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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-05-07] British Columbia. Supreme Court May 7, 1990

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 25604  Proceedings  1  2  3  4  THE  REGIS  5  6  7  THE  COURT  8  MR.  GRANT  9  10  11  12  THE  COURT  13  MR.  GRANT  14  THE  COURT  15  MR.  GRANT  16  17  18  19  20  21  22  23  THE  COURT  24  25  26  27  28  MR.  GRANT  29  30  31  32  33  THE  COURT  34  35  36  MR.  GRANT  37  THE  COURT  38  MR.  GRANT  39  40  41  THE  COURT  42  MR.  GRANT  43  THE  COURT  44  MR.  GRANT  45  46  47  THE  COURT  MAY 7, 1990  VANCOUVER, B.C.  RAR:  Order in court.  In the Supreme Court of British  Columbia, this 7th day of May, 1990.  Delgamuukw  versus Her Majesty the Queen at bar, my lord.  Mr. Grant.  Yes, my lord.  Before I commence, I would like to  raise a -- raise the scheduling for this week with  your lordship, and propose the scheduling for this  week.  Yes.  What's the date today?  The 7th.  Thank you.  All right.  What do you suggest?  My lord, this is what we propose, that we would go  today from 10:00 'til 4:00, and then have an evening  session tonight from 7:00 to 9:00.  I am proposing  these, and of course if your lordship is unavailable,  if we can alternate the evenings, then that's fine  with us.  Just let me follow through.  So an evening  session this evening from 7:00 to 9:00.  Tomorrow  going from 9:00 in the morning until 5:30.  Well, there is a problem there, Mr. Grant.  I made a  commitment several months ago to deal with a matter at  4:00 o'clock tomorrow afternoon, which would take  about an hour.  There is too many people involved to  change it, but I can continue on after that.  My lord, as I want to be clear, is that we have  tentatively made the schedule.  If we can get these  hours in, and of course I fully anticipate there may  be some problems for your lordship, but the total  hours is what we mean.  As I say, I can come back after 4:00 o'clock  until -- and go on for -- as long as you want after  that to make up that hour.  Well, that may be.  So what do you suggest tomorrow?  Well, starting at 9:00 and going 'til 4:00, in light  of your lordship's commitment, and then if necessary  come back for an hour and-a-half.  That would be from 5:00 until 6:30?  Depending on your lordship's --  That's satisfactory.  On Wednesday, May 9th, to commence at 9:30 and go  'til 5:30, and then have an evening sitting there,  7:00 to 9:00.  Yes. 25605  Proceedings  1 MR. GRANT:  On Thursday commence at 9:30 and go to 5:30, and it  2 may go for 15 minutes later.  3 THE COURT:  Yes.  4 MR. GRANT:  5:45 or 6:30 at the outside.  On Friday go 9:30 'til  5 5:00, and Saturday 9:30 to 4:00.  And then on Monday  6 the 14th solely for the purpose of the closing  7 statement of the chiefs, start at 9:00, or if that's a  8 problem, 9:15 'til 10:00, 9:00 'til 10:00.  And that  9 would be just for the closing of the chiefs, and that  10 would be the completion of the plaintiffs' argument.  11 If we can get those hours in.  12 THE COURT:  Yes.  13 MR. GRANT:  I am not sure if your lordship —  14 THE COURT: I think what I'll do is I'll take that with me at the  15 morning adjournment, and I can put it with my  16 schedule.  I presently believe it's quite  17 satisfactory, but I will confirm that at the morning  18 break.  I haven't heard from any of your learned  19 friends.  20 MR. WILLMS:  We'll be sure we are available, my lord.  21 THE COURT:  Yes.  All right.  Thank you.  22 MR. GRANT:  My lord, just so that you — in the course of the  23 break what I have done is I have not given you  24 everything on the balance of the territories, and I  25 have done that, but I went from the place where I had  26 stopped, the Gwiiyeehl territory, and I had the  27 corrections made to it.  So that this could replace  2 8 that part of your argument of volume 6.  2 9 THE COURT:  Yes.  Thank you.  30 MR. GRANT:  Starting at page 60.  And I am ready to commence my  31 argument there, and I believe my friend wants to say  32 something before I start.  33 THE COURT:  Let me just understand what you just said.  You are  34 going to replace some pages that you haven't yet dealt  35 with?  36 MR. GRANT:  Not pages that I have dealt with.  I understand you  37 may have used them for notes, so those ones -- those  38 will only be typos.  39 THE COURT:  Madam Registrar can be doing that while I hear from  40 your learned friend.  41 MR. WILLMS:  My lord, I have a judgment of the Supreme Court of  42 Canada from Friday, which I gave to my friend this  43 morning, which does touch on matters raised in the  44 plaintiffs' argument.  And I just wanted to make sure  45 that my friends had a copy of that argument.  It's not  46 in anybody's authorities, obviously, but it does touch  47 on issues that the plaintiffs are advancing. 25606  Proceedings  1 The second thing is that -- and I'm not suggesting  2 that my friend deals with this right now, but while  3 he's on 646-9-A and 9-B, that is the territorial map,  4 we, in order to understand the case that we have to  5 meet, we would like to know whether or not my friends  6 say that those boundaries, do they -- as part of their  7 declaratory relief do they seek a declaration that  8 other aboriginal peoples have no jurisdiction within  9 those boundaries?  That's something that we've been  10 struggling with in looking up my friends' argument,  11 and these are -- I hesitate to rise in my friends'  12 argument, my lord, but these are things that if we  13 don't have something to go on before we start our  14 argument, we are going to be shooting at perhaps  15 something that we don't need to shoot at.  So that's  16 one question.  17 The other issue which we wonder is do the  18 plaintiffs seek a declaration that as between the  19 plaintiffs, the house boundaries are the boundaries,  20 because my friends have proven all of these, what they  21 call internal boundaries, and we are trying to  22 understand whether or not they seek a declaration that  23 as among the Gitksan and the Wet'suwet'en those are  24 the boundaries.  25 The other point is with respect to the claim  26 against the province in respect of the provincial  27 laws.  And we can't -- we don't understand whether the  28 plaintiffs are only seeking a declaration that within  29 the boundaries on 9-A and 9-B the plaintiffs -- the  30 province's laws don't have any application within  31 those boundaries, or are they only seeking that the  32 laws of the province don't apply to the plaintiffs  33 within those boundaries.  That is, is it inapplicable  34 to the plaintiffs, or are the laws inapplicable  35 generally within those boundaries?  36 And the final question is in respect of the  37 declaration that provincial laws have no application,  38 do those apply to Gitksan and Wet'suwet'en people who  39 are residing outside the boundaries.  In other words,  40 are they seeking it in rem in respect of the territory  41 only so that the invalidity of the provincial laws  42 that my friends advance applies only within 9-A and  43 9-B, or do they say that if a Gitksan or Wet'suwet'en  44 person lives in Prince Rupert and your lordship has  45 made some declaration in respect of a provincial law  46 that it follows the Gitksan and the Wet'suwet'en  47 person?  And as I said, my friends don't 25607  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  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  need to deal with that today, but before they close.  THE COURT: Well, I suppose you say it's part of their case.  MR. WILLMS:  Yes, it is, because we are trying to figure out  what the declaration in respect of provincial laws is.  Is it solely territorial?  Is it territorial limited  to the Gitksan and the Wet'suwet'en people?  And the  other point is do they say they have jurisdiction over  all of this territory in 9-A and 9-B to the exclusion  of all other aboriginal peoples?  All right. Well, I am sure you have heard what your  friend said, Mr. Grant, and deal with it as you may be  advised.  I intend that it will be dealt with as part of my  argument.  All right.  Thank you.  I have no comment on the Horseman case.  I haven't  had a chance to review the decision.  Thank you.  All right.  Mr. Grant, are you ready?  Yes.  This morning I intend to deal in greater or  lesser detail -- in lesser detail with some of the  territories, but just to focus as to where they are  and the evidence with respect to them.  And I would like to start with Gwiiyeehl, Mr.  Chris Skulsh's territory.  That is, he is the head  chief, Gwiiyeehl, the house territory is his house.  There are two of these territories, my lord, referring  to page 60, and they are both referred to in evidence  of Mr. Muldoe, and are both reflected on Exhibit 486,  which is the sketch -- this sketch map, my lord.  That's one that I referred you to last week.  And I  can show them to you on the large map while Madam  Registrar is getting them.  These are the territories  that are -- that's too high -- these are the  territories in here and up here of Gwiiyeehl, in the  Kispiox Valley and up at the headwaters of the  Kispiox.  COURT:  Thank you.  GRANT:  Now, I just referred —  COURT: The northern one -- oh, yes, they are both on the  sketch.  MR. GRANT:  They are both on the sketch, my lord, and that's the  sketch map referred to by Mr. Muldoe.  The first one, the Cullon Creek territory, which  is located the southern most of the two, Mr. Muldoe  was instructed by Mr. Walter Skulsh, the former holder  of the name Gwiiyeehl, and he was advised it belonged  to Gwiiyeehl, and he -- this is how he described that  THE  MR.  THE 2560?  Submissions by Mr. Grant  1 continuity of ownership in his evidence.  2  3 "Well, it was owned by the former Gwiiyeehl for  4 a good many years, and they are still using the  5 same name today.  That could be the Gwiiyeehl,  6 the same name a couple of thousand years ago.  7 But whenever one passed onto the next family or  8 take over the name and it keeps on going like  9 that right up to today."  10  11 And then Mr. Muldoe, of course, on page 61 has  12 heard this territory described in the feast hall.  You  13 go to page 62, my lord.  Mr. Muldoe describes where he  14 has hunted on this territory, and the territory has  15 the reference to the beaver hunting ground on the  16 sketch map, and he has hunted and trapped there.  He  17 explains again who with, Johnson and Jackie Williams.  18 Johnson being Gwiiyeehl's brother-in-law, and Jackie  19 being the grandson of Gwiiyeehl.  So that's that  20 grandfather's right or Amniyetxw, A-m-n-i-y-e-t-x-w,  21 being reflected there as well as a spousal right.  Of  22 course if Jackie Williams is the brother-in-law of  23 Gwiiyeehl, then he's married to someone from his  24 house.  25 The next territory is the Baldy Mountain  26 territory.  That's the small territory much further  27 north.  And it basically comprises the territory of  2 8 the mountain and the area around the mountain.  Mr.  29 Muldoe described this as well, and on page 63 of his  30 evidence quoted where he says that it's quite a high  31 mountain   I'm sorry, at the bottom of the page he  32 said:  33  34 "It's pretty steep, and it's only one way he can  35 come out of those places.  The place they call  36 An Lax Leeyim Huupxwit.  And that's the place  37 where during the early days I believe that some  38 of the people that hunts there, they dig a  39 place into the mountain, oh, about eight or ten  40 inches apart that goes up to about a hundred  41 yards up on the side of the mountain.  That's  42 mostly grass mountain along there.  No rock.  43 They dig those in so you can make a step as you  44 go along there ... if you ask me it must be  45 pretty close to 90 degrees.  Pretty steep.  I  46 say if you stand up three feet away from it you  47 will be falling back.  When you are going up 25609  Submissions by Mr. Grant  1 that hill there with your pack on your face is  2 no longer about ten or twelve inch from the  3 mountain from the ground.  And also you've got  4 to crawl on -- you've got to be pretty well  5 prepared to get out of there.  You got to be  6 crawling on your hands and feet too as well.  7 It's very steep, almost like that.  Like when  8 you standing you can't -- you just about  9 standing like that, and make it really hard to  10 step into all this little dugouts.  If you make  11 any false move in there you down to the bottom  12 of the mountain again, so that's why they named  13 the place An Lax Leeyim Huupxwit.  As far as  14 the Indian call it forehead right next to the  15 earth."  16  17 Now, my lord, I quoted that, and he described how  18 old the steps are on the mountain to demonstrate that  19 it's an example once again of the depth of knowledge  20 and the geographic knowledges of the people, and this  21 demonstrates the basis of the people's ownership of  22 the territory in the plaintiffs' submission.  23 Now, I would like to move to the next  24 territories --  25 THE COURT:  Can you remind me.  Have I heard any other evidence  26 about those steps?  Here is something physical and  27 tangible we could look at, and assess -- I take it  28 they weren't examined by any archaeologists?  The steps, no.  Any pictures of them in evidence?  I don't believe so, my lord.  This is -- these steps  32 are up the mountain, and I think that they are -- and  33 they weren't shown on the viewing, but these are the  34 steps, as I say, that were looked at on the mountain.  35 They were not -- they were -- I will check with  36 respect to photographs.  I don't believe there is, but  37 I can check that.  38 THE COURT:  All right.  39 MR. GRANT:  On the next territory is the Wii Elaast territory,  40 and this is the territory of the House of Wii Elaast.  41 James Angus Jr. is the present chief with that name.  42 And that, once again, is shown on page -- Exhibit 486,  4 3 my lord.  4 4 THE COURT:  Thank you.  45 MR. GRANT:  Both of the territories.  You see up near -- just  46 south of Kuldoe, you see the Wii Elaast territory.  4 7 THE COURT:  Yes.  2 9    MR. GRANT  3 0    THE COURT  31    MR. GRANT 25610  Submissions by Mr. Grant  1  MR.  GRANT  2  3  THE  COURT  4  MR.  GRANT  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  THE  COURT  36  37  MR.  GRANT  38  THE  COURT  39  40  MR.  GRANT  41  42  43  THE  COURT  44  MR.  GRANT  45  46  THE  COURT  47  MR.  GRANT  :  And then down near Kispiox you see a small territory  right along the Skeena River near Kliiyem Lax Haa.  :  Yes, I see it.  :  Now, my lord, I submit that the logic of the  location of those two territories makes more sense  when we understand that Wii Elaast is one of the Wolf  chiefs from Kuldoe.  And of course that's the reason  why he has a territory in the Kuldoe area.  But the  fact that he has a small territory along the Skeena  River, which is described in the evidence, and you can  see that Spagaytasx, S-p-a-g-a-y-t-a-s-w, which is a  mountain that separates it from the Kliiyem Lax Haa  territory, demonstrates that he is one of the Wolf  chiefs from Kuldoe that came down earlier to Kispiox.  That is, he's been there longer than some of the more  recent ones, such as Gyolugyet.  Now, with respect to the northern territory, on  page 66 I refer to the cabins on Exhibit 486 of Wii  Elaast, which are marked as triangles.  And there is a  small smoke house at the creek called Giist flowing  from the mountain.  Now, these were previous locations  seen by Mr. Muldoe, but they are not standing today.  Once again I refer you to Mr. Muldoe's evidence on  page 67 with respect to the Waulp territory.  That  demonstrates that it is a geographic, although it's a  rectangular shaped territory.  It is based on  geographic demarcation, being the mountains.  And  again Mr. Muldoe, as we saw with Mr. Williams,  describes spontaneously in his evidence the boundary  without any difficulty, and he knew it.  Mr. Muldoe  went with the former Wii Elaast in the summer and in  the winter on these territories.  I would like to move to the territory of Wii  Muglusxw.  :  There is another Wii Elaast property up at New  Kuldo, is there not?  :  Yes.  I'm sorry, my lord --  :  That's off this map.  Are you going to deal with it  separately?  :  Sorry, my lord.  There is the territory that is on  this map, Wii Elaast, the northern one is near New  Kuldo.  There is two territories.  :  I'm sorry, that is north of Kuldo?  :  That is -- it's just south of Kuldo -- of New Kuldo,  yes .  :  Yes.  :  And both of the territories are on this map. 25611  Submissions by Mr. Grant  1  THE  COURT  2  MR.  GRANT  3  THE  COURT  4  MR.  GRANT  5  THE  COURT  6  7  8  9  10  MR.  GRANT  11  12  13  14  THE  COURT  15  MR.  GRANT  16  17  THE  COURT  18  MR.  GRANT  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  Yes.  All right.  So there is only two?  There is only two Wii Elaast territories.  Before you leave 466.  Yes, my lord.  I am sure you will come back to it.  Can you remind  me what the evidence is about the territory north of  Kliiyem Lax Haa and south of Gwii yeehl?  Its got a  blue boundary around the south and the east side, and  a red one on the north.  I see what -- I think that it was not -- that's one  crossing over the river, if I recall.  Just a moment.  Oh, yes.  That is the territory Yagosip that Mr. Steve  Robinson spoke to.  All right.  So it's described in the evidence?  Yes, it's described in the evidence, and I'll come  to Yagosip's territories.  All right.  Okay.  Now, here, my lord, there is a -- on page 69 I would  like you to correct something that was missed, that  there is only one territory of Wii Muglusxw.  It says  there are two.  There is in fact only one territory of  Wii Muglusxw.  And this is the Skins Lake territory,  which, as you can see, is a derivative from the  Gitksan word, Skunsnat, and this territory is on  Exhibit 486 as well.  It's again a territory within  the Kispiox Valley, and if you recall a few weeks ago  when I was explaining the wilnadahl of Kliiyem Lax  Haa, I explained that Wii Muglusxw was one of those  Kispiox Wolf chiefs closely related of the -- one of  the closest proximities to Kliiyem Lax Haa.  And an  indication of this is the fact that the Wii Muglusxw  territory is only in the Kispiox area, that is in the  Kispiox Valley, which are generally the territories of  the Kispiox chiefs.  Now, I have summarized the evidence of Mr. Muldoe  on the Skunsnat territory on those two pages, and you  can see that there is some of the markings, some of  the place names are referred to on Exhibit 486, my  lord.  And I had intended under the heading of  Skunsnat to have reference to Exhibit 486 as its  reflected there for your lordship.  I would like to move into the territories of Geel.  Of course, as your lordship has heard, Geel is  Fireweed chief of Kispiox.  Present holder of that  name is Walter Harris.  And there are a number of  territories of Geel.  Now, the first one is Lax Didax,  the first one I wish to deal with, and they are on 25612  Submissions by Mr. Grant  1 Exhibit 486, and it's of course the territory, the  2 furthest northwest on Exhibit 486, my lord, just south  3 of Antgulilbix's territory.  4 THE COURT:  Yes.  5 MR. GRANT:  And -- now, this territory, my lord, it's important  6 for you to note that this is different than any of the  7 other territories, in that this is a territory that  8 the evidence demonstrates is jointly owned by Geel and  9 Dawamuxw.  These are both Fireweed chiefs, and this is  10 the only territory of which Dawamuxw has a claim in  11 this action.  And I would like to -- I refer you to  12 the evidence of Mr. Muldoe with respect to his  13 training on this territory, and on page 72 the  14 evidence halfway down is that Geel and his family hunt  15 and trap on the territories, hunt marten, fisher and  16 beaver, and then Mr. Muldoe's son, Lloyd Muldoe were  17 opening trails in that territory, and he gave evidence  18 of that.  19 Now, Mr. Muldoe testified that the area of the  20 Nangeese River between the two Geel territories and  21 the area to the west of the Geel territory belonged to  22 the Kitwancool people.  And I would just as soon deal  23 with that as I am over there.  And this, my lord, is  24 pretty dramatic.  You can see it's this area here  25 which is like a notch.  2 6    THE COURT:  Yes.  27 MR. GRANT:  Because Mr. Fred Wale was cross-examined by, I  28 believe, Mr. Mackenzie on this territory, and there  29 was a dispute relating to traplines there, but Mr.  30 Wale, who was speaking about the Gwoimt territories,  31 G-w-o-i-m-t, Mr. Wale did not make a claim to that  32 territory, but there was a trapline dispute there, and  33 there is much evidence.  I'm sure you'll hear from my  34 friends on that.  But the important thing is that  35 Nangeese is not part of this court action.  It's  36 understood by Mr. Muldoe to be Kitwancool territory,  37 and it's not part of the claim.  38 Now, the other dramatic incident with respect to  39 this Geel/Dawamuxw territory of Lax Didax is Mr.  40 Muldoe's evidence referred to on page 73 of the chiefs  41 getting together to protect the territory and the fish  42 spawning grounds on it from logging.  And he stated:  43  44 "On that territory there anywhere from along the  45 Kispiox River and runs right up to -- to  46 Antgulilibix up to Kispiox east and upper  47 Kispiox and right into Williams Lake, that's 25613  Submissions by Mr. Grant  1 all spawning ground along there for all species  2 of lake salmon and coho, sockeye and other fish  3 that goes right up there."  4  5 And of course your lordship recalls that a  6 territory of many lakes, and it's obviously a very  7 prime spawning area.  8  9 "It's a real good spawning ground up there and  10 so is right around -- right around Stevens Lake  11 there.  And they started, the forestry started  12 pushing the road on the east side of the  13 Kispiox River, and they just about come right  14 up to right across from Stevens Lake there, and  15 they go that far.  And they haven't logged  16 there yet but they propose to log there.  And  17 also not too far from on the west side on  18 Kispiox River and they go and log right up past  19 Nangeese."  20  21 And reflecting here, of course, past Nangeese  22 going into this area.  23  24 "And they have, I believe, you might see it on  25 the map just where the road is and they are  26 getting pretty close and they were supposed to  27 extend the road and going into Swan Lake, but  2 8 somewhere some way or another nobody want them  29 to go in there ... all the chiefs get together  30 and they protest.  They don't want no -- no  31 logging to be done into Williams Lake, because  32 they have been destroying a lot of different  33 places where the fish been spawning, and one of  34 the best spawning grounds is up there."  35  36 And as the evidence reflects, Mr. Muldoe goes on  37 to explain, I've just summarized it, that three or  38 four years ago the road building stopped and logging  39 did stop there.  40 THE COURT:  Which of these lakes is Williams Lake?  41 MR. GRANT:    It would be — I don't believe it's labelled on  42 this map.  43 THE COURT:  Is it in the Nangeese River notch, or is it in the  44 northerly Geel property?  45 MR. GRANT:  I don't want to — I believe it was in the — I  46 can't be sure of that, my lord.  47 THE COURT:  All right.  Never mind. 25614  Submissions by Mr. Grant  1  MR.  GRANT  2  THE  COURT  3  MR.  GRANT  4  5  6  THE  COURT  7  MR.  GRANT  8  9  10  THE  COURT  11  MR.  GRANT  12  13  THE  COURT  14  MR.  GRANT  15  16  THE  COURT  17  MR.  GRANT  18  19  20  21  22  23  24  25  26  27  28  29  THE  COURT  30  MR.  GRANT  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I'll check that.  I can check it.  It's reflected in Mr. Muldoe's affidavits.  It's  reflected in Mr. Muldoe's affidavit, and I will check  that.  I can find it on the map, I'm sure.  Yes.  And -- but you see Stevens Lake on there.  It's just -- Stevens Lake is within the Geel -- the  northern Geel Dawamuxw territory.  Is it the large one on Stevens Lake?  That's right.  And then Swan Lake is the one just  outside the very large black one.  The large one?  It's much larger, and it's within the Kitwancool  territory.  All right.  Now, my lord, on the bottom of 73 I deal with the  Dawamuxw/Geel relationship.  Dawamuxw has the same  territory as Geel.  In this case the territory should  be found to be held by both Dawamuxw and Geel.  In  fact, my lord, these are the same wilnat'ahl.  Dawamuxw is not shown on the map because he's closely  related to Geel's House.  Now, the proximity is  demonstrated through the genealogies, and rather than  pulling genealogies, I've summarized and given you the  references.  This is how close the relationship goes.  One of the sub-chiefs in Dawamuxw's House was Martha  Niiyasdaxhuuk, and this should be --  Madam Reporter will need a spelling for that.  On page 74.  And that should be referred to as page  73A, my lord.  I'll be correcting that on the disk.  When Martha Niiyasdaxhuuk died, the name was taken  into Geel's House, and the present holder of this name  is Geel's nephew, John Heit, and that's known on both  the Dawamuxw geneaology and the Geel geneaology, and  it's also reflected in the cross-examination of Pete  Muldoe.  Not that particular point, but the other  point of Dawamuxw and Geel being on the same  territory.  Pete Muldoe testified to that in his  evidence.  And so this is the only situation in which  the plaintiffs are saying that with respect to this  territory it is held by two houses.  Now, I would like to refer to the Luu Andilgan  territory of Geel on page 74, and this is is the  territory to the east of Nangeese River, about forty  miles north.  It is the one just south of the Nangeese  notch or actually south and east of the Nangeese 25615  Submissions by Mr. Grant  1 notch.  And the names referred to in the third  2 paragraph are some of the key places in that  3 territory.  Mr. Muldoe testified to ten of those  4 names.  He's hunted goat in that territory, and the  5 place where the goat has been hunted is shown on the  6 map, Exhibit 486.  He also gave evidence about  7 groundhog hunting on the very northern part of that  8 territory.  Of course this is very high terrain.  And  9 then beaver trapping along Sweetin River.  And they  10 are all shown on Exhibit 486.  11 Now, the third territory is the Barker Creek  12 territory.  This is the territory that is at the very  13 top, my lord.  It's a territory acquired by Geel as a  14 result of a Tsiisxw.  Walter Blackwater testified to  15 this territory, and I summarized his evidence there,  16 and it's in Exhibit 605, which is his affidavit.  17 Now, on page 76 I refer to the evidence of Martha  18 Brown.  She travelled on this territory with her  19 mother and her stepfather, the former Geel, when she  20 was between the ages of 12 and 19.  She stopped going  21 to the Geel territory when her stepfather died.  22 Martha explained the territory was beside the  23 Kliiyem Lax Haa territory in the north, and Geel  24 acquired this territory by a Tsiisxw with the Stikine  25 people.  To the north is the boundary with the  26 Tahltans, which she refers to as the Stikene.  27 Martha Brown described some of the geographical  28 features on this territory, that they were right  29 beside each other, and she also, my lord, said that  30 this territory, there were two separate Tsiisxw with  31 the Stikine relating to these territories, that this  32 territory here was acquired through a separate Tsiisxw  33 as a different time than this Kliiyem Lax Haa  34 territory, and it was a killing of Geel's children or  35 members of Geel's House that acquired that.  And  36 that's Martha Brown's evidence.  37 Now, I now wish to refer to the territory of  38 Antgulilbix, Mary Johnson.  And there are two  39 territories of Mary Johnson.  40 THE COURT:  Can you remind me of the reason for the difference  41 in the boundary of the Geel property and the southwest  42 portion of it as between overlay 9-A and -- what is  43 this one?  44 MR. GRANT:  I'm sorry, the other was trapline.  I have it.  I  45 understand.  Thank you.  46 Now, these two territories of Antgulilbix, one is  47 very close to the village of Kispiox on the west side 25616  Submissions by Mr. Grant  1 of the Skeena near Date Creek, and the second one is  2 up on the Upper Kispiox River 50 miles north of the  3 Village of Kispiox, and it's on exhibit -- the second  4 one is reflected on Exhibit 486, and was testified to  5 by Pete Muldoe.  And there should be a notation under  6 Xsi Wis An Skit territory that it was reflected on  7 Exhibit 486, my lord.  8 Mary Johnson in her oral evidence described the  9 main topographical features as being the Upper  10 Kispiox, Mount Kologet and Andap Matx.  Those are  11 shown on the map, and I can see Andap Matx on the  12 Exhibit 486, my lord.  