.  They utilized fish skins instead of hides as  clothing.  That was one aspect of that report, and 2472?  Submissions by Mr. Grant  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. GRANT  that's one aspect of the defendants' argument.  And of course, if -- you see, the utilization of  territories pre-contact, if they use all these  resources they needed the territories.  If they only  used fish and minimal game around the river valleys,  then of course they didn't need territories.  That's  what this does and I agree -- I am not going to go  through it -- but I say that -- I would ask that you  note that as the adaawk references for utilization of  resources.  The other part of Exhibit 884-1 that I would like  to refer you to, my lord, that's -- that goes into the  timing, and the other aspect is at page -- it's Volume  1 of Exhibit 884 -- sorry, I want to give you the page  reference.  It starts at page 300 and it goes to page  312.  And I just want to focus you on why they would  have utilized the variety of resources.  The second -- the first paragraph, the last  sentence on page 300, my lord, in terms of the  essential nutrients.  :  Yes.  The ways of obtaining a necessary nutritional  intake and balance over time depend upon the  type of technology and knowhow of the  population, the food resources available to  that technology, and the cultural values and  traditions of that technology [sic].  MR. PLANT:  "Population".  MR. GRANT:  I'm sorry.  "And traditions of that population,"  yes .  And at the bottom of 301 and the top of 302:  In northern areas such as the Gitksan and  Wet'suwet'en territories, where until the last  century the technology and climate precluded  the cultivation of carbohydrate sources of  calories - excluding berries - this supplement  was provided by oils and fats extracted from  fish and game.  And then he refers on page 303 to the solutions  of hunting peoples such as the Gitksan and  Wet'suwet'en of solving the problem through the  pursuit and storage of a diverse number of food  sources.  And the fifth line from the bottom, my lord, 24729  Submissions by Mr. Grant  1 I would ask you to note for your consideration on  2 this, that:  3  4 The cornerstone of [their] diet was fat and  5 protein obtained from the combination of fish  6 and game.  In the indigenous Gitksan and  7 Wet'suwet'en economy this dietary balance was  8 normally achieved in the course of fishing,  9 hunting, plant harvesting and trade.  10  11 And then at 304, the distinctive factor which is:  12  13 The factor which is most distinctive of the  14 subsistence strategy of the Gitksan and  15 Wet'suwet'en is not merely the diversity of  16 species harvested, but rather the conjunction  17 of bountiful and regular salmon runs with a  18 wide range of other edible and otherwise usable  19 flora and fauna in the varied biotic zones of  20 the territories' valleys, mid-elevations and  21 alpine regions.  22  23 And on page 305 he refers to the salmon, the dry  24 smoked salmon.  And 306 he refers to -- half-way down,  25 my lord, the marmot:  26  27 The marmot/groundhog of the Alpine Tundra  28 biogeoclimatic zone is especially noted for its  29 luxuriant autumn fat.  Gitksan hunters describe  30 both its stripes of lean and fat flesh, and its  31 taste as bacon-like.  32  33 And he refers to the mountain goat as a "fat game  34 animal" as well.  35 And going to page 307, my lord:  36  37 The importance of high energy foods to the  38 diet and to the peoples' general prosperity,  39 was signaled culturally in the feast by the  40 lavish expenditure of these rich foods toward  41 the attainment of cultural and social rather  42 than nutritional [needs].  43  44 Then on page 309 he deals with the oolichan, that:  45  46 Ninety-nine percent of the content of  47 oolichan is composed of fats, of which 24730  Submissions by Mr. Grant  1 approximately 33% are saturated.  2  3 And he goes through that analysis.  4 And on page 310 he refers to the importance of  5 the oolichan to the Gitksan and Wet'suwet'en.  6 Finally, my lord, on 311, the last sentence on  7 page -- the first -- on the first paragraph there, he  8 explains:  9  10 The Gitksan and Wet'suwet'en diets were further  11 enriched and varied by means of the trade and  12 gift-exchange of foodstuffs between peoples  13 living in generally different climatic zones  14 and regions.  15  16 And then he uses Morrell as an example of the  17 salmon products between the Babine and Wet'suwet'en.  18 Now, I'm moving into trade, but what I'm saying  19 here, my lord, is that there are survival technologies  20 of the Gitksan and Wet'suwet'en which required them to  21 utilize and use the resources of all these  22 territories, and that existed pre-contact.  23 I would like to move into what Dr. Daly alludes  24 to in that final reference which is the trade on page  25 162.  26 The importance of trade among the Gitksan and  27 Wet'suwet'en is closely related to the economic  28 productive activities on their territory and at the  29 fishing sites.  30 And here, my lord, I go on to argue that the trade  31 has existed among the Gitksan and Wet'suwet'en and  32 other aboriginal nations for an extensive period of  33 time.  It did not commence when the Europeans arrived.  34 The trading system was elaborate and very strong prior  35 to any European contact.  36 Now of course, my lord, the -- if trade was -- if  37 you find that there was trade pre-contact, then the  38 corollary of that is that they had an economy that was  39 stable and they had surplus resources to engage in  40 trade.  41 Dr. Daly stated with respect to trade that it was  42 intensified and he says:  43  44 In the interior regions adjacent to the more  45 volatile coast, even when coastal trading was  46 not in a period of great competitiveness, the  47 local economy was annually affected by external 24731  Submissions by Mr. Grant  1 exchange.  Pre-contact subsistence trade was  2 important enough to the Gitksan and  3 Wet'suwet'en economy to affect the seasonal  4 deployment of labour and ensure the existence  5 of a form of social organization over the  6 general region which was marked by land-owning  7 lineage groups, each of which possessed an  8 internal hierarchy of statuses and  9 prerogatives.  10  11 And he goes on to explain this from other  12 scholars in the field.  And I emphasize this because  13 there is a major challenge, I submit, -- or issue  14 between the parties about this.  On page 164 he stated  15 that:  16  17 Competition and conflict with neighbouring  18 peoples in periods of intense trade no doubt  19 strengthened and reinforced the Gitksan and  20 Wet'suwet'en system of clearly defined,  21 House-owned hunting territories and fishing  22 sites, a system which articulated with  23 ownership and management of territory among the  24 neighbouring peoples.  The ranking and  25 stratification, and the clearly defined system  26 of property rights which have been associated  27 with trade activities existed in proto-contact  28 times and, as discussed in Chapter 1, both the  29 oral culture and archaeological records affirm  30 that such stratification is of considerable  31 antiquity.  Having said this I would argue that  32 property ownership evolved not simply from  33 trade between different ecological zones, but  34 also from the need to regulate resource use,  35 given the population and technology of the  36 times.  37  38 And Dr. Ball, who is referred to by Dr. Daly,  39 concluded in her treatise that:  40  41 ...Like Davidson, I contend that there is  42 convincing evidence that the Indians of British  43 Columbia developed land tenure systems within  44 recognized territories during aboriginal  45 times....I can offer three possible reasons  46 why: the first reason is that the comparatively  47 dense Indian population on the Pacific 24732  Submissions by Mr. Grant  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. GRANT  watershed put pressure on the resources; the  second is that the Pacific watershed Indians  relied heavily on anadromous fish for  sustenance and trade items - consequently they  lived rather sedentary lives compared to many  eastern tribes; and the third is that the  Indians did not exploit the resources solely  for local and tribal use but also for  intertribal trade.  And then she refers to archaeological evidence.  And Dr. Daly goes on to challenge the assumptions  of Sheila Robinson of "an Aboriginal absence of  competition over scarce resources".  And Dr. Robinson  attributes such competition to the laws relating to  the competition and the processes of that competition  to the introduction of market relations introduced by  European expansion.  But Dr. Robinson, to my  recollection, did not refer to Dr. Ball.  Dr. Daly concluded:  that trade, competition and conflict pre-dated  the modern era of European market relations, as  did the social factors which militated against  competitive hierarchy within the society:  the  institutions of matrilineal kinship groups,  collective property-holding, feast-giving and  the laws of sharing and reciprocity.  Both  competition and its regulation are and were  implicit in the economy, society and culture of  the Gitksan and Wet'suwet'en.  And Dr. Daly supports his conclusions and he  testified to this in evidence, my lord, on these five  factors.  And I think that these are important  factors, if you find that they are -- if you find  that -- you should find them as facts in support of  the conclusion of the pre-contact economy and trade  and utilization of the territory.  First of all, there is archaeological finds of  obsidian.  Secondly, the ethnohistorical record of  trails.  :  I've read these, Mr. Grant,  them, by all means, go ahead.  :  I will go to some of these,  them that's fine, my lord, but  If you want to amplify  If you've gone through  I just note for your  reference that those are a summary of the key 24733  Submissions by Mr. Grant  1 foundations for Dr. Daly's conclusion.  2 Now, there is a reference, of course, to Wolf on  3 the bottom, that he finds that the:  4  5 resources in the Northwest Coast area were  6 often localized, there had long been trade  7 between islanders and mainlanders, as well as  8 between coast-dwellers and inland populations.  9 Thus olachen ran --  10  11 And he goes on to explain the divisions which we  12 will return to in terms of the charts prepared by Dr.  13 Daly summarizing those.  14 But again, this is, my lord, another independent  15 writer on the subject which is consistent with the  16 conclusions that Dr. Daly arrived at.  17 My lord, the other important element here is  18 the -- is referred to, and I will come back to it, is  19 the trails and river systems used in the fur trade had  20 already been used for regular communication -- on page  21 167 -- social intercourse and the exchange of goods  22 prior to the advent of Europeans.  And this is  23 apparent from the analysis of the adaawk and the  24 kungax.  25 Doctor -- I then refer to Dr. Daly's reference to  26 the leading trader chiefs, and I'm not going to --  27 including Legeeyx and Nekt.  He -- Dr. Daly agreed  28 that Nekt, a Gitksan chief, was involved in the  29 economic and political process on the Nass and down in  30 the Kitimat area.  But he is in the matrix of these  31 trading chiefs and he suggests that he is "one of the  32 fingers of that coastal trend", which was actually in  33 the Gitksan area.  34 Of course, he did not survive because again he  35 tried to break out of the situation of -- of the  36 kinship system.  And that type of hierarchy --  37 authoritarian hierarchy just cannot survive the  38 kinship system because of the way the system is set  3 9 up.  40 On page 169, my lord, I refer you to Dr. Daly's  41 references to those adaawk from his report, which he  42 uses to conclude that there is trade in the  43 post-contact, nineteenth century.  44 Dr. Daly also states that:  45  46 ...The Gitksan and Wet'suwet'en would barter  47 for items from the coast, and receive some in 24734  Submissions by Mr. Grant  1 the form of gifts.  In turn they would dispose  2 of a portion of these items among their inland  3 neighbours in a manner similar to that by which  4 they had obtained them.  The inland neighbours  5 would reciprocate by bartering and giving as  6 gifts inland products - most of which were  7 locally available for harvest by the Gitksan  8 and Wet'suwet'en themselves.  9  10 Now, going over two pages, my lord, you see this  11 is from Dr. Daly's report, page 171, and you can see  12 the three columns are the Coastal Group, the Gitksan  13 and Wet'suwet'en Transition Group, and the Carrier,  14 Sekani Interior Group.  And you can see the items  15 which -- which are present and are common -- abundant  16 in each of the areas, and then you can see this is the  17 foundation, of course, for the trade.  With respect to  18 trade route efficiency, you can see in the Gitksan --  19 the last comment, my lord, with respect to the Gitksan  20 Wet'suwet'en Traditional -- Transitional zone, their  21 "seasonal canoe travel; low snowpack valleys;  22 considerable open forest floor; bridges and trails,"  23 to which I shall return.  24 And I explained -- I refer to this in the pages  25 immediately preceding, but I won't read from them.  I  26 would just like to refer you to the chart.  27 Once again, the second chart, figure 6 of -- Dr.  28 Daly's figure 6 which I've reproduced for you here,  29 you can see those figures -- the huckleberry, the  30 dwarf huckleberry and the soapberry are important and  31 are common in the Gitksan and Wet'suwet'en area and  32 they are traded over to the coast.  The soapberry,  33 that's a notation, the evidence was it was not sweet.  34 Now, I would like to return you to page 172 where  35 Dr. Daly concluded and refers to -- and I've  36 highlighted them and I won't refer them to you.  They  37 are there for your reference from analysis of what's  38 in the National Museum's collection.  You can see that  39 there are items of foreign manufacture which come into  40 the 24 items of foreign manufacture, which suggests  41 the trade ongoing in the north coast.  42 Now, Dr. Daly then constructed figure 8,  43 reprinted below, which diagrams indigenous products  44 that were flowing across southeast Alaska, northwest  45 B.C., at the time of contact with European trade (with  46 the exception of the slaves, the slave trade, which  47 was a coastal feature). 24735  Submissions by Mr. Grant  1 Now, you can see on figure 8, my lord -- I have  2 not highlighted in yours -- but that middle circle of  3 dried salmon, game, berries, furs and hides, that's  4 the Gitksan.  And the one immediately underneath it,  5 hides, pelts, moccasins, that's the Wet'suwet'en, and  6 the two names are there.  So -- but just so that you  7 know, those are the two circles.  8 And this is a -- and you can see the obsidian and  9 the other elements of trade.  The impact of this  10 diagram is to show all of these aspects, and when you  11 look at each of them there is no necessity for any  12 kind of impact of European contact for this trade to  13 occur.  This trade is consistent with their own  14 aboriginal cultures and societies of these aboriginal  15 groups pre-contact.  16 As I say on page 184, the most important -- one  17 of the most -- 174, I'm sorry.  18 THE COURT:  174, thank you.  19 MR. GRANT:  One of the most important features of trade for the  20 Gitksan and Wet'suwet'en was, and still is, occasioned  21 by the annual Spring run of oolichan on the Nass and  22 Gardiner Canal.  And I -- maybe I should, because I  23 say the word "was and is", I think I should focus --  24 or make it clear for your lordship what I intend to  25 establish here.  26 I think there are two periods of time that you  27 probably have an interest in here, although a  28 continuity is important, and the times are pre-contact  29 or at the time of contact as described -- as Mr.  30 Jackson referred to, in terms of -- in terms of the  31 time that sovereignty was asserted.  For those  32 purposes, what I'm saying, is that's one period of  33 time, is what was going on then.  And the other period  34 of time, of course, is what is going on today.  By  35 definition, that is -- when I say what is going on  36 today, is the continuity of the system.  And by  37 definition, the continuity from that time to now is an  38 important feature, but ultimately, probably, will not  39 be essential.  And my submission is that the economies  40 that I'm talking about did exist pre-contact.  And  41 with modifications, the utilization of the resources  42 continues today.  43 You can see, my lord, on figure 7 I've put in at  44 174 A, the far eastern part of it, it lists -- and  45 this is from the Daly report, Exhibit 884 -- but it  46 lists those resources or specialty products from each  47 area.  And I refer you to that on the bottom of page 24736  Submissions by Mr. Grant  175.  As Dr. Daly says:  When [the people] were away from home, they  would just have to say the name of their  village and people would know because the  degree of specificity diminishes the farther  away from home you go.  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  They would know the specialty products from those  areas.  Going down on page 176, my lord, it is well  accepted historically and anthropologically that  oolichan grease has traditionally been in high demand  by both coastal and interior peoples and the subject  of extensive trade pre-contact as well as post-  contact.  And I rely here not only on Dr. Daly's  expert opinion evidence, but also on Poudrier, Drucker  and MacDonald, all of which -- and Hark.  I think  there is -- I have to get the reference on that Hark.  Those are all exhibited.  The exhibits aren't there  and I'll provide them in the hard copy -- or I'm  sorry, in the disk.  I submit the evidence is overwhelming about the  trade going on pre-contact. As you see at page 177,  and I believe it's a well-known --  :  What do you say is the time of contact?  : The time of contact with respect to the Gitksan and  the Wet'suwet'en? I would say that we are talking in  terms of the 1820 period.  :  All right.  :  17 -- in 1793, Mackenzie travels to the coast,  Alexander Mackenzie, and he uses the grease trail of  the Chilcotin from the Bella Coola to the coast.  That's to the south of the area but certainly trade  was going on there.  The evidence of -- the chiefs have testified to  the many uses of oolichan grease, and I refer you to  Mr. Joseph as well as to Dr. Daly.  Mrs. Ryan  testified to the importance of grease, and I've cited  on pages 177 and 178, all of these -- these sources.  Now, Dr. Daly on page 178 talks about the  relationship between the Gitksan and the Nishga and  between the Wet'suwet'en and the Nishga as reflected  in the oolichan trade:  When the Gitksan reached the Nass - and some  families still participate in this process - 24737  Submissions by Mr. Grant  1 some of them, through kinship and marriage  2 links, worked the same fishing sites each year.  3 (Today some families continue this practice and  4 store their gear near the fishing sites in the  5 off-season.)  Traditionally, the Gitksan who go  6 to the Nass for oolichan are hosted by kinsmen.  7 They give their local food specialties to their  8 hosts and receive in return certain coast  9 foods.  Gitksan without kinship links, and the  10 Wet'suwet'en who travelled to the Nass at this  11 time...would arrive in groups and be formally  12 met by Nishga chiefs, who would come out onto  13 the river ice as these inlanders approached the  14 Nishga villages.  The Nishga took the  15 initiative to welcome the Gitksan to their  16 territory and to lodge them with allotted House  17 groups.  These Gitksan had no say as to whom  18 they would have as their hosts.  19  20 And then he goes on to explain "this sometimes led  21 to ... animosity."  But:  22  23 The inlanders would reciprocate for the use  24 rights to the river and to the grease-rendering  25 sites, cooking stones and firewood.  They gave  26 their hosts foodstuffs, hides, horn spoons, and  27 furs.  Thereafter the Gitksan worked together  28 with their hosts to harvest the oolichan.  They  29 also engaged in barter with other Nass  30 visitors."  31  32 And the Wet'suwet'en of course, exchanged hides,  33 bags, birchbark containers, moccasins, berries and  34 meat for oolichan grease.  35 Now, this trade for the oolichan, my lord,  36 demonstrates once again -- and this is in the -- as I  37 say, in the adaawks recorded by Beynon and also by  38 Jenness -- that the kinship relationships were  39 important in trading relationships.  And there may be  40 some confusion suggested at times that the kinship  41 says, "Well, they are all related to the Nishga."  42 Well, that's not the case.  The point is though, that  43 they are of the same clan and those clan  44 relationships, the House relationships, the inter-  45 marriage relationships are utilized.  That's how a  46 kinship society operates, and it's effective for their  47 needs. 2473?  Submissions by Mr. Grant  1 I would like to refer you just briefly to some of  2 the early historical accounts, and particularly  3 Poudrier in 1890-91.  At the bottom of 179:  His  4 description both of the trail and Kitwancool in 1890  5 provides strong evidence for the existence of the  6 trade in oolichan, as discussed, and the trail, long  7 before the arrival of non-Indians into the area.  