It's at the very top end.  13 Now, she -- Mr. Muldoe testified, as did Miss  14 Johnson, that Tsibassa was the main chief in the House  15 of Antgulilbix who managed and looked after this  16 territory.  The present Tsibassa was too ill to  17 testify, because of his health, and Mr. Muldoe  18 testified.  I believe that was explained by Mr. Muldoe  19 or Mr. Sterritt.  20 Now, in this northern territory, my lord, on page  21 79 I refer to the fact that there is no evidence of  22 logging or mining on this territory at all.  And Mr.  23 Muldoe testifies that he knows the territory.  He's  24 been shown the boundary, but he hasn't seen a map of  25 the territory at that time.  And Delgamuukw's  26 territory joins right together with this, according to  2 7 Mr. Muldoe.  28 Now, with reference to Exhibit 17-9-B, Mrs.  29 Johnson said that there is a place where the murder of  30 Yeel took place -- on page 80.  31 THE COURT:  Yes.  32 MR. GRANT:  And this is how the ridge got its name.  And I  33 referred you to that, but there is a tree standing  34 there smeared with blood and that's their own paint,  35 and a crest on the tree of the sun.  The sun was put  36 there because it belongs to the Gisgaast, the  37 Fireweed.  You recall the Sky children adaawk of the  38 Fireweed clan, and that's part of where that crest  39 arises from.  And then the tree represents the  40 compensation that's an exchange of blood, and it won't  41 be taken back until the end of the world.  And she  42 went on to describe the particular compensation, what  43 occurred in the murder of Yeel.  Now, that territory  44 is reflected there, and it is shown on Exhibit  45 646-9-A.  46 I would like to go to the territory of Andamhl.  47 And this territory is a territory that my learned 25617  Submissions by Mr. Grant  1 friends make much of in their summary of argument.  2 First of all Mrs. Johnson tied this territory to the  3 adaawk of the one-horn goat, and I am not going to  4 repeat what was said there, because that's already  5 been referred to in evidence or in argument I should  6 say.  But on page 82 she refers to the fact that the  7 village on that mountain in the adaawk is called Wilt  8 Galli Bax, and then she describes Wilt Galli Bax where  9 they hunted for groundhogs.  And this is reflected in  10 the adaawk, and this is an example of where the adaawk  11 ties to the territory.  12 And if I can take you to page 84 of my argument,  13 my lord.  Mrs. Johnson identifies this Andamhl site as  14 being a mountain behind Glen Vowell village.  She  15 identifies Exhibit 17-9-A as a map of the territory.  16 On the other side of that boundary she described --  17 she identified a boundary as Xsan Max Hlo'o.  On the  18 other side of the boundary the territory belongs to  19 Ma'uus.  20 Now, we say, My Lord, one element of the houses'  21 knowledge of the territory, which is important for  22 defining the boundaries and for ownership, is the  23 element of presence.  And Mrs. Johnson testified about  24 her great great grandmother using cedar bark for dye  25 from the territory, and her Aunt Emily Latz hunting  26 and trapping on the mountain in this territory.  She  27 was told about the territory from her great great  28 grandmother.  She reiterates in her evidence that this  29 was known as Antgulilbix's hunting ground, and she  30 describes the uses of the territory for hunting  31 groundhog, for berry picking.  32 Now, I refer to when she took the name on the  33 bottom of page 85 and on page 86, my lord.  Mrs.  34 Johnson testified in cross-examination, she was told a  35 few days before testifying the territory on the other  36 side belonged to Johnathan Johnson, Ma'uus.  Her  37 grandfather never mentioned this territory to her, but  38 she believed what Johnathan Johnson said.  Now we are  39 not relying on that statement of her alone to say that  40 that's Ma'uus's territory.  In fact Jeff Harris Sr.  41 gave detailed evidence about the Ma'uus territory, but  42 she knew who Johnathan Johnson was, and she agreed  43 with him.  But that, as I say, isn't proof of the  44 territory of Ma'uus, and it was never intended to be  45 so.  46 MR. WILLMS:  My lord, it was Mr. Sterritt that told her what  47 Johnathan Johnson said.  It wasn't Johnathan Johnson 2561?  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  directly.  THE COURT:  That's correct.  MR. GRANT:  I know that, and I'm sure you recall that, my lord.  I wasn't suggesting anything else.  Now, Mrs. Johnson also identified Xsu Wil Masxwit,  another creek on the territory, and that's a creek  that flows from the mountain called Wil Masxwit.  She  was cross-examined between the difference of her  evidence and her interrogatory affidavit, and it was  suggested that she was not aware that Ma'uus's  boundary was different.  What she said was:  "No.  I was told by my grandmother and Aunty  Emily, later, that our boundary is Xsan Max  Hlo'o.  That's the creek and we didn't claim  Ma'uus territory."  Here referring to the territory to the north.  Later by Mr. Goldie's cross-examination she verified:  "No we didn't say we owned the whole mountain,  we said that -- that there is a clearing where  Gyadim Lax Ts'inaast lives."  This is that mountain where that fairly powerful  and frightening person lived that you may recall I  referred you to last week or two weeks ago.  "But right on top of the mountain is Ma'uus,  they showed me on the map.  But ... is where  this mean man lives, and that's where Xsan Max  Hlo'o runs down, that's our boundary."  Now, I say, my lord, that the evidence of Mrs.  Johnson on this point is consistent with the evidence  that on the other side this is the territory of  Ma'uus.  Now, she wasn't sure whose the territory was, but  she knew it wasn't her territory, and that's the  point.  That's what she was taught by her grandmother.  Now, she was asked about the territory to the north of  Andamhl, and she says:  "It's so plain, sir, this Wil Masxwit.  The  mountain is called Wil Masxwit.  That's where  our ancestors got the mountain goat, main food,  and groundhog that they used the skin for the 25619  Submissions by Mr. Grant  1 feasts, and this Wil Masxwit and Xsu Wil  2 Masxwit comes from Wil Masxwit and runs into  3 Kispiox River.  So they call this Xsu Wil  4 Masxwit -- Antgulilbix' Genip Jap.  That means  5 that Antgulilbix' hunting ground in the ancient  6 time.  So next to Xsu Wil Masxwit is Ma'uus  7 boundary ..."  8  9 Now, she was asked then if she knew where Ma'uus'  10 territory was, and she said yes, she knew where it was  11 before she spoke to Mr. Sterritt about the map.  12 Now, again what she is reflecting is she knew it was  13 not her territory.  14 Now, Marvin George then testified to the creation  15 of 17-9-A, and I've referred you to that, because much  16 is made of that map, and he stated:  17  18 "This is a map of Antgililbix and it's on a  19 scale of 1:50,000 also, and again a topographic  20 series, and again from the base that was  21 prepared for by Terra Surveys.  And boundaries  22 from -- on this particular map different from  23 the boundaries on the previous map and would be  24 based on information that was brought to me by  25 Neil Sterritt."  26  27 Mr. George explained what led him to make the  2 8 change.  29  30 "It would be previous to May 13, the day May 13  31 on this map, which would indicate that's the  32 day that I finished preparing this actual map,  33 but the information would have come to me  34 before that ... again information from Neil  35 Sterritt, his understanding of where Xsu Wil  36 Masxwit was.  It was identified as Date Creek,  37 and the location of Date Creek is the -- where  38 Xsu Wil Masxwit as labelled.  It's -- Xsu Wil  39 Masxwit.  Date Creek on the NTS series is where  40 this particular feature is labelled on this  41 map."  42  43 As a result Mr. George made the alteration  44 depicted on Exhibit 646-9A, which is the claim that we  4 5 have.  46 Now, what's important here, my lord, is to  47 remember that we have other witnesses testifying to 25620  Submissions by Mr. Grant  1 this as well.  2 Mary Moore testified to the territory of  3 Luutkudziiwus immediately south of this territory, and  4 she said with respect to where it abutts on  5 Antgulilbix:  6  7 "Here it runs east about two miles along the  8 height of land to Andamahl, and it continues  9 east to the source of Xsi Moolaa.  It then runs  10 down Xsi Moolaa to Xsan.  It then runs down the  11 centre line of Xsan to the starting point."  12  13 Now, Mrs. Moore stated in her affidavit that  14 Antgulilbix's territory was to the north.  And she  15 also said Xsi Moolaa is also called Sika Doak Creek,  16 and said that was the boundary, and this is in her  17 evidence of cross-examination, between Antgulilbix and  18 Luudkuziiwus.  19 My lord, what's important about this is that when  20 any of these territorial witnesses were cross-examined  21 on the territories, you would find this, and it's  22 important because the defendants then took an approach  23 in certain cases to not cross-examine, and that's, of  24 course -- these are the ones where they are making  25 much of the apparent contradiction.  26 She also said -- on the other side of the mountain  27 bordering her territory was the territory of the  28 Kitwancool people.  The name of the mountain is  29 Andimahl, and again that's consistent with the  30 evidence of Mary Johnson.  There were no other  31 questions put to Mrs. Moore concerning the location of  32 the boundary with Antgililbix, or the fact that  33 Antgililbix owned the territory to the north of the  34 described boundary.  And what I say, my lord, is if  35 the defendants are going to rely upon some mapping  36 discrepancy to challenge the reputation of  37 Antgililbix, they should put to that neighbouring  38 chief what she knows about that.  And they declined to  39 do so, because they know full well that if they did it  4 0 would undermine their own argument.  41 Now, again what happens regarding this territory  42 is Jeff Harris Sr. spoke to the Ma'uus territory to  43 the north, and I have given you the description and  44 explanation there.  You find a fascinating occurrence  45 here, because Mr. Harris was asked no questions in his  46 cross-examination about the boundary description  47 between Ma'uus and Antgililbix.  He was cross-examined 25621  Submissions by Mr. Grant  1 in court.  He was not examined about the ownership of  2 the territory to the south being in the House of  3 Antgililbix.  And once again, any challenge to the  4 reputation of that Antgililbix territory should have  5 led to a questioning of that witness as to the  6 territory to the north, but it wasn't.  7 Now, I say, my lord, that on both the south and  8 north of the Antgililbix territory, Andamahl, the  9 defendants chose not to examine on the boundary  10 description.  Hence, they must now be taken to have  11 accepted those descriptions of Mrs. Moore and Mr.  12 Harris.  13 Now, I refer back to Exhibit 17-9-A and Mr.  14 George's evidence of the 17-9-A mapping.  And Mr.  15 George refers to the change on the bottom of page 91.  16 Mr. Sterritt on page 92 testified that he provided  17 information on which Exhibit 19 was drawn, and Exhibit  18 19 was different than 19-9-A.  And he referred to  19 David Gunanoot and Percy Sterritt and others in his  20 evidence.  Now, he went on to explain, and this was in  21 cross-examination, how the assumption he had operated  22 on that Date Creek was Xsu Wil Masxwit was wrong.  He  23 said:  24  25 "... It was -- while listening -- and I had  26 gone through interviews with Mary Johnson under  27 that assumption, and it was while listening to  28 the cross-examination of Mary Johnson in  29 Smithers, I was in the Court and listening, and  30 I realized that there was something wrong,  31 something wasn't fitting with -- and I didn't  32 know what it was.  There was just something  33 didn't seem right in terms of what she was  34 explaining, because she was saying it  35 correctly, but what she was saying and what my  36 understanding was.  So I did not talk to her, I  37 went to my Uncle Percy, and I asked him 'Can  38 you tell me which way -- or where Xsu Wil Masxw  39 is?'  And he said 'Yes, it's Date Creek, but it  40 turns right when you go further up Date Creek.'  41 And I confirmed that, I talked to Jeff Harris  42 as well, and I asked him if he could show me  43 where Xsu Wil Masxw went.  So if you -- in  44 fact, if you come up Date Creek.  45 Q   Okay.  Now, just let's -- to assist us here, if  46 we can start at the time at this Kispiox River,  47 where does Date Creek, the creek that's named 25622  Submissions by Mr. Grant  1 Date Creek start?"  2  3 And then he describes where it starts on the next  4 page, and then in the second paragraph of his answer:  5  6 "So that was a major assumption that I made, and  7 a problem -- I've encountered that kind of  8 problem before but not to this degree where one  9 creek can have over its length, three different  10 names.  And I was unable to determine what the  11 balance of the name of the creek was, of Date  12 Creek, but I established that Xsu Wil Masxw  13 continued on up to the northwest.  14 Q   All right.  And do you recall about when it was  15 you had the conversation? "  16  17 And he describes that.  Now, in summary, my lord,  18 as a result of Mrs. Johnson's testimony, Mr. Sterritt  19 came to understand that Xsu Wil Masxw is only a  20 portion of Date Creek on the northern part of the run  21 of the creek to the mountain tops, and this was  22 confirmed by Jeff Harris and Percy Sterritt.  And of  23 course this is the very boundary that Jeff Harris  24 testified to in his evidence, in his affidavit, and it  25 was this information that Mr. Sterritt subsequently  26 passed on to Mr. George, and which Mr. George mapped  27 on Exhibit 646-9-A.  I submit, my lord, that the  28 information spoken about in testimony by Mr. Johnson  29 was correct.  Mr. Sterritt misunderstood the  30 description and incorrectly mapped it.  This was not a  31 weakness in the source or body of the information, but  32 a weakness in the mapper's comprehension.  And I say  33 that's where the focus is.  It's a mapping issue and  34 not an issue with respect to the territory.  35 I would like to move into the territories of Wii  36 Minosik, of which there are four, my lord.  One of  37 these territories, the first one I referred to is  38 Smokee Lake.  And this territory, Wii Minosik, is  39 reflected on Exhibit 486, and you can see it's on the  40 east -- the east shore of the Skeena just north of Old  41 Kuldo.  It's a very small territory outlined in green,  42 my lord.  4 3    THE COURT:  Yes.  44 MR. GRANT:  Mr. Muldoe will be — now, Mr. Muldoe described this  45 in his evidence, and he was instructed by Able Tait  46 and Luus and Albert Tait, Delgamuukw.  He travelled  47 the territory with Able Tait and was told the 25623  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  boundaries.  And he reflects that in the territory  description that he gives where he says:  "Yes they tell me about the boundaries of the  territory.  But as we travel along, me and Able  Tait, we travel along above.  That's where we  have his trapline.  We can see all this area  down here and he pointed out to me all this  territory who it belonged to."  In describing the territory thus he pointed to the  boundary around the Wii Minosik territory.  And he  testified that he heard this described in the feast,  and he testified when he travelled along the foot  trail on the west side, west of the Skeena River on  the way to Shaladamus, he could observe the Smokee  Lake territory from there.  The next territory is the Xsandap Matx or Fort  Creek territory.  And Mr. Morrison was permitted to  speak by Robert Stevens on this territory.  It's about  48 miles northeast of Kisgagas, and is to the east of  the Ant Gilek territory of Waiget.  I would like to pause there, because I don't  believe I am coming back to Exhibit 486, and I would  like to refer you, my lord, to answer a question you  raised on Friday -- Friday a week ago to page 45 of my  written argument earlier.  And this is with respect --  :  In this volume?  :  Yes.  Should be in that volume, my lord.  This is  with respect to the Wii gyet territory.  As you  recall, you asked and questioned why this territory  was so oddly shaped and elongated.  And then the  second paragraph on 45 I have summarized the evidence  which explains it.  In fact, my lord, this Wiigyet  territory is comprised of three different parts.  The  northern part was originally owned by people of  Kuldoe, by Luu Goo Mx of the House of Wiigyet.  The  part of the territory at Deep Canoe Creek, which is  the middle part of the territory, my lord, and you can  see Deep Canoe on Exhibit 486 was owned by Wiigyet and  Am Mayt Lilixws, and the south eastern portion of the  territory, that area closest to Kisgagas, was owned by  Wii Seeks and Waiget.  Now, these houses, I am referring here to Wiigyet,  Wii Seeks and Waiget, were separate, but are now  combined, and of course they are all Fireweed.  So  what you have in fact here is something that could 25624  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  look and it could have been drafted as well like the  Gyolugyet territory, where you see the Gyolugyet  territory has three divisions reflecting it.  And the  Wii gyet territory -- yes, this territory here could  equally have been divided here and in this area and  have the three portions.  And that explains the  discrepancy.  And you will find -- and I come to the Wii Gaak  territory, the same kind of thing happens with Wii  Gaak.  It's divided actually amongst different chiefs  among the house.  That was the reference I had  intended to refer you to last Friday and hadn't found  them.  THE COURT:  Thank you.  I notice on the 46 there is another  territory that doesn't seem to be assigned.  That's  immediately south of that most south easterly portion  of Wiigyet's territory.  MR. GRANT:  Yes.  THE COURT:  West side of the Skeena.  MR. GRANT:  Yes.  The reason those aren't shown is because the  only territories depicted were the ones that Pete  Muldoe spoke to, and that particular territory there  is -- that appears to be -- that's part of the Gwoimt  territory, but you see Gwoimt crosses over the Skeena  River.  The major part is on the side -- the east side  of the Skeena River, but it crosses over there.  So  that's part of the Gwoimt territory.  And that  territory was testified to by Fred Wale.  THE COURT:  Thank you.  MR. WILLMS:  My lord, does my friend have evidentiary evidence  to the three different parts of the territory that he  just referred to?  MR. GRANT:  It's cited on page 45.  Volume 103, pages 65-20 to  65-23.  I would like to refer to the second territory of  Wii Minosik, the Xsandap Matx territory.  And that's  reflected on Exhibit 379, my lord, map A.  And it's  this inverted L-shaped territory that is here, my  lord.  THE COURT:  Yes.  Thank you.  MR. GRANT:  Now, this territory was spoken to by James Morrison,  and as I say, it's located 48 miles northeast of the  village of Kisgagas and to the east of the Antgililbix  territory of Waiget.  Now, that, of course, is a  territory that is now claimed by Weget, but the chief  within the Weget House is Wiigyet that is responsible  for it, and I referred you to that last week. 25625  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  THE  COURT  14  MR.  GRANT  15  THE  COURT  16  MR.  GRANT  17  THE  COURT  18  MR.  GRANT  19  THE  COURT  20  MR.  GRANT  21  22  THE  COURT  23  MR.  GRANT  24  THE  COURT  25  MR.  GRANT  26  27  28  29  THE  COURT  30  MR.  GRANT  31  32  33  THE  COURT  34  MR.  GRANT  35  36  37  38  39  40  41  42  43  44  45  46  THE  COURT  47  Now, on the bottom of page -- or Mr. Morrison's  knowledge, of course, came from his father, Simon  Morrison, as well as the other persons listed at the  top of page 97.  He hunted on the territory with the  permission of Wii Minosik, and he hunted goat on the  territory beyond Fort Creek.  He described the trail  that he went up at shown on Exhibit 37 9-A, and you can  see the route of that trail, and he went to the camp  indicated by the triangular marker, which is Wii  Minosik's camp on the -- right in the elbow, the  inside of the elbow of the map.  Do you have that?  Yes.  Exhibit 379, the sketch map, my lord.  I don't think so.  378, 379.  Is it here?  Oh, thank you.  Then you can see the trail.  Yes.  I have it.  There are two.  One's coloured and the other isn't.  And it's map A, my lord.  Is this the A, B series?  It's the A, B series.  I didn't think it was.  Yes,  Now, you can see, of course,  Gitangasx, which is identified on map A of that  series, and that was identified by Mr. Morrison in his  evidence.  You said Gitangasx?  Gitangasx. It's outside the territory but it is  reflected on the map. And on the bottom left-hand  corner, my lord --  Yes.  -- Mr. Morrison identified a photograph of the -- of  this territory, and he named 18 land features by  Gitksan names on this territory.  The next territory I would like to refer you to is  from the B map, and it's another territory of Wii  Minosik.  It's the Gwin Dak territory.  And it's the  small territory surrounded by Tsa Bux on two sides and  Wiigyet to the north.  This territory is -- this  territory here that's being referred to, my lord.  So  it's much closer to Kisgagas area, and it's the area  where they go on the mountains, and then this small  territory, which is a small mountain --  Where is -- not Kisgagas, the other one.  The one we  just mentioned.  all right.  there the village of 25626  Submissions by Mr. Grant  1  MR.  GRANT  2  3  THE  COURT  4  MR.  GRANT  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  THE  COURT  30  MR.  GRANT  31  THE  COURT  32  MR.  GRANT  33  34  THE  COURT  35  MR.  GRANT  36  THE  COURT  37  MR.  GRANT  38  39  40  41  42  43  44  45  46  47  Gitangasx would be up in this area here.  Gitangasx  Creek is there.  Yes.  Thank you.  Now, this, as I say, is located eight miles north of  Kisgagas above Sperry Creek, and the main feature of  the territory is the mountain called Gwin Dak, and  that's why the territory is, of course, referred to  that way.  And it's an example where everybody knows,  that is knowledgeable chiefs in the feast know when  Gwin Dak is referred to, they know the territory that  is being referred to.  And this is the one where there  is significant goat hunting, and Mr. Morrison's son  described where he has hunted goat on that territory.  I refer to on page 100 of my argument, I refer to  all of that.  And I would ask you to note, and I don't  need to read it, but the evidence of Mr. Morrison of  his presence, and the knowledge of the training  regarding hunting on page 100 and 101.  And the final territory of Wii Minosik is the Dam  Tutsxwhl Ax, Blackwater Lake territory of Wii Minosik,  and this is a territory described in evidence by  Walter Blackwater of the House of Niist.  And he had  permission.  He was instructed about this territory by  his father, Jimmy Blackwater, who was the former Wii  Minosik, and by his grandfather Moses Stevens, the  former holder of the name Dawamuxw, and his  grandmother Esther Stevens.  And he goes on to  describe who else referred him to that territory.  That is north still of map A, is it not?  Yes, my lord.  Not shown on this map.  Not shown on that map.  It's the small area, I  believe, that I referred you to over here.  Yes.  It's this large area here.  Yes.  All right.  It's much further north.  That's said to be 55 miles north of Kisgagas?  Yes.  It's a large territory, and of course the  reason Walter Blackwater gave evidence of it was  because -- and was given permission to, is because he  was brought up on this territory, and it being his  father, the former holder of the name Wii Minosik.  In cross-examination Mr. Blackwater stated that Mr.  Stevens was familiar with the boundaries, but didn't  know the names of these places and mountains.  And  he -- Robert Stevens traps on the territory with David  Blackwater, and they did that up to two years ago.  And this is the territory that Mr. Blackwater 25627  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  THE  MR.  THE  COURT  GRANT  COURT  COURT  GRANT  COURT  MR. GRANT  my  book.  I see it up  testified that his parent's house is behind the lake  on this territory.  And he testified that between 1948  and 1966 he trapped with his father in the area of  Blackwater Lake.  So he named 26 features on this  territory that he knew.  I am going to come back to the territory to the  south of that, and we'll return to Moses Stevens at  that time.  The next territory I wish to deal with, or the  next house territories, are those of Wii Gaak.  And  the first territory is the Barker Creek territory,  which was testified to by James Morrison.  This is the  territory 65 miles north of the village of Kisgagas.  And it's shown on Exhibit 379, my lord, the sketch  map, and it's the furthest north of the Wii Gaak  territories.  It's this one here.  Yes.  I don't know that it's on 39.  Well, it's on map A.  Is that 378 on your copy,  lord?  Oh, 378.  I'm sorry.  Did you say 379?  Yes.  I don't know that that's in this  I'll leave that for your reference.  Thank you.  Thank you.  Yes, all right  here.  Yes.  Thank you.  Now, there is an interesting -- in terms of the  legal proposition that is being argued in this case,  there is an interesting twist to this territory, my  lord.  If you go to page 105, you can see the evidence  of my argument -- the evidence of Mr. Morrison as to  the acquisition of this territory by Wii Gaak.  It was  previously held by Wii Minosik, but was transferred to  Wii Gak by Jack Wright because Wii Gaak had helped the  House of Wii Minosik, and he stated:  "He helped him at the feast; he helped him also  other things."  He goes on to describe him on the trail.  " ... and they both working together on Wii  Minosik so the only way they can thank him is  to give him a portion of land, and another  thing is why they were given that land, portion  of land to them, because they have the land of  themselves, hunting ground.  So the way they  change these people is give something which is  the livelihood in those days where they can get 2562?  Submissions by Mr. Grant  1 food, and this is why they were given this  2 portion of land because Wii Minosik has large  3 portion of land himself so that's the reason  4 they are given to Ax Moogaasxw, which is Jack  5 Wright, and also the witness of the Clan  6 Fireweed, Frog Clan and the Wolf clan, also the  7 witness to approve what was taken in that feast  8 hall.  That is why it's important in the feast  9 hall and what was taken place in the feast  10 hall."  11  12 Now, Wii Minosik held the territory, according to  13 the evidence of -- and that should be volume 93.  14 THE COURT:  You said 83?  15 MR. GRANT:  You see -- yes, in the second paragraph I say volume  16 83.  It should be 93, page 5196.  17 THE COURT:  Yes.  18 MR. GRANT:  According to James Morrison's evidence Wii Minosik  19 held the territory for thousands of years, and -- but  20 it was during Jack Wright's lifetime it was transfered  21 to the House of Wii Gaak.  And you can see with  22 respect to that territory on Exhibit 646-9A that under  23 the name Wii Gak you have the sub-chief's name Ax  24 Moogsxw, because that's who Wii Minosik gave to within  25 Wii Gaak's House, but it's within the understanding  26 that it's in Wii Gaak's House.  27 Now, it's our submission this is evidence of the  28 internal authority of the chiefs in dealing with the  29 territory.  30 The evidence is clear that at the time of contact  31 this was Wii Minosik territory.  So if your lordship  32 finds that that is a triggering event in terms of  33 declarations of ownership of house territories, the  34 territory is Wii Minosik's at that time, but it was  35 later transferred to Wii Gaak.  And I say that this is  36 an example of the internal authority of the chiefs, my  37 lord, that I have described in evidence and in  38 argument before.  And it allows such transfers to  39 occur internally.  And that's why it's referred to as  40 the Wii Gaak territory.  41 On page 106 Mr. Morrison testified about his  42 meaning of the caretaker role in relation to this  43 northern territory of Wii Gaak, and he said, and I  44 quote him, and I don't need to repeat that, but I say,  45 my lord, and he said that it's a law -- that there is  46 a Gitksan law that permits the transfer of territory  47 from the chief of one clan to the chief of another. 25629  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  And I say, my lord, in this case the transfer is  witnessed in the feast.  And I say, my lord, that this  is very unusual that this has happened in this way,  but it did happen in this case, and it's not an ad  hocery to the system, but it is dealing with different  types of circumstances and how they are handled by the  chiefs together.  It was clear from Mr. Morrison's evidence, my  lord, that if it had not been announced at the feast,  that this transfer would not have been recognized in  the same way.  Do we know when Mr. Jack Wright was alive?  Yes, my lord, through the genealogies of Wii Gaak we  know.  I believe Mr. Jack Wright died -- it's either  the late -- mid or late seventies, as I recall.  So  it's about that time.  And he was -- he was Thomas  Wright's -- I believe he was his brother, if I  remember rightly.  So it's around that period of time.  So he -- this would have occured in the earlier part  of the century.  I would like to refer briefly to the An Gil  Galanas and Xsu Wii Ax or Sustut River territory.  Perhaps we'll take the morning adjournment before  you do that.  Sure.  THE REGISTRAR:  Order in court.  Court stands adjourned for a  short recess.  (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS)  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABIILTY.  THE COURT  MR. GRANT  LORI OXLEY  OFFICIAL REPORTER.  UNITED REPORTING SERVICE LTD. 25630  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 11:35)  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Grant, the schedule you suggested, as I have it,  is satisfactory, except that I'm not sure that I can  be ready to start tomorrow after my other commitment  until 5:30, and I think that that should be 5:30 to  7:00 if you want to move an hour ahead, if that's  convenient.  MR. GRANT:  I'll discuss that at noon with counsel doing that,  and of course we'll try to move it as close to 4:00  o'clock.  THE COURT:  I think the best I can do is say 5:30 to 7:00,  something like that.  MR. GRANT:  Yes.  That would be — my lord, I'm not sure what I  said today, whether we'll go to 4:00 or 5:00.  THE COURT:  Today you said 4:00.  MR. GRANT:  Yes.  It may be that we need to go until 4:30 in  light of what's happened, but --  THE COURT:  All right, 4:30, sure.  MR. GRANT:  I was referring to Sustut River territory, which  belongs to the House of Wii Gaak.  Wii Gaak, as you  may recall, my lord, is a Wolf Clan chief from  Kisgegas, and this territory is located along the  Shelagyot, Sicintine, Squingula, Sustut and the Skeena  River north of Kisgegas.  I'm on page 107.  THE COURT:  Yes.  MR. GRANT:  Now, once again, my lord, this is territory similar  to Wii Gaak's territory that is very long and  elongated, and in fact, encompasses a number of  different groups of chiefs within that territory  within the house.  Now, this territory was described  by the present holder of the name Wii Gaak in Exhibit  601, and he was cross-examined on that.  Now, if you go to page 108, my lord, I explain  once again that, and the reason I listed all those  rivers is that because the territory is actually  subdivided.  Different parts of the territory are  looked after by other chiefs in Wii Gaak's house.  Mr.  Sterritt's part was close to Sustut River, where his  mother's side of the family traps, and that's  reflected in his evidence.  It's all one territory  with different names.  Mr. Sterritt identifies a  smaller Wii Gaak territory, and this is the Barker  Creek territory that I've referred you to already, and  he described the boundary around the Barker Creek  territory.  Now, Mr. Sterritt dealt with a timber 25631  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  supply area north of Sustut because that area is in  his house territory, and that was elucidated in  cross-examination.  Now, Mr. Sterritt, on page 109, described going  out on the territory, and I think this demonstrates  how the different parts of territory were used and how  they were accessed.  He said:  "Wii Gaak has a trail out from Kisgegas" --  Now, if you look at Exhibit 378, by the way, my lord,  you will see the Wii Gaak cabin right at the very  southern end of the map.  It's outside of those  territories, but you can see it.  This is on the south  of the Wii Minosik territory.  :  Yes.  :  And that of course is reflective -- that's quite far  up in the territory up in here in the northern area,  and that's where the evidence is of him going up, how  they access the territory through going through it.  Now, before 1984, Mr. Sterritt had regularly hunted on  that territory:  "Wii Gaak has a trail out from Kisgegas, and it  goes up An Makhl" —  I'm quoting from page 109:  "-- they call it and this is in the olden days,  if you are going to put a trail through  somebody's territory, you get their permission  and you use it as a trail only.  And Wii Gaak  did this, take a short cut up into the sort of  southwest corner of his territory.  Now, this  trail, which I think I have described on a part  of the territory, it goes up into the  mountains, Tsim an Makhl, where you go through  sort of a valley and you cut over a pass down  in towards Shelgyote.  Now this trail continues  right on up to Sicintine and it goes to the  valley of Tsuusgwin Xsi Gwin Gwila'a which  flows more or less south.  That's a tributary  of Xsi Gwin Gyila'a...so that pass is where the  trail goes through down into Wii Gaak's, where  he lived on the north side of the Sustut  River....There is a cabin, it's about half a  mile or three quarters of a mile going north on 25632  Submissions by Mr. Grant  1 the Skeena.  There is sort of a low land closer  2 to Sustut, so they go up on a height of land, I  3 was there when my father had a cabin there.  He  4 was trapping with my brother, and that's where  5 Wii Gaaks, that's where they usually camp and  6 work out from there.  So in this area I am  7 talking about that was the height of land  8 between Wii Gaak and Tsabux.  And so we used to  9 go into it to hunt goat and moose around in  10 that area.  So it's for years and years we have  11 a cabin up in that area."  12  13 Thomas Wright also trapped on the Wii Gaak  14 territory, and he gave evidence, Thomas Wright in his  15 commission evidence referred to that.  His older  16 brother, Simon Wright, took the name of Wii Gaak, and  17 he died in 1966.  Now, I have here the reference to  18 Jack Wright, who took care of everything on Wii Gaak's  19 territory.  He didn't hold the name because he was  20 quite bedridden, and when he died in 1982 Mr. Sterritt  21 took the name.  Now, that was 1982.  That was Jack  22 Wright who I referred you to earlier, my lord.  2 3    THE COURT:  Yes.  24 MR. GRANT:  Nii Kyap has the territory to the east of Wii Gaak,  25 but both chiefs came out of the same house and came  26 from Gitengas.  And this is a reflection on both Wii  27 Gaak and Nii Kyap are both Wolf chiefs with the same  28 ancient origin, so they're part of the same Wilnadahl  29 but their territories are separate, they're seen as  30 separate houses, now they're understood to be separate  31 houses.  32 On page 111 I refer to the fact that Mr. Sterritt  33 confirmed that he has not completed the name, and on  34 the bottom of page 110 and the top of page 111, my  35 lord, in cross-examination Mr. Sterritt was directly  36 asked -- this is one of the defence theories that was  37 put to him, whether an earlier Wii Gaak got the  38 territory after the Hudson's Bay Company came in in  39 1820, and he said in answer in cross-examination:  40  41 "Now, there's a lot of people living there,  42 years and years ago, long before the Hudson's  43 Bay people.  Why would a territory like that  44 just be sitting empty, nobody claiming it and  45 if Thomas said that the land was unoccupied Mr.  46 Sterritt said he didn't know his exact  47 meaning." 25633  Submissions by Mr. Grant  1 Now that, my lord, I'll check the exact quotation  2 because that last part is clearly not a quote, but  3 that is the reference in the evidence.  4 THE COURT:  What is that, page 48 and 49?  5 MR. GRANT:  Yes.  I'll give that to you.  That is Exhibit 601-A.  6 THE COURT:  601-A page 48 and 49.  7 MR. GRANT:  Yes.  That's the cross-examination of Neil Sterritt,  8 Sr.  9 THE COURT:  Thank you.  10 MR. GRANT:  I would like to move now to the territory of Tsabux,  11 and there are three territories of Tsabux.  The first  12 one is the territory reflected on Exhibit 378, map B,  13 and this is a territory -- this is a territory about  14 25 miles north of Kisgegas, and it's a small  15 territory, my lord.  There's two territories referred  16 to on that map.  17 THE COURT:  Is the northeastern —  18 MR. GRANT:  This is the northeastern of the two, and it's this  19 small territory in here, and then there's another one  20 that's longer.  Now, I'm not going -- I've reviewed  21 the evidence there, and I only say that with respect  22 to this, that the territory, as Mr. Morrison says, he  23 described:  24  25 "Where the snow is hard and it is like cement...  26 during the hunting season it's just really  27 solid.  It is not a crust, it is something in  28 between this mountain that is really solid."  29  30 And this is the meaning of the name of this territory.  31 And there's a cabin on the territory that he  32 describes.  33 Now, I would like to refer you to the Shelf Ridge  34 territory, which is the -- also depicted on Exhibit  35 378, and it's the territory that comes down and  36 encompasses Kisgegas south, and again, James Morrison  37 described that in his evidence.  He was told about  38 this territory by Alec Brown, Thomas Wright, Henry  39 Wright, Simon and Jack Wright, David Gunanoot and  40 Simon Morrison.  Now, the major features of this  41 territory are Lax An Hakw or Shelf Ridge, my lord, and  42 you observed that in the course of the viewing.  If  43 you can go to page 115 and if you have Exhibit 378, my  44 lord, as well, you can see the prime area of Tsim An  45 Gokhl, which is the mountain on the easterly side of  46 this territory, which was used for goats, and this  47 particular mountain, which is marked out, was held by 25634  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.  COURT  GRANT  THE  MR.  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  COURT  GRANT  THE  MR.  THE  COURT  GRANT  COURT  Wii Gaak.  So that is like an enclave within the  Tsabux territory that is held by Wii Gaak, and it's  shown there, and I think you have that.  Yes.  I refer to that on page 115, my lord.  Now, I would  like to go to page 117, because something was made of  the common hunting area around Kisgegas, and Mr.  Morrison described this in his evidence.  On page 117  I've summarized it.  It was agreed by the people of  Kisgegas there would be a common hunting area open to  the people of the village.  There was also a common  trapping area.  All the high chiefs of Kisgegas  decided to create this common area.  They comprised  the Fireweed, Frog and Wolf clans, and it's depicted  of course in the -- on 378.  Where are you in your text?  Sorry, my lord, I'm on page 117.  Thank you.  In that middle paragraph.  Yes.  And all of the high chiefs of the Kisgegas village  decided to create the common area.  They comprise the  Fireweed, Frog and Wolf clans.  Smaex, of the House of  Tsabux, agreed with the creation of a common area.  However, it was -- it was understood that this common  area still belonged to Tsabux.  So this is a territory  that the chiefs agreed to but it was within the Tsabux  territory.  In this case, it was as a result of  agreement that Tsabux would let all of the chiefs  utilize the territory, and that's different than some  of the other common areas which Miss Mandell referred  you to the other day.  I would like to refer you now to the next  territory of Tsabux, which is the Red Creek territory.  This is 60 miles northeast of Kisgegas to the north of  Bear Lake, and there are 13 topographical features  attested to by Mr. Sampson, and Mr. Sampson of course  was born at Bear Lake in 1934.  He's the present  holder of the name Haimadimtxw, a chief within Nii  Kyap's house, and he's describing  in this area he's  describing this territory here on the eastern border  north of Nii Kyap territories and east of Wii Gaak.  Tsabux is spelled T-S-A-B-U-X?  That's right.  It's spelled different ways in -- no, I'm sorry,  it's spelled the same way, it's just two words in one  place, one word in the other. 25635  Submissions by Mr. Grant  1  MR.  GRANT  2  THE  COURT  3  MR.  GRANT  4  THE  COURT  5  MR.  GRANT  6  THE  COURT  7  MR.  GRANT  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  36  MR.  GRANT  37  THE  COURT  38  MR.  GRANT  39  40  41  THE  COURT  42  43  MR.  GRANT  44  45  THE  COURT  46  MR.  GRANT  47  I believe it's one word in the pleadings and --  It may be one word here too.  Right.  It's a large space.  It's spread across.  Yes.  It's one word, is it?  Yes.  I'm not going to say anything further about  that, subject to hearing anything further in terms of  the defendant's position.  I've summarized the  evidence in this section on that particular territory,  and it was testified to by Mr. Sampson, who was  cross-examined.  Then I would like to go to the Nii Kyap  territories, my lord.  And of course these -- the  first one, the Babine River territory was described by  O'Yee, Joshua McLean, and he was cross-examined.  He  described 15 geographical features and on the boundary  within the territory in their Gitksan names, and he  described -- I've summarized there, he described the  feast that he put up.  Now, in cross-examination Mr.  McLean was asked if he knew when the house of Nii Kyap  left Gitangas.  I'm at page 121, my lord.  To this he  replies:  "The way it was told to me it was 100's and  100's of years ago that they left Gitangast.  They found a fishing site at Kisgagaas, and  that was one of the reasons why they moved."  And that's of course that whole migration. You heard  David Gunanoot's evidence of where he talks about the  move from Gitangas down to Kuldo and over to Kisgegas.  Well, that's not what Mrs. McKenzie describes  though, is it; didn't she describe the migration from  Gitengas to Kuldo and then to Kispiox?  And then to Kisgegas, oh, yes, yes, that's right.  I don't think she mentioned --  Gyolugyet did not go to Kisgegas, Gyolugyet went  straight to Kispiox.  Nii Kyap went a different route  from the Kuldos, he went to Kisgegas.  Is Joshua McLean the person at this time who lives  at Kisgegas?  Yes.  Joshua is one of the people that traps at  Kisgegas.  Thank you.  He lives there probably over six months of the year.  And then he described a territory at -- on the north 25636  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  side of the Babine River, and he's here referring to a  fishing site of Nii Kyap, which is within the  territory of Miluulak, and that's described in his  cross-examination.  Now, the next territory of Nii Kyap is that  described by Mr. Jack in his affidavit, Exhibit 596.  And Mr. Jack travelled with Peter Wilson, who formerly  held the name of Haimadimtxw, on his territory.  He  was also taught it by David Gunanoot.  Mr. Jack --  this is one of the witnesses who moved to Burns Lake  and stopped going to Sguingula around 1950, but he did  go to the Bear Lake territory twice a year between  1950 and 1982, and this is -- this is the territory to  the west of Bear Lake.  And Thomas Jack, of course, is  one of those persons from the house that -- his  knowledge, because he lived at Bear Lake, he knew this  territory, but the -- but it's an example of where the  persons related by house are the -- are the proper  plaintiffs and not those who are members of particular  bands or band membership.  The Bear Lake territory was  also depicted by Thomas Jack in his affidavit, and as  I say on page 123, my lord, he was born at Bear Lake  in 1929.  He speaks both English and Gitksan and is a  member of Nii Kyap's House.  He trapped at Bear Lake  until 1982, and he explained in cross-examination the  boundaries of the Dam Smaex, that's the Bear Lake, of  course, "Smaex" being Gitksan for "lake" -- or for  "Bear", territory is the same as the Paul Jack  registered trapline, but he agreed that he learned the  territory from his brother Paul Jack.  Now, the house of Nii Kyap owns the territory 40  miles northeast of the Village of Kisgegas, and I go  to page 124 and again we see that Thomas Jack  described 14 features of the territory at Bear Lake.  Now, this is, of course, an area that was described at  the Burns Lake feast as belonging to Nii Kyap, and  James Morrison testified to that.  The next territory of Nii Kyap, the fourth one, is  the Tutadi territory.  So what I've covered now is  these territories down in this area, along in here and  here, and I'm moving up into this Tutadi territory.  :  The other two territories really could be one,  couldn't they, they're contiguous with only --  :  Yes, that's right.  There's basically a delegation  within the house situation, and in this case, as in  the Gyolugyet case, they're split, as you recall on  Exhibit 5, Gyolugyet, these lines were not separated 25637  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  and they could -- it would not have any effect on the  action or the declaration of your lordship if this  line wasn't here, it's just an internal house matter  more than anything else.  The lake itself seems to be the boundary between  those two territories.  That's right.  Yes, all right.  That's right.  Thank you.  And of course the other Nii Kyap territory is the  one south of Kisgegas.  That's the one Joshua McLean  utilizes and O'Yee utilizes and is still on.  The Tutadi property is the one that has been  excluded from time to time in the claim area?  It's the one Mr. Macaulay marked with yellow, I  believe, yep.  Yes, thank you.  Now, this is a territory owned by Nii Kyap, it's  northeast of Bear Lake 70 miles from Kisgegas.  On  page 125, my lord, with respect to this territory, I  refer to the evidence of Mr. Morrison, who testified  about the split bear and the ptarmigan in relation to  the Tutadi Lake territory, and I've already referred  you to that and the utilization of crests as  establishing the territory and the uniqueness of this  ptarmigan that is up in that northeastern section.  Now, on page 126 Neil Sterritt, Sr., Solomon Jack,  Steve Robinson and Robert Jackson all spoke of the Nii  Kyap territory at Tutadi and said that it belonged to  Nii Kyap.  David Gunanoot gave the history of his  great crest at the meeting of Carrier-Sekani chiefs in  Burns Lake.  Now, what I say with respect to this  evidence, my lord, is that of course you have sworn  evidence of -- you have sworn evidence of the  territory by Neil Sterritt, who testified by way of  affidavit and otherwise, but also the reputation is  demonstrated through the knowledge and agreement of  these other chiefs.  Now, Mr. Morrison, in his  evidence, did say that there was a dispute within Nii  Kyap's house as to who owned the territory, but that  was because the people did not understand that they  were all in Nii Kyap's house, and this of course is --  this is what came out in the Burns Lake feasts and  also in the evidence that your lordship heard, that in  fact of course these people were in Nii Kyap's house,  and that was that confusion that was -- arose as a 2563?  Submissions by Mr. Grant  1 result of band membership.  And none of the chiefs  2 disagreed.  Now, I have reiterated or referred to both  3 Mr. Morrison's evidence on the feast with respect to  4 this territory as the Burns Lake feast did focus on  5 this territory, amongst others, and that's on page  6 127, and I'm not going to repeat that except that the  7 photograph of -- there's a photograph of the crest on  8 the blanket, which is the crest of the Tutadi Lake  9 territory.  That's Exhibit 381.  10 Now, the last territory, the fifth territory of  11 Nii Kyap, is in the far northeast corner, and it's the  12 notch that protrudes north of Nii Kyap in this area  13 here, and Mr. Sterritt testified to this.  14 Unfortunately, Mr. Gunanoot passed away before the  15 affidavit process was completed and was unable to give  16 the evidence.  Once again, you see on page 128 that  17 this is a territory used by Muut of the House of Nii  18 Kyap and was also used by Haimadimtxw, a member of the  19 Wilnadahl of Nii Kyap.  Now, in fact, Haimadimtxw is a  20 member of the House of Nii Kyap, my lord, and this was  21 reflected in the evidence of Mr. Sampson.  A portion  22 of the territory runs through the centre of Kluatantan  23 Creek to the Kluatantan River.  24 I would like to go over to the far northwest to  25 the territory of Skiik'Mlaxha, who is presently Johnny  26 Wilson.  And this is the territory of Awigii or Bowser  27 Lake.  Now, this territory was previously owned by the  28 Stikine people and was transferred by them to  29 Skiik'Mlaxha in a peace settlement at an undetermined  30 date, and I say, my lord, it was probably at a time of  31 indirect contact in the early 1800's.  Hence, the  32 Stikine though are predecessors to this territory.  33 The evidence though indicates that through the adaawk  34 this territory was previously owned by the Gitksan.  35 And I'm referring here to the Gunanoot evidence, and  36 that would be the commission evidence of Neil  37 Sterritt, Sr. -- I'm sorry, of Jessie Sterritt, that's  38 right.  That should be Jessie Sterritt.  39 THE COURT:  I'm sorry, where should that change be made?  40 MR. GRANT:  You see on the bottom of the first paragraph under  41 Awigii, it says "Sterritt Commission", that's the  42 evidence of Jessie Sterritt.  43 THE COURT:  Oh, yes.  44 MR. GRANT:  Both David Gunanoot and Jessie Sterritt described  45 the Xsiisxw and they also referred to this territory  46 as formerly belonging to the Gitksan, and this is  47 consistent with the analysis of the adaawk by Miss 25639  Submissions by Mr. Grant  1 Marsden.  So I say, my lord, that this territory is a  2 legitimate part of the Gitksan claim.  And of course,  3 if your lordship finds that -- your lordship finds  4 that the exercise of soveriegnty is a key date in  5 terms of the findings, I say that the evidence --  6 certainly there's indirect contact, there's evidence  7 of a gun, but the evidence is that -- and that's  8 consistent with the Stikine getting access through the  9 Russians or through earlier times from the coast, but  10 that it's before 1846 that this happened.  Now, this  11 territory was confirmed by James Morrison in his  12 cross-examination, because he was cross-examined on  13 the Kitwancool territory.  I just want to point out,  14 my lord, that the territorial boundary of Kitwancool  15 as shown in the histories, territories, and laws of  16 Kitwancool does not run in a straight line, and this  17 was testified to by Mr. Morrison and by Mr. Solomon  18 Marsden.  Gerald Gunanoot, who had trapped in this  19 territory and learned its boundaries from his uncle,  20 the former Nii Kyap, testified to the boundaries.  On  21 page 132 I refer to Mr. Gunanoot's evidence, and this  22 is important in terms of why these certain witnesses  23 were the ones who gave evidence.  Mr. Gunanoot said:  24  25 "When the Beaver were getting to be medium size  26 then we start getting leery about trapping  27 anymore in that part of the area so that they  28 will grow again so we move to a different  29 location.  Then we get the big ones, and that  30 will give the younger ones a chance to  31 increase.  And this is why we do cover our  32 territories, the area.  And from year to year  33 we move around.  Okay.  We might end up with  34 seven areas for example this winter.  Next  35 winter we are in a different seven areas."  36  37 And Mr. Gunanoot himself had travelled there in the  38 fall of '87 and January of '86, and Johnny Wilson  39 knows the territory as it's described.  40 Now, Gerald Gunanoot explained that he testified  41 about being more familiar with the territory because  42 he was born there and was raised among the elders, and  43 he described the boundary around Treaty Creek, which  44 your lordship observed in the viewing, and this was --  45 and he confirmed that -- it's clear that Gerald  46 Gunanoot is unsure as to whether the peace settlement  47 occurred, his evidence was, very early 1900's, 1800's 25640  Submissions by Mr. Grant  1 or maybe late 17's, but the evidence of David Gunanoot  2 and Jessie Sterritt, I say, pushes it back, although  3 it's certainly a proto-contact or early contact time.  4 And this is one of two territories, my lord, we agree  5 it was acquired post -- proto-contact at least.  6 On page 133 I refer to the --  7 THE COURT:  Well, does the passage on page 130 relating to early  8 1800's relate to the same territory as the passage on  9 132, which refers to the very early 1900's, 1800's or  10 maybe 17's?  11 MR. GRANT:  That's the same territory.  That's the passage from  12 Gerald Gunanoot.  The passage earlier is from David  13 Gunanoot, his uncle, and Jessie Sterritt, both of whom  14 are more elderly and knowledgeable about that.  This  15 goes to the whole concept of the specialty.  Gerald  16 Gunanoot knew the territory, he was less sure about  17 the time of acquisition, clearly from that answer.  18 MR. MACKENZIE:  Excuse me, my lord, my friend was speaking about  19 this being one of two territories which the plaintiffs  20 agree was transferred in a post-contact period.  Is my  21 friend referring to the reference in the Statement of  22 Claim to territories, the Amendment to the Statement  23 of Claim at particulars?  24 MR. GRANT:  I'm not referring to particulars, I'm speaking from  25 memory.  I don't have the statement in front of me if  26 my friend has some concern.  27 THE COURT:  What do you say is the other one?  28 MR. GRANT:  Well, I don't have the particulars in front of me,  29 and I realize that was my friend's or your  30 lordship's --  31 THE COURT:  Mr. Mackenzie will know what the other one is that's  32 in the particulars.  33 MR. MACKENZIE:  Well, I'm instructed, my lord, that the two in  34 the particulars are Kliiyem lax haa and Niist, and  35 that's why I rose, to ask whether or not my friend is  36 adding this one here, Skiik'mlaxha, to those.  37 MR. GRANT:  That's right.  I think my friend is referring to —  38 I want to go back to that, my lord, because I think I  39 said that it wasn't referred to in here.  It's  40 certainly a territory referred to in the  41 proto-contact, and I want to go back to those  42 particulars.  I don't disagree with what my friend  43 says, but I probably spoke a little too --  44 THE COURT:  All right.  45 MR. GRANT:  Without the particulars in front of me.  But this  46 territory, what we say was acquired in the  47 proto-contact, and I think as my friend's framed it 25641  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  MR.  COURT  GRANT  THE  MR.  COURT  GRANT  up, the question was related to post-contact, and this  we say was in the proto-contact period.  So it's not  included in that list.  :  Well, it is post-proto if it's 1900's.  :  Yes -- oh, yeah, but, my lord, what I say is that,  you see, Mr. Gunanoot, really when he says very early  1900's, 1800's and maybe late 1700's, he didn't know.  :  No, obviously.  :  Okay.  But David Gunanoot, his uncle, and Jessie  Sterritt know, and what's clear is that there is a gun  involved in that Xsiisxw, so it's clearly there is  some -- it's in the proto-contact period is our  argument.  :  Thank you.  :  Now, on page 134, Jessie Sterritt confirmed that  Johnny Wilson uses the Bowser Lake territory today,  and described the nature of its use.  It's used right  up to the present time.  And David Gunanoot, in his  commission, also testified to that.  I'd like to refer you now to the territories of  Miluulak, and there are four of those territories.  The present chief is Alice Jeffrey.  Two of these  territories are close to Kisgegas and the third is  south of Tutadi Lake, and the fourth is just north of  Chipmunk Creek.  So there is some disparity, although  they're all northern Frogs' territories, of course,  there's this one here Tutadi, there is this one here,  and then there's this one very large one, very close  to Kisgegas, and this one that goes right up the draw  from Kisgegas right up in this area.  The Wii Tax or  Gunanoot Lake territory was described in evidence by  Robert Jackson, Sr., who was the present holder of the  name Xsem Gitgiigeenix.  It is set out on page 135 of  my argument.  He named 22 land features by their  Gitksan names.  On page 136, Mr. Jackson was born on  the Haiwas territory at Dgil Dgila in the Driftwood  Range.  His grandmother held the name Miluulak and his  grandfather held the name Wii Seeks, and he hunted and  trapped on this Gunanoot territory.  My lord, I have  set out and summarized the evidence there, and I don't  think I need pursue it further with respect to that  territory, the acquisition, transfer at feasts, et  cetera.  Now, that's the large territory southeast of  Kisgegas.  :  Yes.  :  Now, on page 138 I refer to the Sam Green Creek  territory, which of course was the subject of the 25642  Submissions by Mr. Grant  1 other matter in this court, and that is on the other  2 side of Shelf Ridge, and it's that very narrow  3 territory that goes up the draw.  