He  8 said -- he notes of the trail:  9  10 The Indians of the interior often use it to  11 come down to the sea; as shown by their old  12 camping places, their numerous writings in  13 Tinnah (Dene) characters.  14  15 He goes on to describe:  16  17 Kitwancool is a market town, where the oolichan  18 grease is taken from the lower Nass and sold to  19 tribes of the interior, who have to pay very  20 dearly for this highly prized luxury.  It would  21 be hard to estimate the quantity of that  22 article imported to this spot, but the hundreds  23 of boxes seen by us, show well the great extent  24 of the trade.  These boxes are scattered all  25 through the interior, to the foot of the  26 Rockies, and I am told, a long way beyond.  27  28 Dr. Daly considered this description and  29 concluded that:  30  31 This description indicates that the grease was  32 bartered from people to people, within their  33 own territories; that is, the more inland  34 peoples would journey to obtain the product  35 from their western neighbours - the Gitksan  36 going to the Nass and Kitimat, the eastern  37 Gitksan and Wet'suwet'en going to such  38 locations as Kitwancool, the Babine going to  39 Hagwilget, and sometimes, Moricetown, and so on  40 eastward.  41  42 And that's where he -- this is the place where he  43 comments that they transported a lot more oolichan  44 than they needed for themselves.  I believe that was  45 the reference you had this morning, my lord.  46 Now, my lord, the next reference, pages 180 --  47 and I just think there should be a subheading in there 24739  Submissions by Mr. Grant  1 that this is the modern oolichan trade.  Generally,  2 this talks about the trade that is going on today and  3 has been going on at the time -- the lifetime of the  4 witnesses and their grandparents, and the utilization  5 of the oolichan grease, and what was traded for it.  6 We have evidence from Dr. Daly, of course, from Alfred  7 Mitchell, from Ms. Wilson-Kenni, from Mary Johnson,  8 and from Olive Ryan.  9 Now, I just want to go to Mrs. Ryan, Gwaans'  10 testimony at 182, where she lists the types of items  11 that were traded.  And of course this is quite -- this  12 is the kinds of items that come from the Gitksan  13 territories as depicted on Exhibit 358, three to ten,  14 those maps.  And she described the map -- the berry  15 cakes that were made.  16 One of the interesting points is that prior to the  17 introduction of knives, Mrs. Ryan testified that fish  18 were cut with tools made out of mussel shells obtained  19 at the coast.  So of course it was necessary to trade  20 for tools as well as for goods.  21 And then Dr. Daly refers to the Wet'suwet'en trade  22 in obsidian from Mount Anaheim.  I am on page 183.  23 And I go to 184, my lord, and I emphasize this  24 again, the Wet'suwet'en name of the border crossing  25 into Chilcotin country, "Le'na Diil" which means where  26 "the people cross on the way to get the rock".  The  27 Wet'suwet'en traded this rock with the Nass as well.  28 My lord, there was no necessity in the name -- which  29 is a Wet'suwet'en term -- it was not a name that came  30 after European contact, or -- there was no necessity  31 to wait for Europeans to start trading for obsidian.  32 It had its value to the peoples and the trade routes  33 were already established.  34 I have referred to, on pages 185 to 187, to a  35 number of other items of exchange and trade, including  36 the smoke deal which you've heard evidence about,  37 between the Gitksan and the Wet'suwet'en.  38 Dr. Daly concluded with respect to the  39 Wet'suwet'en access to the oolichan on the Nass as  40 opposed to at Kitimat, the Wet'suwet'en not having  41 kinship ties generally in the Nass as did the -- that  42 should be the Gitksan, my lord.  This is page 186, the  43 middle paragraph.  4 4    THE COURT:  Yes.  45 MR. GRANT:  Consequently, their access to the oolichan fishery  46 on the Nass was far more restricted than the fishery  47 was for the Gitksan. 24740  Submissions by Mr. Grant  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. GRANT  Now, my lord, I would like to move into the  section on trails, because it is my submission that  the evidence of trails overwhelmingly establishes --  if there is any doubt left -- that the trade networks,  therefore the resource industry, within this  territory, the Gitksan and Wet'suwet'en territory, was  very activite pre-contact.  I just want to refer you to my opening and then  I'll go from there.  That the trails were an essential  part of the trading network and the network linking  people and activities to the seasonal round.  The  network of trails are also evidence of the  continuation of the seasonal round and trading  relations for a very long time before the arrival of  non-Indians into the territory.  There were extensive trails and trade routes  between the aboriginal peoples in the pre-contact  time.  And Dr. Daly concluded with reference to George  Chismore in 1865, I believe.  :  It says 1870 here.  :  Yeah, in 1870, that's right, yeah.  I just see his  writing was in 1885:  [He] spent a summer furlough from the U.S. Army  exploring the trail up the Nass Valley and  across to Kispiox in 1870.  His observations as  to the age of the trail are interesting:  In one place the trail leads over the top  of a hill denuded of soil, and is worn  deeply into the solid granite by the feet  of succeeding generations.  George MacDonald also states that these trails  were very old.  He says:  The Kitwankul Trail was begun in prehistoric  times but it is impossible to say when.  As a  hunting trail it is undoubtedly many thousands  of years old, but as a major trade route it  probably came into importance between two or  three thousand years ago.  So -- and then he -- Dr. Daly refers to the Edziza  obsidian finds at Moricetown and Hagwilget were dated 24741  Submissions by Mr. Grant  1 as 5000 years old.  2  3 In 1870 the Nass-Kispiox trail was much used,  4 even in the summer months, long after the  5 annual oolichan run.  6  7 Chismore referred to it that:  8  9 The trail was a constant source of interest.  10 Daily we passed parties bending under their  11 burdens, or met others hurrying back to seek a  12 load.  This highway is broad and clear and very  13 old.  14  15 Now he is writing in 1870, my lord, and I say that --  16 or observing it in 1870.  It certainly suggests that  17 it's a matter of great antiquity.  18 Now, one of the elements here -- I just ask if  19 Madam Registrar -- I believe she pulled Exhibit 133.  20 Now, my lord, Exhibit 133 is a picture of one of the  21 later bridges in Moricetown, but still an early  22 bridge.  And looking at that and then hearing how  23 Chismore described the bridges that he crossed in  24 1870 -- and this is how he describes them, and on page  25 189 I refer to this:  26  27 [The] bridges span the wider streams; one, a  28 suspension crossing the Har-keen, built long  29 ago, replacing a still older one, has a clear  30 span of ninety-two feet.  It is located at a  31 point where opposing cliffs form natural  32 abutments, and is thus constructed:  From each  33 bank two tapering logs parallel to each other -  34 some ten feet apart and with points elevated to  35 an angle of ten degrees - are pushed out over  36 the stream towards each other as far as their  37 butts will serve as a counterpoise.  Then two  38 more are shoved out between the first, but  39 nearer together and almost horizontal.  The  40 ends on shore are then secured by piling logs  41 and stones upon them.  Then a man crawls out to  42 the end of one of the timbers, and throws a  43 line to another in the same position opposite.  44 A light pole is hauled into place, lashed  45 securely, and that arch completed.  The three  46 remaining sets of timbers are treated in the  47 same manner.  The upper and lower arches are 24742  Submissions by Mr. Grant  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  THE  COURT  32  MR.  GRANT  33  34  35  THE  COURT  36  MR.  GRANT  37  38  THE  COURT  39  MR.  GRANT  40  41  THE  COURT  42  MR.  GRANT  43  THE  COURT  44  MR.  GRANT  45  46  THE  COURT  47  MR.  GRANT  then fastened together by poles, cross-pieces  put in, footplank laid, and handrail bound in  proper position to steady the traveller in  crossing the vibrating, swaying structure. No  bolt, nail or pin is used from first to last.  Strips of bark and tough, flexible roots form  all the fastenings.  Now, my lord, the -- the technology -- the  engineering technology which is known by these  historical accounts, for the Gitksan and the  Wet'suwet'en and their neighbours to build such  bridges, obviously was based on the need for them to  travel and to engage in trade.  Right up to today,  this is being done and you see that the evidence --  the evidence of Ken Muldoe was that he had built and  his father, Pete Muldoe, they built and maintained the  bridge depicted in Exhibit 477.  Of course that's  different than the one you have there, but there is a  bridge at the mouth of the creek running out of Bonny  Lake in his territory at Gwinageese.  It's again in a  remote area, but they have dealt with the engineering  required to build the bridge.  Now, my lord, on page 190 and 191 of my  argument -- actually, through to page 193, I referred  to the evidence of a number of witnesses who described  the trails that they utilized.  And if -- on page 190,  the paragraph with Alfred Mitchell, you make reference  and just note, Exhibit 1016, the map I showed you  earlier, my lord, that's the --  Yes.  That -- you find that what Alfred Mitchell is  describing and what he says his grandparents used is  consistent with the McDougall map.  Where did you say to make that note?  Page 190, Alfred Mitchell testified to an old Indian  trail.  Yes, all right.  Just to make reference there, that trail there is  reflected.  Is the reference there to this Exhibit 1016?  Yes.  Yes, all right.  Alfred Mitchell doesn't make that reference.  I'm  asking you to make the connection.  Yes.  And Alfred Mitchell testified to trails known to 24743  Submissions by Mr. Grant  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.  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  THE COURT  him.  Again, at page 191, Henry Alfred's testimony of  the trails is consistent with 1016, the 1910 trail.  Alfred Joseph testified to trails used by his  ancestors.  And in -- he talks about the trails from  Houston Tommy Creek, he followed the trail that the  people have used over the years to get to Biiwenii  Kwe.  This is on page 191.  What's Biiwenii Kwe again, please?  Sorry?  What's Biiwenii Kwe?  Biiwenii Kwe is Owen Creek.  Owen Creek?  Yes.  All right.  And then on the top of 192, Alfred Mitchell  describes the trail -- or Alfred Joseph, I'm sorry,  describes the trail from Parrott Lake to Owen Lake,  another trail that went west from Biiwenii C'eek or  Owen Creek.  And then Basil Michell testified to the trails  used by his family:  There was a trail in the valley near Doughty  and that was a short-cut to the Kilwoneetz  Territory.  Kilwoneetz territory is up at McDonnel Lake, the foot  trail leading from Kilwoneetz to McDonnel Lake.  All of these are Wet'suwet'en witnesses' evidence  of the trails.  Several trails through their territory  that were used by their predecessors as well as by  themselves.  Again, the Gitksan witnesses do the same thing.  Mrs. Johnson talks about her trail, the trail up  through her territory which is now the road up to the  Kispiox valley.  And then they talk about going to  Kisgagas, and I'm going to come back to that, to the  trail in Kisgagas and the other tails as reflected in  archaeological material.  Mrs. Ryan testified that to get to Hanamuxw's  territory up the Kisegukla Valley, Gwagl'lo, Haaksxw  and Guxsan, who have territories -- on page 193 -- and  in the same area would follow the same trail as  Hanamuxw.  Now, my lord --  :  Do you want to take the afternoon adjournment now or 24744  Submissions by Mr. Grant  1 do you want to finish something?  2 MR. GRANT:  I couldn't see the clock, my lord.  Certainly,  3 that's fine.  4 THE COURT:  All right.  That's fine.  5 THE REGISTRAR:  Order in court.  Court stands adjourned for a  6 short recess.  7  8 (PROCEEDINGS ADJOURNED AT 3:00 P.M.)  9  10  11 I hereby certify the foregoing to be  12 a true and accurate transcript of the  13 proceedings herein transcribed to the  14 best of my skill and ability.  15  16  17  18    19 Toni Kerekes, O.R.  20 United Reporting Service Ltd.  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 24745  Submissions by Mr. Grant  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Mr. Grant, I was planning on sitting three one-hour  4 segments this afternoon.  I have heard some  5 disquieting news about your wishes in this regard.  6 MR. GRANT:  I don't like to do anything that is disquieting to  7 your lordship.  I guess I didn't understand.  I knew  8 that your plan was for an evening sitting tonight.  9 THE COURT:  Yes.  10 MR. GRANT:  And I had in my mind given that we started at 9:30,  11 that I had assumed that we would stop at around four  12 and then -- or in an hour and then a two-hour sitting  13 tonight as we did the other night.  That's --  14 THE COURT:  I planned to do both and we brought an extra  15 reporter so we could sit long hours.  16 MR. GRANT:  I want to be able — I'd like to finish all of this  17 tonight, but if I don't I'd like to have a voice  18 finishing it in the morning.  19 THE COURT:  Do you think you can finish all this tonight if we  20 quit at some time after four and if we didn't sit this  21 evening?  22 MR. GRANT:  I have discussed it with other counsel in the other  23 parts.  I anticipated that I would finish this at noon  24 tomorrow.  That's what my plan was and that would  25 be -- in terms of the plaintiffs' schedule, that would  26 be consistent.  27 THE COURT:  Well, we are running so far behind.  Mr. Rush said  28 we are eight days behind yesterday or --  Five days.  Or five days.  Maybe it was Mr. Plant.  Mr. Plant said eight days.  We definitely speeded up since then.  Well, I am not going to be draconic about this, but  34 it seems to me when we have this kind of a problem  35 you've just to got to fight it.  And you don't fight  36 it by not sitting late.  But I will --  37 MR. GRANT:  There is a couple of appoaches.  I think one is the  38 extended hours and your strategy of this evening's  39 session, I understood that -- I knew on Tuesday when  40 you sat in the evening you started late at 11:30.  41 THE COURT:  Yes, but I announced that we would sit the long long  42 hours today.  That's why I didn't sit last night.  43 MR. GRANT:  I probably didn't have the pleasure of --  anyway, I  44 am sorry, I knew we'd sit this evening.  45 THE COURT:  There are two solitudes everywhere.  I thought I  46 made it clear that we would be sitting until five or  47 six tonight and tonight as well.  That wasn't passed  2 9 MR. GRANT  3 0 THE COURT  31 MR. GRANT  32 MR. PLANT  33 THE COURT 24746  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  on to you if you weren't here to hear that?  :  Well, I knew we were sitting here tonight and I  didn't know the first part.  :  All right.  Well, let's carry on and when you feel  that we must quit, we'll do so.  I wonder if some  message should be sent to your reporters, Ms. Laara,  and let them know that there won't be another one  required this afternoon.  Maybe Ms. Thomson can tell  them that.  Yes.  All right.  :  I am looking at shortening down certain of my  submissions as well, my lord, so I am saying there is  two sides to the approach.  :  All right.  Thank you.  :  I am at page 195 and this extract page 195 through  to page 199 is the -- from George MacDonald's report,  my lord.  It's an appendix to the Dr. Daly's report.  But the small sketch map on page 194 makes reference  to it and I just like to highlight certain features of  the trails and the location of these trails with  reference to page 194, which is also figure nine in  the Daly report and I have replicated it for you.  Mr. George MacDonald has stated that:  "Of the dozens of trails that liked native  villages in Northern British Columbia the most  famous of all was the KITWANKUL TRAIL between  the Skeena and Nass Rivers.  It was one of the  widest trails in the region and reported to be  as much as one meter deep where it cut over  hills and ridges.  It was about 60 km. long.  The trail was used by many explorers of the  late nineteenth century, including George  Mercer Dawson and Charles Horetzky who have  left detailed descriptions of the trail and the  traffic they encountered on it."  Some of which I have already referred you to.  Now, if  you look at the second -- the third paragraph, he  refers to:  "Commodies carried over the grease trail  spanned a wise variety of both native and  European trade goods.  Olechen grease, from  which the trail took its name, was undoubtedly  the single most important commodity since this  trail was the main line from the Nass fisheries  into the interior." 24747  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  And then he refers to Horetzky and what he saw.  "The Kitwankul Trail was begun in prehistoric  times but it is impossible to say when.  As a  hunting trail, it is undoubtedly many thousands  of years old, but as a major trade route it  probably came into importance between two and  three thousand years ago."  And that's the conclusion of Dr. MacDonald based on  his work with respect to the archeology.  And he  refers to the prehistoric trade.  If you go to the  next page, my lord, you see that what Dr. MacDonald  does is, he says L.  "The Kitwankul Trail is part of a network of  trails that distributed goods between the coast  and the interior.  Of all the northern coast  rivers from Telegraph Creek in the north to  Kemano in the south, only a handful, such as  the Nass (partway) and the Skeena are navigable  because of the steep gradient of their  channels.  Even the Skeena and Nass present  problems of spring flooding, other seasonal  flash flooding and winter freeze up that put  limits on their usefulness for canoe travel.  Overland trails, or trails along the  riverbanks, provided a much more reliable  system for the transport of trade items."  Now, he then refers to the series of trails that are  on this map and he starts with the Skeena trail made  up of a number of segments following the Skeena River  for about one thousand kilometres.  Now, on my copy of  the map, my lord, I have marked it.  It's the one  that's marked number one to Kitwanga.  It's marked --  it's not marked with a number, but it goes right up to  the Nass.  And if you -- I am sorry, right up towards  Dease and just going from the north, this trail, what  he would be talking about would be through this area  here -- or I am sorry -- yes, through here.  You are talking about Dease Lake?  Yes.  Going up towards Dease.  I think that's further west -- further east, isn't  it?  I am sorry.  Dease Lake would be -- 24748  Submissions by Mr. Grant  1  THE  COURT  2  MR.  GRANT  3  THE  COURT  4  5  MR.  GRANT  6  THE  COURT  7  MR.  GRANT  8  9  THE  COURT  10  MR.  GRANT  11  MR.  PLANT  12  MR.  GRANT  13  THE  COURT  14  15  MR.  GRANT  16  THE  COURT  17  MR.  GRANT  18  19  20  21  THE  COURT  22  MR.  GRANT  23  24  THE  COURT  25  MR.  GRANT  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Isn't that Dease Lake on the map?  I don't believe --  Dease is further over to the east, is it not, from  where your finger is?  Dease would be further to the west.  The east I would have thought.  Just a moment, my lord.  I have Meziadan is here, my  lord.  Yes.  Dease Lake would be up in this area.  Way up.  It's way off the map.  Yes.  I would have thought it would be more over  here.  You see, here is the route up to Meziadan.  Yes.  But that's —  And then here's going up through there and this is  the Bell-Irving, so when you go up Highway 37 and you  go up through Bowser there.  But this route here is  further east.  It's in this area here.  That's the one I am thinking.  Yeah.  I see the route that you are referring to, the  route.  Yes.  Now -- and of course, that route follows roughly the  Skeena and this is the trail that was utilized.  Now,  the other point is on the -- on this map, my lord, and  as I say I have highlighted it just when I was trying  to track these is you find the route from Kispiox -- I  pushed it out of my own reach again.  Kispiox route  goes from up the Kispiox Valley and up through these  territories here and cutting across Kispiox, following  up here and cutting across in this area up through  Geel and over.  That would be the one that's marked on  the map as number two.  This sketch map is clearly  just a sketch map and just to show you the territories  that these routes travelled through and, of course,  you've heard evidence about the rules with respect to  access through territories and it's understandable as  part of it.  Cranberry Trail -- I am just going to focus on  certain parts of these.  The Cranberry Trail begins at  Kispiox on the upper Skeena, follows the course of the  Kispiox River to a point near its source where it  jumps over to the headwaters of the Cranberry.  And  that's the one I just showed you, my lord.  The Stikine Trail begins at Cranberry where it 24749  Submissions by Mr. Grant  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. GRANT  meets the Kispiox Trail from the upper Skeena and runs  north to Telegraph Creek on the Stikine source found  in sites along the Skeena River indicates that this  trail has been in use for several thousand years.  