Mr. Jackson and his  4 son, Vince Jackson, hunt and trap in the territory,  5 continue to do so to the present day, and that's  6 described by Mr. Jackson in his evidence.  7 Then the third territory is the Two Lake Creek  8 territory.  This is the one that is 80 miles northeast  9 of the village of Kisgegas on the north side of the  10 Sustut River, and that's a territory just south of  11 Tutadi.  Mr. Sterritt has testified to this territory,  12 and again, he was instructed by the former Nii Kyap,  13 David Gunanoot, and by John Green and by Arthur  14 Sampson.  John Green was a member of the House of  15 Miluulak.  To the south of that territory, my lord, is  16 the territory of the Carrier-Sekani.  He's heard this  17 territory described in the feast as belonging to the  18 House of Miluulak.  I'm on page 139, my lord.  19 And the final territory of Miluulak is the Duti  20 River territory, Mika Dee Aa, which Sam Morrison  21 testified to.  Sam Morrison is from the same -- he is  22 the brother of James Morrison, and he is of the same  23 house as James Morrison.  He is now blind, my lord,  24 and he gave his evidence by way of commission --  25 sorry -- by way of affidavit, and he was  26 cross-examined in Hazelton out of court.  And Sam  27 Morrison and his father, Simon, who held the name  28 Waiget, hunted and trapped on the territory of Wiigyet  29 to the south of the Duti River.  James Morrison  30 described the boundaries of the territory at Chipmunk  31 Creek.  Now, Sam Morrison testified that Duti River is  32 managed by Robert Jackson from the House of Miluulak,  33 and that's in his cross-examination on his affidavit.  34 He also referred to the feast being held by Alice  35 Jeffrey.  Sam Morrison's father taught him that  36 territory when he was about 23 or 24.  Now, you can  37 understand it a bit better when you look at the  38 geography, because here's the Wiigyet territory that  39 they would have worked in, Sam Morrison and James  40 Morrison, with his father, and the north side is the  41 Miluulak territory.  And Sam Morrison was taught the  42 boundaries of the Miluulak territory by his father.  43 Sam Morrison -- well, Mr. Morrison trapped Chipmunk  44 Creek area until 1959 or 1963.  I just -- this is an  45 interesting point:  Miluulak's adaawk, supposedly  46 recorded by Barbeau, concerning the sighting of the  47 first white man at Bear Lake, was read to Mr. Sam 25643  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  THE  COURT  24  25  MR.  GRANT  26  THE  COURT  27  MR.  GRANT  28  THE  COURT  29  MR.  GRANT  30  THE  COURT  31  MR.  GRANT  32  33  THE  COURT  34  MR.  GRANT  35  THE  COURT  36  37  MR.  GRANT  38  THE  COURT  39  40  MR.  GRANT  41  42  THE  COURT  43  MR.  GRANT  44  THE  COURT  45  MR.  GRANT  46  THE  COURT  47  MR.  GRANT  Morrison, and his response about whether he knew it  was :  "I don't even know what this is.  It's just a  joke.  The name of Waiget's totem pole was  Milkst and on it was the grouse.  The carving  on the totem pole was the night robin, but --  okay.  Night drummer, that's the grouse.  And  he acquired this crest when there was a fight  with -- there was a war with him and Xsuwii  Guus."  In other words, what you see here, my lord, is Mr. Sam  Morrison knew the Xsuwii Guus adaawk and refers to  that of Waiget; Waiget, as you remember, being his  father.  But he -- but the reference to Miluulak's  adaawk to the first white man at Bear Lake is  something he did not know, and that's not surprising  because it's a very recent recording, relatively  recent.  Also, he's not connected or related to  Miluulak, so there would be no reason for him to be  taught that adaawk about the first sighting.  :  Could you show me again, please, the Chipmunk Creek  property, territory.  Mm-hmm.  It's this one here, my lord.  Yes.  Chipmunk Creek is right along the border.  Between Miluulak and Waiget?  That's right.  Yes, all right.  So they actually work this territory, but his father  taught him this northern Miluulak territory.  Yes, all right.  They had a long presence there.  I'm sorry.  And the Duti River territory -- I'm  sorry, no.  That is the same.  Is it, or is that not the one that's immediately  south of Nii Kyap?  No.  Just a moment, my lord.  No.  This is Duti  River right here, this is the Duti River territory.  All right.  Okay.  So when you refer to this --  What are you calling the one south of Nii Kyap?  This one here is Two Lake.  Two Lake?  Two Lake territory. 25644  Submissions by Mr. Grant  1  THE  COURT  2  MR.  GRANT  3  4  THE  COURT  5  MR.  GRANT  6  7  8  9  10  11  12  13  14  15  16  THE  COURT  17  MR.  GRANT  18  THE  COURT  19  MR.  GRANT  20  21  22  23  24  25  THE  COURT  26  MR.  GRANT  27  28  29  30  31  THE  COURT  32  33  MR.  GRANT  34  THE  COURT  35  MR.  GRANT  36  THE  COURT  37  MR.  GRANT  38  THE  COURT  39  MR.  GRANT  40  41  42  43  44  45  46  47  Oh, yes.  And I've listed it and it's been described by Mr.  Sterritt.  Yes, all right, thank you.  Now, I would like to move to the territory of  Haiwas, and there's only one of those territories.  I'm on page 142.  Now, Haiwas is a separate house but  of the same clan as Miluulak.  They're both from  Kisgegas, they're both of the same Wilnadahl, they now  have separate territories, and Haiwas originated in  Miluulak's house.  The Haiwas territory, which was  testified to by Robert Jackson, Sr., is east of  Kisgegas and bounded by the Driftwood -- that should  be the "Driftwood Range", my lord, not the "Driftwood  Theatre", and west of the Kotsine Mountain.  Yes.  And this is this territory here.  Yes.  Directly to the east, and it moves up, as you can  see, comes within -- it's surrounded on two sides by  Nii Kyap, and that looks rather strange, but what you  can see is there's this mountain in this range here,  and this draw, and there's actually a height of land  that goes around like that.  Yes.  So it's logical -- it's not logical on a map, but  it's logical on the land, and that of course is  something to be remembered with respect to all of  these boundaries.  They may look strange, but they  make a lot of sense when people are travelling them.  On our view did we -- we stopped on Kotsine Mountain  first and then went on to Bear Lake?  That's right.  Yes, all right.  That's right.  And we overlooked Bear Lake.  On the second stop.  Yep.  Yes, thank you.  Now, Mr. Jackson was directly questioned about the  Carrier-Sekani claim to the Driftwood Range territory,  and he answered:  "I explained to them -- that once belonged to,  or did belong to Lax Seel, which is a Frog  Clan.  And William Charlie is Lax Gibuu.  So  there is no way Lax Gibuu can look after Frog  territory.  And he understands that, but 25645  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  nevertheless they still say that's their  boundary, which is Sekani didn't come from --  from William Charlie.  When I stated at this  Frog, to William Charlie he never answered me  or comment about it.  The only thing I ask him  was -- was one question.  I ask him whose  territory that was and his answer was that it  was Lax Seel territory (Driftwood Range)...1  know he knows that -- who's the rightful owner  on that territory.  And it's clear to my mind  he knows -- he's got the knowledge that  rightfully belong to Miluulak."  Now, that is with -- that is with respect to this  territory.  And you must recall that here what's being  referred to is that Haiwas originated from Miluulak,  but in his evidence Mr. Jackson was clear that Haiwas  was a separate house.  And I've given the reference to  that on the bottom of page 142.  And he also was clear  in his cross-examination that Haiwas was responsible  for this territory.  So -- but it's from the Miluulak  Wilnadahl, if you follow that point, because they  are -- they originated out of the same house.  Now, the House of Niist owns two territories north  of Kispiox, and the present holder is David  Blackwater.  Now, it's very important to remember that  Niist is the Wolf clan and that Walter Blackwater, who  testified to these two territories, is from the House  of Niist.  Now, Walter Blackwater was born at  Blackwater Lake, Damdochax, and he grew up and his  grandfather took him to the Niist territory at Kotsine  Creek.  He moved -- he didn't move to Kispiox until  1956.  Until that time he lived at Blackwater, and  after that time he moved back and forth between the  territory and Kispiox.  :  I'm a little surprised by the reference to the fact  that they're north of Kispiox.  They're a long way  north of Kispiox.  :  Long way north of Kispiox, and you're right.  It  could be in the affidavits, it's a geographical  connection, but yes, it's way up in here.  :  Yes, that's fine.  :  Of these two territories.  And it would equally make  sense of relating them to Kuldo and Kisgegas on other  affidavits.  Now, the Kotsine Creek territory, my  lord, the significance of that -- that northern one is  that it's a border territory of Gitksan with the 25646  Submissions by Mr. Grant  1 Taltan.  I've referred to the sources on page 145, and  2 the fact that Mr. Blackwater referred to photographs  3 of the territory, those at volume 2 is with reference  4 to Mr. Sterritt's photo albums.  And Mr. Benson,  5 testifying to the Gyolugyet territory, confirmed that  6 the territory to the east of Gyolugyet on the north,  7 the northern Gyolugyet territory is Niist territory.  8 Now, again, Mr. Blackwater demonstrates his knowledge  9 of this distant territory by his description of the  10 features at 146.  He explained how Kotsine Creek got  11 its name:  12  13 "And the reason why they -- it's called Maxhla  14 Nihl Tsenden is because there is two creeks  15 coming from both ends, and Maxhla means over,  16 and that's one going to the Skeena and one  17 going to the Nass, and that is why it is called  18 Maxhla Nihl Tsenden."  19  20 And what he is referring to there is that the  21 territory, the creeks going both ways.  The  22 responsibilities within the House of Niist are with  23 Gibeumgyet a sub-chief within the house, to look after  24 it, and again Mr. Blackwater confirmed that:  25  26 "It's a vast territory, but they are different  27 people that hold -- that are responsible for  28 different parts of the territory in the House  29 of Niist."  30  31 Then there is a part of the territory in the northwest  32 corner given to the House of Niist by way of a peace  33 settlement called Xsiisxw.  This territory is in a  34 bulge because:  35  36 "It didn't belong to us to begin with, but  37 because of the murder it was a payment from the  38 Stikine people."  39  40 And he described this in re-examination and explained  41 that the territory does not go past Maxhla Biluust  42 Maawxs.  Now, this is the area that I'm referring to  43 in the particulars as post-contact Xsiisxw, my lord,  44 not the whole territory, but you see this bulge that  45 comes over here, so this area in here was acquired as  46 a result -- -- it was acquired as a result of a  47 Sxiisxw, and this was a later Sxiisxw, the evidence 25647  Submissions by Mr. Grant  1 demonstrates.  That's just this part, not the entire  2 territory.  And again, that's a huge territory but  3 it's subdivided within the house, and we could have  4 easily depicted on 646-9-A, as we did with Nii Kyap  5 and Gyolugyet by having subdivisions, but we did not  6 do so.  The next territory is that of Taax Tsinihl  7 Denden on page 147, and again Mr. Walter Blackwater  8 described this.  It's 16 miles north of Kuldo.  9 Eighteen geographical points are referred to here, and  10 I've pointed that out to your lordship on the map.  11 The next territory is that of Gyolugyet, Mrs.  12 McKenzie's territory.  As I set out on the beginning  13 of 148, each of the chiefs of her house share a  14 portion of the territory.  These are Madeek, Hla'oxs,  15 Kwamoon and Gadilo'o.  They're all in her house at  16 this time.  I've summarized the history of her  17 acquisition of the name, and I go to page 149, my  18 lord, and she explained -- although she herself had  19 not travelled on the territory, she explained the  20 maintenance of the boundaries in her evidence.  She  21 said:  22  23 "Because there are witnesses there, the Head  24 Chief is there to witness it and another thing  25 too, where our territory is, there are other  26 territories that he has to go through to get to  27 our territory.  So this has to be explained in  28 the feasting that the people up there, my  29 neighbours, our neighbours around our territory  30 if they see him they know where his destination  31 is, where he is going to go and trap."  32  33 And this is with respect to announcing at the feast  34 that her husband would be allowed to go up on that  35 territory.  Now, in 1978 Albert Tait talked to Mrs.  36 McKenzie specifically about the mountains, creeks and  37 rivers on this territory, and in 1983 he told her he  38 wanted to leave her with everything he knew and  39 understood -- that should be not "his", my lord, but  40 "this territory" from his father Luus.  And then she  41 describes the importance of the adaawk.  As I say on  42 the next page, she had not been on this territory but  43 travelled to her husband's.  And on the second -- on  44 page 150 she says, I refer to her evidence, that she's  45 maintained contact or been kept informed about what's  46 happening on the territory in the last 20 years.  The  47 neighbours, like Delgamuukw and Djogaslee have gone 2564?  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  THE  COURT  10  11  12  MR.  GRANT  13  THE  COURT  14  MR.  GRANT  15  THE  COURT  16  MR.  GRANT  17  18  19  THE  COURT  20  MR.  GRANT  21  22  23  24  THE  COURT  25  26  MR.  GRANT  27  THE  COURT  28  29  MR.  GRANT  30  THE  COURT  31  MR.  GRANT  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  through her territory to get to their own, and that is  apparent when one sees the relationship of these two.  Djogaslee territory is in along the side here to  acquire going this way, and the Delgamuukw territories  are also to the east, so that they travel in these  territories and they watch this one.  Now, this is one  of the less accessible territories at this time, my  lord, that is accessible by contemporary routes.  I have a recollection that someone told me that this  territory, Gyolugyet, was nearly 5,000 square miles.  That couldn't be right?  No.  That didn't seem to be right.  I think that --  I'd like to try to remember that.  I don't have the reference, but as I recall, during  the cross-examination of Mrs. McKenzie, she didn't  know the size.  Mm-hmm.  And I can't recall if she was -- if some very large  figure was put to her on cross that was clearly not  correct.  I recall something about that as well, my  lord, and I can --  That would be 20 percent of the total territory,  it's not even close to that.  It's certainly not that size.  There were bigger territories than that too, I  think.  That's right.  All right, thank you.  Now, Mr. Benson, on page 151, was given permission  by Mrs. McKenzie to describe and speak in respect to  the Gyolugyet territories, and he was a member of the  House of Luus from the village of Kuldo, and he gave  it by way of affidavit.  And in his evidence he  divided the Gyolugyet territory into three parts, and  each part was described separately in the affidavit.  So there's that distinction between how he described  it and how it was on Exhibit 5, but subject to what  I'm going to say, I -- on that, the division isn't  really important in terms of your findings, because  all three portions are Gyolugyet's.  He described that  he actually went out there with Marianne Jack, and I  referred to -- refer to that on page 152.  Now, if you  look at the three sections of the territory, my lord,  the Kuldo Creek section is the southern most one, and  he was instructed about this territory by Abel Tait, 25649  Submissions by Mr. Grant  1 the former Luus, on page 152.  Now, Mr. Benson  2 identified land features, including Kuldo Mountain,  3 and he testified that to the west of this territory is  4 the territory of Antgulilbix.  And in  5 cross-examination he corrected his affidavit to say  6 that the territory of Gyolugyet is on both sides of  7 Xsagan Gaxda, that's Kuldo Creek, my lord, and that  8 the boundaries are the mountains on the left side.  He  9 learned about the territory of Kuldo Creek from  10 Mathias Wesley and not from Phillip Brown.  However,  11 Phillip Brown told him that this territory belonged to  12 Gyolugyet.  Now, the provincial defendants, in their  13 summary of argument focus on the southern territory of  14 Gyolugyet and the apparent discrepancy between Mary  15 McKenzie and Richard Benson's evidence.  Now, if you  16 look at Mary McKenzie's evidence, my lord, she  17 described this entire territory with reference to  18 certain geographic place names, and the very first  19 name she refers to is Xsagan Gaxda or Kuldo Creek.  20 She goes on to explain -- and I've given you the  21 citation -- that all of these creeks, including Kuldo  22 Creek, are inside the territory.  She then goes on to  23 explain the territory goes with the adaawk.  She did  24 not describe the adaawk in detail in her evidence  25 relating to this territory.  However, you subsequently  26 heard an example of a detailed adaawk in the evidence  27 of Art Matthews that I've referred you to earlier.  28 Now, Mrs. McKenzie confirmed that when her grandmother  29 taught her the adaawk she described the territory by  30 the creeks and the mountains.  These were the same  31 creeks and mountains described by Mrs. McKenzie in her  32 own evidence, and this was her cross-examination by, I  33 believe, Mr. Plant.  Mrs. McKenzie went on to explain  34 that this very large territory was actually divided  35 between sub-chiefs within the house.  Hlo'ox utilized  36 and managed the territory around Kuldo Creek, Madeek  37 utilized the territory around Xsa'an Lo'op, and  38 Kwamoon utilized the territory around Sankisoots.  39 Therefore, although it's very large, it's subdivided  40 between the three chiefs, and this is what you see in  41 646-9-A and in Mr. Benson's affidavit.  42 THE COURT:  I think, Mr. Grant you've got quite a ways to go in  43 this territory.  I think we should adjourn until two  44 o'clock, please.  4 5    MR. GRANT:  Yes.  46 THE REGISTRAR:  Order in court.  Court stands adourned until two  47 o'clock. 25650  Submissions by Mr. Grant  1 (LUNCHEON ADJOURNMENT TAKEN AT 12:30)  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 25651  Submissions by Mr. Grant  1 (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT)  2  3    THE REGISTRAR:  Order in court.  4 THE COURT  5 MR. GRANT  6 THE COURT  7 MR. GRANT  8 THE COURT  9 MR. GRANT  Mr. Grant.  Thank you, my lord.  I am on page 154, Mr. Grant.  Where are you?  I am on page 154.  All right, thank you.  My lord, I was talking about this territory of  10 Gyolugyet and of course this territory here that I  11 focus on, the Kuldo Creek territory, is the southern  12 most of those three territories on this map.  It is  13 the one that has Kuldo Creek and there is two  14 territories with the name of Kuldo Creek, this is one  15 of them, and Mauus is the other one.  But the  16 significance here, my lord, is -- of this whole  17 proposition made by the other side is whether Kuldo  18 Creek itself is the boundary or the height of land and  19 the boundary described here shows the height of land  20 as belonging to Gyolugyet and it includes the height  21 of land, the watershed of Kuldo Creek, rather than  22 Kuldo Creek itself.  23 Now, I'd like to go through this because this is  24 one of the -- this is one of the three examples  25 utilized by the Provincial Defendant challenged, the  26 territorial ownership.  Now, the affidavit -- the  27 Provincial Defendants in their argument make a major  28 issue of this boundary of Kuldo Creek, and the  29 affidavit of Mr. Benson does appear to be different  30 from his evidence, but Mr. George did not rely on the  31 affidavit but on the evidence of cross-examination to  32 map Exhibit 646-9A.  Now, this distinction is that  33 distinction between the creek itself, the boundary, or  34 that height of land.  And Mr. Sterritt explained his  35 misunderstanding with respect to the mapping at Kuldo  36 Creek.  37  38 "Q...Now, Mr. Sterritt, if you'll look at the  39 southern portion of the territory..."  40  41 This is of course in cross-examination:  42  43 "...and I would ask you if you see any  44 adjustment in the boundary referred -- in the  45 southern portion as a result of information  46 came to you after that map was prepared?  47 25652  Submissions by Mr. Grant  1 A.  Yes.  Here is where I was having --"  2  3 I am sorry, this I believe is in direct at this point:  4  5 "Here is where I was having -- personally was  6 having a great deal of difficulty in getting  7 this straight, partly because of the name of  8 the creek, Xsagan Gaksea....Which is Kuldo  9 Creek.  It was -- as you go up that creek and  10 swing around to the left, that's what's known  11 on the map as Kuldo Creek, and it's what I  12 talked about this morning in relation to Mary  13 Johnson's, the map of Antgulibix and Tsibasaa,  14 Dam Ansa Angwas....Richard Benson had clarified  15 that there was a name change at the junction  16 downstream from that river -- or from that  17 creek when it entered Xsagan Gaksea....In any  18 event, I was having trouble determining where  19 the boundary of Gyolugyet went in this area,  20 and subsequently, during the commission of  21 Richard Benson, he identified that the boundary  22 continued along the height of land south of  23 Kuldo Creek, down to the junction of Kuldo  24 Creek and what is locally known as Little Kuldo  25 Creek or Gwiis Xsagan Gaksea....And that's  2 6 under the name of Mauus...on the map.  27  28 Q.  That is on the map that's in front of you?  29  30 A.  Yes.  So there is a change to go  31 approximately through the name Mauus and on  32 down to the junction of Little Kuldo Creek and  33 Big Kuldo Creek.  34  35 Q.  And did that change conform to the evidence  36 of Richard Benson?  37  38 A.  Yes, it did."  39  40 And then he says:  41  42 "A.  And the other change is that the line  43 should go through the lake at the head of Kuldo  44 Creek, which I described this morning.  45  4 6 Q.  All right.  Apart from the evidence of  47 Richard Benson on commission, was there any 25653  Submissions by Mr. Grant  1 other information about that change..."  2  3 And he refers to the information from Pete Muldoe and  4 Jeff Harris Senior.  Then he is asked if Exhibit 9-A,  5 646-9A, the map, reflects the changes he's been  6 informed, and he says:  7  8 "A.  Yes.  The area that we are talking about is  9 very close to New Kuldo, and this black line of  10 9-A corresponds to the changes that I am  11 talking about, as well as the change in  12 Gyolugyet's territory to exclude Xsu Wii Luu  13 Dagwigit....at the head of Taylor River".  14  15 Now, what I say, my lord, is Mr. Sterritt clearly  16 delineated the distinctions in the mapping process.  17 The evidence of Mr. Benson and Mrs. McKenzie is not  18 inconsistent on this point.  The Province makes much  19 that it is.  I say Mrs. McKenzie indicated that Kuldo  20 Creek was one of the principal creeks within her  21 territory.  Mr. Benson clarified in his evidence on  22 cross-examination that the boundary followed the  23 height of land to the west of Kuldo Creek.  This is  24 the evidence relied upon by Mr. George to depict the  25 territory on 646-9A.  Now, of course Mrs. McKenzie  26 gave her evidence in May 1987, and Mr. Benson gave his  27 evidence in November of 1987, and Mr. Sterritt gave  28 his evidence on September 14, 1988.  29 The defendants did not cross-examine Jeff Harris  30 Senior who testified as to the territory of Mauus at  31 Kuldo Creek on this boundary.  Mr. Harris' affidavit  32 is consistent with the evidence that I have described  33 of Mrs. McKenzie, Mr. Benson and Mr. Sterritt.  In  34 fact, the Provincial Defendant raised nothing in  35 cross-examination with respect to the Kuldo Creek  36 territory, Mauus, that is in cross-examination of Mr.  37 Harris Senior.  38 Now, it is significant that Mr. Sterritt obtained  39 information on the boundary from Jeff Harris Senior,  40 and of course this was known to the defendants when  41 they cross-examined Mr. Harris.  That would have been  42 in December 1988, and Mrs. McKenzie goes on to  43 indicate that she identified the territories mapped  44 and exhibited 5 in the proceedings.  So the  45 distinction is when a person says that the territory  46 includes Kuldo Creek it's understood, and when Mrs.  47 McKenzie says Kuldo Creek is within the territory it 25654  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  is understood that this is the -- is it understood  that this is the boundary or that that's included  within.  The evidence -- the overwhelming evidence of  all of these witnesses is that it follows the height  of land and clearly there are small creeks going into  Kuldo Creek which are part of that territory as they  are part of the watershed of Kuldo Creek, and that was  where the apparent discrepancy may have appeared.  But  I say on the sworn evidence of all four witnesses,  Jeff Harris Senior, Mary McKenzie, Richard Benson, and  Neil Sterritt, the evidence on the whole is consistent  with that boundary.  There are two additional territories, the  Shanalope Creek territory and the Taylor River  territory.  Now, Mr. Benson gave evidence of these as  well and of course Marianne Jack, the relation of Mrs.  McKenzie.  She -- Mr. Benson travelled on the  territory with her.  Now, on page 159, I -- it is significant, my lord,  that Mr. Benson referred to -- referred to the  neighbours of the Gyolugyet territory as being  Niist -- Niist, Skiik'm Lax Haa and Djogaslee.  I am  on page 159.  Is this the centre of the three?  No.  Is the --  The centre one is Shanalope Creek, it is on 158.  It is the centre one.  Yes, the northern one is Taylor River.  All right.  And so Mr. Benson testified that Niist being a  neighbour here, which is consistent with the evidence  of the other witness, testified his evidence of  Skiik'm Lax Haa is consistent with Jerry Gunanoot's  evidence.  This is consistent with Walter Blackwater's  evidence, and this is consistent with -- come back to  this, I believe it's Walter Wilson testified to this  if I remember rightly, and Djogaslee.  And so he  describes each of the ones surrounding this northern  territory which is the Taylor River territory.  Taylor  River is up in here.  Now, once again at page 159, I  have put in the reference of Mr. Sterritt's  cross-examination on the difference between the  interrogatory map and the boundary as depicted on  646-9A.  He said, in answer to a question:  "I just want you to look at this map and ask you 25655  Submissions by Mr. Grant  1 if you received subsequent information from a  2 hereditary chief or hereditary chiefs, which  3 led you to conclude there was a change in the  4 boundary as it's described in this map?"  5  6 Mr. Sterritt said:  7  8 "A.  Yes.  I had always been told that the  9 creek, Xsihl Guugan....which appears on  10 topographic maps as Taylor River, that that  11 belonged to Gyolugyet.  And the extrapolation  12 that I made was that the territory of Gyolugyet  13 went to the very headwaters of the Taylor  14 River.  15  16 Q.  And that's what is shown on this exhibit?"  17  18 That's the interrogatory map, my lord.  19  20 "Q.  Did subsequent information you received  21 alter that boundary?  22  23 A.  Yes, it did.  I had been told about a creek  24 named Xsu Wii Luu Dagwigit....A creek named Xsu  25 Wii Luu Dagwigit was somewhere in the north end  26 of this territory, and David Gunanoot actually  27 first described that creek to me as a trail  28 route that he had taken from the Bell-Irving  29 River over to the Upper Nass River.  And in --  30 I eventually located where that was, and in  31 doing that, I also had discussions,  32 subsequently, that explained that Xsu Wii Luu  33 Dagwigit was the territory of the House of  34 Niist.  35  36 Q.  And from whom did you obtain those  37 instructions?  38  39 A.  Walter Blackwater.  40  41 Q.  Niist is the hereditary chief who has  42 territory north of Gyolugyet?  43  44 A.  And east."  45  46 And so he says -- on page 160 near the end of that  47 quote: 25656  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  "Q.  Now, in -- was there a change in the  boundary in the northern portion of Gyolugyet's  territory that borders with Niist?  A.  Yes.  The boundary followed the height of  land south of Xsu Wii Luu Dagwigit until it  crossed where -- just below where Xsu Wii Luu  Dagwigit entered the main Taylor River.  Q.  All right.  And can you tell us at about  what time it was that you received the  information that led to that change?  A.  In 1987,  Now, this change, my lord, is reflected from the  interrogatory map, is reflected in 646-9A, and it is  apparent once again the description given by Mr.  Sterritt that the reason for the discrepancy between  the interrogatory map and 9-A at this point is as a  result of a misunderstanding by Mr. Sterritt in which  he extrapolated with respect to the Taylor River  belonging to Gyolugyet.  And this mistake is reflected  in the final map.  And then Mr. Benson goes on to describe that he  went through all three of these Gyolugyet territories  with Marianne Jack in the 30s and 40s and this is how  he learned about the territory.  And he testified in  1935 going for four days up the right side of Taylor  River, and this is where they are talking about here  is actually quite far north, they go right up along  the Taylor River up into this area here and they went  for four days up there.  Does the Taylor flow southward into the Nass?  Yes, the Taylor flows -- that's right, it flows down  here to the Nass at this boundary and of course the  Nass is the boundary between the northern and the  central Gyolugyet territory.  And then again it is  consistent on page 162, Mr. Benson, in his  cross-examination I think by Mr. Plant, confirmed that  the territory north of Xsihl Guugan was Charlie  Sampson, that is Niist, and so he went right up into  that area and was told across there is where Niist is.  And Mr. Benson -- the last quote, he goes on and  describes his travel through the territory and the  place that he knew, and on page 163 part-way down that 25657  Submissions by Mr. Grant  1 quote he says -- I am sorry, the top:  2  3 "I know all these place on these mountains and  4 you see what they told me, that's what I really  5 like to tell, you see, because I supposed to  6 tell the truth.  That's what you said when I  7 began.  Nothing but the truth.  That's what --  8 that's what I am doing...1 am telling what I  9 already been -- I walked through and I see  10 these creeks and I walk through there and I  11 know where they are and I know who it belongs  12 to.  They tell me right beginning before I  13 start even my uncle.  Well, they had a story  14 what spread out, you know, about Gyolugyet and  15 they start telling me, but I can't remember  16 them all.  But the only thing that I remember,  17 that's when I go on it and trap through there  18 and I really been many times on it.  And just  19 that one I really know, that's what I am trying  20 to tell the truth about it and nothing but the  21 truth.  That's true.  That's what I am — I'm  22 doing the best I could."  23  24 What he is describing in that quote in  25 cross-examination is that he is saying as Stanley  26 Williams did, I have walked it, I know it and I know  27 who it belongs to, and of course that's why he  28 testified on behalf of Gyolugyet because he knew the  29 territory so well.  30 The next territory or house that I wish to speak  31 to is the territories of Djogaslee, and Djogaslee is a  32 member of the Frog Clan from Gitanmaax.  The present  33 holder of the name Djogaslee is Walter Wilson, and he  34 testified to three territories.  Before I get into  35 these, my lord, I want you to appreciate the comment  36 in the third paragraph that Djogaslee and Axtii Dzeek  37 are two chiefs from the same house.  In  38 cross-examination, Mr. Wilson explained this.  Now,  39 Mr. Wilson, my lord, gave evidence twice; once with  40 respect to fishing sites and once with respect to the  41 territories and that was out of court.  And these  42 pages -- references here are to Exhibit 602A.  43 THE COURT:  I take it then, Mr. Grant, that you dispute the  44 evidence that suggests that there was no settlement at  45 Gitanmaax.  46 MR. GRANT:  Oh, yes.  Even at the time of contact?  4 7    THE COURT:  Yes. 2565?  Submissions by Mr. Grant  1 MR. GRANT:  Yes, yes.  We don't agree with that proposition, my  2 lord.  3 THE COURT:  Do you say that it was part of Temlaxham or do you  4 say it was a separate centre, on the other side of the  5 river of course?  6 MR. GRANT:  Yeah.  Well, except to the extent that Temlaxham is  7 such a spread out place but it appears the adaawk and  8 the historical evidence that the community of  9 Gitanmaax, and I believe Mr. Adams will come back to  10 this this week, but the community at Gitanmaax arises  11 from the Wolves -- I am sorry, from the Frogs and the  12 Wolves that came into Gitanmaax and that's -- so when  13 you look at Djogaslee you look at Gyetm galdoo, you  14 look at these people whose territories are close to  15 Gitanmaax, the history takes them to Temlaxham.  So it  16 appears that people that were left came to Gitanmaax.  17 Of course the name is "people of the fire", I believe  18 Walter Wilson described that in his evidence.  It may  19 have been another witness but it's with reference to  20 the method of fishing at night in the river with  21 torches and we say that certainly predates the  22 contact.  23 Now, Mr. Wilson described the successorship of the  24 names of Djogaslee and Axtii Dzeek back to his great  25 grandmother's sister on his mother's side.  Of course  26 there is a genealogy of this as well.  He said the  27 successor to his name will be the present of Ax  28 Weegasxw.  He described how three houses split and  29 moved into Gitanmaax from T'emlaxamit and established  30 a settlement at Mission Point and at Sagat.  When the  31 houses split they were in separate physical buildings,  32 but today there is only one house.  Mr. Wilson  33 described how the chiefs controlled and conserved the  34 fish runs and that they did not need the permit system  35 of the Department of Fisheries.  And he went through  36 the process of showing where Axtii Dzeek sat in the  37 long house and stayed, and Djogaslee -- and they came  38 apart and they came together.  But these are two  39 leading chiefs of the same house at this time, the  40 time that your lordship is concerned with now.  41 Now, the first territory is the Irving Creek  42 territory and this is the one north of the Nass and  43 east of the junction of the Nass and Bell-Irving.  44 Now, this is a territory that Mr. Wilson -- that is  45 located south of the Skiik'm Lax Haa and west of  46 Gyolugyet's territory that I have taken you to and to  47 the west is the Kitwancool Gitksan. 25659  Submissions by Mr. Grant  1 Daniel Skawill showed Mr. Wilson's father and his  2 sister this boundary.  He showed him the area and he  3 also showed the area to William Wale and Ben Wale,  4 both from the House of Djogaslee, they were Walter  5 Wilson's uncles and they would trap together.  6 Now, this is the history of this particular  7 territory according to Mr. Wilson.  8  9 "Oh, yes that's where he (Daniel Skawill) spent  10 most of his time in the early days.  He's a  11 real good trapper.  And he had to put up a big  12 feast, and he didn't have enough money and the  13 hides and everything so he talked to my great  14 uncle Willie, if Willie could help put up that  15 big feast.  It costs really a lot of money and  16 hides, everything.  So Willie did it.  That's  17 how Willie got that area.  In return to pay  18 Willie back, Daniel give him that area.  So  19 every village, the whole eight village were  20 there to witness everything what was happening,  21 so everything knows.  Every high chief in each  22 village know the transfer of that land to  23 Willie Wilson and he knows Daniel Skawill gave  24 them the -- they walked the boundary them days.  25 So that's how we know the boundary, the  26 traditional boundary, not the one DIA give out  27 them days."  28  29 Now, this is another situation where, in  30 accordance with the rulings, it is an internal  31 transfer among the Gitksan but a transfer from Skiik'm  32 Lax Haa, Daniel Skawill, to Djogaslee.  33 Now, Mr. Wilson says that Axtii Dzeek is the  34 person who deals with this Gail Creek territory and  35 that really should be reflected in the next passage,  36 the next territory.  37 He testified in cross-examination, my lord, that  38 the territory at Irving Creek was transferred from  39 Daniel Skawill to Djogaslee, but it was still Gitksan  40 territory before that transfer.  Of course Daniel  41 Skawill is a Frog as well, and Mr. Wilson described an  42 An Tsok, which is similar to the term used for other  43 places of wealthy resources; it was a free area for  44 everyone, and that's a camp within that territory.  45 The next territory I wish to speak to of Gail's --  46 I am sorry, of Djogaslee's is the Gail Creek  47 territory.  And so it's unusual for a Frog chief from 25660  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  Gitanmaax to get a territory so far north but this is  because of the relationship that he got this one that  I just spoke about.  The next territory of Djogaslee that I wish to  refer to is this territory here, my lord, and that's  the Gail Creek territory on the Babine.  It is on the  south shore of the Babine on the even boundary just  south of Miluulak's territory.  And that's referred to  as Djogaslee Axtii Dzeek, Axtii Dzeek being a chief  within his house who manages the territory for the  house.  Now, this is the territory about 25 miles  northeast of Gitanmaax on the south shore of the  Babine River.  And I have reiterated what he's  learned, how he's learned about this territory and who  from, and he said in cross-examination that Djogaslee  Axtii Dzeek and Ax Weegasxw own the territories of  Djogaslee but here this one is being managed by Axtii  Dzeek.  Now, there is another territory which is the  Sagat territory, and that's on the Bulkley, it is  further south, it's right in here, my lord.  This is Sagat.  This is Sagat, this territory here.  Now --  This one is also called Axtii Dzeek?  Axtii Dzeek, yes.  Axtii Dzeek manages these two  territories and Djogaslee himself manages this  northern territory but they are all within the one  house.  Now, this is a territory that's on the border  with the Wet'suwet'en, and Sagat is a geographical  feature and the territory that he referred to as the  people who remained behind, it is one of the features  of their adaawk, the people from Tamlaxham, and you  can see its proximity to Tamlaxham.  Now, on page 169, and this is from his  cross-examination, Mr. Wilson does say that the  boundaries of this territory go to Boulder Creek but  he does also say in cross-examination his house is not  claiming to that creek because of the Wet'suwet'en  House of Wah Tah Keg't claims to Porphyry Creek and  the boundary has to be settled in a feast.  Now, my lord, it is my submission that this  evidence indicates a long-standing common border  between the Gitksan and Wet'suwet'en.  The difference  between what Djogaslee says and what the Wet'suwet'en  say is not one leading to a major dispute in this  situation but there is that evidence and, again, it's  in evidence of a claim and not in evidence of proof. 25661  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  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  And when Mr. Rush was referring to the Wet'suwet'en  territories as was Ms. Mandell, they clearly  established through the evidence of Bazil Michell,  Madeline Alfred, and Henry Alfred that their territory  goes to Porphyry Creek, so the discrepancy is a very  short one that is on that -- the way you can describe  it is that long, straight stretch there on the highway  and one end is Porphyry Creek and the other end is  Boulder Creek, it is about two miles.  :  Dangerous piece of highway.  :  Judge Hutchinson hated driving it because of the  tickets on that section.  :  All kinds of trouble on those highways.  :  The closest thing to a freeway in the north.  So I want to say that and that evidence is there,  but I am -- but he makes it clear in his  cross-examination that they are claiming that they  have a claim to that but they are not claiming it in  this action and it's understood that the territory is  Wet'suwet'en.  The next territory is that of Gwinin Nitxw.  There  is two territories located on either side of the  Skeena River and these are the territories, the most  northerly one is 28 miles north of Kuldo, and then  there is the one immediately to the south of it.  Now,  the first of these territories was testified to by  Solomon Jack, Gwinin Nitxw, and he was -- this is the  more southerly of the two territories, my lord, and I  think you recall where these are --  :  Yes I do, yes.  :  They are quite large and in the centre, so this is  the territory we are dealing with first and then this  one I want to spend a few moments on.  :  You are dealing with the southerly one first?  :  Yes, and that's the territory that Solomon Jack  testified to.  And I have explained in the argument on  page 170 and 171 the sources of the references, and  then Solomon Jack explained that his brother, Arthur  Kusick, the former Gwinin Nitxw, would come to him  about the boundaries.  Solomon Jack in fact was shown  the boundaries by his father and grandfather and he  was shown the traplines, and there were eight  traplines in this southern part of the territory.  Now, I make some reference to here and I will come  back to it on 172.  Mr. Jack explained how Moses  Stevens, Dawamuuxw, came to be on the northern  territory of Gwinin Nitxw at Slamgeesh.  He was there 25662  Submissions by Mr. Grant  1 because his father was in Gwinin Nitxw's House and he  2 was allowed to use the area for hunting and trapping  3 of Slamgeesh.  Subsequently the area was registered as  4 a trapline.  But it belongs to Gwinin Nitxw.  And this  5 is the evidence of Solomon Jack, the present holder of  6 the name Gwinin Nitxw.  7 Now, that particular piece of the argument really  8 goes under Galaanhl Giist, the Slamgeesh River  9 Territory to the north.  And this -- of the  10 territories I am going to deal with, I'd like to spend  11 a bit more time with this than the others because this  12 again is the third of the Gitksan territories that my  13 friends in their summary of argument focus on to  14 challenge the concept of ownership.  15 Walter Blackwater testified to this territory by  16 way of an affidavit and he was cross-examined in the  17 summer of '88.  He was given permission to testify to  18 it by Solomon Jack.  He was instructed by Moses  19 Stevens, the former Dawamuuxw from the House of  2 0 Dawamuuxw; by his grandmother, Esther Stevens, the  21 former Asgii; and by his mother, Mary Blackwater, and  22 by his uncle Charles Stevens; all of them, except  23 Moses Stevens, came from the House of Niist.  And also  24 by his father, Jimmy Blackwater, who was the former  25 Wii Minosik.  26 Now, Mr. Blackwater, in his affidavit and in his  27 cross-examination, identified this territory as  28 belonging to Gwinin Nitxw.  His knowledge of it is  29 very apparent by the 43 georgraphic features on the  30 boundary and within the territory that he identified  31 by Gitksan names.  32 In cross-examination, he confirmed on page 174, my  33 lord, that the Slamgeesh territory is owned by Gwinin  34 Nitxw.  He testified:  "He said that was Solomon  35 Jack's territory".  36 Mr. Blackwater also explained the earlier mapping  37 confusion in which there was an identification on the  38 map that it was under the name of Dawamuuxw.  He says,  39 and his evidence I think is very clear on this point:  40  41 "I'll try to make it clear to you what went on  42 on this territory here.  To begin with it all  43 started with my grandmother who is known as  44 Ester Stevens.  Asgii is her Gitksan name.  45 Ester and Gwinin Nitxw were just like sisters  46 back then, and she took Ester and her husband  47 to be caretakers of this territory as long as 25663  Submissions by Mr. Grant  1 they want to be, and this is what happened.  2 Ester stayed there until -- as long as she  3 could, and when she passed on that territory  4 was given back to Gwinin Nitxw and the reason  5 why I am telling you is because I want it made  6 clear, real clear to you, what that -- that  7 this happened and this is why that land  8 returned back to Gwinin Nitxw, because it was  9 his to begin with or hers to begin with."  10  11 Now, Ester of course is from the House of Gwinin  12 Nitxw and was married to Moses Stevens.  13 Now, the Provincial Defendant has focused on this  14 territory to challenge the reputation in the community  15 as to boundaries and ownership of house territories.  16 The evidence presented in my submission shows that  17 there was apparent confusion with respect to this  18 territory because of the distinction between  19 registered traplines and house territories.  There are  20 also other rights within the Gitksan system which led  21 to an apparent -- and I focus on apparent confusion as  22 to ownership of the territory.  That is apparent to an  23 outsider or appearing to be that -- a confusion.  24 These rights have already been explained and they  25 include Yugwilaatxw Rights, that is the right of Moses  26 to be on his wife's territory; Amniyetxw, that's the  27 grandfather rights and House Ownership; and finally  28 Use Rights and House Ownership.  And Use Rights is  29 really incorporated into the other two but it's --  30 some of the terminology says Use Rights in this  31 debate.  32 The real issue raised by the defendants is whether  33 this territory belongs to Dawamuuxw or Gwinin Nitxw,  34 and I emphasize this, my lord:  There is no suggestion  35 by the defendants or in our submission no evidence  36 that it's not Gitksan territory.  It's clear to the  37 defendant -- I mean the evidence is who's is this,  38 Dawamuukw's or Gwinin Nitxw's.  39 Now, in a 1982 statements Art Kusick, the former  40 Gwinin Nitxw, explained the apparent confusion.  He  41 said:  42  43 "We got this land from the Stikine way before my  44 grandfather's time.  We owned Blackwater area  45 but they used it so long they kept it."  46  47 Referring to Dawamuuxw.  Now, Mr. Sterritt explained 25664  Submissions by Mr. Grant  1 to the court why this territory had earlier been  2 referred to as Dawamuukw's.  This was in the course of  3 his cross-examination, my lord, the court -- and your  4 lordship intervened when Mr. Goldie went to another  5 topic and asked:  6  7 "THE COURT:  But you have said the members of  8 this house, some of them, at least the leading  9 ones, were born and raised up in the Slamgeesh  10 area?"  11  12 Mr. Sterritt:  13  14 "A.  No, that's not what I said.  What I said  15 was the grandchildren of --"  16  17 This is the grandchildren of Moses Stevens:  18  19 "...who are on one side are Wolf and on another  20 side are Frog, were born and raised up at well,  21 Blackwater-Slamgeesh.  22  2 3 THE COURT:  Yes?  24  25 A.  And that they're the ones who were very  26 knowledgeable about the territories and are the  27 ones who were informing me about this  28 relationship.  29  30 THE COURT:  Did I not understand correctly that  31 the -- that people from the House of Dawamuuxw  32 were there because of this right acquired  33 through marriage and in the  34 Blackwater-Slamgeesh area?"  35  36 And that understanding is exactly the case, and he  37 says:  38  39 "A.  Yes.  That was the husband.  40  41 THE COURT:  The husband, yes.  42  43 A.  He was married to the Wolf side, who were  44 parents of or grandparents of Walter Blackwater  45 and David Blackwater."  46  47 That was a correction, he said they were the 25665  Submissions by Mr. Grant  1 grandparents, of course.  2  3 "THE COURT:  Well, was there only the one person  4 that was in that area by way of -- by rights  5 acquired through marriage?  6  7 A.  Moses Stevens.  8  9 THE COURT:  Just Moses Stevens?  And his  10 descendants, where did they live?  11  12 A.  Well, Moses Stevens' children would be in  13 the House of -- of Niist.  14  15 THE COURT:  I see, all right.  16  17 A.  His descendants -- well, his nephews and  18 nieces or his brothers and sisters would be in  19 the House of Dawamuuxw.  20  21 THE COURT:  Was this territory originally  22 assigned to Dawamuuxw merely because of the  23 presence on the land of Moses Stevens?  24  25 A.  Yes.  26  27 THE COURT:  I see.  28  29 A.  That was the reason."  30  31 Now, 13 days later, Mr. Goldie returned to the subject  32 of this territory during his cross-examination.  He  33 referred Mr. Sterritt to a taped interview with Walter  34 Blackwater in 1983.  At the commencement of Mr.  35 Blackwater's cross-examination at 2:00 p.m. on  36 September 1, 1988, Mr. Mackenzie advised plaintiff's  37 counsel that he had not received the tape.  38 Plaintiffs' counsel was taken by surprise and had  39 assumed the tape had been delivered after August 24,  40 1988.  The entire sequence of requests with respect to  41 the 1983 tape was explained to the court by  42 plaintiffs' counsel.  The plaintiffs also invited the  43 defendants to reopen the cross-examination of Walter  44 Blackwater, an invitation which was never accepted.  45 And that reference, I don't have the copy of the  46 transcript but Mr. Rush at that reference, my lord,  47 explained the whole sequence of what happened with the 25666  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  tape and in fact it was -- I mean, the plaintiffs  never took issue that the defendants should have the  right to reopen cross-examination of Mr. Blackwater  with the tape in their hands.  Now, Mr. Sterritt agreed, as set out on the tape,  that in 1983 Walter Blackwater in this interview  attributed the Gwinin Nitxw territory at Slamgeesh to  Dawamuukw.  And this is what he said, explaining the  apparent contradiction:  "Q.  And you -- now, Mr. Blackwater obviously  changed his mind?  A.  Well, I don't know.  He clarified in his  own mind as to why Moses Stevens was there,  because of his wife, and that it really  belonged to the House of Gwinin Nitxw.  And at  the time he was talking 1983, referring to it  in that sense.  Q I'm suggesting to you that he changed  his view on who owned that territory?  A.  I disagree with you.  I disagree with you.  He -- he came to me, either him or David, about  a year ago and said he wanted to explain that  it really belonged to Gwinin Nitxw; that Moses  Stevens was there because of his grandmother,  Walter Blackwater's grandmother.  And the only  explanation that I could offer for that is that  Moses Stevens ended up having that registered  in his name as a trapline and that that could  be the reason, but in fact it's very clear that  the area is Gwinin Nitxw's.  Solomon Jack had  mentioned it to me.  I hadn't had anything else  to go on, but at some point Walter Blackwater  came forward and explained the reason why it  was really Gwinin Nitxw's territory and not  Moses Stevens, not Dawamuukw."  In further cross-examination, Mr. Sterritt  confirmed Moses Stevens, the former Dawamuukw, is the  father of Charles Stevens and Mary Blackwater.  Mary  of course is the mother of David and Walter.  This is the territory where we had lunch, is it not?  Yes, that's right.  And who was the Blackwater that was with us? 25667  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  David.  That was his brother, David.  Thank you.  Now, in the course of the cross-examination, it was  urged from Mr. Sterritt that the Blackwater affidavit  was a sham.  Now, this proposition, my lord, was never  put to Walter Blackwater.  In fact, the defendant did  not reopen the cross-examination of Mr. Blackwater  after receipt of the 1988 tape although there was an  opportunity to do so in November and December of 1988,  and in fact Mr. Macaulay suggested he might even do  so.  There is no suggestion, my lord, in any of this  exchange that Mr. Blackwater or his house, remember he  is from Niist, would benefit from the apparent change  from Dawamuukw to Gwinin Nitxw.  In fact, the  informant about the territory, the person who  apparently changed his understanding, had nothing to  gain.  In any event, the territory was not suggested  by Mr. Blackwater to belong to the House of Niist.  Now, my lord, the only explanation for the  difference, and Mr. Blackwater was not cross-examined  again on this, on the tape, the only explanation for  the difference was that he was confusing the rights of  his grandfather through Yuugilaatxw in 1983 with the  House, it is important to remember in this context  that Moses Stevens was one of the principal teachers  of Walter Blackwater with respect to the boundaries of  the territory.  And the second is, my lord, that --  and I will come to it, is with respect to the trapline  registration confusion.  I submit, my lord, the only  conclusion to be taken from the Federal and  Provincial's failure to cross-examine Walter  Blackwater directly on the 1983 statement is that they  did not want him to explain the reason for the  difference between the tape and his affidavit because  such an explanation would undermine the argument that  they are making.  Now, Mr. Solomon Jack in 1982 stated Gwinin Nitxw  let him, Dawamuuxw, trap in there; his dad was from  our clan like.  Now, this was Solomon Jack's  explanation as to why Dawamuukw trapped on part of the  territory.  This was a cross cousin relationship, my  lord.  You can see that Moses Stevens had rights  through his father and then through his wife.  Mr.  Sterritt explained Solomon Jack is here referring to  Moses Steven's trapping and not his ownership of that  territory and, once again, he raises in 2566?  Submissions by Mr. Grant  1 cross-examination at a later point when asked by Mr.  2 Goldie he says:  3  4 "Q.  Yes.  Now, so we have it so far as any  5 material that is available to us, a certain  6 consistency; Art Kusick, Solomon Jack and  7 Walter Blackwater all suggesting that the  8 territory -- Slamgeesh territory was Dawamuukw?  9  10 A.  No.  What Art Kusick is saying and Solomon  11 Jack are saying is that Dawamuukw is in that  12 area, but Solomon says it's because of his --  13 he mentions because of the father, Dawamuukw's  14 father.  15  16 Q.  Yes.  17  18 A.  It's what he says on the tape, but he also  19 says that it is the territory, it's Wolf  20 Territory under Gwinin Nitxw.  Walter also  21 comes -- and Walter comes -- and also what  22 Solomon is saying is that they are trapping in  23 that area.  That Moses Stevens is trapping.  He  24 doesn't say that he owns it, but in the terms  25 of what we are doing in terms of defining, or  26 what he was describing was where they trapped,  27 but he has already established that there.  It  28 wasn't -- I still don't see that Walter was  29 saying -- or pardon me, Solomon was saying it  30 in a hostile way in any way at all in terms of  31 a conflict.  Eventually Walter Blackwater came  32 forward to me and pointed out that the reason  33 Dawamuukw was there is because of his wife,  34 because of the family.  35  36 Q.  All right.  37  38 A.  And it's Gwinin Nitxw land, and to me the  39 sequence from 1982 to 1983 to 1988 is just  40 building on the same information and them  41 sorting through that."  42  43 Now, I also want to point out that both Mr.  44 Sterritt and Mr. Blackwater referred to the  45 clarification of boundaries by way of a September 6,  46 1986 helicopter flight.  This evidence of course is  47 not focused on by the defendants when they challenged 25669  Submissions by Mr. Grant  1 the ownership of this territory.  2 Thirty-two days later after first raising this  3 with Mr. Sterritt, Mr. Goldie raised it again with him  4 and he returned to the issue, again referring to field  5 notes of Mike Morrell in 1979.  And then he says:  6  7 "Q.  And this too he records as belonging in the  8 territory of Dawamuukw?"  9  10 Mr. Sterritt said:  11  12 "A.  Yes.  And this is the -- what Walter  13 pointed out to me that it was Moses Stevens who  14 was married to a member or to a wolf and that  15 it was really Gwinin Nitxw's territory.  It's  16 the same area that is properly Gwinin Nitxw."  17  18 Now, I have already referred you to the fact that  19 they did not cross-examine Mr. Blackwater with respect  20 to the 1983 tape which would have required reopening,  21 that they were invited to do, the 1983 tape of  22 interview; the January 12, 1987 interview with Walter  23 Blackwater, or the Mike Morrell interview with David  24 Blackwater and Bobby Stevens respecting the Slamgeesh  25 territory.  26 Now, since they elected not to reopen  27 cross-examination of Walter Blackwater, the sworn  28 evidence before the court is that the Slamgeesh  29 Territory belongs to Gwinin Nitxw.  This is consistent  30 with the affidavit of Walter Blackwater, the sworn  31 evidence of Walter Blackwater on cross-examination,  32 the sworn evidence of Neil Sterritt over the course of  33 over 30 days at different times, and the 1982  34 interview with Art Kusick, and the sworn evidence of  35 Solomon Jack.  And I add as a sixth, my lord, the  36 sworn evidence of James Morrison who described the Wii  37 Minosik territory bordering on this territory and  38 referred to the neighbouring territories as belonging  39 to Gwinin Nitxw.  