The Kitsumkalum Trail is a close parallel to the  Kitwankul Trail.  It begins on the Skeena River at  Kitsumkalum, below Terrace, and passes the old village  site; following the old eastern shore and it, of  course, parallels the Kitwankul Trail and it's going  north to the Nass from Kitsumkalum.  The fifth one is the Copper River Trail and that's  one of the key trails that goes along the Copper River  and it connects the Wet'suwet'en with the Kitselas, my  lord, and you have heard evidence about the  significance of that trade route, both from  contemporary witnesses and from the anthropologists  and archeology.  Gitseguecla-Moricetown Trail -- and you may  remember Skiik'm lax ha is the chief of Gitseguecla,  but it has the Wet'suwet'en -- originally Wet'suwet'en  connections and the Wet'suwet'en and Gitseguecla have  long-term interconnections through marriage as well as  trade.  And this is a described by Dr. MacDonald as a  southern continuation of the Kitwankul Trail past the  Skeena River.  But this is the junction, this is the  route that joins in.  And you may recall, my lord,  that you actually flew that route because you flew up  the Gitseguecla Valley and through and over to  McDonell Lake.  :  Yes.  :  The Kisgagas Trail began at Gitenmax and of course  it goes north up to Kisgagas.  And I am not certain  if -- well, we flew that route as well.  But then it  goes over to northeast of Bear Lake where Old Fort  Connelly once stood.  The Babine Lake Trail starts again at Gitenmax and  follows the Bulkley Trail to past Hagwilget, heads  east following the Bear River to a pass south of Mount  French down to Fort Babine.  And that route, the  Babine Lake Trail is still -- people have traversed  that route on foot.  Still today you can do that.  The Moricetown-Babine Lake Trail parallels the  Hazelton, but ran from further south.  And if you have  the map you can see the numbering of Dr. MacDonald -  I've just pulled mine out - which makes reference to  it, my lord.  Going to -- there is a number of other trails.  I 24750  Submissions by Mr. Grant  1 just would show you the Bulkley River Trail, which at  2 the bottom connects with Ootsa Lake and others in the  3 Tweedsmuir Park region.  Now, this is one of the  4 trails, it's number ten on the sketch map, which I  5 have already referred you to with respect to Mr.  6 McDougall's map.  It's a trail that goes down south  7 into the southern Wet'suwet'en territory source.  8 I'd like to refer to you number 17, the Babine to  9 Bear Lake Trail is undoubtedly an aboriginal one, but  10 became very significant in the early nineteenth  11 century as a link between two fur trading posts.  12 And then number 20, Dr. MacDonald refers to the  13 trail at the big bend of the Skeena River north of  14 Kuldo and the trail branches with the northern trail  15 heading between the headwaters of the Nass and Skeena  16 to link with the Spatsizi, to Dease Lake near the  17 headwaters of the Stikine.  And that's where you say  18 it was the trail itself was further east there.  19 Now, my lord, I want you to know that I have  20 edited the appendix and so some of the numbers, for  21 example, number 13 to 15 isn't in there because there  22 are trails that are not directly connected into the  23 territory.  But Dr. MacDonald concluded that:  24  25 "The twenty-three trails discussed above are  26 all major ones that were in use in prehistoric  27 times.  There were, of course, scores of  28 secondary trails that linked every village and  29 every major economic or resource area together.  30 For most trails there were alternate routes  31 that were used in summer and winter.  In winter  32 many of the higher passes were blocked with  33 snow, in which case longer alternate trails  34 along river banks were used.  In spring,  35 however, these routes often disappeared in  36 flood waters."  37  38 Now, then I've recited and mistakenly it's put in  39 again, but the Chismore reference to the very deep  40 trail on the Nass.  41 My lord, in conclusion, it's my submission that  42 these trails, this bridging, all of the evidence on an  43 historical basis establishes -- and I am at page  44 200 -- the Gitksan and Wet'suwet'en have been engaged  45 in trade since long before the arrival the white man.  46 There is no other explanation for thethe obsidean  47 finds of Moricetown, and there is no other conclusion 24751  Submissions by Mr. Grant  1 to the antiquity of the trails as recorded by the  2 first whites across them.  There is no other  3 explanation for the oolichan trade and the long  4 history it has, or the references in the adaawk and  5 the kungax referring to trade goods and trades.  6 I submit, my lord, that you should find as a fact  7 that the economic system of the Gitksan and  8 Wet'suwet'en which is an essential part of their  9 organized society included trade between themselves  10 and other Aboriginal groups prior to contact.  And  11 implicit in that is the finding that their trade  12 system -- their economic system was a system that gave  13 them access to all of the resources of the  14 territories.  Those resources, of course, my lord, are  15 the trade -- I think I have raised with you.  The  16 trade requires that they had surplus; the surplus  17 requires that they had wealth and access to resources.  18 And those -- I ask you to make those findings of fact  19 at the end of the day, and to reject the theory that  20 there was no pre -- or very marginal pre-contact trade  21 and no use of the territories pre-contact.  22 I'd like to move to the common spiritual world  23 view.  Here, my lord, I am talking, of course, about  24 the spiritual world view of the Gitksan and  25 Wet'suwet'en.  When I say it's a common spiritual  26 world view I am, of course, back to the concept of the  27 organized society and this is one aspect of it.  28 What's important and significant here, my lord, of  29 course is not a question of asking you to make  30 findings that require an acceptance of the veracity of  31 a spiritual belief, but to make findings that the  32 Gitksan and Wet'suwet'en have distinctive spiritual  33 beliefs to this day.  It's very -- as I say in the  34 opening, in explaining their spiritual beliefs to  35 non-Gitksan and non-Wet'suwet'en, it is very common  36 for Gitksan and Wet'suwet'en to relate that to  37 Biblical analogy.  To the Gitksan and the Wet'suwet'en  38 the Bible sounds like their own adaawk and kungax in  39 terms of some of the oral teachings of the Bible.  40 My lord, many Gitksan and Wet'suwet'en attend  41 Christian churches.  This in no way detracts from  42 their own unique spiritual relationship to the land  43 and their spiritual views.  They have interpreted  44 Christian teachings in the context of their own  45 spiritual beliefs.  The distinctiveness of the Gitksan  46 and Wet'suwet'en spiritual world views overwhelmingly  47 demonstrates that they had a spiritual world view 24752  Submissions by Mr. Grant  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  prior to contact and that spiritual world view was  based on their antiquity in their territory and  supernatural events which happened to them in  conjunction with their territory.  An understanding of  the spiritual --  THE COURT:  Connection.  MR. GRANT:  In connection with their territory.  Thank you, my  lord.  An understanding of the spiritual view also  explicates the crests and the law of respect.  Now, my lord, if I may summarize this first part.  The spiritual world view, the Gitksan and Wet'suwet'en  believe in a universe created and ordered by a divine  hand.  There is certain unchanging -- where all life,  human and otherwise, is an animation of the divine  spirit.  The law of respect originates from this  spiritual belief.  I submit that the spirituality of the Gitksan and  Wet'suwet'en as shown in the evidence, my lord, is  rooted in the territories and the experience of their  territories.  Stanley Williams described it in this way:  "And in the ancient time, thousands of years  before the arrival of white man and thousands  of years ago, our people always knew there was  a creator, because when they are suffering or  when they are... travelling, what they do is  they a fire and they would make  an offering in that fire.  While the offering  is burning then they would pray in their own  language...."  Dan Michell referred to the Wet'suwet'en in like  manner:  "You see like even from experience I learn from  our forefathers that we are created by our  creator and the land we live on was created by  the creator.  And he provided for us the  resources that's on the land and we look after  it. "  These statements, my lord, by these two chiefs  directly contradict the blinkered Christian precepts  of a person such as Daniel Harmon, who -- and it's not  a castigation on them, but it's something too  important to remember.  He had no interest in 24753  Submissions by Mr. Grant  1 observing or understanding the spirituality of the  2 Gitksan and Wet'suwet'en except to the extent that it  3 would enhance or impede his own trading interests,  4 which is what he was here to do.  5 But in answer to the question what spiritual  6 beliefs there are among the Wet'suwet'en people that  7 play a part in Wet'suwet'en life today, Gisday wa,  8 Alfred Joseph, testified:  9  10 "There is a belief among our people that was  11 referred to in our legends, legends that were  12 told about the past before the coming of white  13 people and one of the most important ones and  14 the one that (is) always told to us everyday is  15 to remind us that we are here because of one  16 person and they refer to that person as  17 Hudagghi -  That means someone that is higher  18 up."  19  20 Dan Michell in the gathering of Gitksan-Wet'suwet'en  21 Nutseni and Sekani chiefs stated:  22  23 "... I don't think we can forget our past, our  24 ways.  But God created us as we are within our  25 boundary.  Otherwise we would all speak the  2 6 same language.  These are not man-made  27 boundaries.  This is the way it was created by  28 our boundaries.  On the other side... is  29 Gitksan, here it is Wet'suwet'en.  We didn't  30 create our own language.  It was given to us by  31 our creator."  32  33 Solomon Marsden explained the Gitksan relationship  34 between the creator and ownership of lands in his  35 evidence:  36  37 "Whenever they (the Gitksan) would get  38 something to live on for survival, they knew  39 this was given to them by the Creator and in  40 turn they would show a greater appreciation,  41 because they knew this was from the Creator."  42  43 I haven't mentioned to you the songs, my lord, but the  44 songs are part of that connection.  And in describing  45 the importance of songs Gwaans, Olive Ryan, stated:  46  47 "important when the people years ago when they 24754  Submissions by Mr. Grant  1 created, put us in this land you know.  - the  2 old people believes there is a Creator, and  3 they know that creating was giving the food to  4 them."  5  6 Alfred Mitchell was taught how to be quiet when they  7 were picking berries:  8  9 "They say, the Mii'o when you make too much  10 noise... you can't see them they hide from us.  11 When we was kids they tell us shh."  12  13 Mrs. Ryan described it in ancient times the people of  14 Kitsegukla moved into certain parts of the forest  15 during times of crisis:  16  17 "They moved out to where the jack pine is and  18 those jack pines was just like humans, that's  19 what the old people said.  They are breathing  20 too."  21  22 And then Art Mathews Jr., a much more contemporary  23 chief, described how he was taught in his language to  24 talk to the chief in heaven if you are caught in the  25 fog.  He said when you get caught in the fog:  26  27 "it is above all chiefs, like it says it's in  28 heaven, Simoogit Lax ha, and the way to do this  29 is when -- we get caught in fog, snow, or rain,  30 whatever, and any difficulty arises, when they  31 have lunch they would throw part of what  32 they're eating into the fire as a sacrifice  33 to -- as they're doing this they say K'aan  34 t'aadihl ts'e'elin, mean clear up.  35 Q.  And do you still practise this today?  36 A.  Oh, yes.  Yes."  37  38 And my lord, the significance of this part of the  39 question of the spiritual world view once again is not  40 an argument as to proving what any person should  41 believe, but that these spiritual beliefs are  42 distinctive.  This is not the spiritual beliefs that  43 the missionaries brought.  This is the spiritual  44 beliefs that the people had.  And they have now  45 incorporated them into going into Christian churches,  46 but there is no contradiction in the Gitksan or the  47 Wet'suwet'en eyes in that.  One of the most -- and I 24755  Submissions by Mr. Grant  1 raise this because there is much to be made in the  2 defence -- defendants' summary that the relationship  3 to the land was something created by missionaries,  4 something we will speak about later, and wasn't  5 something created by the Indians, and that's connected  6 to the fact that the Indians didn't believe in a  7 creator until the missionaries came.  8 The belief in reincarnation is the second area I'd  9 like to focus on.  And this spiritual belief is the  10 further basis for the exercise of the fundamental law  11 of respect.  For the Gitksan and Wet'suwet'en they are  12 not only caring for the territory and resources for  13 their grandchildren, but also for themselves as they  14 reincarnate in the future for successive generations.  15 My lord, this belief in cultural, spiritual and mortal  16 continuity explains the concern expressed by Gitksan  17 and Wet'suwet'en Chiefs over and over again in  18 evidence for the irreparable harm and destruction of  19 their territory which they see.  20 It's believed by the Gitksan and Wet'suwet'en that  21 the divine spirit lives continuously through the human  22 and animal form.  This is evidence in the  23 reincarnation belief.  The spirit of a person is born  24 and reborn, acquiring knowledge and transmitting  25 lessons to be learned from one generation to another.  26 This was testified to by Mrs. MacKenzie and Mr. Joseph  27 for the Gitksan and Wet'suwet'en respectively.  28 Madeline Alfred explained the Wet'suwet'en belief  29 when she said:  30  31 "that has been a long standing belief... in  32 reincarnation, because when children recognize  33 things that they have never seen or recognize  34 places where they haven't been before and  35 that's where the understanding is that their  36 ancestors have been there.  And that they are  37 the reincarnation of their ancestors that have  38 been there before.  And they are the  39 reincarnation of the ancestors."  40  41 And she describes a personal experience with one of  42 her own grandchildren who she believes is the  43 reincarnation of her son Paul and she explains why.  44 Alfred Mitchell suggested that reincarnation was  45 an explanation as to why he and others were  46 immediately familiar with a territory.  47 24756  Submissions by Mr. Grant  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. GRANT  "...even right now I doubt any map comes in my  face because it's all in my mind.  Old timers  recall they don't even need maps.  I must have  been reborn there, that's why I know all the  territory."  And you find in all of these examples of  reincarnation -- I shouldn't say all, but in many of  them there is this connection that one of the  significant points is a child will be taken to a  territory and will recognize something or appear to  recognize like he has been there.  And among the  Wet'suwet'en this is considered as an aspect of  reincarnation and a connection to the territory.  Alfred Joseph explained that family members watch  the children to identify who they were in past lives.  And he explained the Wet'suwet'en words to identify  qualities inherited through reincarnation.  If the  person is identified to be reborn from another clan or  the clan of his or her present House.  Once again, even in the spiritual belief the  connection between -- my lord, the connection between  the kinship group, the House and the clan, and if the  person is reborn from another clan or his own, is  significant.  And I go on to give you several other examples of  reincarnation which I am not going to reiterate.  Mrs.  McKenzie gave evidence of one.  Just a moment, my  lord.  Sorry, my page is out of order.  Page -- it  appears that possibly page 210 is out of order.  :  Yes, it is.  :  So I'm going over to page 208.  208 and 209 follow  page 210.  Mrs. McKenzie testified to her belief about  her son Benny being reincarnated from Johnny Angus and  of course explained why.  I have just summarized this.  Ian Trombley, Emma Michell, referred to Stanley  Nikal's son, Cheyenne Nikal.  And Dr. Mills, who  studied the reincarnation and has been researching it  specifically for other work independent of her  evidence, concluded that:  "The Wet'suwet'en, like the other peoples of  the Northwest coast and the Athapascans in the  interior, believe in reincarnation of people as  well as of animals.  The Wet'suwet'en believe  that everyone is reincarnated.  The  Wet'suwet'en expect to be reincarnated into 24757  Submissions by Mr. Grant  1 their same House, following the matrilineal  2 rule in the reincarnation.  The Wet'suwet'en in  3 general have an expectation that their  4 grandparents will be reborn as their children."  5  6 And then she refers to:  7  8 "The bond of the feast names and land continues  9 in Wet'suwet'en eyes and minds to go lifetime  10 after lifetime, and is one of the reasons they  11 feel so strongly about the land and titles.  12 The children trained to be the chiefs are often  13 recognized as the elders' own parents and  14 grandparents returned."  15  16 Again, my lord, when you consider it, it makes no  17 sense to suggest that the spiritual beliefs of the  18 Wet'suwet'en and the Gitksan are derived from --  19 solely from the missionaries.  This belief in  20 reincarnation is certainly not something of recent  21 acquisition and I ask that you infer that it is  22 something that remains of the Gitksan and Wet'suwet'en  23 spiritual beliefs that they held from times of  24 pre-contact.  25 Second aspect of spirituality I would like to  26 refer to is something that I have labeled and it's my  27 wording:  Human interaction with the spiritual world.  28 And of course, all societies to some degree have this,  29 but for lack of a better way of describing it, I have  30 used that general term.  31 The Gitksan and Wet'suwet'en share in a belief  32 that the spirit world lives independently from, but  33 interacts with human beings who may encounter spirit  34 power through dreams or with the assistance of  35 specialists.  In so doing humans may learn of events  36 which may occur in the future, or they may communicate  37 with spirits of those who have died.  The spirits play  38 a role in the life of the living and may in some cases  39 cause illness, called medicine dream sickness.  40 Now, Alfred Joseph vividly describes one of these  41 incidents in his evidence and where he was carving,  42 and I have not -- I have put the full transcription  43 there, but I will summarize it for your lordship  44 rather than just read it.  Basically he was carving  45 alone at 'Ksan.  He heard a sound.  He at first didn't  46 think of anything.  Then he went outside, there was no  47 one there, and it was like a whistle.  He went home 2475?  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  and the next morning his wife suggested that he go and  see a medicine person, which he did.  And he goes on  and describes at 210 what happened.  Halfway down,  about four lines down from my highlighted section:  "So I went to see him.  And he was deaf, but  his daughter could communicate with him.  his daughter told him what happened to me.  And  he didn't say a word.  He just laid there  smoking his pipe and looking at me.  Finally  when he finished his pipe, smoking it, he  called me over and said, 'sit over here.'  So I  went over and sat down.  And then he just felt  all over; my head, my hair, and then -- he  touched my head and blew -- and said a few  words to himself and then said, 'Okay.  Sit  down over here.'  And he looked at me and he  said, 'You are strong.'  He said, 'Nothing  touched you so you have the power to resist  whatever came after you so you will be all  right.'  And if I didn't hear those words -- I  would have been in doubt, but when he told me  that and I felt pretty good about it and just  kept on working."  Now, the significance of this, again, is there is no  connection between this kind of spiritual experience  that Alfred Joseph had and the missionary or the  Christian spiritual world.  It's something that  happens, and he went to a medicine person of the  Wet'suwet'en.  Mrs. MacKenzie, and I describe on the next several  pages -- I actually quote from her.  She describes the  incident in which her grandmother foretold what was  happening to Jacob Robinson when he was lost and died  on the mountain.  And I put in the entire extract,  because it's a fairly dramatic description of how each  day that Jacob was gone her grandmother would get up  and describe to Mrs. MacKenzie what had happened.  This is the story about the dog?  Right.  Yes.  It's the story in which she describes the dog that  would come back.  Yes.  I remember it.  And at the end of that on page 213, my lord, he  said -- the grandmother -- Mrs. MacKenzie's 24759  Submissions by Mr. Grant  1 grandmother says:  2  3 "He said that 'in his mind' -- my grandmother  4 said -- 'he didn't want to be found, his  5 carcass or anything, and he just didn't want  6 people to find him.'.  7  8 And then Mrs. MacKenzie goes on and said:  9  10 "And that's what happened to this day, they  11 haven't traced where he died or how he died,  12 but my grandmother knew that he was sick and  13 got snow-blind."  14  15 And then she says:  16  17 "So this is the strength these halayt's would  18 have, that they foretell, even through -- she  19 wasn't there -- but she still knew what goes on  20 with him everyday.  This is the strength that  21 these halayt's have.  22 ...  Jacob Robinson was lost, probably in the  23 40's."  24  25 And she says:  26  27 "... All Gitksan knows about this belief.  We  28 all believe in it, even today we still believe  29 in it.  It may seem to other people that it's  30 just a fairy tale, but it's not to us, to the  31 Gitksan people.  It's very true and it's very  32 much alive today when you believe it it."  33  34 Ms. Wilson-Kenni describes similar incidents with  35 respect to her own grandmother and her grandmother's  36 dream power.  37 Once again, my lord, you hear these, and several  38 of the spiritual experiences connect to the territory  39 as well as to recent use of spiritual powers.  I  40 submit, my lord, that the fact that the descriptions  41 you have are descriptions that have happened in the  42 last 40 years is not to say that this practice is  43 gone, but that those have -- those experiences are  44 distant enough that people were more forthcoming and  45 able to describe them and much more reluctant, of  46 course, to describe these intimate spiritual beliefs  47 that happen more recently. 24760  Submissions by Mr. Grant  1 Third aspect of the spiritual beliefs is the  2 preparations.  This is what you may recall has been  3 referred to as sesatxw by the Gitksan and hahl'ala  4 among the Wet'suwet'en.  And Dr. Daly talked about  5 these in his report.  I am on page 215.  6 THE COURT:  Yes, so am I.  7 MR. GRANT:  8  9 "To the uninformed outsider the  10 hahl'ala/sesatxw regulations may appear to be  11 'magical and superstitious', as nineteenth  12 century missionaries and administrators  13 charged.  However, over the centuries, the  14 peoples' detailed knowledge of the movement of  15 animals across the territories became so finely  16 honed that good hunters developed the ability  17 to divine the whereabouts of the animals by  18 combining experience, mental deduction and  19 medication."  20  21 Dr. Daly explained this in his evidence:  22  23 "This concept is -- it's a whole body of  24 practices and an outlook on life and on your  25 territory, which is an essential part of the  26 training of hunters.  And it involves the  27 question, the whole question of power, which I  28 mentioned before, which is partly your  29 technical ability, your knowledge of your --  30 your trade, so to speak, your knowledge of your  31 terrain, but it is also includes training to  32 visualize your whole territory and what grows  33 on it and what moves over it in migratory  34 cycles and so on.  35  36 People treat it in a very pragmatic way.  It's  37 part of -- if you are going to be a decent  38 hunter you have to be trained into the way to  39 respect the species on your land and the way to  40 visualize them and call them up, so that when  41 you have to go hunting, you have already almost  42 telepathically been in touch with that species  43 and you know where to go and to make connection  44 with it."  45  46 Once again, my lord, with respect to this, the  47 management of the resources on the territory together 24761  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  THE  COURT  18  MR.  GRANT  19  THE  COURT  20  MR.  GRANT  21  22  THE  COURT  23  24  25  26  MR.  GRANT  27  THE  COURT  28  MR.  GRANT  29  THE  COURT  30  MR.  GRANT  31  THE  COURT  32  MR.  GRANT  33  34  35  THE  COURT  36  MR.  GRANT  37  38  39  40  41  42  43  44  45  46  47  with the spiritual preparations are connected here.  And I just allude to you as a note that I haven't  put the citations in here, but of course you've heard  this evidence through such witnesses as Stanley  Williams, who prepared, I believe, that -- and Alfred  Mitchell, who both described their preparations.  Now, the harnessing of the spiritual power is  another aspect of the Wet'suwet'en and Gitksan  spiritual beliefs.  And this is one way they speak  about their belief in the power of a spirit which is  capable of being harnessed by humans.  Alfred Joseph testified to the word "they come up  with a breath from deep within."  This breath is  sounded when contact is made by humans with spirit  power, thereby enabling a person to see into the  future.  Dr. Mills explained her understanding --  These passages are hearsay, aren't they, Mr. Grant?  Not Mr. Joseph's.  No.  The two -- the ones that Dr. Mills describes.  Dr. Mills, yeah.  I am not going to refer -- I won't  refer you to that, my lord.  Didn't somebody tell me something about the breath  of life, that when somebody was will that they could  tell if they were going to recover by the quality of  their breath, the sound?  Seems to me there was a --  Yes.  There was an admissible example of this.  Yes, there was.  That's why I say --  And I think it was one of the first --  It was Mrs. MacKenzie.  One of ladies I thought.  She described that and she observeed it.  She went  out to Kispiox with her father.  And I will provide  the cite to put in here on that.  All right.  Actually referred to in the second.  I thought I had  referred to it in this next section, my lord.  No.  I  am referring here to the healing societies, the  Kalahin from the Wet'suwet'en and the Halayt from the  Gitksan.  My lord, there is evidence that the chiefs are  trained harness spiritual powers and some become  specialists as healers.  Both the Gitksan and  Wet'suwet'en have healing societies whose members  harness spiritual power to cure sickness.  The high  chiefs have been and continue to be members of healing  societies. 24762  Submissions by Mr. Grant  1 In 1901 the Wet'suwet'en healing society called  2 the kaluhim were photographed in their cedar bark  3 necklaces.  And that title, my lord, should be spelled  4 as it is in the second paragraph.  That's the correct  5 spelling.  The kaluhim included such House chiefs as  6 Knedebeas, Chief Alexander, Hag Wil Negh, Lame Arthur  7 Michell, Woos, Big Seymour, and Madeek, Bill Nye.  The  8 English names are after the chiefs' names.  9 Emma Michell testified that the Kaluhim who are  10 still alive include Johnny David, Lucy Namox and  11 Sylvester George, all high Chiefs, although not head  12 chiefs.  The healing societies continue to operate  13 today.  14 Stanley Williams describes several incidents in  15 his life when he was cured by chiefs who were halayts  16 and he explained it as follows on page 218, my lord:  17  18 "We have people known as the Indian doctor or  19 the Halayts that cure the sick and heal the  20 sick, and they have their own medicine that  21 they could use.  And one time I was... sick, I  22 was hemorrhaging, I was throwing up blood.  23 This happened on a trapline, I was with  24 Luuxoon, and what he did is he went to a lake  25 and he got the..."  26  27 Gitksan word is Gahldaats.  28  29 "...  he took the lily root... and he sliced  30 them...and then he took the bark of the  31 hemlock, the tree was about four inches across.  32 When I broke my shoulder, what he did was he  33 sliced those lily roots and he put it on my  34 shoulder.  And on top of the lily roots then he  35 put the bark of the hemlock and he bind it and  36 within a week I was.. alright, I could use my  37 hand again.  38  39 The reason why I broke my shoulder was I was  40 too lazy and I chopped a big tree down and this  41 was for firewood and I put it on my shoulder  42 and I went into a hole while I was carrying  43 this tree, and I fell down with this pole and  44 it broke my shoulder."  45  46 He goes on to say what happened when -- he said:  47 24763  Submissions by Mr. Grant  1 "...  he took the beaver castor and he cut a  2 piece off and he told me to chew this and just  3 swallow the juice.  ... until there was no more  4 beaver castor, until it disappeared in my  5 mouth.  This was a medicine that was really  6 hard to take.  As I put it in my mouth and  7 chewing it, it just burned my mouth, the inside  8 of my mouth, but I listened to... my partner  9 who was Luuxoon, I did what he asked me to do.  10                     And to this day, I've never hemorrhaged again."  11  12 And he described another incident with Tommy Muldoe,  13 the former Guuhadak, who practiced medicine powers on  14 him as a Halayt.  That's when Stanley was in Kispiox  15 and I have referred to the reference.  In the same  16 section of his evidence, in the third volume of his  17 evidence, Stanley Williams describes several other  18 occasions when he was cured by Halayt.  19 The healing societies, my lord, cure  20 medicine-dream sickness, an ailment believed to be  21 related to an encounter with negative forces from the  22 spiritual world.  And in the healing of dream sickness  23 that a chief may become empowered with the gift of the  24 breath, and are able to themselves become a healer  25 with power to see into the future.  26 And Jenness described a healing session which he  27 attended at Hagwilget around 1924.  And I have  28 referred you to that description of Jenness.  And that  29 was because there was an effort to stop it and they  30 invited Jenness to observe it.  31 Jenness described the medicine-dream sickness as  32 the traditional way for the Babine and the  33 Wet'suwet'en to become initiated into the healing  34 societies and acknowledged as medicine ment.  It was  35 Dr. Mills' opinion that medicine-dream sickness  36 continues among the Wet'suwet'en today, and the  37 victims are cured through the proper kaluhim ceremony.  38 Once again, the concept that healing and medicine  39 sickness was a creation of the missionaries is  40 directly contrary, in my submission, to historical  41 evidence as well as to the evidence of the Chiefs  42 themselves.  43 The Gitksan and Wet'suwet'en spirituality and use  44 of healing powers is not broadcast to the non-Indian  45 world.  Nevertheless it is a story of a powerful  46 practice which is maintained today by both Gitksan and  47 Wet'suwet'en.  I submit, my lord, that this practice 24764  Submissions by Mr. Grant  1 predates and is independent of any Biblical notions  2 introduced by missionaries.  The Provincr, the  3 Provincial defendant here, suggest that the concept of  4 Simoighat Lax Haa was a result of a conversion to  5 Christianity.  6 My lord.  If that was the case even, there is no  7 explanation for the long-standing practices of the  8 healing societies which were certainly fought against  9 by the missionaries and discredited in an earlier time  10 if not today.  11 THE COURT:  How about going to the end of page 226?  12 MR. GRANT:  What I propose to do is finish this section.  That's  13 what I was going to do if Madam Reporter --  14 THE COURT:  Oh, she's fine.  I can tell from here.  15 MR. GRANT:  The prophets, my lord, with respect to any reference  16 to prophets by the Gitksan and Wet'suwet'en, may, from  17 our Christian perspective, be interpreted as a recent  18 adaptation of Biblical stories of prophets.  But  19 careful analysis of the spirituality of the Gitksan  20 and Wet'suwet'en demonstrates the utilization of  21 prophets as part of the spiritual world view is a  22 practice shared not only by the Gitksan and  23 Wet'suwet'en, but also as has already been described  24 by the Iroquois.  The unique aspect of the prophets  25 described by the Wet'suwet'en is distinctive from the  26 Christian notion of the prophets and reflects the  27 spirituality that is founded in those beliefs already  28 described.  This is a further aspect of the organized  29 society of the Gitksan and Wet'suwet'en and, in  30 particular, their spiritual world view.  In this case  31 the Gitksan often make reference to the Wet'suwet'en  32 prophets.  33 According to the oral history, the power of Na Na  34 Leel was possessed by a Wet'suwet'en prophet, Kweese,  35 who baptized himself Binii.  He was -- of course,  36 Florence Hall is the present Binii and gave evidence  37 about this.  Florence Hall is the present Kweese, I  38 should say.  And he -- and Binii held the name Kweese  39 as well.  Kweese baptized himself Binii.  40 Mr. Brody in his evidence said about this that:  41  42 "In turning to or accepting Christianity, the  43 chiefs did not abandon their own authority -  44 rather, they sought to supplement it or adapt  45 some of its terms of reference.  They accepted  46 new doctrines, new theories about the  47 supernatural, and adopted new rituals and 24765  Submissions by Mr. Grant  1 observances.  But they did so in order to  2 maintain their authority - not yield it up.  3  4 Thus the absorption of much Christianity was  5 into the fabric of the society that was seeking  6 to maintain its own authority.  When  7 missionaries tried to undermine the very  8 institutions of Gitksan and Wet'suwet'en  9 authority, they met with only very limited  10 success."  11  12 Anthropologists, including Barbeau, Spier, and Dr.  13 Mills estimate Binii's activities to have occurred at  14 least at the earliest from 1830 until his death in  15 1870.  16 Florence Hall, Kweese, knew that Binii was a  17 person who prophesied people coming "who would wear  18 black and who would take the land."  He also foresaw:  19  20 "a box with a light in it which spoke and also  21 vehicles that travelled by itself and also  22 vehicles in the air.  He spoke of that too."  23  24 Emma Michell also referred to Binii, who was Tsayu,  25 the same clan as Mrs. Michell, and also held the name  26 Samtellesan.  She describes as well, my lord, that he  27 would sometimes die and afterwards he -- sometimes he  28 would come alive again.  And this was this -- this  2 9 evidence that comes out over and over again about  30 Binii going into some form of altered state,  31 disappearing and coming back.  And she describes his  32 prophesies and I have recorded -- reported -- or I  33 have put those in argument on page 223.  34 The kungax referred to by Jenness and referred to  35 by Dr. Mills referred to the prophets of the  36 Wet'suwet'en.  Dr. Mills observed that Binii, while  37 empowered in a very special way, still participated in  38 the feast and was active as head chief of his clan.  39 It's interesting, my lord, to hear how Mr. Brody  40 considers this -- the Binii's prophesy.  He said:  41  42 The missionary flavour of many of these  43 admonitions and predictions is evident.  44 Indeed, Binii even seems to anticipate the  45 system of flogging offenders introduced by the  46 Oblates in the 1890's, and in one account is  47 said to have reported that he himself was 24766  Submissions by Mr. Grant  1 whipped by the old man in the sky.  Much of  2 what is attributed to Binii now appears  3 implausibly modern and incongruously specific.  4 But the unanimity about the basic outline of  5 the story is remarkable.  Informant after  6 informant - many with high chief names - relate  7 how their fathers or uncles met, and in one  8 case hunted with, and saw Binii in action.  And  9 we know that Binii sent messengers to many  10 Gitksan communities, where his predictions were  11 received and widely accepted.  12  13 Like the Gitksan premonitions already quoted,  14 accounts of Binii's visits to the sky and the  15 songs and information he received there, all  16 point to the way in which the coming of the  17 white man was understood in terms of  18 spirituality and power.  If the new is going to  19 dominate, this will be so, at least on Gitksan  20 or Wet'suwet'en accounts, by virtue of  21 extraordinary spiritual effectiveness.  The  22 existing cultural system believes it can  23 minimize the damage or gain benefit from the  24 new by incorporating its songs, metaphysical  25 notions, dances and material goods into  26 existing systems of spiritual and  27 socio-spiritual expression."  28  29 In other words, my lord, it is -- it is reflective  30 that just as the Handsome Lake prophesies, which were  31 referred to earlier as evidence of the validity of  32 oral tradition among the Iroquois and how it works,  33 but it was still a prophesy see coming around the time  34 of contact, so we have this significant aspect of  35 incorporating the new through the spirituality and the  36 reflections by Binii.  It is in this context, my lord,  37 that the fundamental law of respect is referred to by  38 Stanley Williams:  39  40 "Ever since the time begun when our people were  41 created, they made these laws and these laws  42 are -- still remain today, and there is no new  43 laws today."  44  45 By that context, my lord, what I am referring to is  46 the Gitksan connected to what was coming to them and  47 the Wet'suwet'en in a spiritual way to protect their 24767  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  MR.  PLANT  23  24  25  26  27  MR.  GRANT  28  29  30  THE  COURT  31  32  MR.  GRANT  33  THE  COURT  34  MR.  GRANT  35  36  37  38  39  THE  COURT  40  MR.  GRANT  41  42  THE  COURT  43  MR.  GRANT  44  45  46  THE  COURT  47  MR.  GRANT  own laws and their own territory and that's what I am  referring to there.  I say the evidence appears that the prophets - and  there was more than one, Binii wasn't the only one -  appear to be more prevalent among the Wet'suwet'en  than the Gitksan.  Indeed, the Gitksan witnesses refer  to Binii as the Wet'suwet'en prophet.  And this is  consistent with the analysis of the oral histories in  which the spirituality of the Wet'suwet'en has  influenced the Gitksan, a natural event given the  close proximity of these two peoples over the several  thousand years.  Binii is only the most recent and one  of the most dramatic examples of the influence of  Wet'suwet'en spirituality on the Gitksan.  My lord, in conclusion, I submit that the power  and strength of Gitksan and Wet'suwet'en spirituality  which you have seen in evidence refutes any position  by the defendants that spirituality of these two  societies was derived from missionaries.  Neither  their spirituality nor their territoriality derived  from missionaries much less fur traders.  And that position is not taken by the Provincial  defendant, my lord.  I have sat and listened to it two  or three times, but I think your lordship should know  that the proposition attributed to us there is not  made by us in our argument.  I haven't quoted it specifically, but I will refer  in due course to the specific reference. And I will  come back to it.  I agree I haven't quoted them.  Well, it's not here either, is it? It's just that  you have been saying it.  Is it in your text?  No, I haven't quoted them.  No, no.  All right.  And what I am saying -- but I differ with my friend,  because I say that when you look at what he says, the  spirituality of the Gitksan, their belief in a creator  they say came from the missionaries along with the  territoriality, that's one of the propositions raised.  All right.  Do you want to adjourn?  Yes.  I was just completing this section here, my  lord.  Yes.  I submit, my lord, that based on the evidence you  should find -- make the findings of fact that I have  set out with respect to spirituality.  You mean the four points on 225 and 226?  The four points on 225 and 226. 2476?  Submissions by Mr. Grant  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  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  MR. GRANT  THE COURT  I have read those.  Thank you, my lord.  All right.  7 o'clock.  And counsel will plan that  we will start at 9:30 tomorrow and we will go till  five or 5:30 tomorrow.  Can I speak to you at nine tonight?  Yes.  But that's —  You can speak to me at any time, Mr. Grant, but I  really in view of -- in view of the overrun, we have  got to put in the hours.  No, I'm not -- I am only saying tonight at nine I  will know where we are in terms of tomorrow,  because --  You won't know where you are until tomorrow until  you wake up.  (PROCEEDINGS ADJOURNED PURSUANT TO THE EVENING DINNER  RECESS)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Laara Yardley, Official Reporter,  United Reporting Service Ltd. 24769  Submissions by Mr. Grant  13 THE COURT  14 MR. GRANT  15 THE COURT  16 MR. GRANT  1 (PROCEEDINGS RECONVENED AT 7:00 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MR. GRANT:  My lord, I have — I've referred this to you this  6 morning right after Section 1 -- or page 115, and it's  7 the references to climates --  8 THE COURT:  Thank you.  9 MR. GRANT:  — that I read to you this morning and I hadn't  10 reproduced it.  So it should probably fit in right  11 after page 115, the historical documents that refer to  12 the climate.  Thank you.  My lord, I'm starting now at 227.  Thank you.  And here I am dealing with the law of respect.  17 Now, it's our submission, my lord, that the law of  18 respect is the equivalent of -- if we wanted to look  19 at it in a constitutional framework, that this would  20 be -- that the constitutional base of the Gitksan and  21 Wet'suwet'en system of laws, all of the other laws  22 flow from the law of respect.  