40 Now, finally, my lord, after both Mr. Blackwater  41 was examined and Mr. Sterritt was examined, the  42 defendants cross-examined Gwinin Nitxw himself,  43 Solomon Jack on December 6, 1988.  44 It becomes even more clear that the territory was  45 Gwinin Nitxw in his cross-examination when asked when  46 Gwinin Nitxw lost the Slamgeesh territory, this is in  47 cross-examination, he stated: 25670  Submissions by Mr. Grant  1  2 "Q.  All right.  But when you answer that, you  3 thought that you had lost your territory?  4  5 A.  No, I didn't.  I said we lost it through  6 the white man's law by registering it by them  7 registering that trapline.  8  9 Q.  And who was the person that registered the  10 trapline?  11  12 A.  Moses Stevens, as far as I know.  I'm  13 not -- I haven't even looked at the register,  14 but I heard he registered it.  15  16 Q.  Well, now you say you never lost the  17 territory at all?  18  19 A.  No.  But we just lost it through the white  20 man's, that's what I supposed to say on that.  21  22 ....  23  24 A.  The reason why our people before me -- I  25 don't know it was after I was born or before,  26 but Moses Stevens, his father came out of  27 Gwinin Nitxw's House and yet he wanted to trap  28 on Gwinin Nitxw's trapline.  So they told him,  29 according to my grandmother, they told him to  30 use Slamgeesh Lake, and it's -- that area is so  31 big we couldn't -- we couldn't use it, we  32 couldn't trap on it all the time, eh.  So they  33 cut -- actually, the southern part is closer to  34 Kisgagaas, that's why my grandparents trap  35 there all the time.  And the first thing they  36 do with that thing was register it on the Moses  37 Stevens.  That's what they told me, I didn't  38 see the register of what, or whether it wasn't  39 registered."  40  41 My lord, the defendants never put the suggestion  42 this territory belonged to Dawamuukw to Solomon Jack  43 in his cross, and they had all of the information at  44 that time.  45 In summary, the sworn testimony of all witnesses  46 demonstrates that the Slamgeesh territory belongs to  47 Gwinin Nitxw.  The early statement of Art Kusick, the 25671  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  former Gwinin Nitxw, is consistent with this; all  witnesses explained why Dawamuukw had rights of  access; and the defendants refused to seek an  explanation from Walter Blackwater.  Now, my lord, skipping the next paragraph but  going down, the plaintiffs have never denied that the  imposition of the trapline registration has impacted  the system.  In this case, what you see is a very  classic example of it, the freezing in time of the  trapline registration by issuing it to Moses Stevens,  a chief with privileged rights of access, has led to  some confusion.  But when you take all the evidence  together, my lord, it's my submission that the  community reputation is that this territory belongs to  Gwinin Nitxw.  The source of this community reputation  is the deceased chiefs who passed on the boundaries  and the ownership to the living Gitksan.  Now, my  lord, this is not to say that the living chiefs do not  discuss house territories and boundaries among  themselves.  That is an obvious aspect of any  reputation within a community.  To suggest the fact of  such discussions makes the reputation evidence  inadmissible, as the Provincial Defendant does, is to  make a mockery of the reputation evidence exception  enunciated by the courts.  Just say with that example,  my lord, that no aboriginal society with an oral  history would be able to prove territory ownership.  This is precisely the absurd result that Blackburn  L.J. rejected in the Milirrpum case with respect to  this territory.  :  That's a little strong, isn't it?  :  Well, it may be strong but I say that what -- what  he was dealing with is how do you prove -- with an  oral society how do you prove ownership or how do you  prove that territoriality.  And you have to of course  in a community reputation, you have to go among living  people are talking about it as well.  I submit that  you should accept the reputation evidence that this is  Gwinin Nitxw's territory.  If however you accede to  the Provincial argument, then we are stuck with the  recognition of the territory as belonging to Dawamuukw  but in either case there is no argument that it is not  Gitksan territory and properly included in the  territory claimed in this case.  :  That's what I was suggesting to you back in 1987,  wasn't it, that did it matter?  :  Which house held the territory?  Well, the 25672  Submissions by Mr. Grant  1 difficulty is because of the nature of the system and  2 the society, it would have been much easier of course  3 for the plaintiffs to establish the one territory, but  4 in order to establish that territory and why there  5 were these relationships with the other groups we had  6 to establish the house territories.  But the evidence  7 in my submission is that it is Gwinin Nitxw's  8 territory.  9 MR. MACKENZIE:  My lord, perhaps I should rise just to clarify  10 my friend's comment that there is no argument.  He is  11 referring to the Provincial Defendants.  Perhaps just  12 for information --  13 THE COURT:  Where is that, Mr. Mackenzie?  14 MR. MACKENZIE:  Page 178-7.  15 THE COURT:  There is no argument.  16 MR. MACKENZIE:  My friend says:  "In either case there is no  17 argument that the territory is not Gitksan territory",  18 and my friend has referred in those terms several  19 times I take it to the Provincial Defendant's argument  20 and for purposes of information, perhaps I could just  21 adhere that there is an argument that that territory  22 is subject to overlapping claims by Stikine and the  23 Nishga people so in that sense there is an argument.  24 MR. GRANT:  Well, I appreciate my friend's comment.  I should  25 say there is no valid argument in my submission  26 because any of these competing claims my friends did  27 not call a single Nishga or Stikine witness to prove  28 that any of the territory wasn't Gitksan.  It is just  29 a question of reputation as I understand is as far as  30 they can go based on these claims to the Federal  31 Government.  32 Now, my lord, I want to say here that -- and this  33 is something that I don't want to overly gild the  34 lily.  I mean, this is the very nature of reputation  35 evidence and it can lead in a history like we have  36 been dealing in this case to confusion, and it's not  37 perfect.  And it would be nice if none of those --  38 that confusion was there but it was, and I am being  39 frank about that, but we still say we proved it and  40 that it's an example of how confusion can arise.  I'd  41 like to move into the territory of Baskelaxha, and  42 this is the territory located 13 miles north of Kuldo  43 running south from the Nass to the Skeena River, and  44 there is only one territory.  The present holder of  45 this territory is William Blackwater, and William  46 Blackwater is -- he is the brother of Walter  47 Blackwater but was adopted into Baskelaxha House.  As 25673  Submissions by Mr. Grant  1 you recall, that was a very small house.  And so this  2 is -- and this is the territory we are referring to  3 here.  4 Now, I don't wish to say anything more regarding  5 that territory.  I will move on to the territories of  6 Mauus, Jeff Harris Junior, on page 178-10.  These  7 territories, my lord, start with the Kuldo Creek  8 territory and this is the territory that Jeff Harris  9 Senior described in his affidavit and of course,  10 although my friends make a fair amount about the  11 boundary of the Kuldo Creek territory, Mr. Harris was  12 not cross-examined on this boundary and confirmed the  13 boundary as on 646-9A and it is the small territory in  14 that south Kuldo Creek.  15 THE COURT:  Yes.  I see it.  16 MR. GRANT:  Now, I want to clarify something that may be  17 confusing because I only refer to the territories --  18 this is the one territory here, my lord, in Kuldo  19 Creek, and then there is this territory here and this  20 one here.  But what happened was that Mr. Harris  21 referred to the boundary of all of this at once and  22 then he says there is a space there that is Wii  23 Eelast, Amagyet, so the fact it's under one head,  24 there is two territories, but there are two there.  25 And that's referred to as the Xsa Gay Laaxan territory  26 testified in --  27 THE COURT:  The northern one?  28 MR. GRANT:  No, the northern one is the Kuldo Creek territory.  2 9 THE COURT:  All right.  30 MR. GRANT:  And you can see it's Gwiis Xsagan Gaxda, it is the  31 small Kuldo Creek, that's what it really means.  32 THE COURT:  All right.  33 MR. GRANT:  Now, on page 178-11, Mr. Harris — I refer to the  34 Xsa Gay Laaxan which are the two that are close to  35 Kispiox and this is described in his affidavit as one  36 territory.  And on the next page -- just a minute, I  37 am sorry, on Exhibit 610 itself, I will just refer you  38 to the reference, my lord.  Yes, on -- in the  39 affidavit Exhibit 610 at paragraph 11 he describes the  40 Xsa Gay Laaxan territory and he says at the end:  41  42 "Enclosed within the boundary described above is  43 the Lax Hla Gant territory owned by Amagyet."  44  45 which is described in section C of this affidavit, so  46 what he did was he just went around the external  47 boundaries and he said but there is this other 25674  Submissions by Mr. Grant  1 territory of Amagyet, and then he goes on to describe  2 that separately.  And I'd like to move to that  3 territory of Amagyet on page 178-13.  4 THE COURT:  Yes.  5 MR. GRANT:  This is the territory owned by the House of Amagyet  6 and I have put and cared for by Wii Eelast at this  7 time, my lord.  At the time of the swearing of the  8 affidavit a successor to the name of Amagyet had not  9 as yet been chosen.  Mr. Harris Senior attended  10 funeral feast for Percy Wilson, the former holder of  11 the name, and at that time Mr. Angus Senior was  12 designated a speaker for the house until a successor  13 to the name was chosen.  And then it goes on to  14 explain that by the time of the cross-examination, a  15 feast had been held.  Leo Braton was selected as the  16 successor to the name but the name was allowed to rest  17 for a while.  Mr. Harris describes this territory and  18 he was taught about it by the former holder of the  19 name.  20 I am going now to the territory of Gwoimt.  This  21 is a territory of the -- Gwoimt is a Wolf chief from  22 Kisgagaas, and Fred Wale was the person who described  23 this territory.  And it's Mr. Wale himself, he is one  24 of the persons that resides part of the year in  25 Kisgagaas even today and of course this is the  26 territory that's being discussed here and it is the  27 one that notches across the Skeena, my lord, on 486,  28 you had -- you have that space.  2 9    THE COURT:  Yes, I have it.  30 MR. GRANT:  And it is the territory that Anlagaasmdeex which is  31 a site of a fishing village.  And Tsabux is part of  32 the Gwoimt wilnadahl, they worked together in the  33 feast hall, and they utilized the fishing stations at  34 Anlaagaasimdeex.  Mr. Wale testified to that in his  35 cross-examination.  He also explained on -- page 16 I  36 am, my lord.  He also explained where his cabins were,  37 the diminishing game and logging, and then he  38 explained that his house originally came from the  39 village of Anlaagaasimdeex, and this is a place which  40 is part of present day Kisgagaas at the west end of  41 the village.  It is at this location that the Gwoimt  42 pole was located.  43 In cross-examination, my lord, the dispute over  44 the Gitan Gwalxw area near Swan Lake was raised,  45 that's the notch between the two Gails, and that was  46 raised in cross-examination but that territory is not  47 a subject of the claim and it's the evidence of -- 25675  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  evidence -- Mr. Wale did not know of that dispute and  it's our submission that the evidence is that that's  Kitwancool territory.  In any event, it's not part of  the area in this action.  I'd like to go to the territory of Gutginuxw which  is on the Skeena River northeast of Kispiox.  Willie  Morrison is the head chief.  Abel Brown, a witness who  you saw in evidence, I believe --  THE COURT:  Yes.  MR. GRANT:  -- testified to this in cross-examination and he  described at the time geographical features on the  boundary, witness the territory by their own names.  And I can direct you to that one.  THE COURT:  I have located it.  MR. GRANT:  Thank you.  It is a relatively large one near  Kispiox and going out.  The other next two territories  I am going to focus on will be starting with  Luutkudziiwas territory -- it touches on the  Kitwancool territory and also, my lord, this would  be -- if you looked at the chiefs in terms of village  of proximity, Gaxsbgabaxs came from the western  village, Luutkudziiwas is the western most of the sort  of central Gitksan chiefs, and then Luutkudziiwas, he  also has a territory over on the east which borders  very closely to the territory of Smogelgem, just a  sliver of Gyetm galdoo in between.  THE COURT:  All right.  Can we take the afternoon adjournment  then?  MR. GRANT:  Certainly, my lord.  THE REGISTRAR:  Order in court.  Court stands adjourned for a  short recess.  (PROCEEDINGS ADJOURNED FOR A RECESS)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings transcribed to  the best of my skill and ability.  Tannis DeFoe,  Official Reporter,  UNITED REPORTING SERVICE LTD. 25676  Submissions by Mr. Grant  1 (PROCEEDINGS RECOMMENCED AT 3:15 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MR. GRANT:  Yes, my lord.  Before going on, if you look at  6 Exhibit 486, one of the questions that you raised with  7 me was with respect to Williams Lake, and actually  8 that's a boundary lake on the territory up in the  9 northwest corner right at that notch that sticks out.  10 THE COURT:  Oh, yes.  I see it.  11 MR. GRANT:  That's Williams Lake that Mr. Muldoe is referring  12 to.  13 THE COURT:  Yes.  14 MR. GRANT:  I am referring to the two territories of  15 Luutkudziiwus, and the first one is the Hazelton Creek  16 territory described in evidence by Mrs. Moore.  She is  17 a chief within the house, and was authorized to speak.  18 Mr. MacKenzie was too sick to give evidence in this  19 case.  20 Now, the proximity of the two Luutkudziiwus'  21 territory is indicative, as it is of Djogslee of the  22 antiquity of this Frog House in the territory.  In  23 fact this Hazelton Creek territory is in the location  24 of Temlaxam itself.  I refer you to page 20, where  25 Mrs. Moore -- page 178-20, Mrs. Moore's evidence in  26 the second last paragraph -- the last sentence is  27 consistent with the evidence of Mary Johnson with  28 respect to the boundary of Antgulilibix' territory to  29 the north of this territory.  She also, of course,  30 refers to the Kitwancool on the other side of  31 Andamahl, which is that little notch, so that she  32 touches on it.  And this is where that mountain is  33 where Mary Johnson says on the other side is  34 Kitwancool.  And she goes up to there as well, this  35 Luutkudziiwus' territory.  36 And of course with respect to the Kitwancool  37 boundary that's also consistent with the evidence of  38 Stanley Williams, who also described that location,  39 that Kitwancool boundary.  40 THE COURT:  I take it it's intended that there is a narrow  41 corridor running along the Kitwancool border belonging  42 to Gaxsbgabaxs, is it?  Is that -- that's what this  43 map shows.  Does your show the same thing?  44 MR. GRANT:  Oh, yes.  Where Gaxsbgabaxs, it's around Burdick  45 Creek (?), which you can see here, Burdick Creek is a  46 boundary between Gaxsbgabaxs and Luutkudziiwus.  47 Actually there is a long extension and only a very 25677  Submissions by Mr. Grant  1 small point at the height of Luutkudziiwus, the  2 northern point of Luutkudziiwus' territory that  3 touches on the Kitwancool.  4 The next territory is the Madii Lii territory.  In  5 this case was testified to by Arthur Risdale, the  6 brother of the present Chief Luutkudziiwus.  And he  7 was taught this by Tom Campbell, who is now deceased.  8 Just a point to be made there with respect to  9 this, is that Kenny Muldoe are -- or Kenny MacKenzie,  10 Simon Muldoe and Delbert Turner trap in the Madii Lii  11 territory.  They have permission to do so.  12 And Kenny MacKenzie is of the son of the present  13 Luutkudziiwus, and it's understood that he will only  14 have that right to use the territory until his father  15 dies.  16 Now, the next territory I am referring to is quite  17 close to that.  It's the territory of Gyetem Galdoo.  18 And this long narrow sliver here that intervenes  19 between Luutkudziiwus and Smogelgem along the  20 boundary.  This is the only territory of Gyetem  21 Galdoo -- the only territory of Gyetem Galdoo.  Except for the mountain top.  That's right.  Yes.  All right.  Now, David Green, chief in the House of Wii Gaak,  26 Wagil Wil, testified to this territory.  He was taught  27 the territory by Charles Clifford, the former Gyetem  28 Galdoo, and by Thomas Wright, the former Guuhadak and  29 the late Dick Lattie.  Mr. Green himself was born at  30 Kisgagas and is 77 years old.  I have summarized his  31 evidence, and the references on his cross-examination  32 are to Exhibit 595-A, my lord.  That's the transcript  33 of his cross-examination, and those page references  34 are all to that exhibit.  35 But he refers to the meaning on page 178-24 of An  36 Djem Lan translated means "pot of fish eggs".  This is  37 where the spawning is done on the territory.  And he  38 also referred to Gyetem Galdoo as having a fishing --  39 Seeley Lake, and this is that -- to that small piece  40 that Wii'goob'l refers to.  Gyetem Galdoo and  41 Wii'Goobl are very close, although separate houses and  42 the same wilnat'ahl.  43 THE COURT:  I thought Mrs. Ryan said she owned Seeley Lake.  44 MR. GRANT:  Seeley Lake, my lord, is within the territory now --  45 Seeley Lake itself is within the territory of Spookw.  46 Gwaans, that Hanamuxw territory comes up close to  47 Seeley Lake, but she -- her evidence was that Spookw  22 THE COURT  2 3 MR. GRANT  2 4 THE COURT  2 5 MR. GRANT 2567?  Submissions by Mr. Grant  1  2  THE  COURT  3  MR.  GRANT  4  THE  COURT  5  MR.  GRANT  6  7  8  9  10  11  12  THE  COURT  13  MR.  GRANT  14  15  16  17  18  19  20  THE  COURT  21  MR.  GRANT  22  23  THE  COURT  24  MR.  GRANT  25  26  27  28  THE  COURT  29  30  MR.  GRANT  31  32  33  THE  COURT  34  MR.  GRANT  35  36  THE  COURT  37  MR.  GRANT  38  39  THE  COURT  40  MR.  GRANT  41  42  43  44  45  46  47  owns the other side, and he owns Seeley Lake.  Spookw does?  Yes.  I thought you just said Gyetem Galdoo --  I am going to come to that.  The territory here,  Seeley Lake is within the territory of Spookw, but  there is a place that Spookw gave evidence of that  Wii'goob'l holds, and it's this end of the lake.  It's  that small -- it's on the fishing site map actually.  And there is a -- the outlet of Seeley Lake belongs to  Wii'goob'1.  All right.  Okay.  That's what is being referred to in this case  in cross-examination by David Green.  But the former  head chief of that wilnat'ahl group was Gyetem Galdoo.  Gyetem Galdoo and Wii'goob'l are very close, and  Jessie Sterritt described it -- that Wii'goob'l  right -- Wii'goob'l ownership of that Seeley Lake  reference.  Mrs. Ryan not also object to the Carnaby Mill as --  The Carnaby Mill is in her territory, and it's  further down.  Seeley Lake --  Yes, I remember it is.  After you pass Seeley Lake there is actually a creek  right near where that truck stop is, and that creek or  very -- that creek, that watershed, that boundary  between Hanamuxw and Spookw.  All right. Did Mrs. Ryan not say that Seeley Lake  was hers?  No. I mean, my lord, certainly not that I recall.  I recall her referring to it, but that it was on the  Spookw side of the boundary.  All right.  I certainly, given your accuracy of memory, I will  check that, but I'm fairly certain of that.  It's pretty vague at this moment.  I'm sure I would recall if she said that it was  hers .  Thank you.  Now, I now refer to the territory of Spookw, and  this is the one territory along the Skeena and Bulkley  River, page 178-25.  And this is Mr. Robinson, Steve  Robinson was taught the boundaries of this territory  by his father and by his mother, as well as by Mary  Johnson, who was the former Yagosip, another Mary  Johnson, of course, the Mary Johnson who gave  evidence.  And by Frank Clark, the former Spookw. 25679  Submissions by Mr. Grant  1 Now, there is a place within that territory known  2 as Daxso'op, which is a pond at the outlet of Seeley  3 Lake.  This belongs to the House of Wii'goob'l, and  4 this outlet pond is also known as Wii Gidii Sitax.  5 That is the reference that Sylvester Green -- or I'm  6 sorry, that's the reference that David Green is  7 referring to.  That is the location that is understood  8 to belong to Wii'goob'l.   Wii'goob'l and Gyetem  9 Galdoo are in the same wilnat'ahl.  When we look at it  10 by house, it's Wii'goob'l, but if you look at by  11 larger group, Gyetem Galdoo was -- formerly would have  12 been referred to -- he is the leading chief of the  13 Frogs one may say.  So there is that connection.  14 Now, I just like to emphasize this quote from Mr.  15 Robinson.  On cross-examination he was cross-examined  16 on again interrogatory maps and map changes.  But this  17 is what he said in cross-examination:  18  19 "The maps can change, you see, you can draw a  20 map here and they say cut it in half and  21 then -- but Spookw's territory has its own  22 boundaries from the time that they were here.  23 You see, this is what I mean, I'm going to  24 explain to you ... maps can change, but the  25 territory itself stays, and we know."  26  27 And I ask you to keep that in mind, as Mr. Rush is  28 going to shortly deal with the mapping, that the  29 chiefs' evidence is that the territories stays, the  30 mapping may change, but that's because of the enormous  31 project or task of mapping the oral knowledge of the  32 territories.  33 Mr. Robinson explained why Lost Lake belongs to  34 Yagosip, and I referred to that, and then when he was  35 cross-examined with reference to this outlet pond, he  36 made it clear in his testimony that Seeley Lake itself  37 belonged to Spookw, but the outlet pond at the  38 northeast end of the lake was owned by Gyetem Galdoo,  39 "because Gyetem Galdoo had a fishing site right in the  40 mouth of -- Station Creek, coming out there."  41 Now, here again what you have is Gyetem Galdoo,  42 Wii'goob'l interchanged, but it is that wilnat'ahl,  43 Gyetem Galdoo and Wii'goob'l, that own that outlet  44 pond.  45 Then Mr. Robinson talks about his knowledge, and  46 he disagrees with Mr. Sterritt's notes that Spookw had  47 no land. 25680  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  Now, in cross-examination Mr. Mackenzie suggested  that territories were -- I'm on page 28.  A  re-creation, a creation that you prepared for the  court case.  And this is Mr. Robinson's answer to  that.  He said:  "It's not a creation, it's there and then we  know what our land is.  We didn't create -- I'm  not -- I'm not a magician to create anything,  to do anything like that -- -- -- but we are  talking about land and all get together and  then we were denied by the B.C. government,  they wouldn't recognize us as people of this  country."  And that is the evidence of the territory and  generally of the concept of re-creation.  It's  something that's created, I would say, by the  defendants in their argument, but is it true?  Yagosip's territory is referred to next, and this  is the territory north of the Bulkley up the Babine  trail.  There are two territories.  And Guuhadak was  authorized to use part of this territory.  You  remember that Yagosip was one of those Wolf chiefs who  came down from Kisgagas, and therefore is closely  related to Guuhadak, and this -- the territory that we  are referring to here, my lord.  Its right on -- to  the east and going up in the mountains, to the east  and north of Hazelton.  Yes.  And then you asked about the notch between Gwii  Yeehl and Kliiyem Lax Haa, and that's the Yagosip  territory up here on the Kispiox, that's the second  territory, that's not shown on 486, but there is a  space there for it.  It's on the west side of the  Kispiox.  Yes.  All right.  Both these territories were testified to by Mr.  Robinson.  And I would like to refer you now to the territory  of Woosimlaxha.  And this is the territory located  along the Skeena and Bulkley Rivers near the village  of Gitanmaax.  And Victor Mowatt is the present holder  of that name.  And Woosimlaxha territory, I will refer  to the Nika Teen ones as well, which are next, is this  territory that really encompasses and surrounds on  three sides the Nika Teen territory.  And it comes 25681  Submissions by Mr. Grant  1 right out from Kispiox and going east to Nine Mile  2 Mountain and then down to the Bulkley River.  And then  3 inside that insert is Nika Teen, one territory, which  4 encompasses Gitanmaax actually, and is -- goes along  5 the Skeena and then across the river in the area of  6 the south Hazelton is another Nika Teen territory, but  7 it doesn't go very far up the mountain.  8 THE COURT:  All right.  9 MR. GRANT:  Now, Mr. Robinson again testified to these three  10 territories I referred you to, and referred to 13  11 geographical features on the Woosimlaxha or Robinson  12 Lake territory.  The territory referred to as Mount  13 Glen is that territory close to Gitanmaax of Nika  14 Teen, and again Mr. Robinson testified to the  15 boundaries of this territory.  16 Now, the reference on the bottom, my lord, at page  17 32 should be under the next territory, because it's  18 really talking about across the river.  And he  19 explained the boundary line between the Spookw  20 territory and this Nika Teen territory was the  21 boundary at approximately 14 hundred foot elevation on  22 the mountain.  Above that point it belonged to Spookw.  23 It was the top part of the mountain.  Then he  24 described his own presence on the territory close to  25 Hazelton and Dam Gan Gyuuxs, is the territory which is  26 on the Lower Chicago Creek down slope from Hagwilget  27 Peak.  28 Now, finally, my lord, I refer you to the  29 Wii'goob'l territories.  And of course we have  30 referred to the one at the outlet of Seeley Lake,  31 which is just a very small place, and there is another  32 territory at Sallysout Creek, and this is testified to  33 by Mr. Benson.  And that is the main territory of  34 Wii'goob'l.  And Mr. Benson was cross-examined on  35 that, and his -- his evidence is there.  Have you seen  36 that?  37 THE COURT:  Yes.  38 MR. GRANT:  My lord, I am going to — I have alluded with  39 respect to the Gwinin nitxw territory and others to  40 the concept of the reputation, and I am going to  41 return to the legal side of that argument.  But we  42 have now reviewed the evidence, and I say we fairly  43 reviewed it, those areas of suggested contradiction we  44 have endeavoured to incorporate, but we have reviewed  45 the evidence of all of these territories, and we say  46 that you should make a finding at the end of the day  47 that these territories, as depicted on 646-9-A and 25682  Submissions by Mr. Rush  1  2  3  4  5  THE  COURT  6  7  MR.  GRANT  8  THE  COURT  9  MR.  GRANT  10  THE  COURT  11  12  MR.  GRANT  13  THE  COURT  14  MR.  GRANT  15  16  17  THE  COURT  18  MR.  GRANT  19  20  21  22  23  THE  COURT  24  MR.  GRANT  25  THE  COURT  26  MR.  GRANT  27  28  THE  COURT  29  MR.  RUSH:  30  THE  COURT  31  MR.  RUSH:  32  33  34  35  36  37  38  39  40  41  42  43  44  45  THE  COURT  46  MR.  RUSH:  47  9-B, are with respect to 9-A, the Gitksan territories,  and with respect to 9-B, the Wet'suwet'en territories,  and that they have been proven as belonging to the  houses that are depicted there.  Have you not a count of how many territories there  are?  133.  133 territories?  Yes.  Somewhere in the argument there must be a list of  the —  The territories.  -- the territories claimed by each chief.  Yes.  First of all with respect to the Wet'suwet'en,  I believe Mr. Rush has included that at the first --  or --  I remember seeing it somewhere at the beginning.  I am going to -- I will be providing you with a  listing of all of the -- these territories, an index  in effect to this section of the argument, which will  list territories of each chief underneath the name of  the chief.  All right.  So that will be put at the front of this, and --  That will be very helpful.  Yes.  Mr. Rush is prepared to commence argument on  the mapping question.  Thank you.  I am handing up a copy of the argument.  