Now --  23 THE COURT:  I don't think — did any witness mention it?  24 MR. GRANT:  The law of respect was referred to in that sense  25 by -- the law of respect was referred to as the law of  26 respect by Dr. Mills in evidence.  27 THE COURT:  I know.  But surely when I had nearly how many lay  28 witnesses -- the only thing I remember about it was  29 Mary McKenzie said that the lack of respect for  30 animals had caused the incident at Chicago Creek.  But  31 is that what you are referring to?  32 MR. GRANT:  Mary Johnson referred to that in terms of that  33 adaawk.  Other witnesses when they talked about the  34 preparation for hunts referred to the law of respect,  35 like Stanley Williams.  I'm not --  It permeates --  Yes.  I'm not very impressed by experts coming along  39 and drawing a lot of inferences from what people have  40 not clearly stated.  I don't think that's what the  41 experts are for, but --  42 MR. GRANT:  No, I'm not suggesting that, my lord.  I am saying  43 that the people don't necessarily say, "the law of  44 respect".  45 THE COURT:  No, they don't.  Experts and lawyers do.  46 MR. GRANT:  But what I'm saying to you, my lord, is when you  47 look at the evidence, the evidence is that everything  3 6 THE COURT  37 MR. GRANT  3 8    THE COURT 24770  Submissions by Mr. Grant  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. GRANT  THE COURT  MR.  THE  MR.  THE  GRANT  COURT  GRANT  COURT  MR. GRANT  THE  MR.  COURT  GRANT  that the witnesses have told you about the laws, about  the rules, are founded upon this.  When they talk  about their spiritual beliefs they are founded upon  this, my lord.  That's what I'm referring to.  :  I don't have any problem with that when you put it  that way.  It's when it appears to be something that's  coming from an expert rather than from a witness that  bothers me.  :  Well, when I said that I only meant that I believed  the term was used by Dr. Mills, that term, but I  don't -- I believe that some of the other witnesses  used -- certainly used the term "respect".  The law of  respect -- and, of course, I do concur with your  lordship that the concept that I'm going to explain is  based upon the evidence of the witness -- of the  witnesses.  Now, my lord, as I set out, that notwithstanding  the relationship of the laws of the Gitksan and  Wet'suwet'ens is premised on this law of respect,  which in itself, my lord, is premised on the spiritual  world view in relationship to the territory that I've  already explained to you.  The legal system, I submit,  of the Gitksan and Wet'suwet'en is just as valid and  as operational as a legal system as the Canadian legal  system.  : Well, Mr. Grant, surely that is an exaggerated  statement, isn't that? Surely that is a grossly  exaggerated statement.  :  In what way, my lord?  :  Well, you are making -- is this a comparative law  study?  :  It's not a comparative law study.  But what I've  been --  :  Surely if you had said "just as valid within the  community" or something, but to make these bald  statements sounds to me to be a grossly exaggerated  statement.  :  Well, that -- my lord, that's why I was trying very  carefully yesterday and today to explain the type of  society that we are dealing with.  We are dealing here  with a non-state kinship society which I've explained  those contrasts.  And I understood from your  questions -- or your comments that -- I presumed you  followed what I was demonstrating.  :  I'm sure I do.  :  But when we come to the legal system, then you say,  "Does a kinship society have a system of laws?"  Now, 24771  Submissions by Mr. Grant  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  GRANT  COURT  GRANT  THE COURT  MR.  THE  GRANT  COURT  MR.  THE  GRANT  COURT  MR. GRANT  I say for the Gitksan and Wet'suwet'en they do have a  system of laws and they operate just as effectively  among the Gitksan and Wet'suwet'en as does the legal  system that we have.  That's what I'm saying.  Now, if  you are saying is it as valid -- I'm not saying -- of  course it doesn't apply across Canada, for example.  No.  Or anything like that.  I'm not suggesting that.  I haven't heard anyone suggest it does.  But what I'm saying, my lord, is that the legal  system of the Gitksan and Wet'suwet'en is just as  valid and operational as is the legal system that we  have.  It works just as effectively but it's  different, so it's hard to understand it from our  perspective.  When I say -- maybe it will be -- when I explain  through the laws themselves, my lord, it will become  more obvious or apparent to your lordship.  Well, I think I know what you mean, Mr. Grant.  I  think I do.  I'm just troubled by your wide-sweeping  terminology.  The terminology of valid or --  Well, when you make these comparisons, it seems to  me to be unrealistic.  You are trying to persuade me  that there is a system of laws operating within the  Gitksan-Wet'suwet'en community, that -- that they  recognize and follow -- I have no trouble with that.  Okay.  I have no trouble with that at all, but it's  these -- you see, I'm not -- I'm not sure what you are  trying to tell me.  For example, are you saying that  their law is just as valid as the Canadian criminal  law, as the Canadian law relating to real property, as  the Canadian law relating to the Charter of Rights and  all these things?  Surely you are not saying that.  Well, maybe the -- I see -- I'm beginning to  perceive your concern is that the contrast -- I think  what you said at the beginning, within the Gitksan  society and the Wet'suwet'en society, they have a  legal system that's as effective for them as ours --  as the Canadian legal system.  And I think if you  are -- I am not saying that -- because of the nature  of the societies is fundamentally different, that's  why I tried to stress the point with that statement.  The nature of the societies are different but the  legal systems are still valid and they still have laws  that are determinable and are clear. 24772  Submissions by Mr. Grant  1 Now, as I say, that this law of respect, and I  2 say it's akin, my lord -- I mean it's a parallel or an  3 analogy to a constitutional principle.  And it's --  4 that's an analogy that I make.  It's -- it's the  5 foundation, when you look at any of the laws of the  6 Gitksan system or the Wet'suwet'en system, you have  7 that fundamental principle underlies that law.  And in  8 that sense, it permeates the system and lies at the  9 heart of it.  10 Now, the origin of this law, my lord, the origin  11 of the law of respect, is reflected in the oral  12 histories.  And I refer to Mary Johnson's description  13 of the -- this isn't the Madeek adaawk, but the  14 snowfall adaawk, and of course that is the history of  15 the boy who disparagingly uses the land.  And I've put  16 that in and a large piece of it in at pages 228 and  17 229.  18 But then she refers to the two sisters and to the  19 brother who starved to death before the sisters found  20 the drumming gross, and then there is the mourning of  21 the brother and the limx o'oy and the grouse was taken  22 as a crest.  23 Now, on page 230, Mrs. Johnson reflects what I say  24 is this law of respect, when she explained from this  25 history what is taken:  26  27 It's to -- take care of the fish if there is  28 anything that they didn't use of the inside,  29 they would bury it.  They are not supposed to  30 just throw them away.  And when one - whenever  31 they caught a first spring salmon, they lay it  32 on a mat, the mat is very valuable to them,  33 it's made out of cedar bark and dyed with their  34 own dye, black dye, that's the trimming.  And  35 whenever a visiting chief or a stranger comes  36 to the village, they spread this mat out and  37 that's where the visitor sat on.  38  39 Now here, this method of practice with respect to  40 the animals or the fish was described and reiterated  41 by Art Matthews when he talked about the laws of the  42 goat hunt.  But what I'm saying, my lord, is that they  43 reflect this fundamental principle of respect.  44 And Mrs. Ryan said the same thing, and when she  45 talked about it in passing this on to our -- her  46 children:  47 24773  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  They don't allow us to make fun of those  little, little things, the amxsiwaa creature.  That's what they said to -- the young people,  not to make fun of those animals, because the  creator's going to get mad if you mistreat  them.  That's what [mother] said.  The creators  will laugh at everything, the man and the girls  and the boys that's created, they created in  this world.  That's what the old people  believes and still believe it today.  And there, of course, she is talking about at the time  of first contact.  The law of respect is also reflected in the  ancient histories of the Wet'suwet'en.  It's passed on  as part of the history, and that passage is central to  the purposes for which the oral tradition operates.  And Basil Michell reflects this in a history he  describes, and I've given the citation for it there  and I've quoted from a citation from Dr. Mills.  And  Dr. Mills, again, refers to the Jenness collection and  the kungax about the protection of the salmon.  Now, my lord, what you can see here is the interconnection between this principle and, of course, the  spiritual beliefs of the Wet'suwet'en.  :  Well, what are you asking me to conclude from this?  Firstly, that the part of the culture of the plaintiff  groups is a -- a traditional high regard or respect  for animals and other forms of life, and secondly,  what?  :  Well, I was going to just give you that, that the  law of respect -- this principle of respect is  based -- the principle of respect is based on the  spiritual beliefs of the Gitksan and Wet'suwet'en; is  the underpinning for the laws of the Gitksan and the  Wet'suwet'en.  That is the proposition with respect to  the principle or law of respect.  And I believe --  :  I'm having terrible trouble with your -- with the  scope of your proposition, Mr. Grant.  :  The second -- I take it the second arm of it, that  is, the connection between that and --  :  Well, you are saying it's the underpinning for their  laws.  I have trouble making any connection, for  example, between what you are saying now and saying  the exogenous nature of their marriage, their kinship  relationships, and all those things.  The way you were  stating it, that this is the fundamental basis for all 24774  Submissions by Mr. Grant  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  MR.  THE  GRANT  COURT  GRANT  COURT  their laws, I'm not sure that's what you are really  trying to say.  MR. GRANT:  Well, it is the underpinning of the laws, because of  the respect.  When you see, for example, the clan  exogamy law, which is the -- to go to the father's  side, to have a different clan for the father's side,  the rules that I went through yesterday about what the  father's side's obligations are, are all based on this  recipro -- well, this reciprocal relationship which  has to be based on the respect of each side.  This is  the counter-balancing, and that's what part of this  respect is.  THE COURT:  That's what I'm not following.  Because this section  you've been dealing with seems to me to be dealing  entirely with the respect for animal rights of life.  :  The examples here do deal with that and the examples  from the adaawk do deal with that.  :  I wasn't having any trouble following you in your  other part, but if you are now saying that all that  other material is based upon this, then you've lost  me.  :  Well —  :  This seems to me to be a parallel or separate set of  rules or culture that is unrelated, as far as I have  been able to discern, from the other indicia of  Gitksan and Wet'suwet'en culture.  MR. GRANT:  Well, one of the -- one of the aspects that may  become clear is when I endeavour to break the laws  down into those laws relating to the people and to the  land.  But one of the aspects -- I appreciate what you  are saying, because when I explained the clan exogamy  law, I was dealing with it in terms of the kinship  relationship as part of the kinship -- it's  fundamental in the sense that it's needed for the  society to operate as it does.  COURT:  Well, are you saying that the kinship laws are based  upon this law of respect for animals?  GRANT:  The law of respect is not solely based on a law of  respect for animals.  That's one component of it.  COURT:  All right.  GRANT:  The kinship laws are based on respect.  And that's  where you have this sort of equalizing and counterbalancing of one House and another.  That's what the  kinship laws are based upon.  As -- the statement of  Dr. Mills that "the Chiefs are responsible to see that  the relations between all...are in balance", the  concept of balance is really important.  And that when  THE  MR.  THE  MR. 24775  Submissions by Mr. Grant  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.  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  you think of the concept of balance -- that's referred  to on page 227 at the bottom -- that concept of  balance, my lord, is essential in the clan exogamy  rule.  So when you look at this principle of respect in  that broader way of balancing, because if you don't  have the balance, it's -- as Dr. Daly says, when you  have these kinship societies, you can have great  outbreaks of trouble -- or not trouble, you have to  have a counter-balancing at all times and that's how  the society works.  It's also -- it's harder for a person -- I'm  saying if that's a -- an analysis of the society --  like, what we would talk about with our society, most  of the time when we talk about our -- we don't talk  about our own society in this respect, because it's a  given -- I mean we live within our society, we live  within our own frameworks of the principles, the  fundamental principles under which we operate.  Now, maybe that balancing -- I hope that I have  stressed the balance within the House groups as part  of the relationship of the society, and that's  essential.  You have to have that for the society to  operate.  Now, when we talk about this in these  examples of the law of respect, I've talked about it  with the -- that principle in the examples relates to  the land and the resources.  But possibly, when I deal  with the laws themselves it may become clearer because  I separated out the laws relating to people and the  land.  :  It's the breadth of your proposition that troubles  me.  That's where I'm not following you on.  :  In terms of the -- that the law of respect relates  to all of the laws?  :  And now I gather you are saying that it does not.  It's a parallel principle of law.  :  Well, it's a principle -- the principle of  respect -- I see the problem that you are raising  because the examples I've given you here under the law  of respect relate to respect for the animals.  :  Yes.  That's all it relates to and that's all your  examples relate to.  :  I believe that when I take you through the laws that  I think I can -- it may become clearer how it  interconnects.  :  All right.  Thank you.  :  The -- page 233, my lord.  The Gitksan and the 24776  Submissions by Mr. Grant  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.  THE  MR.  THE  MR.  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  Wet'suwet'en have laws which govern their social  conduct.  :  I should add, Mr. Grant, that what's really  confusing me here, is that third paragraph in page  227.  I'm sorry.  Just a moment.  It seems to me to be such a broad proposition.  Um-hmm.  Perhaps you don't want me to take that literally.  I wouldn't have put it in if I didn't want you to  take it.  Literally?  Well, the concept of the -- I appreciate -- I very  much appreciate the problem that you are raising  because I understand what you are -- why you are  now -- now why you've raised that.  Maybe you would like to come back to it.  Yeah.  I think if I explain the laws, maybe it will  answer it and maybe -- I hope that it will resolve  some of that.  Because I think -- I see the difficulty  in the examples under this section relating to the  relationship with the animals, but the law of respect  has to work with the people as well.  The system has  to work that way, and that's -- that -- that's why it  doesn't just apply in terms of the resources.  But on the other hand, one of the most important  components of the laws for you to consider is the  relationship to the resources and to the territories.  So let me come back to it, maybe, if you will.  All right.  I'm dealing at page 233, my lord.  Yes.  The Gitksan and the Wet'suwet'en laws which govern  the social conduct of the people and their ownership  and jurisdiction over their territory.  Because the  Gitksan and Wet'suwet'en societies have kinship  societies rather than hierarchial state societies, the  elaboration and enforcement of the laws may be more  difficult for those of us trained in a state legal  system to appreciate.  Nevertheless, to the Gitksan  and Wet'suwet'en the laws are precisely defined, known  to them, and enforced in the context of the particular  circumstances by either positive or negative  sanctions.  Now, the fact that the laws are based on moral  and social principles does not lessen them as part of  an effective legal system which has been utilized and 24777  Submissions by Mr. Grant  1 can continue to be utilized and strengthened to govern  2 the territory and the Gitksan and Wet'suwet'en people  3 in the context of their own societies.  4 Both the Gitksan and Wet'suwet'en have a word for  5 "law".  The Gitksan word is ayuuk and the Wet'suwet'en  6 word is:  7  8 ...yinkadinii' ha ba aten, which means "the  9 ways of the people on the surface of the  10 earth."  Another commonly used phrase for law  11 is deni biits wa aden, which means "the way the  12 feast works."  13  14 Several witnesses who commented on the Gitksan or  15 Wet'suwet'en laws all stated that the law applies to  16 all Gitksan or Wet'suwet'en people.  For example, Mrs.  17 McKenzie testified:  18  19 The law is made for the Gitksan people not for  20 only one House.  It's every House that has that  21 law and we have to abide by it.  22  23 Mrs. Ryan said the Gitksan laws apply to all the  24 Houses, not just Hanamuxw's.  25 Stanley Williams testified to the deep importance  26 to the Gitksan that the laws exist and apply to all  27 Gitksan, on the land and at the feast:  28  29 This is why when they have a discussion of land  30 it's...of the territory, it's in the feast  31 house.  Like in my house, Gwis Gyen's house, I  32 have all the laws in my house, and this is the  33 laws of the land that is being put out.  I am  34 not the only one that has these laws in my  35 house, the rest of the Gitksan houses have  36 these laws.  We have one common law amongst our  37 Gitksan people and it is the law that I am  38 talking about and it's -- this law still put  39 into action today... concerning the territories.  40  41 Going on at the bottom he says:  42  43 The laws that our ancestors that it's been  44 there for thousands of years have always been  45 there and they still there today.  46  47 Now, the conflict -- now here, my lord, because 2477?  Submissions by Mr. Grant  1 I'm going to come back to the making and enforcing of  2 laws, and I say that in -- and we will make the  3 argument that the Gitksan and the Wet'suwet'en have  4 the authority within their own systems to make and  5 enforce and vary their laws.  It's not a frozen system  6 of laws.  And when I come to that, I'll come to that  7 in jurisdiction.  8 But what Mr. Williams is talking about here is,  9 again, the underpinning, the central underpinning of  10 the laws.  And he is saying there, for example -- here  11 you see the example on page 234, on the bottom, is:  12  13 of the chiefs invite the other  14 chiefs of the villages and the other people of  15 the Gitksan people and their head chiefs...and  16 each time the feast is been done then our laws  17 are stronger and's put into action.  18  19 Now, they must -- what he is talking about there  20 is they must -- and I'll come to this -- under these  21 laws, the chiefs must attend the feast, that is, the  22 chiefs of the other side, the chiefs of the father's  23 side.  That's a fundamental law that underlines how  24 the system works, and it's a part of the respect of  25 the one side and the -- in the one House for the  26 other.  27 Now, the conflict between the Gitksan and the  28 Wet'suwet'en on the one hand and the defendants on the  29 other is, in part, because the governments have  30 refused to recognize the laws of the Gitksan and  31 Wet'suwet'en.  As Stanley Williams says, "they want to  32 break the Gitksan and Wet'suwet'en laws."  And I've  33 put in the quote from Mr. Williams there, which I have  34 summarized, above.  35 Now, as with any organized society, my lord, the  36 Gitksan and Wet'suwet'en laws reflect the requirements  37 of the society.  These laws deal with the  38 relationships between the Gitksan and the Wet'suwet'en  39 themselves -- I should say there, between them and  40 other groups as well, of course -- the relationship  41 between the people and the land, the relationship  42 between the people and the animals, and the  43 relationship between the people and the spiritual  44 power.  45 In both the Gitksan and Wet'suwet'en legal  46 systems the principle of respect is the basis, the  47 constitutional basis of these laws.  This is -- and I 24779  Submissions by Mr. Grant  1 say this is demonstrated in the central institution of  2 the feast.  Now, because it is such an important  3 institution for the management and governing of the  4 people and the land and the enforcement of the laws,  5 certain laws apply to the operation of the feast.  6 Now, I then contrast it with, for example, our  7 Canadian common law and the statute law, and I say in  8 contradiction to that, the codes of law of the Gitksan  9 and Wet'suwet'en are written in the minds of  10 succeeding generations by means of the oral teachings,  11 the metaphors, symbolic and ceremonial activities, and  12 by living participation in situations governed by  13 these laws.  14 Now, here is one of the -- the next point I'm  15 raising is one of the -- an important distinction  16 which makes the laws -- that's important for you to  17 appreciate, while appreciating there is a legal  18 system.  In the Gitksan and Wet'suwet'en kinship  19 societies, laws are generally not negatively  20 sanctioned by threat of force from the central  21 agencies.  There are few central institutions; hence  22 the keeping of the peace or social control is managed  23 by means of a clearly enunciated set of laws and  24 behavioural norms.  The major negative sanctioning of  25 these laws is manifested in the fear of conflict and  26 disorder which will ensue when an individual or group  27 breaks the laws.  In kinship societies, the violation  28 of an individual's rights is equated with the  29 violation of the whole kin group's rights.  On some  30 occasions, depending upon the geographical and kinship  31 distance between disputants, a whole village or region  32 has the potential of involvement.  33 Therefore, the leaders, the chiefs, stress the  34 principles of respect and social reciprocity and  35 reiterate the ancient laws of their people.  And  36 you've seen that, for example, in Stanley Williams'  37 statements and in Mary Johnson's that I've just  38 referred you to.  The threat of conflict is the major  39 negative sanctioning of Gitksan and Wet'suwet'en law  40 today.  As recently as the past century, forms of  41 sanctioned force were customary and legal in the  42 territories with regards to the matters of trespass.  43 In fact, my lord, there is evidence that that occurred  44 even in the early part of this century.  Moral suasion  45 by the old and the respected is reinforced by social  46 ostracism, negative public opinion and public charges  47 and warnings in social gatherings. 24780  Submissions by Mr. Grant  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  Today the Gitksan and Wet'suwet'en peoples exist  within the Canadian state organized society and are  subjected to the laws of this legal system as well as  the laws of their ancestors.  Thus, individuals who  have broken laws, as in all societies, will seek to  minimize the consequences of their actions by  appealing to whichever of the two legal systems best  advance their interests.  The evidence before this  court indicates the continuing vitality of the ancient  kinship law under these new and stressful conditions.  And I say stressful to the society as a whole and not  more stressful to some individuals and more at  different times.  MR. PLANT:  I just want to pause a second.  There really hasn't  been any citation for the last two pages worth of  argument of any reference to evidence.  That may be  that this is sort of a free-floating submission, but  there are -- if this is coming from evidence, I would  be grateful for a reference.  MR. GRANT:  This is argument, my lord.  This is -- I'm asking  you to take this from -- I am -- I, as counsel, am  framing up what I say that you have seen.  Now, the  point of this, my lord, is that -- the example that I  was going to refer you to before Mr. Plant rose was  the evidence you've heard, for example, of people  going to the Fish and Wildlife to resolve trapline  registration disputes, and the defendants have  tendered much evidence of that, and that's an example  where you see to the individual, my lord, it may be to  his advantage, that he can get an individual advantage  by utilizing the state apparatus against the other  member of his own community.  THE COURT:  Well, I think there is evidence that supports --  upon which most of these statements could --  MR. GRANT:  Yes.  THE COURT:  — be based.  MR. GRANT:  And I can provide citations for those.  THE COURT:  I don't think your friend really needs those.  There  is the evidence about the federal banning of the  potlatch, trapline registrations, these things.  I am  not aware of any argue -- any evidence, particularly,  about new and stressful conditions, but that's a  colouration that counsel can put it.  I'm not sure  where it takes me.  MR. PLANT:  No.  And in fact, the example my friend has just  given about the trapline disputes puts some of this  into context for me and it has been of considerable 24781  Submissions by Mr. Grant  1  2  THE  COURT  3  MR.  GRANT  4  THE  COURT  5  6  7  8  MR.  GRANT  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  THE  COURT  24  25  MR.  GRANT  26  27  28  29  30  31  32  THE  COURT  33  34  MR.  GRANT  35  36  THE  COURT  37  38  39  40  41  42  MR.  GRANT  43  44  THE  COURT  45  46  47  MR.  GRANT  assistance.  Yes.  All right.  Well, that's an example.  You see, I don't know -- as I say, I don't know  where it takes me.  I can't pronounce legal rights  because somebody is stressed or finds themselves in a  stressful situation.  No, I agree.  But I say that historically that you  will find -- and in dealing with -- and I am going to  come to this in terms of the continuity of the  society, in the latter part of this argument and in  other parts.  But what I'm -- what I am saying, my  lord, when I say new and stressful conditions, is that  what you can find is that certain aspects of contact,  certain aspects of what has happened as a result of  that, have put stress on the society not on an  individual.  I don't think -- I concur with your  lordship that there is not -- we are not here dealing  with an individual, but that -- when I put the words  "stressful conditions", it's on the society.  For  example, my lord, the -- as you say, the ban -- the  banning of the feast is an example.  Of course that's been gone for years.  That's hardly  something new.  No.  But the patrilineal descent rules, under the  Indian Act are alive and well today, endeavouring to  find some place in the matrilineal system, that kind  of thing.  The question of trapline registrations is  ongoing today, dealing with these issues with the  defendants regularly in terms of endeavouring -- them  endeavouring to licence --  Well it's an interesting sociological study, I'm  just not sure where it takes me.  I'm not sure if you are just referring to the  last --  And I can't go behind the trapline registration  regulations, I can't go behind the Criminal Code, or  whatever, or the Indian Act, whatever it was that  banned the potlatch.  It may have caused a lot of  group or individual distress.  I don't see where it  takes your argument.  Are you saying the last sentence or what I've  just -- the entire part?  The section generally.  I mean what you are -- what  I take it you are trying to convey is that this is a  viable dynamic society.  And it has survived impacts, and I -- the defendants 24782  Submissions by Mr. Grant  1 raise in issue and --  2 THE COURT:  And if it is, it doesn't matter what difficulties it  3 had.  4 MR. GRANT:  No.  If you find that it is a dynamic society and it  5 still is vibrant and it still is alive and it still is  6 functioning and the rights still operating and it has  7 laws today --  8 THE COURT:  Yeah.  9 MR. GRANT:  — then, my lord, I can sit down.  10 THE COURT:  Well, I can't make those findings now.  11 MR. GRANT:  No, I know.  I know.  12 THE COURT:  But I wonder —  13 MR. GRANT:  That's why I say that's what I'm going towards.  14 THE COURT:  I wonder if you are not violating Abraham Lincoln's  15 admonition to not take on more than you need to prove  16 in case you fail.  I just don't see where it advances  17 your case to say, "My clients have had a very  18 difficult time."  19 MR. GRANT:  I am trying to —  20 THE COURT:  I can accept that right now, but where does that  21 take you in view of the legal issues that you are  22 asserting in your Statement of Claim?  23 MR. GRANT:  That there hasn't been acquiescence, that there  24 hasn't been a giving up of rights, that there hasn't  25 been abandonment, that there hasn't been -- their  26 rights haven't been wiped out by any of these  27 propositions which I don't even elevate to  28 propositions of law in some cases, abandonment, for  29 example, on that, but the federal defendants do.  30 And I'm saying that that's what -- that's the  31 historical evidence -- the historical evidence is  32 there of that kind of stress on the society.  And what  33 I'm saying is in taking into account what has happened  34 and what the society is doing today, that that's an  35 element -- that's, of course, the context in which it  36 occurs, and that the laws are maintained, are still  37 going on.  38 Now, my lord, what I've endeavoured to do here,  39 is this section under organized society under the  40 laws, is that I am relating to the laws related to  41 ownership of the territory and jurisdiction of the  42 chiefs, which are obviously an important section of  43 the laws, and those laws in detail will be discussed  44 in the sections on ownership and jurisdiction  45 themselves.  But then I've broken down the laws as to  46 laws governing the relationships between people, and I  47 refer you to the first one at (a) which is the law of 24783  Submissions by Mr. Grant  1 the matriline.  And I've already referred you to that  2 and I've just synopsized it there so that you have the  3 laws together.  That's the reason I have done this.  4 And the adoption law as well, and that is -- the  5 adoption laws and the import of that is that that is  6 still operational and utilized to exercise  7 jurisdiction over citizenship today.  8 The family laws have the effect of the marriage  9 prohibition, and I've already discussed that with you.  10 And I would like to spend a moment on the  11 succession laws.  And as you know, the evidence, I  12 say, is overwhelming that the inheritance flows  13 through the matriline.  The exception to this is that  14 personal assets may be passed from a father to his  15 children.  However, House property, including the  16 territory and the name, cannot be so passed.  Now, one  17 of the issues raised by -- I believe it was the  18 Federal defendants -- is David Wells, and this is an  19 apparent exception, the David Wells will.  David Wells  20 was Saxhum Higookx, the Eagle Chief.  His will  21 purported to leave a chiefly name, Liginhihla, within  22 his House, as well as one of the House properties to  23 his daughter.  That name, Liginhihla, is a name within  24 Saxhum Higookx' House.  A number of witnesses,  25 including Solomon Marsden, explained that David Wells  26 had adopted his daughter into his own House because of  27 the depletion of his own House members.  Therefore, in  28 this apparent exception, the patrilineal descent in  29 that case, which was unique with respect to the  30 passage of a name and House property, was consistent  31 with the law allowing a chief in exceptional  32 circumstances, to even adopt his own daughter into his  33 house to protect the survival of the House.  The  34 succession of territories and crests with names is --  35 and crests is further dealt with under the ownership  36 section, but that is an exception.  37 Now, I do want to stress something, my lord,  38 because I'm dealing with -- the David Wells case was  39 one that much was made of in cross-examination, and I  40 wanted to set out clearly what it was.  I want to be  41 clear, my lord, that I am not trying to give you a  42 pristine view of the society.  Sure, there have been  43 violations of these laws, but that's not a basis to  44 deny the declarations we are seeking, of course.  As  45 with any society, as with our own, why we have  46 criminal laws, for example, we have those violations.  47 Now, the next issue deals with homicide.  And the 24784  Submissions by Mr. Grant  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.  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  THE COURT  Gitksan and Wet'suwet'en, just as our society, have a  method of resolving the killing of another person.  The distinction, though, is that among the Gitksan and  Wet'suwet'en there is a sanction whether the killing  is accidental or intentional.  As Dr. Daly stated:  Compensation for homicide or accidental death  of a person while on the land of another House,  or reparations arising from wars and feuds have  to be paid to the offended group so as to  avoid, or end hostilities.  These peace agreements are legally valid when they  have been validated in the feast house.  Now, my lord, some peace settlements are recent.  Olive Ryan attended such a feast in 1957 and 1958 when  a dispute was settled between Guxsan, part of Mrs.  Ryan's wilnadaahl -- a different House, of course, but  the same clan and closely related House -- and the Lax  Skiik or Eagle clan.  The Lax Skiik were responsible  for the death of a member of Guxsan's House.  Guxsan  received compensation by way of a hunting territory  below Kitwanga on the right bank of the Skeena, at a  place called Xsi K'alii gajit.  And that's that place, my lord, it's not really  depicted on the map because it's so small.  It's  referred to in -- I believe in Guxsan's affidavit  or -- and Stanley Williams' territorial affidavit.  But I'll just place you -- it's in this -- just a  moment.  It's right in this territory here.  It's  right around Cedarvale, that creek that goes --  It's a fishing -- fishing site on the river --  No.  -- is it not?  No.  It's a small mountain up on that creek, that's  why -- it is a land territory but it's just one small  mountain on that creek in that territory of --  surrounded by Wii Hlengwax.  Above Cedarvale?  Downstream of Cedarvale.  Downstream of Cedarvale  but just --  Downstream?  Yeah.  The -- the creek is the creek that just goes  downstream of Cedar -- it's just downstream of  Cedarvale.  All right. 24785  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  The creek name was -- I'll give you the English name  of the creek.  I just had it.  Oh yeah, Insect Creek,  of course.  Insect?  Insect Creek, yes.  Would you wait just a moment, please, Mr. Grant.  I  don't think we need an adjournment, but we will change  reporters.  (CHANGE OF REPORTERS)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability.  Toni Kerekes, O.R.  United Reporting Service Ltd. 24786  Submissions by Mr. Grant  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  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  THE COURT:  Mr. Grant.  MR. GRANT:  Now, another example of a recent settlement was the  history of Ansibilla.  My lord, my recollection is  that should be A-N-S-I-B-I-L-L-A.  This is on the  bottom of 240, in both lines there.  THE COURT:  Yes, A-N-S?  MR. GRANT:  I-B-I-L-L-A.  It is pronounced Ansibia(phon).  This  is a fishing site between Gitanmaax and Kitsegukla on  the Skeena River.  Ansibilla is now in the House of  Hanamuxw but was originally owned by the House  Luxtkudziwus.  Olive Ryan testified how she acquired  the Ansibilla.  She had been taught the history by her  grandmother.  I'm sorry, I said this was -- this was  an older tsiisxw.  But probably in historical times,  at least probably in the last century.  'Nistxw was a person in Hanamuxw's House.  Ha'atxw, who was from Luutkudziiwus' House wanted to  marry 'Niitsxw's sister but 'Niitsxw stood in the way  of the marriage and Ha'atxw killed 'Niitsxw.  A feast  was held, according to Mrs. Ryan, to make peace, and  that's why they gave that fishing site to Hanamuxw.  This site will be returned to the Luutkudziiwus  House at the pole raising to be held by the House of  Hanamuxw.  And Mrs. Ryan explained that in her  evidence.  Another example was that there was a compensation  for the accidental death of a young girl from a  Kitwancool House as a result of a motor vehicle  accident.  And my recollection is this occurred around  1985 or 1986.  The evidence, my lord, is Solomon  Marsden's evidence.  I will provide you with a  citation.  I had thought that I had the citation in  there.  It for some reason got misplaced.  Now, what  you see here, my lord, is that balancing in terms of  there is a penalty.  There is a responsibility for any  death.  And the death of the young girl was not a --  it was an accidental death.  The peace settlement is another aspect of the law.  And that deals with the law between the Gitksan and  Wet'suwet'en and other nations.  And there is a method  of settlement. 24787  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  And as you may recall, of course I think you only  saw an extract of her commission evidence, but Mrs.  Brown, Martha Brown, Kliiyemlaxhaa, related a tsiisxw  with respect to the acquisition of her territory in  the north.  And that's that territory at the very top,  my lord.  It's the -- it's the -- a large territory of  Kliiyemlaxhaa which was a result of the war with  the -- it's this territory up here between Geel and  'Niitsxw, my lord, that territory.  Not part of it,  but the entire territory.  And that territory was  settled as well.  And of course you recall Mary Johnson talking  about her northern -- part of her northern territory  of Antgulilbix.  And that was a killing that occurred  there.  Fred Johnson, Lelt, described a peace  settlement regarding the Tse tsaut wars.  And Johnny  David on the Wet'suwet'en side described a peace  settlement regarding a dispute between the Nishga and  the Wet'suwet'en by which the Wet'suwet'en received a  name from the Nishga.  And, again, in the citation --  I will provide you with the citation for Johnny David  where he described that in evidence.  :  Wasn't there a piece of land in Mrs. McKenzie's  northern territory that was acquired by reason of a  killing?  The one with the tree?  Yes.  That's Mary Johnson, my lord.  Is it Mary Johnson?  Yes.  But you'll recall she had a northern territory  as well.  That was Mary Johnson's.  And it was -- as I  recall, it was up in this area.  But she described  where the marker was.  But it was that northern  territory of Antgulilbix.  Now, in considering jurisdiction to maintain  international relations, reference should be made to  these settlements or tsiisxw with other Indian  nations.  The point I want to stress with you here, my  lord, is that they are an aspect of Gitksan and  Wet'suwet'en law.  They have continued from  pre-contact days to the present time.  And when you  look at the issue of meetings with neighbours relating  to boundaries, that's all part of the formalized  tsiisxw settlement.  And I say it is a mistaken view  to look at one small part of that process and 247?  Submissions by Mr. Grant  1 determine success or failure based on it.  The  2 consensus must be arrived at by chiefs of the  3 different nations involved.  And such consensus  4 requires skilled diplomacy and time, just as  5 international diplomacy between nation - states.  6  7 And when I deal with international relations of  8 the Gitksan and Wet'suwet'en under jurisdiction, my  9 lord, I will -- I would like to come back to that  10 aspect of it, and how both the Gitksan and the  11 Wet'suwet'en demonstrated how they engage in those  12 kinds of resolutions of disputes internationally.  13  14 The issue here, my lord, is that the law of the  15 tsiisxw that I ask that you find is that there is a  16 law of the Gitksan and of the Wet'suwet'en for  17 settlements through the transfer of territory for  18 peace settlements.  It may also occur with respect to  19 murder, and that is the law.  I haven't written that  20 phraseology there exactly.  21  22 Now, the laws of the relationship between the  23 people and the land and resources, including the  24 animals, is the secondary aspect.  And I have listed  25 on page 243 the laws concerning the territory.  There  26 are the seven laws concerning the territory.  Now,  27 each of these aspects of law will be considered in the  28 context of ownership.  And I need say nothing further  29 with respect to them, my lord, except to ask -- to  30 urge upon you to make findings at the end of the day  31 that both the Gitksan and the Wet'suwet'en have laws  32 with respect to their territory as depicted there.  33 And the evidence shall be referred to in that part of  34 the argument.  35  36 Finally, my lord, the laws governing the  37 institution of the feast.  Now, there are laws  38 relating to the authority of the chiefs and the  39 exercise of jurisdiction through the feast.  The feast  40 also has its own laws of procedure, formal and  41 informal.  Now, it is my submission, my lord, that the  42 laws -- the fundamental laws of the feast are brief.  43 They are not the detailed procedural rules.  44  45 Firstly, the House has an obligation and authority  46 to host and attend particular feasts.  This central  47 law of the feasts is the basis for the maintenance of 24789  Submissions by Mr. Grant  1 the institution which is a central fixture of the  2 jurisdiction.  