It goes in this volume 6?  Goes in the back of volume 6, my lord.  It's  numerical -- it's sequential.  My lord, Mr. Grant made the point in conclusion of  his last item of argument that I seek to make as well  in respect to the question of the mapping of the  Gitksan and Wet'suwet'en territory east as shown in  Exhibits 646-9-A and 646-9-B.  And the point is made  at the commencement of the argument after I have set  out the plaintiffs' plea on the first of the page 456  of this argument.  The point is simply that the  territory set out in the Statement of Claim is the  land of the Gitksan and Wet'suwet'en chiefs delineated  by the external boundaries or boundary line shown on  646-9-A and 9-B.  Yes.  And, my lord, that is a point that's made in  paragraph 4 -- well, paragraph 3 really, I suppose, of 25683  Submissions by Mr. Rush  1 page 456.  2 Now, at the bottom of that page, my lord, what we  3 say is that the underlying maps from which -- I'll  4 refer to them as 646-9-A and 9-B, or in even more  5 short form, 9-A and 9-B, were prepared, were drawn by  6 Marvin George, the cartographer who gave opinion  7 evidence.  These maps were drawn from 25 Wet'suwet'en  8 and 29 Gitksan territorial affidavits, the oral  9 evidence of the witnesses who testified directly about  10 their territories and the territorial maps tendered in  11 the proceedings.  It's important to note here that the  12 evidence of Mr. George was that he relied on all of  13 those aspects of the evidence called at trial.  9-A  14 and 9-B were founded on the sworn evidence of the  15 Gitksan and Wet'suwet'en people, mostly chiefs and  16 elders, and in some cases sons and daughters of those  17 chiefs.  Although attacked, this evidence was never  18 undermined.  And we say it ought to be accepted by the  19 court.  And we say it's the factual foundation for the  20 opinion represented by the two overlays 9-A and 9-B  21 depicting the internal and external boundaries of the  22 Gitksan and Wet'suwet'en houses.  23 Now, we say further that the requirements  24 established by the Court and the authorities regarding  25 the proof of reputation of land ownership have been  26 met.  And the legal argument on this will follow  27 shortly, my lord.  I don't intend to make it here, but  28 simply to allude to the fact that knowledge of the  29 boundaries, geographical features and ownership of the  30 territories was passed to the witnesses from previous  31 chiefs or knowledgeable elders.  The territory and its  32 ownership were spoken of publicly in the feast, and  33 this knowledge was common in the Gitksan and  34 Wet'suwet'en communties.  In all cases the witness's  35 knowledge has been passed down, most often by the  36 matriline, from a deceased chief, and it originated  37 prior to the litigation.  38 Now, on 458, my lord, I respond to an attack  39 raised by the province.  And this attack is that the  40 territorial affidavits are based on -- the territorial  41 affidavits is attacked on the basis that they do not  42 disclose whether the informants were living.  What  43 flows from this, they say, is that the sources of the  44 territorial and boundary information in the affidavits  45 cannot be determined to be from deceased persons, and  46 therefore should be accorded little or no weight as a  47 statement of reputation not reliant on a deceased 25684  Submissions by Mr. Rush  1 informant.  We say this attack has no basis.  2 The territorial witnesses, in the affidavits and  3 in the evidence, said who their informants were.  They  4 were their deceased ancestors.  In most cases previous  5 holders of the chiefs' name, for example, Thomas  6 George to Alfred Joseph, family members, in the case  7 of Rose Sam to her daughter, Mable Critch or  8 relatives, in the case of Simon Morrison, who held  9 Waiget to Pete Muldoe, who took the name of  10 Gitluudahl.  There is no case where a witness said he  11 or she relied on the evidence of a living informant  12 for the boundary description of a territory.  There is  13 a few examples where a witness said he talked to a  14 living informant about a place or place name.  In  15 these cases it was never for the purpose of  16 determining the boundary or the ownership of the  17 territory.  There were more -- they were more in the  18 line of exceptions.  19 And, my lord, I just like to add to this, not in  20 the text, that it would be highly surprising indeed if  21 the witness didn't talk to people who were living in  22 an oral culture, there would be and indeed was  23 discussion in the feast hall and on the land.  The  24 source of the knowledge, however, the source relied  25 upon by the affiants, were the deceased ancestors of  26 the plaintiffs.  And I think that's demonstrated by  27 the review of the territory by territory evidence that  2 8 we have just gone through.  29 We say further that the defendants were never  30 precluded from exploring in cross-examination who the  31 witness's informants were.  Where they did, it was  32 made clear how the territorial information was passed  33 from deceased persons.  34 We say there is no basis to suggest that the  35 knowledge of the witness who speak about territory  36 came from sources other than identified knowledgeable  37 chiefs and elders who were the ancestors, or relatives  38 of ancestors of the witness.  39 Now, our proposition is, and our submission is  40 that 646-9-A and B together reliably depict the  41 territories of the Gitksan and Wet'suwet'en chiefs and  42 houses in this case.  The Court should accept these  43 maps as depicting the delineation and identification  44 of ownership of the plaintiffs' territory.  45 Now, my lord, these two overlay maps together are  46 the product of an impressive gathering process of  47 information from the Gitksan and Wet'suwet'en 25685  Submissions by Mr. Rush  1 hereditary chiefs.  They are the product of a decade  2 and-a-half process.  And this process was predicated  3 on the fundamental assumption that the hereditary  4 chiefs knew their territories by reference to natural  5 features on the ground and by names in the Gitksan and  6 Wet'suwet'en languages.  The task in mapping these  7 territories was to determine the physical features  8 known by the hereditary chiefs, to ascertain their  9 Gitksan or Wet'suwet'en names, to locate the features  10 on a NTS or government map, and to record the names,  11 places and owners on the map.  12 Mr. George summarized the process in his  13 examination.  And the question was put to him:  14  15 "Q  How was it that the hereditary chiefs told you  16 about the information concerning their  17 territories?"  18  19 And I'll just read part of his answer here, my  20 lord.  He said:  21  22 "During the interviews with the hereditary  23 chiefs they would indicate to me a particular  24 feature where their boundary was on.  They  25 would identify a feature as being a river or a  2 6 creek.  They would give a name to it and I  27 would identify that particular feature on the  28 map, and they would tell me that 'my boundary  29 goes to this hill, and this particular hill has  30 a geograph -- has a name.'  And they would give  31 me that particular name, and they would  32 indicate to me that 'I do not go over that.  33 Over there belongs to somebody else.  You would  34 have to go to talk to him about that particular  35 area.'  Then they would say 'We will go to this  36 particular feature.'  I would identify that on  37 the map and if there was a name given to that  38 particular feature that would be labelled, and  39 they would identify those features to me and I  40 would identify those features on the map."  41  42 And he carries on.  A little farther in his  43 examination he was asked:  44  45 "Q   What other types of features would be the type  46 that would be mentioned to you?"  47 25686  Submissions by Mr. Rush  1 And he identifies rivers, creeks, lakes,  2 mountains, hills, ridges and on some occasions trails.  3 In testifying on his use of the territorial data  4 sheets, which were his means to record the  5 geographical information, Mr. Sterritt said of this  6 process, and I go to his answer located here, my lord:  7  8 "It was to connect topographic features of -- a  9 hereditary chief would refer to a place name  10 and a feature and it was to connect those  11 features with the house, the clan, the village  12 as much as possible and the type of feature,  13 and to provide a record of those features  14 throughout the Gitksan and Wet'suwet'en  15 territory."  16  17 This approach we say was the only way to know the  18 territories.  The hereditary chiefs had a mental image  19 of their territories.  That image was both a product  20 of the oral transmittal to them of names, histories  21 and crest data about the territory, as well as having  22 acquired firsthand contact with the land by being  23 there and working the resources on it.  As Stanley  24 Williams said, "You have to have the dirt of that  25 territory under the soles of your shoes before you  26 tell me about the boundaries of the territory."  27 The intertwining characteristics of geographic  28 knowledge resident in the chiefs and the ancestors of  29 the Gitksan and Wet'suwet'en people were themselves  30 communicated in the oral tradition by interview and  31 re-interview and trips out onto the land.  I there  32 make reference, my lord, to the interview notes of Mr.  33 George, the field notes of Mr. Sterritt, and the  34 interview record relied on by Drs. Mills and Daly, and  35 they, we say, speak eloquently of the process.  36 And I should point out, my lord, that this is to  37 mention but a few.  There were notes of Alfred Joseph  38 and Leonard George, and as well of Glen Williams.  My  39 lord, we say the system of investigation employed by  40 the researchers required determining the geographical  41 landmarks and ground features from the hereditary  42 chiefs.  From this it followed that the more landmarks  43 and features that were known, the better the  44 information and the better the map.  The accumulation  45 of detail about an area allowed Mr. George to  46 determine boundary as lines beyond which often the  47 ground activity did not go.  Those boundaries 25687  Submissions by Mr. Rush  1 encircled the land owned by the house under the  2 stewardship of the chief.  Those boundaries were  3 almost invariably the rivers, creeks, lakes,  4 mountains, ridges and heights of land.  The task of  5 mapping therefore was to assemble and record as many  6 of those features as possible from the hereditary  7 chiefs, and to determine from the hereditary chiefs  8 which house and clan owned the territory.  9 Mr. George worked as a cartographer for the  10 hereditary chiefs through the Gitksan and Wet'suwet'en  11 Tribal Council from October, 1983.  And, my lord, the  12 task that I have just outlined was the task that he  13 was charged with, as he indicated in his evidence.  14 And I ask you to refer to that, the top of 463.  15 In commencing his task Mr. George relied on  16 information which already had been collected from the  17 chiefs up to the time he began his cartographic work.  18 Maps of the Gitksan and Wet'suwet'en territory had  19 been previously drafted.  These maps were drawn  20 relying on generalized and incomplete information  21 about the external boundary.  One such early map was  22 hand drawn by Chris Harris who held the chief name of  23 Luus.  It showed primarily the territories of some of  24 the Gitksan chiefs north of the village of Kispiox.  25 Mr. Sterritt became aware of this map in late 1974.  26 The map was on tracing paper, and it depicted  27 territories that had been traced by Mr. Harris; there  28 were features on the territory, some rivers, creeks  29 and lakes.  Exhibit 22 prepared by Mr. Sterritt is a  30 tracing of Chris Harris's map with additional  31 information of his own on it.  Mr. Harris died in late  32 1975, and Mr. Sterritt did the tracing from his map in  33 early 1976.  The reason Mr. Sterritt gave for tracing  34 this map was given in his evidence.  And what he said  35 was:  36  37 "The hereditary chiefs had asked me and others  38 to do some work on the boundaries of the  39 Gitksan, and this was the first representation  40 that I had seen of some of the territories of  41 the Gitksan, and I felt that it would be useful  42 to begin with what had already been done by  43 Chris Harris."  44  45 On Exhibit 22 Mr. Sterritt had added several  46 notations.  And I just set a few of them out there, my  47 lord, particularly the "boundary per Billy Moat, T/L", 256?  Submissions by Mr. Rush  1 and I refer to a few others.  To do this -- Mr.  2 Sterritt, in order to determine where Billy Moat was,  3 Mr. Sterritt used the linen trapline maps which had  4 been kept by the Department of Indian Affairs to  5 record Gitksan and Wet'suwet'en traplines registered  6 with the provincial government.  Mr. Sterritt's reason  7 for doing so is set out in the next following quote.  8 And he said:  9  10 "The hereditary chiefs believed that trapline  11 maps in the care of the Department of Indian  12 Affairs represented the hereditary territory,  13 and they had passed a resolution in the summer  14 of 1975, directing that we do a map  15 representing their hereditary territories based  16 on the traplines - based on the traplines in  17 the care of the Department of Indian Affairs."  18  19 It was a belief among some of the hereditary  20 chiefs that their territories were described in the  21 trapline maps of the D.I.A.  And this belief was  22 reflected in that 1975 resolution referred to by Mr.  23 Sterritt.  It was this then that led him to the linen  24 maps.  And Mr. Sterritt used Mr. Harris's tracing to  25 assist him to locate information, to locate hereditary  26 chiefs and their territories and to cross-reference it  27 to determine whether the person located on that area  28 was the proper hereditary chief within the system.  29 And he said he did that by consulting with other  30 hereditary chiefs.  31 And I note, my lord, that three of those linen  32 maps were examined by Mr. Sterritt and were marked in  33 the proceedings.  34 Mr. Sterritt gave evidence about the kind of  35 information depicted on the linen trapline maps, and  36 it is set out in the next passage, my lord.  And I  37 just direct your particular attention to the example  38 given by Mr. Sterritt at the bottom of page 465.  He  39 said:  40  41 "For example, a pencil line or a crayon line  42 might be drawn indicating a creek, and a  43 Gitksan name or a Wet'suwet'en name would  44 appear next to that in phonetics, or the  45 translation of the Gitksan or Wet'suwet'en  46 name, and square lines or straight lines  47 indicating that presumably were trapline 25689  Submissions by Mr. Rush  1 boundaries."  2  3 For example, on Exhibit 718 the entirety of one of  4 the rivers was marked Quinagese, and this river today  5 goes by the name of Kwinageese.  Elsewhere on the map  6 in the lower half there appears the words "Ksimottis  7 Kwit", and in brackets underneath the word in English  8 "Milking".  And Mr. Sterritt testified this referred  9 to what is marked today as Milking Lake.  10 Now, how he used the maps is set out next.  And he  11 said that he used them as a general guide to determine  12 whether or not the person who had a registered  13 trapline in a given area was the hereditary chief, the  14 proper person to hold the house territory.  15  16 "For example, I sat down with Luudkudziiwus, Ben  17 MacKenzie, and I reviewed his trapline with  18 him.  And during that discussion he indicated  19 to me that the boundaries as defined were wrong  20 ... on the trapline maps.  Because it did not  21 include all of his house territory.  And at a  22 later date I sat down with Ben MacKenzie when  23 he outlined his house territory to me."  24  25 Now, Mr. Sterritt learned from the hereditary  26 chiefs that the trapline maps did not in reality  27 depict the territories of the hereditary chiefs.  And  28 that, my lord, is set out in the next passage.  29 And I go over to 467.  These maps were of  30 assistance to Mr. Sterritt to the extent that they  31 gave a general location for a place name.  However,  32 "it was never necessary to review that information  33 with the hereditary chief and see exactly, or as close  34 as possible, where that particular feature was,  35 whether it was a creek or a mountain or a lake."  And  36 upon reviewing the information on the linen maps Mr.  37 Sterritt realized geographic names he had been given  38 were on the maps, and he cited the example of Xsi Luu  39 Max Seexsit, a name given by Martha Haimadam.  40 Now, in the summer of 1977 the Gitksan external  41 boundary was described more fully to Mr. Sterritt.  42 There was a large meeting of the Gitksan hereditary  43 chiefs in July of that year where the external  44 boundary of the Gitksan territory was described in  45 general terms in its entirety by the hereditary  46 chiefs.  Later that year in October or November there  47 was a meeting of the Wet'suwet'en chiefs, who defined 25690  Submissions by Mr. Rush  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. RUSH:  THE COURT  MR. RUSH:  the Wet'suwet'en external boundary.  As a result of  these meetings with the Gitksan and Wet'suwet'en  chiefs Mr. Sterritt drew a map that was presented to  the Honourable Hugh Faulkner on November 7, 1977,  which described the territories of the Gitksan and  Carrier Indians as part of the presentation to the  Government of Canada.  And, my lord, that is Exhibit 113.  And I am just  going to pause here to ask you to make reference to  the plaintiffs' small desk size overlay series.  And I  don't intend to refer you to it seriatim, my lord, but  only to draw your attention to the fact that the first  of those overlays is the depiction of the map that was  presented to the Honourable Hugh Faulkner in November  of 1977.  :  Which one is that?  That's the first one.  It begins first in sequence, so  it will be the one closest to the background or base  map.  :  Yes.  Now, my lord, when asked in his examination, Mr.  George described this map as a crude attempt to  identify boundaries of the Gitksan and Wet'suwet'en.  But this was the first attempt to define the external  boundary of the Gitksan and Wet'suwet'en people.  Following that presentation, my lord, and I am on 468,  mid-paragraph, Mr. Sterritt engaged in a process of  systematically gathering information about the  geographical features, landmarks and territorial  ownership from the Gitksan hereditary chiefs.  I note  in the next paragraph that Alfred Joseph and Leonard  George, two Wet'suwet'en chiefs, were also engaged  after 1978 in interviewing the Wet'suwet'en hereditary  chiefs identifying and labelling geographical  features.  Mr. George relied on the information about  the Gitksan territories gathered and recorded by Mr.  Sterritt and Mr. Glen Williams.  This information was  recorded primarily on what was described as  topographic survey data sheets and land use reference  summary sheets devised for this purpose.  It was also  recorded in notebooks and on working maps kept and  used by the researchers in the field.  Mr. Sterritt  described how he recorded the information gathered  from the hereditary chiefs.  Now, my lord, what follows, then, is Mr.  Sterritt's description, and he described the process  of moving from an informal method to a more formal 25691  Submissions by Mr. Rush  1 information gathering process, and it's set out on 469  2 over to 470.  And I just want to draw your attention  3 to a couple of his answers on page 469.  Midway  4 through the page the question was put to him:  5  6 "What information did you take from the field  7 book and put on the topographic data sheets?"  8  9 And he said:  10  11 "Place names, Gitksan place names for mountains,  12 creeks, lakes; place names around a particular  13 Gitksan village ..."  14  15 And so on.  And then further, my lord, he said:  16  17 "Well, I also located some of the features or  18 many of the features on a map, a 1 to 250,000  19 map, very much like the different maps that are  20 on here.  I had a set of them, about six of  21 them.  And I would locate as best I could place  22 names on those maps."  23  24 Those were entered as an exhibit.  25 My lord, how Mr. Sterritt identifies features from  26 the information provided to him is set out in the next  27 passage of his evidence.  And I'll just read in part  28 what Mr. Sterritt said:  29  30 "As close as I could locate it to the feature  31 that was being identified to me by a hereditary  32 chief.  I might -- hereditary chiefs were  33 talking to me all the time.  I might run into  34 them on the street and they would identify a  35 feature; I would write it down and go back and  36 try to locate it."  37  38 Mr. Sterritt further testified how he attended  39 feasts, and was giving information during the course  40 of the feast about place names and territorial  41 ownership.  And, my lord, what follows, then, are Mr.  42 Sterritt's responses to how he garnered information  43 from the hereditary chiefs during the course of the  44 feasts.  45 Over to 471.  Mr. Sterritt testified about the  46 process in this way:  47 25692  Submissions by Mr. Rush  1 "Basically it was an information gathering time  2 for me.  When Marvin George was hired, I turned  3 that information over to him.  And apart from  4 the entries that I made on my own maps, I  5 turned over the data sheets, the summary  6 sheets, my field books, if it was necessary, or  7 if Marvin requested them, as well as the six  8 maps that contained whatever information I had  9 put on the map."  10  11 Now, my lord, the land use reference or summary  12 sheets in the topographical survey sheets were given  13 to Mr. George for mapping.  And what I have done is  14 just to set them out there.  And what I've -- I have  15 attempted to do, my lord, was to indicate that at this  16 stage what the references were and what the sources  17 were.  And you will see that I have gone through the  18 sheets that were -- that were the product of Mr.  19 George's, Mr. Joseph's, Mr. Sterritt's work, and the  20 number of references indicated on the sheets.  And  21 those sheets, I might add, my lord, were cross  22 referred to NTS maps.  And that point is made on page  23 472.  24 Accompanying these topographic data sheets were  25 the working maps onto which the geographical names and  26 features, recorded in the summary and data sheets,  27 were labelled.  The reference numbers were transferred  28 to working or field maps by Leonard George, Mr.  29 Joseph, Mr. Sterritt and Mr. Williams.  The number on  30 the data or summary sheet corresponded with the same  31 number placed on the topographic NTS maps.  The  32 different colours on the maps and numbers was an  33 attempt to differentiate between the clans.  And Mr.  34 George explained this process in his evidence.  And he  35 summarized the relationship of the data sheets to the  36 maps in this way.  And I am just going to refer you to  37 Mr. George's first response, my lord.  He said:  38  39 "Number 1 on this work map is situated on Morris  40 Lake and that number 1 would correspond to the  41 number 1 that is in the land use reference data  42 sheet, and the number 1 would identify what  43 that feature is and what type of feature it was  44 and would identify the chief and the clan and  45 the village."  46  47 Now, my lord, the working maps of the researchers 25693  Submissions by Mr. Rush  1 were also exhibited.  And I enumerate them starting at  2 the bottom of 472, running to the top of 473, and they  3 are there set out with their appropriate exhibit  4 numbers.  5 With the data in hand, Mr. George then prepared  6 for himself a Gitksan and Wet'suwet'en composite  7 working map.  From the topographical data and summary  8 sheets and from the working maps that were labelled he  9 then transferred the numbered references onto his  10 composite map.  For the Wet'suwet'en composite map, he  11 testified:  12  13 "This would be the combination of the  14 information that would have been in the Leonard  15 George data sheets and the Alfred Joseph data  16 sheets."  17  18 The numbers on the working maps were combined and  19 appeared on the composite map.  Mr. George explained  2 0 the colour code on the Wet'suwet'en map.  And I there  21 recommend his explanation to you, my lord.  22 On 474.  A similar procedure was followed by him  23 in respect of the recording, labelling and mapping of  24 the Gitksan geographical features.  In this case,  25 however, a composite working map was assembled by Mr.  26 George and Glen Williams, and they transferred to it  27 the geographical information which had been supplied  28 by the hereditary chiefs on the topographic and  29 summary data sheets and working maps.  30 Now, my lord, moving to the next paragraph, I set  31 out there a number of field trips that were taken by  32 Mr. Sterritt.  Mr. Sterritt, among others who were  33 gathering information, took a number of field trips,  34 and those are as set out by reference to the exhibit  35 numbers.  36 On those trips Mr. Sterritt assembled an  37 impressive five volume set of photographs of  38 geographical features in the territories of the  39 hereditary chiefs.  And I just give the numbers there  40 by reference to exhibit.  The purpose of that record,  41 according to Mr. Sterritt, was to put Gitksan names to  42 physical features in the chiefs' territories.  The  43 photographs show mountains, ridges, creeks, rivers and  44 lakes labelled by their Gitksan names, and where  45 possible, cross-labelled to their English names  46 according to government maps.  And I there indicate  47 that there is a cross-referenceing index. 25694  Submissions by Mr. Rush  1 I then indicate, my lord, that Alfred Joseph and  2 Leonard George similarly went on several field trips,  3 and I there indicate the trips that were taken, and I  4 make reference to the fact that we were -- a video of  5 Mr. Johnny David, Exhibit 67, was shown in court, and  6 demonstrates the process by which Mr. Joseph gathered  7 information from him.  8 What follows, my lord, is a sampling of other  9 trips that Mr. Joseph took at the bottom of 475.  10 Now, my lord, the composite maps were a repository  11 of accumulated information.  As such, they represented  12 the state of knowledge as at that time.  As new  13 information about places or names was given to Mr.  14 George, he added it to the data sheets and to the  15 composite maps.  And that's set out there.  16 Now, my lord, I simply want to draw your attention  17 to the fact that an obviously well used composite map  18 was filed as an exhibit in the proceedings, and a copy  19 was made, I believe, by the province.  And what it  20 indicates is a visual depiction of this process of  21 taking the numbered labelled feature and placing it by  22 reference to another number on the map.  And I simply  23 ask your lordship at some point to make reference to  24 that, and I think a quick visual review of a portion  25 of that map will demonstrate how the features got  26 marked and labelled on the territories.  27 THE COURT:  This is Exhibit 1008?  28 MR. RUSH:  That's correct.  Your lordship has the copy.  The  29 original demonstrates this much more vividly, in the  30 sense that the original is marked in colour.  31 THE COURT:  I'm not sure if I have got it upsidedown or not.  32 No, I don't think so.  33 MR. RUSH: Your lordship can see the numbers circled and placed  34 as against various land features, which would be shown  35 by the contour lines.  36 THE COURT:  Yes.  And this runs from just south of Houston in  37 the south?  38 MR. RUSH:  Probably runs to the headwaters of the Nass and  39 Skeena in the north, my lord, judging from the NTS  40 sheets that were cut and pasted together.  41 THE COURT:  Yes.  All right.  Thank you.  42 MR. RUSH:  My lord, I'm on 476.  And I want to draw your  43 lordship's attention to the fact that there were  44 difficulties attended with the information gathering  45 process.  And I address some of these difficulties in  46 the few pages that follow.  There was first the  47 problem of language, and Mr. Sterritt addressed that 25695  Submissions by Mr. Rush  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  point, and it was a question of understanding what was  being said by the hereditary chief in his language or  her language.  Secondly, there was the question of correctly  identifying topographic features.  And in the passage  that follows, Mr. Sterritt points out that the feature  of Stekyoodenhl by reference to the mountain of Roche  de Boule just outside of New Hazelton, did not fully  describe all of the names given to that mountain mass,  and he points out in the second paragraph from the  bottom of the page that there were actually four  different names that were given to that mountain, and  he describes them.  