Mary McKenzie testified:  3  4 "Every head chief has to attend these feastings  5 in respect of the family -- that's putting on  6 this feasting and we have to respect that,  7 we -- have to make time for to go and witness  8 what is -- is done and what is said because a  9 chief can't go to another chief "Well, what did  10 they say?" It's not the Gitksan law that chief  11 would have to go around and ask.  He has to be  12 there every time there's a feasting."  13  14 Now, this is particularily true, my lord, with  15 respect to the father's side.  It's like you can't  16 have a feast and nobody comes, that sounds obvious.  17 But the father's side must be there.  The father's  18 side must be there to witness, and of course the Nii  19 Dil, the opposite side.  With respect to the  20 Wet'suwet'en, Alfred Joseph testified to the same law:  21  22 "When you're invited with this Saneel and the  23 rattle and the song, it is one of the strongest  24 laws in Wet'suwet'en that when that is used it  25 is never to be broken, and that same method,  26 the same thing is used for making peace.  So  27 when you are invited in that manner you have to  28 attend to the feast that you were invited to."  29  30 And here, of course, he is referring to the use of  31 the rattle and the calling it by the adaawk(phon) to  32 the feast.  33  34 The father's side is hired to perform the work and  35 it is repaid at the feast with interest for the work  36 that was performed.  The father's side or wiltsiwitxw  37 assists the host clan.  And I have already referred  38 that -- you to those rules.  And the father's side is  39 the House of the father.  And the House of the  40 wilnadaahl of the father of the high chief or the  41 chief who has died.  And of course among the  42 Wet'suwet'en it is the father's clan, not just the  43 House.  So when you look at that first law, the  44 obligation and authority to host and attend particular  45 feasts, that entails -- that allows the feast to  46 function.  And it continues to function today.  47 24790  Submissions by Mr. Grant  1 The second aspect is that those from other clans  2 who have assisted the House hosting the feast must be  3 acknowledged and repaid publicly at the feast.  And  4 Mrs. McKenzie testified to these obligations that a  5 chief must be in a position to pay for on behalf of a  6 House at a feast, and I have cited that.  And I have  7 also referred you to Alfred Joseph who explains that  8 in the context of the Wet'suwet'en.  9  10 The third rule is that there must be witnesses  11 from other clans at the feast for the business to be  12 valid and binding.  The witnesses validate the  13 proceeding and makes the experience of the assembly  14 binding on all the clans.  15  16 Mary McKenzie testified that the chiefs are  17 invited to a feast from other clans or houses and they  18 always receive payment for witnessing the feasting.  19  20 And Alfred Joseph explained that when the chief  21 takes a gift of money, goods, or food it is an  22 acknowledgment that what was done at the feast, and  23 the territory and name which was passed was done  24 properly.  25  26 Those three laws, my lord, are essential to  27 maintain the survival of the feast and the organized  28 society.  I submit, my lord, that you -- your finding  29 should include the concept that for the Gitksan and  30 Wet'suwet'en the feast is a central institution which  31 I will come to.  But that these three, the Gitksan and  32 Wet'suwet'en have these laws which apply to the feast,  33 and they have been maintained to this day.  34  35 Now, I refer next to the procedural rules.  And I  36 am going to deal with them in the context of the feast  37 itself.  On page 248 I list the six propositions with  38 respect to laws that I submit that the court should  39 find on the basis of the evidence that you have heard.  40  41 Within the Gitksan and Wet'suwet'en societies, there  42 are laws common to all which are known, taught and  43 enforced within those societies.  44  45 More specifically, the Gitksan and Wet'suwet'en each  46 have laws governing their relations between peoples,  47 their relationships between the people and their 24791  Submissions by Mr. Grant  1 territories and the institution of the feast.  2  3 The Gitksan and Wet'suwet'en have laws governing  4 membership through birth and adoption, laws of  5 succession with respect to House territory and laws of  6 prohibition with respect to serious offences such as  7 death, whether intentional or accidental.  8  9 The Gitksan and Wet'suwet'en each have laws of  10 exclusive possession, access, succession, and transfer  11 of their territories.  12  13 They have laws maintaining the institution of the  14 feast through which they exercise jurisdiction.  15  16 And, finally, and most importantly, my lord, I ask you  17 to find that none of these laws of the Gitksan and  18 Wet'suwet'en have been extinguished by the conduct of  19 the defendants, that is extinguished as a matter of  20 law.  And they form part of their jurisdiction over  21 their territory and amongst themselves.  22  23 Now, in terms of the proposition that you raised  24 at the beginning about the law of respect, my lord, I  25 want to -- I say that that deals in the context of  26 these other laws.  And I want to consider it in terms  27 of how we intend to argue the issues of ownership and  28 jurisdiction.  And principally jurisdiction which will  29 put that in its context.  But what I've endeavoured to  30 do here is to show you the -- those laws of the  31 Gitksan and Wet'suwet'en which are operational and  32 would show the system is maintained and continues.  33 THE COURT:  Well, at some time, Mr. Grant, I would like to have  34 some consistence on the question of whether or not you  35 are saying that the plaintiffs own the territories in  36 the sense that they have proprietary interests in them  37 equivalent to Canadian, if I can use that word, in  38 contradiction to Indian context, interests, or are you  39 saying that our aboriginal rights are an interest in  40 the land apart from ownership which may be equivalent  41 to ownership?  42  43 Because, you see, what I'm troubled about is that  44 ownership, Western European or Canadian style, can be  45 proven by declarations of deceased persons.  And while  46 I haven't thought through the consequences of the Land  47 Registry Act, it seems to me that that kind of ownship 24792  Submissions by Mr. Grant  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. GRANT  THE COURT  can be proven by those kinds of declarations and  would, if successful, or could, if successful, give  rise to a claim for a mistake in fee-simple.  On the other hand, if you are claiming aboriginal  rights arising from possession, you may end up with  the equivalent of interest in the land, but you  probably wouldn't be entitled to an estate in  fee-simple because of the authorities.  And I have  never been sure in this lawsuit whether you are  claiming one, or the other, or both.  And I am not  saying this is the time that you want to --  :  No, I appreciate the comment because I think we are  moving into the section of ownership where we will  endeavour to do that.  And I don't know if I should --  :  You see, the idea of ownership doesn't seem to have  been really touched in the American authorities.  They  keep saying it is equivalent to, or it has -- they do  talk about ownership of the proprietors of the soil  and all kinds of fuzzy phrases.  And I'm not just sure  what your "ownership" claim in this case amounts to,  whether it is something different from aboriginal  rights, or whether it is another way of describing  aboriginal rights.  MR. GRANT  THE  MR.  THE  MR.  THE  MR.  THE  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  I'm saying all of this without any  pleadings. And the pleadings, if I can  that the defendants have been indulging  from the beginning, that your Statement  doesn't support some of the claims that  advancing. So at some time I need to h  straightened out for me.  And I hope that we can do that within  the ownership context of the argument.  All right.  Thank you.  And I appreciate your comment. Tempt  I think I will not dive into that until  the argument, if that's --  I would be glad to have it any time.  My lord —  But it also follows that it may be th  evidence on ownership, and that sort of  apply to one form and not the other.  Right.  If you're proving ownership by repres  Euro-Canadian ownership, I am not sure  all that relevant.  If you're claiming  regard to the  use that word,  themselves in  of Claim  you seem to be  ave that  the context of  ed as I may be,  it fits into  at all of your  thing, may  entation,  the laws are  it by way of 24793  Submissions by Mr. Grant  1  2  3  4  MR.  GRANT  5  6  7  THE  COURT  8  MR.  GRANT  9  THE  COURT  10  MR.  GRANT  11  12  13  THE  COURT  14  MR.  GRANT  15  THE  COURT  16  17  18  MR.  GRANT  19  20  THE  COURT  21  22  MR.  GRANT  23  THE  COURT  24  25  MR.  GRANT  26  27  28  THE  COURT  29  MR.  GRANT  30  31  32  THE  COURT  33  MR.  GRANT  34  35  36  37  38  39  40  41  42  43  44  45  46  47  aboriginal rights, then maybe it is.  And maybe it's  relevant to both of them.  But I confess that I am at  sea on some of these things.  Well, what this aspect of -- I appreciate, and now I  realize why you raised it now.  What this aspect now,  as part of a framework of the organized society --  That seems to me to relate to aboriginal rights.  It relates to jurisdiction.  You've complicated me even further.  Well, the authority of the chiefs to make decisions  with respect to the territories is within a framework.  And it's a framework that they have in terms --  It might be in a framework of ownership.  Yes.  If they own it, they can do whatever they want with  it.  It flows from ownership.  And it isn't an  indicia, or it isn't a prerequisite for ownership.  Well, the authorities of course say that you look at  the particular society that you are --  Oh, I know.  But they say that in the context of  aboriginal rights, I think.  Right.  I don't think they say that in the context of  ownership.  But what we say is when you look at the nature of  the society, the aboriginal rights of this society are  ownership.  Well, I want to be sure that that is made clear.  And I appreciate the distinction of what you want in  the definition.  And we will focus on that in that  terms of the argument.  All right.  I will just deal with the maintenance of the society  through education and training.  And this really is  relevant, my lord, to the issue of the continuity of  the Gitksan and Wet'suwet'en organized societies right  up to today.  As I say in the third paragraph down, or  the third sentence on 249, the effectiveness of the  oral history, the institution of the feast, the  membership within the society and the laws are only as  strong as the abilities to pass those on from  generation to generation.  Notwithstanding the impact  of non-Gitksan and non-Wet'suwet'en society and  education, the oral history, the institution of the  feast, the House membership and the laws have all been  maintained and passed down to today. 24794  Submissions by Mr. Grant  1 Now, I refer to the teaching of the oral history.  2 And that's referred to by the -- my opening is that  3 this is an oral culture with an oral history.  The  4 passing on of that oral history is an essential  5 component of the organized society.  And Dr. Daly, I  6 cite him.  And he explains, and I have highlighted  7 that portion of his statement about the instruction.  8 And I submit that you've heard exstensive evidence on  9 this, some of which I've referred to already.  10  11 The contemplation of oral instructions, history,  12 morality, practical techniques needed in daily life is  13 part of the on-going education of Gitksan and  14 Wet'suwet'en people.  And these teachings are provided  15 in the context of giving young people a personal goal,  16 a personality to aspire to, and a history to carry  17 forward.  The ideas of reincarnation, the powers of  18 the animals, and the history of the ancestors combine  19 effectively in the Gitksan and Wet'suwet'en oral  20 cultures to provide the young with knowledge of their  21 land and their roots, and to train them to become  22 energetic and responsible citizens of their own  23 society.  24  25 Going over to the next page, I refer to Glen  26 Williams, Art Mathews Jr., and Henry Alfred to, by  27 their very evidence, attest to the continuity of  28 teaching of oral history to the younger people.  Art  29 Mathews testified that the adaawk of his House was  30 taught to him:  31  32 "to give me wisdom, the understanding, the  33 various spirituality of our land.  Gan Didils  34 is the way of life how to react, how not to  35 react.  In other words, it's a doctrine of  36 one's adaawk, it's a realism it's philosophy  37 and its ethics both life and death."  38  39 Now, the second aspect of the education that's  40 relevant and important is the teaching of the laws.  41 And as I suggest, it is a responsibility of the chiefs  42 to teach the children the laws and, in particular, the  43 law of respect.  Mary McKenzie explained this, and you  44 can see her statement about:  45  46 "We were taught to respect respect  47 all elders and even the children." 24795  Submissions by Mr. Grant  1  2 And then she talks about training and her ear  3 piercing.  4  5 Then Gwisgyen said about the laws.  6  7 "I've passed these on -- to the younger people,  8 especially Tenimgyet and also my son Buddy who  9 was Haalus.  I told him all about all the laws  10 of our people and the territories, the names of  11 the territories and the mountains, and I see  12 that -- they've kept this with them and this is  13 how they learned the names of the territories."  14  15 The first salmon ceremony is also a basis where  16 the law of respect is affirmed.  That is described not  17 only by Dr. Daly, but also by Hanamuxw, Joan Ryan and  18 by Dr. Mills and by Stanley Williams.  It is also  19 referred to, I believe, by Madeline Alfred.  20  21 Teaching through the first kill rules.  Stanley  22 Williams testified about the sharing of the fish and  23 why he did it.  But teaching through the first kill  24 rules is a testimony the chiefs revealed in connection  25 with the distribution of the first salmon or meat from  26 the first kill, there are laws which fall to the chief  27 to teach and enforce with their House members  28 regarding the proper distribution of food from the  29 House territory and fishing sites.  The proper  30 distribution of food takes place according to kinship  31 relations and obligations.  32  33 And if you go over to Stanley Williams on the next  34 page, he explains this.  35  36 "And take me as an example.  -- if I had a son,  37 then I would give him the bow and arrow and the  38 spear to go out hunting.  And he makes a kill,  39 I would clean his kill and I would cook it for  40 him and then I would invite the chiefs and the  41 boy's wiltsiwitxw.  And all the people that  42 were invited are eating and -- the aunt of this  43 young person that made his first kill will come  44 while the people are eating and they will be  45 giving out material things and also Gwiikxw.  46 They would give more gifts to the wiltsiwitxw  47 which is known as xkyeehl, and -- if the uncle 24796  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  could afford to give -- this young boy his  equipment to use for killing, like the bow and  arrows rose and spear, then his uncle would  give these things to him.  The reason why they have this feast for the  first kill of the young boy is that the people  will bless this young man and he would have a  long life, and this is what they did."  These two ceremonies, the first salmon ceremony and  the first hunt ceremony demonstrate the law of respect  which has already been explained.  However, they also  are utilized as a method of training the younger  people in the laws of the Gitksan and of the  Wet'suwet'en.  This training is essential for the  survival of the society.  The training is an ongoing  process which continues to this day.  Now, most importantly, my lord, is in the context  of the issues of this case is the training in the  territorial knowledge.  :  Before you go to that, Mr. Grant, can you tell me,  not now, is there any evidence when the bow and arrow  were introduced in the area in question.  :  There is evidence from Alfred Joseph about the flint  that was used for arrows.  And I know there was one --  there was one allusion to it in a chart from the map  atlas that I believe was put in.  Yes.  But I think I would like to go and check that.  All right.  Thank you.  The training in the territorial knowledge.  The  chiefs carefully train and are trained in knowledge of  the boundaries by the House chief and those who have  been granted access rights.  The depth of knowledge of a number of the Gitksan  and Wet'suwet'en chiefs with respect to the  territorial boundaries is a testament in itself to the  durability of the Gitksan and Wet'suwet'en societies'  knowledge.  Notwithstanding the incursions into the  territory by the governments, the defendants, this  knowledge has been continued to be passed on.  James Morrison testified to the jurisdiction of  the chief to teach about the territory and place  names: 24797  Submissions by Mr. Grant  1 "We must take them out there and show them all  2 the laws of the Chief and the Crests, and also  3 other things that you -- teach them, as in the  4 feast hall, the law and the power passed on to  5 the Chiefs and the -- the place where your  6 hunting grounds is and rivers, mountains."  7  8 Typically the teaching of boundaries occurs while on  9 the territories.  Alfred Joseph described how he  10 learned the boundaries and place names of Gisdaway's  11 territory by his grandparents, uncles and parents.  12 Alfred then -- I referred to the reference where he  13 later refers to being taught by his grandparents while  14 on the land.  He testified he learned of Madeek's  15 territory by passing through the territory with Thomas  16 George.  17  18 Madeline Alfred also was taught the boundaries of  19 Wah Tah K'eght's territory by Lucy Pius while on the  20 territory.  And she has testified how the territory  21 has been passed down in oral history.  22  23 "Our grandfather's and grandparents teach us  24 the territory and the names as did our  25 ancestors before."  26  27 When Madeline is on the territory, she refers to  28 places on the territory by their Wet'suwet'en names.  29 She talks about them with her children and  30 grandchildren when they are on the territory with her.  31 This is part of her responsibility as a chief in the  32 House, and I emphasize it is continuous today.  Henry  33 Alfred, her son, used to lead his grandfather around  34 the territory.  35  36 Florence Hall was taught the history of the raid  37 of Kitimat while they were on the Burnie Lake  38 territory with her uncle, Mooseskin Johnny, the former  39 Kweese.  Among the Gitksan, Mary Johnson's great great  40 grandmother told her about the territory.  And she  41 says:  42  43 "It's passed on from generation to generation  44 like the rest, like all the mountains that I  45 mentioned."  46  47 Olive Ryan testified about being taught. 2479?  Submissions by Mr. Grant  1  2 One of the best examples of all of this was the  3 knowledge of Stanley Williams and his passage of that  4 knowledge on to younger chiefs.  He described  5 throughout his commission each of the 24 territories,  6 who taught him, and why he had the privilege of being  7 taught that.  But what's very dramatic, my lord, and I  8 will give you some page references from the first two  9 volumes, is that if you look at any part of Stanley  10 Williams' evidence as an example, often on several  11 occasions during his 12 days of oral testimony he just  12 spontaneously described boundaries without reference  13 to any affidavit or maps.  He just did it from his  14 mental knowledge of those boundaries and those  15 territories.  And Stanley Williams' knowledge and  16 familiarity with the territory, as demonstrated by his  17 oral evidence, is in itself evidence of the antiquity  18 and depth of knowledge of Gitksan with respect to  19 their territories.  He was one of the principal  20 Gitksan chiefs trained respecting the boundaries of  21 the western territories.  22  23 There is a concept, my lord, of specialist among  24 the Gitksan and the Wet'suwet'en, and Stanley Williams  25 was considered such.  Solomon Marsden explained:  26  27 "The chiefs know that this Stanley is an expert  28 on the territories and this is why they choose  29 him to tell their boundaries in the feast  30 hall."  31  32 When asked about his training, Stanley responded:  33  34 "My father trained me of the laws  .... of our  35 people and the laws of the land and after this  36 I went  .... public with the other people who  37 showed me  .... the boundaries of their  38 territories.  This  .... is the reason why I  39 know the territories of the Lax Skiik, the  40 Eagle Clan, Ganeda, the Frog Clan, Lax Gibuu,  41 the Wolf Clan.   .... I went with some of these  42 people on their territory.  43 This is what my grandfather told me.  Do not  44 tell about a territory you haven't been on.  45 You have to have the dirt of that territory  46 under the soles of your shoes before you tell  47 me the boundaries of the territory.  This is 24799  Submissions by Mr. Grant  1 the reason why I am here today in front of the  2 Court to tell them what I know about the  3 territories."  4  5 And he goes on to explain that he started  6 traveling when he was sixteen on the territories.  And  7 he we went on to explain that he has taught young  8 people the territories.  He showed Neil Sterritt  9 actual boundaries of 22 of the 24 territories that he  10 described in his affidavit.  Other chiefs would come  11 to him for advice.  12  13 Similar training has occurred respecting people  14 younger than Stanley just as Art Mathews Jr.  Alfred  15 Mitchell was among -- he himself was a Gitksan, but a  16 person among the Wet'suwet'en.  And a leader among the  17 Wet'suwet'en and was considered a specialist and was  18 authorized to utilize Wet'suwet'en territories and  19 train young people about the boundaries of those  20 territories.  And he described that in his evidence.  21 THE COURT:  I think we will take a short adjournment, Mr. Grant.  22 THE REGISTRAR:  Order in court.  This court stands adjourned.  2 3 (PROCEEDINGS ADJOURNED AT 8:48)  24  25  26  27 I hereby certify the foregoing to be  28 a true and accurate transcript of the  29 proceedings herein to the best of my  30 skill and ability.  31  32  33  34 LISA FRANKO, OFFICIAL REPORTER.  35 UNITED REPORTING SERVICE LTD.  36  37  38  39  40  41  42  43  44  45  46  47 24800  Submissions by Mr. Grant  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2 THE COURT:  Mr. Grant.  3 MR. GRANT:  My lord, the other training that I believe you've  4 heard evidence of is the training in the procedures in  5 the use of the resources.  It's interesting that Miss  6 Wilson-Kenni gave extensive evidence of the training  7 of the young Wet'suwet'en women and girls in tanning  8 in the preparation of moose hides.  And what's  9 interesting about that is, and relevant is that these  10 skills and utilization of these resources in that way  11 are being passed on today in the same way as they were  12 passed on hundreds and hundreds of years ago through  13 oral training.  And as I referred you to earlier in  14 the Daxgyet section, a vest made by -- a vest made by  15 Spookw's House was given to Gwis gyen Stanley Williams  16 in recognition of his assistance to that House.  Miss  17 Wilson-Kenni, also one of the young witnesses,  18 described her own training in the puberty laws.  She  19 did not seclude her own daughter as she was secluded,  20 but she explained how she taught her daughter the same  21 elements of respect and the same teachings as she  22 herself was taught.  23 A number of the other chiefs described the efforts  24 today to continue and strengthen the Gitksan and  25 Wet'suwet'en education.  I believe the -- Miss Ryan,  26 Hanamuxw, describing her decision to take an active  27 role in promoting education of Gitksan children after  2 8 she became a high chief.  And I've put in the  29 reference there which I will not read to you but I ask  30 you to consider in this respect.  31 Glen Williams, a younger chief described how a  32 decision was made to take over the education of the  33 children of Gitwangak.  To do so he, and I should say  34 by that I mean the chiefs of the band of Gitwangak,  35 successfully raised about a half a million dollars and  36 built a school in Gitwangak.  He explained why the  37 chiefs decided to have the school back in their  3 8 community:  39  4 0 "Mainly to try and improve our own education,  41 to be in control of our own children's  42 education, to implement some of our own  43 culture, the language, and to be in control of  44 it, and just to mainly be in control and have  45 some of our culture implemented into the  46 school."  47 24801  Submissions by Mr. Grant  1 And as I recall, he gave evidence about the Gitksan  2 emersion for young children, which has taken place in  3 Gitwangak.  4 The evidence of the training in all of these areas  5 demonstrates the continuity and maintenance of the  6 Gitksan and Wet'suwet'en societies through education  7 and training.  And I ask you to find as a fact that  8 the Gitksan and Wet'suwet'en societies have been  9 maintained and survived in these -- through this --  10 and it's been demonstrated through this evidence.  The  11 chiefs, my lord, take very seriously the survival of  12 their own people on the territory.  This training has  13 resulted in the concern to protect the territory and  14 their society on behalf of the coming generations of  15 Gitksan and Wet'suwet'en.  16 I'd like to refer you to the next section.  I  17 intended to complete the evening's section with the  18 next section, the section on language.  And this is  19 the section on linguistic evidence and testimony of  20 Gitksan and Wet'suwet'en witnesses demonstrates there  21 are two distinct languages groups.  Now, I have  22 explained that the Gitksan is a distinct language of  23 the Gitksan plaintiffs and Kitwancool, which is  24 selected not to be a part of this action, and the  25 Wet'suwet'en as a distinct language among the  26 Wet'suwet'en plaintiffs and the Babine.  The  27 Babine-Wet'suwet'en are certainly related to the  28 Babine.  29 Mrs. McKenzie, I think, clearly established the  30 importance of the language in her evidence:  31  32 "To keep our history we have to keep our  33 language.  That's the importance of the  34 language, that we keep - like all  35 nationalities, they have language that they  36 keep, so that's important to the Gitksan, is to  37 have our language spoken."  38  39 And with respect to the -- and that statement, I  40 submit, applies to both the Wet'suwet'en and the  41 Gitksan.  42 The Wet'suwet'en language is Athapaskan and it's  43 recognized that the Wet'suwet'en language together  44 with the Babine Lake people is distinctive from  45 Northwest Carrier dialects.  As Dr. Kari stated:  46  47 "This classification has been recognized in the 24802  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  THE  COURT  16  17  18  MR.  GRANT  19  20  THE  COURT  21  MR.  GRANT  22  23  THE  COURT  24  MR.  GRANT  25  26  THE  COURT  27  28  29  30  31  MR.  GRANT  32  THE  COURT  33  34  MR.  GRANT  35  THE  COURT  36  MR.  GRANT  37  38  39  THE  COURT  40  MR.  GRANT  41  42  43  44  45  46  47  Subarctic volume of The Handbook of North  American Indians"  And he quotes:  "A sharp linguistic boundary, correlated with  cultural and ecological differences, separates  the Bulkley River... and Babine Lake dialects  from the rest, and it is probably best to  return to earlier usage and consider these  northwest dialects (of Carrier) a single  language."  In addition --  :  By that he means, does he not, the northwest  dialects as a single language excluding the  Wet'suwet'en and the Babine?  Is that what he means?  :  No.  The northwest dialects, as I recall -- the  northwest dialects of the Carrier would be --  :  Would that include --  :  The Babine and the Wet'suwet'en are the northwest  dialects.  :  I see.  All right.  Well, I —  :  So the Babine should be considered a single  language.  :   Well, I'll read it and get the context from it.  I  am not sure what he means by that.  Thank you.  I  thought he said that he was going to divide the Babine  and the Wet'suwet'en from the rest of the Carrier and  didn't he call it west --  :  Babine-Wet'suwet'en?  :  Babine.  Oh, I thought he had another name for it.  It's all right.  I'll —  Western -- he certainly --  I can look that up.  What you have said is my understanding of the  evidence too, my lord, that the Babine and  Wet'suwet'en were segregated from the Carrier.  Yes.  What he refers to in this part of his report is that  it's not only himself but others see the sharp  linguistic boundaries separating the Bulkley River and  Babine Lake dialects from the rest.  And then this is  Krauss and Golla saying it's probably best to return  to earlier usage and consider these northwest  dialects.  My understanding of that from the report  and from the article is the Bulkley and Babine Lake 24803  Submissions by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  dialects being those northwest dialects, a single  language.  Yes.  I am not sure that Krauss and Golla didn't  call all the Carriers of the area, including the  Babine and the Wet'suwet'en, as this single language,  but that will easily appear from reading the context.  Right.  Yeah.  My understanding is that they made  the distinction first and then Kari agrees with that  distinction in his evidence and his own research.  All right.  "In addition, the latest map of Native  languages of the Northwest coast (Suttles,  1985) also bestows language status for the  'Babine' language."  And there is a reference to:  "The evidence for distinct language status for  the Athabaskans of the Bulkley and Babine  drainages."  And of course, that second part of the quote is Kari  speaking through his report.  Dr. Kari concluded that the Wet'suwet'en language  is distinctive from the eastern Carrier.  However, the  Wet'suwet'en speak the same language as the Babine.  And as Kweese, Florence Hall, stated, the Wet'suwet'en  recognized the Babine Indians speaking the same  language as the Wet'suwet'en.  Now, considering briefly the Gitksan language is  part of the Tsimshianic -- or the Tsimshian linguistic  grouping, but there is a distinctive Gitksan language,  and this was explained by Dr. Rigsby, the linguist, in  his opinion.  And I have cited that.  He states that:  "They are not Nisgha or Tsimshian, who each  have their own native language.  This assertion  of Gitksan linguistic identity is supported by  certain characteristics of speech which set it  apart from that spoken by the Nisgha people."  An appreciation of this distinction between the  Gitksan and other Tsimshian languages was amplified by  the parallel with the Romance languages.  As Dr.  Rigsby stated: 24804  Submissions by Mr. Grant  1  2 "...  one might consider Gitksan and Nisgha to  3 be related to one another in much the same way  4 as Spanish and Portuguese, while the former two  5 are related to Coast Tsimshian, as the latter  6 two are related to French."  7  8 And I believe that's an effort to simplify - that may  9 complicate, but it's certainly an analogy of the  10 appreciation between the relationship of the Spanish  11 and the Portuguese and the French assists us with.  12 Now, the Gitksan share a common language  13 distinctive from the other Tsimshian groups.  And of  14 course Kitwancool also share that language.  15 I believe one of the clearest ways of expressing  16 the distinction, although much was made in  17 cross-examination to suggest that Gitksan and  18 Tsimshian are all one -- can be thrown into one ball  19 of wax, that it was Joan Ryan describing the  20 distinction of the Gitksan language from other  21 Tsimshian languates.  She had experience in bringing  22 in Gitksan language for kindergarten in Gitwangak.  23 This was this Gitksan emersion program.  And she was  24 asked if in the setting up of the program -- I will  25 paraphrase the question:  If in the setting up of that  26 program that they should bring in a Tximxsan speaker  27 who had never worked or lived within the communities,  28 and she said, "No," and then explained why:  29  30 "The Gitksan language is a very distinct  31 language of its own, and if a person from a  32 neighbouring territory comes in it would be  33 difficult for them to do any instruction in our  34 Gitksan language for many reasons.  One is that  35 when you learn a second language I think the  36 most important thing missing would be the  37 motive aspect of the words in the language,  38 that you don't appreciate the emotional  39 connotations of the words when you acquire a  40 second language.  You can do that over a period  41 of time, and it does take time to acquire that.  42 Certainly it would be very difficult for that  43 person to explain some of our adaawk or legends  44 to the children, and to give the correct  45 pronunciation of the words.  For a Tsimsxan  46 some of their pronunciation of their words are  47 different from ours.  The phrasing could be 24805  Submissions by Mr. Grant  1 different as well.  The meaning of some of the  2 words would be different.  So if that person is  3 going to instruct children in Gitksan they are  4 going to do have to do some -- or spend some  5 time studying the language before they can  6 handle the program adequately."  7  8 Now, finally, my lord, and this applied -- and I  9 believe Madeline Alfred said this with respect to the  10 Wet'suwet'en, Mrs. McKenzie with the Gitksan, that in  11 the feast hall their own language, Gitksan and  12 Wet'suwet'en is used.  And she explained:  13  14 "...  we have to speak our own language,  15 because if we speak in English, it doesn't come  16 right to the point of the feeling of the  17 people.  You have your own language.  And  18 that's right from the heart to the new chief.  19 So if we speak in English, a lot is left out,  20 sort of.  The feeling is not there.  So we use  21 our Gitksan language in the feastings."  22  23 Now, the eastern and western Gitksan dialects I'd like  24 to comment on.  Mrs. McKenzie did explain the  25 distinctions between Gitksan in different communities.  26 And I say different villages, but different regions  27 really because it should be in different regions.  She  28 said:  29  30 "Now, in the area of these other villages  31 there, it is slightly different in each  32 village, like the Kitwangar, Kitwancool and  33 Kitsegukla, and then there is the  Kispiox,  34 Glenvowell and Gitanmaax, and then Gisag'as  35 again has a different, slightly different  36 dialect, so -- but we understand one another.  37 For instance, like I say -- Gisaga'as, when you  38 ask, in English you say 'what', and in  39 Gisaga'as as they say 'Gwii' and in Gitskan  40 (sic) you say 'Aguu'."  41  42 And I think she's referring there to Kispiox or  43 Gitanmaax.  As Dr. Rigsby explained this phenomenon in  44 his opinion:  45  46 "It is not uncommon for linguists to call  47 geographically separate speech varieties ' 24806  Submissions by Mr. Grant  1 dialects' (as opposed to, say, 'sociolects').  2 The western Gitksan dialect, then, includes the  3 varieties that are spoken by people  who have  4 learned to speak the language in one or another  5 of the western villages of Kitsegukla,  6 Gitwangak, and Kitwancool.  The eastern Gitksan  7 dialect, on the other hand, is spoken by people  8 in the remaining eastern upstream villages of  9 Gitanmaax, Glen Vowell or Sigidox and Kispiox,  10 and in former times, by the people of Kisgegas  11 and Kuldo and at Bear Lake."  12  13 Mrs. McKenzie, once again, explains different terms to  14 different dialects for Kisgegas and Kitwancool.  She  15 stated "The dialects are slightly different."  And she  16 says:  17  18 "....  when a group of people, like from  19 different villages, and we speak a language, we  20 speak like it's Gitxsanimx, but you can place  21 them where they are from, like the far north,  22 the Gisaga'as, they are Bear Lake people, they  23 have a term too; and we have Kispiox, the  24 Gitanmaax, are both the same, and you go  25 further down to Kitwangar and Kitsegukla and  26 Kitwancool.  Now, when you hear these people  27 speak and you just know the locations where  28 they are from."  29  30 Art Matthews confirmed differences between the Gitksan  31 spoken at Gitanmaax and at Gitwangak.  But despite  32 these differences in dialect between the eastern and  33 western, my lord, it's our submission that the  34 language, Gitksan is one language which is common  35 among all of the Gitksan.  36 Finally, I would like to briefly consider the  37 relationship between Gitksan and Wet'suwet'en  38 languages.  As the evidence has demonstrated, the  39 Rigsby and Kari, both of these languages have borrowed  40 words from each other.  This is highly significant  41 "because," as they say, "it involves languages of  42 radically different structural type which belong to  43 language families that are not genetically relatable."  44 The borrowing represents ancient connections between  45 these two peoples over time.  46 Drs. Rigsby and Kari concluded with respect to the  47 relationship between Gitksan and Wet'suwet'en: 24807  Submissions by Mr. Grant  1  2 "Thus, the linguistic evidence points to long  3 and intimate contact between the Gitksan and  4 Wet'suwet'en."  5  6 A number of witnesses referred to the bilingualism of  7 chiefs.  And Dora Wilson-Kenni referred to her uncle,  8 the former Spookw, Johnson Alexander.  He was a very  9 powerful and strong man, and she describes him, and as  10 he's photographed in Exhibit 318.  She said:  11  12 "I remember him very well.  He was a really  13 powerful speaker in the house, in the feast  14 house.  He spoke both Gitksan and Wet'suwet'en.  15 And I used to see him speak and hear him speak.  16 He could stand there and speak Gitksan language  17 and turn around -- he used to have his hand  18 behind his back and stand there.  He was quite  19 tall, big, and he was about six foot two or  20 something like that.  He was quite tall.  He  21 would speak in Gitksan and turn around and he  22 would speak in Wet'suwet'en, and then sometimes  23 he would go further and speak in English.  It  24 was the same way with my grandmother.  She was  25 like that too.  She used to do the same thing  26 in the feast."  27  28 Alfred Mitchell's first language was Gitksan, but he  29 then learned Wet'suwet'en and he spoke Wet'suwet'en to  30 his family in the home.  31 My lord, it's my submission that you should find  32 that both these languages are actively practiced  33 today.  Many of the witnesses required and requested  34 translation when giving evidence.  Their first  35 language was Gitksan or Wet'suwet'en.  The evidence in  36 court given in these languages as well as the evidence  37 of the training and education in the language which  38 occurs today are dramatic illustrations of the  39 strength of the linguistic connection between the  40 people which has survived many efforts to terminate  41 the languages through these assimilationist policies  42 and residential school education.  When I say  43 assimilationist, that's the historical policy of  44 civil -- of enfranchising Indian people, which was  45 part of the policy under previous Indian Acts.  46 Now, at the conclusion of Dr. Kari's evidence you  47 asked him whether or not the Wet'suwet'en language 2480?  Submissions by Mr. Grant  1  2  3  4  5  THE  COURT  6  MR.  GRANT  7  THE  COURT  8  MR.  GRANT  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  THE  COURT  24  25  26  27  MR.  GRANT  28  THE  COURT  29  MR.  GRANT  30  31  32  THE  COURT  33  34  35  MR.  GRANT  36  37  THE  COURT  38  MR.  GRANT  39  40  41  42  THE  COURT  43  44  MR.  GRANT  45  THE  COURT  46  MR.  GRANT  47  THE  COURT  would become extinct or will be continued to be  recognized as a separate identifiable language and he  did not comment.  The evidence, my lord,  demonstrates --  What did he say?  He said "I would rather not comment."  Oh.  Thank you.  The evidence demonstrates that this language has  survived over the last one hundred years.  The  evidence also demonstrates that the Wet'suwet'en and  Gitksan languages is routed in the relationship of the  people to their territory.  I submit, my lord, that  you should find on the basis of the evidence that the  Gitksan and Wet'suwet'en have distinctive languages  which have survived to this date.  My lord, I had  intended to -- this is the large section which I had  intended to be editing down for the purposes of  submission and it may be an appropriate time -- maybe  appropriate time to break.  I am not sure what your --  it's just that I am going to be in the middle of it.  I am cutting back the references that I make and  what's leading you to the key points.  It wouldn't bother me if we are in the middle of  something, but I suppose there is no point in pursuing  it if you think this is the right place to adjourn.  Can you start at 9:30?  That's fine, my lord.  That would be fine.  All right.  I think it would be an efficient way of dealing with  it because I am cutting back on some of the references  here.  Your side will have something else to continue with  when you finish this section early tomorrow morning,  will you?  Oh, my scheduling was to finish by noon tomorrow.  That's still my schedule.  Yes.  But we are certainly -- we will have something else  to deal with tomorrow afternoon.  If I could just --  what your indication -- I couldn't recall for tomorrow  when you wanted to go until.  Oh, I thought that we would continue the same as  last week, which was to around 5:30, I think.  I just want to advise that that's fine.  I think that's what we did.  We have another section and --  Well, I think we are here and I think, as I said 24809  Submissions by Mr. Grant  1 before, every hour we spend here is an hour less we  2 are going to have to spend in June and I think we all  3 want to achieve that happy result.  4 MR. GRANT:  I concur.  5 THE COURT:  If it becomes possible so to do.  All right.  We  6 will adjourn then until 9:30.  Thank you.  7  8 (PROCEEDINGS ADJOURNED UNTIL FRIDAY, APRIL 20, 1990 AT  9 9:30 A.M.)  10  11  12 I hereby certify the foregoing to be  13 true and accurate transcript of the  14 proceedings herein to the best of my  15 skill and ability.  16  17  18 Laara Yardley, Official Reporter,  19 United Reporting Service Ltd.  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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