He points out the difficulty in linking the  identified feature with the actual geographical  feature on the ground, and he says the efforts that he  undertook in order to overcome that difficulty.  And 479, my lord, he makes the point that with  regard to Stenstrom Creek, which flows into Kiteen  River, and he says that over the length of the 15  miles of that creek there were some three different  names for the water course.  In the middle of 479, my lord, I draw your  attention to the fact that Art Mathews Jr. also  described how the chiefs described their territories  to other chiefs who knew them, and how error could  result if a person didn't know the chiefs' methods of  explaining the territorial boundary.  Mr. Mathews was  cross-examined on the approximate boundaries of his  territories, as indicated in a response to the  question 59-C of the interrogatories, and he was asked  if there was uncertainty as of February, '87 on the  location.  And he explained how the chiefs  territories -- how the chiefs described their  territories, and how other chiefs knew the territory  that was being referred to from the description.  And  I insert the passage there, my lord, and I draw your  particular attention to Mr. Mathews comments partway  through.  "You would go directly to where it was described  simply because the description ..."  THE COURT:  MR. RUSH:  'Wouldn't go directly",  "You wouldn't go directly to where it was 25696  Submissions by Mr. Rush  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. RUSH:  described simply because the description chiefs  use is -- and a lot of them is going to, going  away from, just going sideways, over it, or  these types of things, and so that's how these  errors came to be, yes, so we correct them  according to our descriptions."  And he went on to describe that the errors were  corrected by physically going on the territories and  looking at them.  And he makes that point with regard  to his grandfather Wallace Morgan.  Next, my lord --  Mr. Rush, I think we'll take about a five-minute  break.  Thank you.  THE REGISTRAR:  Order in court.  Court stands adjourned.  (PROCEEDINGS ADJOURNED)  (PROCEEDINGS RECONVENED)  THE REGISTRAR:  Order in court.  THE COURT:  Thank you, Mr. Rush.  MR. RUSH:  Thank you, my lord.  My lord, at the bottom of 480 I  wanted to draw your attention to a fourth difficulty  encountered in the process I have been describing, and  that was an almost universal inability of the  hereditary chiefs to read maps.  That was noted by Mr.  Sterritt in his evidence.  And on 481 I can advise  your lordship that it was a bone of contention in the  cross-examination of Mr. Sterritt with regard to Mr.  Blackwater.  Mr. Sterritt's evidence is set out there  with regard to that.  As another example of this difficulty I refer to  the cross-examination of Mr. Hyzims.  He appeared to  be able to read maps on cross-examination, but on  re-examination it was apparent he could not find  locations on the map.  And 482, my lord, Mr. Sterritt expressed in his  evidence the difficulty that was encountered, and that  was again repeated by Mr. George in the middle of 482.  This was not something that was particularly new, my  lord.  Mr. Boys, who testified as a witness called by  Canada, observed on the top of 483 that the Indian  people in the Babine agency where he was the agent  were "never very skilled in interpreting a position on  the map, experience unusual difficulty in this area."  Now, my lord, a fifth difficulty encountered was 25697  Submissions by Mr. Rush  1 the naming of features, and Mr. Sterritt makes  2 reference to that.  And I draw your attention to the  3 reference to the feature called Na'ahl Taada, and the  4 meaning of that, and how he came to determine where  5 that feature was located.  6 On 484 I draw your lordship's attention to the  7 evident difficulty encountered in age, difficulties of  8 recall.  I also draw your lordship's attention to the  9 problems encountered in language, and the terms that  10 were utilized.  11 I ask you to turn to 485, my lord, where Mr.  12 Joseph testified about the differences in meaning  13 between the land, the word "the land" and "the  14 registered trapline".  And he said the land was Yenta  15 in Wet'suwet'en.  16 Mr. Joseph was cross-examined about that, and he  17 replied:  18  19 "We say, in our language, their land, Yin Tah,  20 that's the only thing they talked about.  We  21 just pointed it out to them."  22  23 And finally, my lord, I draw your lordship's  24 attention to the confusion that occurred over the  25 boundaries of territories as created by the  26 intervention of the Department of Indian Affairs and  27 the Fish & Wildlife Department and their attempts to  28 render the boundaries of the hereditary chiefs.  And I  29 cite Mr. Morrison's, James Morrison's experience in  30 this regard, and I also draw your attention to Walter  31 Wilson at 486, Chief Djogaslee, and the difficulties  32 between the D.I.A. mapping and the traditional  33 boundaries of the hereditary chiefs.  34 And, my lord, how the confusion was created by the  35 Department of Indian Affairs and the Fish & Wildlife  36 branch was made clear in the evidence of Mr. Boys, who  37 was the Indian Agent in the Babine agency from '46 to  38 '51, and he explained in his cross-examination how,  39 despite the descriptions given by the hereditary  40 chiefs to him and the tracing that he endeavoured to  41 make on the maps.  And I note that they were outdated  42 and conceded by Mr. Boys to that effect when the Fish  43 & Wildlife Branch invariably and unilaterally redrew  44 the descriptions and made their own maps.  Neither the  45 chiefs nor Mr. Boys were consulted or involved in this  46 process.  And clearly what emerges, my lord, is a  47 picture of the Fish & Wildlife Branch making a 2569?  Submissions by Mr. Rush  1 description and a map to suit their administrative  2 needs, and not to reflect the territorial boundaries  3 given to them by the hereditary chiefs.  4 And I give the citation there, my lord.  And what  5 I have done here is to include the full text of the  6 cross-examination of Mr. Boys at the end of this  7 portion of the argument, and how the Fish & Wildlife  8 Department proceeded about their mapping, and why  9 their maps were unreliable depictions.  And I don't --  10 I simply included for your lordship's reference --  11 and, my lord, I am going to ask you to make a note of  12 the cross-examination that's appended here, and I will  13 give you the pages.  Page 300 --  14 THE COURT:  Stopping there.  If it's important, at the bottom  15 one eighth of page 300 is blocked out by -- somebody's  16 put a yellow slip and written something on it.  I'm  17 sorry, Mr. Rush, I can find it, the original, as  18 easily as you can.  19 MR. RUSH:  My lord, that wasn't intended to be there.  20 THE COURT:  But you needn't trouble yourself with it.  I can  21 find it.  22 MR. RUSH: My lord, page 300, 302.  23 THE COURT:  Just a minute.  I should make these notes on page  24 487?  25 MR. RUSH:  Yes, on the bottom of page 486 just to cross-refer to  26 Mr. Boys' cross-examination.  Pages 300, 302, 304 and  27 305.  Of course I recommend your lordship reading the  28 whole of that, but I recognize our time constraints  29 all the way around.  3 0 THE COURT:  Yes.  31 MR. RUSH: My Lord, 487.  The boundaries drawn by Mr. George on  32 the map filed with the Statement of Claim in October,  33 1984 was the first depiction of the external  34 boundaries of the Gitksan and Wet'suwet'en hereditary  35 chiefs based upon the feature - identification  36 gathering process.  And I there set out upon what  37 information Mr. George drafted that map.  38 And I go to the bottom of the page, my lord.  39 Mr. George prepared a draft map showing the internal  40 house boundaries on October 17, 1985.  And this became  41 Exhibit 102, and it's overlay number 4 in the overlay  42 series.  43 Now, what's significant about this, my lord, is  44 that it was drafted on a planimetric base.  The base  45 showed only natural features and not topographic ones.  46 The house and clan territories were coded and depicted  47 on the base.  And this was the first attempt to show 25699  Submissions by Mr. Rush  1 the internal house territorial boundaries based on the  2 geographical reference labelling that had been reached  3 to that point.  4 THE COURT:  Now, that's number 4 in your series?  5 MR. RUSH:  That's correct, my lord, yes.  6 THE COURT:  Yes.  7 MR. RUSH:  The draft map showed the state of knowledge which had  8 been acquired by Mr. George based on the interview and  9 field work conducted as of that time.  And the purpose  10 of the map was to act as a guide for the lawyers in  11 identifying the location of the house territories of  12 the chief.  Since it did not contain contour lines, it  13 was not intended to be a final statement of the house  14 boundaries and their ownership.  15 Mr. George testified regarding the source of the  16 information on Exhibit 102, and he testified as to the  17 purpose of this map at the bottom of the page 488.  18 Mr. Sterritt also testified as to how Exhibit 102 or  19 overlay 4 was to be used.  20 My lord, at the same time as Mr. George was  21 engaged in the preparation of 102, he was involved in  22 an ongoing process of producing individual house  23 territory maps on mylar or plastic bases.  And these  24 ranged in scale of 1 to 10,000 to 1 to 100,000.  25 Now, moving to the next paragraph, my lord.  These  26 individual house base maps were drafts, and they were  27 prepared in reliance on the information taken from the  28 1:250,000 scale working composite maps.  Mr. George  29 described the procedure of incorporating new maps onto  30 these mylar bases, and he sets out there the procedure  31 that he undertook to deal with the individual maps.  32 And, my lord, I will just pause there to remind  33 you that this was an attempt by Mr. George to  34 individually map each of the separate house  35 territories.  And they were placed on these mylar  36 bases.  37 Now, as I point out on page 490, this was a  38 building process.  The bases were changing constantly  39 as more information came in.  And Mr. George's work of  40 incorporating the new information onto these mylars  41 often lagged behind the presentation of the  42 information to him, so that the maps were not in step  43 with the most up-to-date knowledge.  44 And that is apparent by Mr. Sterritt's testimony,  45 which is then set out in the next paragraph, and the  46 example that he gives of the territory of Wii Gaak and  47 and the interrogatory response.  And Mr. Sterritt says 25700  Submissions by Mr. Rush  1 in respect of that at the bottom of 490:  2  3 "This is a situation where Marvin George had  4 certain information and was working with it,  5 and I had updated information, but it hadn't  6 gotten through the process of Marvin onto the  7 maps."  8  9 Now, my lord, moving to the middle of 491.  Many  10 copies of these mylar bases were attached as  11 interrogatory answers.  And how this occurred was  12 explained by Mr. Sterritt.  13  14 "The base maps that were attached with some of  15 the interrogatories were prepared for the use  16 of the -- at the instructions and for the use  17 of the lawyers, and for the use with the  18 hereditary chiefs, and were never meant to be  19 used in court.  Pressures of court and the time  20 pressures resulted in their being used to  21 help -- to try to help in the demands that were  22 coming through with the interrogatories."  23  24 Mr. George explained what he intended when he  25 marked these base maps as "draft".  26  27 "I was also aware that none of these bases would  28 be thought to be final until the time that the  29 chiefs had reviewed them extensively and had  30 identified them as being the final maps."  31  32 Now, my lord, over to 492.  Simply put, the draft  33 interrogatory maps were considered to be incomplete.  34 Mr. George did not intend for them to be tendered as  35 evidence.  This point was made in Mr. Sterritt's  36 evidence when he compared the interrogatory maps of  37 the Gitksan with Exhibit 646-9-A.  And he explains in  38 his answer with regard to the Wii Minosik  39 interrogatory response how those bases were  4 0 incomplete.  41 Now, I take you over to 493, my lord.  It was a  42 process of checking and cross-checking and verifying  43 information which led to a more exact understanding of  44 the territorial boundaries, the geographical features  45 on those boundaries and the ownership.  4 6 Art Mathews, and I have relied on his evidence  47 here to essentially make the same point I make in 25701  Submissions by Mr. Rush  1 respect of Mr. Sterritt's evidence, he was  2 cross-examined on the difference between the  3 interrogatory map of Tsihl Gwellii territory in  4 Exhibit 349.  And three inconsistencies were put to  5 him, and Mr. Mathews explained how those came to be,  6 and what he considered to be -- how the mix-up  7 occurred, and what he considered the correct  8 statements of his evidence was.  He also refers to the  9 boundary that was drawn at Sand Lake, and how the  10 discrepancy arose there.  11 At the bottom of 494, my lord, Mr. Mathews  12 referred to the area between Sand Lake and Haahl  13 Dakakhl, and that means going alongside.  And this is  14 along the side he testified, and he pointed out you  15 can distinguish the marks on the boundaries, however,  16 the descriptions are pretty hard to follow.  17 Now, not only were the base maps attached as  18 interrogatory responses in various stages of  19 completeness, but also in many cases no draft copy was  20 attached to an interrogatory response, because there  21 were either blank mylars; that is to say mylars with  22 no chiefs' information labelled on them, or no mylars  23 of the territory at all.  24 Now, my lord, it's clear that the mylar bases  25 prepared by Mr. George were in the process of being  26 worked on.  The state of information contained on them  27 was incomplete.  They were viewed and treated as  28 drafts.  The decision to append these maps was made in  29 haste under pressure from the court schedule.  And it  30 is significant that the maps were on a planimetric  31 base.  They required topographic information to be  32 drawn on them to make sense of the boundary and  33 landmark data dependent upon heights of land.  A  34 visual review of these maps demonstrates that most  35 contained few topographic labels, mixed word spellings  36 and tentative geographical determinations.  Since  37 these maps were individual house territorial maps made  38 to scale ranging from -- differing scales, the areas  39 depicted on them are out of context to the larger  40 surrounding geographic area.  It is hard to locate  41 oneself by means of the limited geographic areas shown  42 on these planimetric bases.  And I say these factors  43 underscore the draft character of these maps.  44 My lord, what I then set out is Mr. George's  45 evidence regarding the interrogatory maps and the  46 interrogatory responses, and I don't intend to go  47 through them, but I set them out for your reference. 25702  Submissions by Mr. Rush  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. RUSH:  THE COURT  MR. RUSH:  :  These aren't all of the interrogatory maps that were  filed, though, are they?  No, because some of them were directed -- directly in  evidence, and these are Mr. George's.  I gave three  examples, I believe, of the Gitksan, and those have  preceded these.  :  All right.  Relative to the Wet'suwet'en, in the middle of the  page Alfred Joseph explained the difference between  the map of Gisdaywa's territory dated May 12, 1987,  and his interrogatory map, and how the differences  arose between them.  And I think it exemplifies a  common state of affairs, my lord.  He testified:  "It's one of the differences was when we told  Marvin to draw the boundary.  Showed him where  to draw the boundary.  But one area was left  out.  He followed Houston Tommy Creek for a  ways, and then swung back up north, but left  out an area, a plateau that was not used for  trapping.  The only thing that was used for was  for hunting goats or caribou.  It was hardly  any trees on it.  But that's included, it was  included as Gisdaywa's territory."  The fact that the whole of the territory was not  used for trapping in no way reflected on the  fundamental ownership of that territory and the  multi-faceted activities going on there.  My lord, the differences which subsequently became  apparent between the draft maps appended as  interrogatory responses and the evidence of the chiefs  on their boundaries speaks much about the problems  arising from the incomplete state of the information  on the maps and the pressure of the court timetable.  The draft interrogatory maps did not purport to, nor  did they necessarily accurately represent the label,  location or spelling of geographical features on the  territories, nor were they in any sense determinative  of house ownership in the areas marked.  These maps  illustrate the evolutionary process in the  cartographer's understanding and mapping of the  information from the hereditary chiefs about their  territories.  The mapping weaknesses say nothing about  the knowledge of the chiefs or their territories.  The  care with which new information was sought and  incorporated, and errors were corrected, speaks both 25703  Submissions by Mr. Rush  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. RUSH:  THE COURT  MR. RUSH:  to the extent of the chiefs' knowledge, and the  importance they attach to ownership of their  territories.  Now, my lord, I ask you to go over to 499, and I  make reference to the fact that Mr. George drafted  another map in April of 1986, and that's overlay  number 5, and this was drawn from the same base as  Exhibit 102, and so it was a planimetric map.  I draw your lordship's attention to a map Mr.  George drew in March of '87, to a scale of 1 to  250,000.  And this one, my lord, is on a topographic  base.  And that was designed to show the external  boundary of the Gitksan and Wet'suwet'en territory  based on the information which he had received to that  date.  :  That's overlay 6?  That's overlay 6.  What I try to do, my lord, is to  give the map exhibit number, and then the exhibit  where the overlay is located.  :  Thank you.  My lord, on page 500 I draw your lordship's attention  to the intensive review of the external boundaries  that Mr. Sterritt was then involved in, and how  information which came to Mr. Sterritt passed onto Mr.  George and was incorporated on that March, '87 map,  overlay 6.  And midway through page 500 I draw your attention  to the fact that Mr. Sterritt conducted a detailed  review of those house territories on the external  boundaries, starting December of '86, and the process  by which the information was passed onto Mr. Sterritt.  I then -- excuse me, Mr. George.  Now, my lord, I draw your attention to Mr.  Sterritt's comments at the bottom of page 500.  And on  501 Mr. Sterritt in that particular case was  testifying about the boundary change at the headwaters  of the Skeena and Nass Rivers.  And on the basis of  the information that he received from Martha Brown,  Walter Blackwater and his uncle, Percy Sterritt, he  concluded that the boundary should be moved "based on  the more accurate information they had, and it was  partly based on a field trip as well that I made to  the area with Walter Blackwater" on September 6th,  1986.  I say that this example is typical of the  process of obtaining more detail and therefore more  accurate information about the boundaries.  My lord, that point again is made by reference to 25704  Submissions by Mr. Rush  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. RUSH:  Mr. Sterritt's evidence in the mid-paragraph and the  last paragraph on 501.  I then take you to 502, and I draw your lordship's  attention to the fact that the information provided to  Mr. George was recorded in loose-leaf notes of Mr.  Sterritt.  And in respect of the information he  gathered as a result of those interviews, my lord, Mr.  Sterritt identified in his evidence changes to the  boundaries which were located at the 12 points I have  there identified.  And those were reflected on  Exhibit -- overlay 646-6.  Now, my lord, events overcame --  :  Those changes were made before overlay 6 was  prepared.  :  No.  They were made and reflected in overlay 6, but  yes, they were -- the information came to Mr. Sterritt  prior to that.  :  Thank you.  Now, my lord, the events of Mr. Sterritt continuing  were to gather geographic work -- were to gather  hereditary information from the hereditary chiefs  overcame the process.  And I note that on the bottom  of 502.  And on 503 I draw your lordship's attention to the  fact that while he continued his work, Mr. Sterritt's  evidence disclosed that with the -- as a result of his  continuing work, the hereditary chiefs and the  clarification of eastern boundary resulting from the  Wet'suwet'en chiefs meeting after the All Clans feast  in April, information was forthcoming which  necessitated further changes to the external boundary.  The evidence of Mr. George indicated that in this  period he was using a working map to incorporate the  new information which was being passed to him from Mr.  Sterritt, and on which he made the changes to the  boundary.  And this was another drafted composite map  of the Gitksan territory, and this map depicted the  changes to the boundaries after April 9, '87.  And  that was marked Exhibit 1009.  My lord, I don't wish  to do anything more than to just simply say that your  lordship can by reference to this get a feel for the  working nature of the information that Mr. George was  trying to put together in reference to this map.  That's Exhibit 1009.  I am over to 504, my lord.  Now, I am now referring to the map that was  tendered as Exhibit 681 in the trial, and became 25705  Submissions by Mr. Rush  1 647-7.  It was the map attached to the amended  2 Statement of Claim of May the 11th, '87.  3 THE COURT:  Overlay number 7.  4 MR. GRANT:  That's right.  In this map Mr. George showed the  5 changes on the external boundary.  The map was  6 entitled "The map of the external Gitksan and  7 Wet'suwet'en boundary", and dated May 2, and the  8 changes are there enumerated.  9 The internal boundaries which were drafted onto  10 the working map were drawn onto the map which became  11 Exhibit 5 in the proceedings.  And this map was  12 labelled "external boundaries".  Now, Mr. George  13 considered this to be a draft map, and was intended to  14 show the internal boundaries of the Gitksan and  15 Wet'suwet'en territories in draft form.  And the  16 reason that he said that appears at 505.  And he said:  17  18 "All maps would be drafts until the time they  19 were extensively reviewed with the hereditary  20 chiefs, and they had decided that the  21 information that they had given us was properly  22 transferred to the map and identified the  23 geographic features that they had given us and  24 identified the external boundaries that they  25 had given us, this wasn't done at this time."  26  27 Now, my lord, the procedure by which the  28 territorial information was gathered from and verified  29 by the hereditary chiefs altered in the summer of '87.  30 The evidence of Mr. George and Mr. Sterritt was that  31 as a result of an objection taken to the hearsay  32 character of the territorial information, a  33 recommendation was made and accepted by the court that  34 affidavit evidence was a useful means to introduce the  35 territorial and boundary evidence of the house chiefs.  36 And Mr. George testified as to how the affidavit  37 process was instituted.  Here he then describes how it  38 was instituted, and how it was decided that he would  39 use a territorial affidavit.  40 I point out, my lord, that your lordship directed  41 on October 23rd that the Court -- that the plaintiffs  42 could adduce affidavit evidence of facts or documents  43 relating to location, boundaries and geographic  44 landmarks of the territories claimed by the plaintiffs  45 and their houses.  46 The work of interviewing Gitksan and Wet'suwet'en  47 hereditary chiefs and the drafting of the territorial 25706  Submissions by Mr. Rush  1 affidavits commenced in the summer of '87, and, my  2 lord, I set out Mr. George's role in that respect, and  3 Mr. Sterritt's role.  And I simply ask your lordship  4 to make reference to Mr. George's role, and the  5 affidavits which he relied on for the purposes of  6 drawing Exhibit 646-9-A.  That's the Gitksan  7 territorial boundaries.  8 Over to 507, my lord.  I want to draw your --  9 THE COURT:  646-9-A is the Gitksan?  10 MR. RUSH:  External and internal territorial boundaries, yes.  11 THE COURT:  Yes.  12 MR. RUSH: And I perhaps should emphasize the point at 506, that  13 Mr. George relied on the maps -- he relied not only on  14 the territorial affidavits, but he relied on maps  15 identified by the territorial witnesses in court.  For  16 example, Mr. Stanley Williams, in respect of the  17 territories of Mary Johnson and one of the territories  18 of Hanamuxw, Mr. George relied on the territory -- the  19 chief's evidence, and he relied on the evidence of Mr.  20 Benson.  He was also present during the evidence given  21 in cross-examination by Mr. Walter Blackwater.  22 Now, the opinion of Mr. George is set out at 507,  23 that Exhibit 646-9-A accurately reflected the internal  24 boundaries of the Gitksan hereditary chiefs subject to  25 four minor drafting corrections to which he noted.  26 Now, Mr. George was directly involved in the  27 drafting of the Wet'suwet'en territorial affidavits.  2 8 He conducted interviews with the Wet'suwet'en  29 hereditary chiefs and elders, with the assistance of  30 Wet'suwet'en interpreters.  In preparing these  31 affidavits Mr. George utilized the existing  32 information about the house territories gathered from  33 hereditary chiefs.  This included the records of the  34 names of the geographical features and the draft and  35 the draft maps, and with this information Mr. George  36 described how he prepared the affidavit.  And it's  37 there set out, my lord, and I direct your attention to  38 the second full answer on page 508.  And I ask you to  39 refer to all of this, my lord, but I -- with  40 reference, will direct you specifically to 509.  And  41 this is what Mr. George said:  42  43 "And what I would do is I was explaining, 'this  44 is our understanding of the boundary is as we  45 have it.  Now is this correct?  Does your  46 boundary go along this particular creek or to  47 the height of land of this particular creek? 25707  Submissions by Mr. Rush  1 Are these features all within your territory?  2 Are there more -- is there more information  3 that you could give me regarding the  4 geographical features within this territory?'  5 And many occasions there was more information;  6 they would identify more geographical features.  7 And on some occasion the geographical features  8 were already identified but would be in the  9 wrong locations and they would correct me on  10 that, and then they would be properly  11 identified and properly labelled.  And all  12 this -- most of this information would go onto  13 the working map that I had."  14  15 And then carry onto the bottom of the page, my  16 lord.  Mr. George said:  17  18 "Next step was to take this information back to  19 the office and do a draft affidavit based on  20 the information that they had given us.  The  21 draft affidavit would identify who this person  22 was, if he was Wet'suwet'en, what the chief  23 name was and where he was from what clan, who  24 his chief was, where he was from.  The draft  25 affidavit would also indicate the source of  26 this person's knowledge.  The draft affidavit  27 will also include the revised boundaries where  28 revisions were required, and would also include  29 the geographical features as they were  30 identified for us, and whether or not this  31 particular territory was described in the feast  32 or not."  33  34 And then, my lord, he says:  35  36 "Another meeting would be arranged with this  37 particular informant, and then again with the  38 help of a translater, we would go back and I  39 would have my working copies and I would  40 explain to them that the information they  41 have -- have given me is now incorporated into  42 this affidavit, and I would explain where all  43 the changes were and the geographical features  44 that they may have been identified."  45  46 And so on.  Now, my lord, Mr. George took notes  47 during the interviews with the chiefs, and these were 2570?  Submissions by Mr. Rush  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. RUSH:  THE COURT  MR. RUSH:  marked as an exhibit.  A similar process was used by  Mr. Sterritt, and Mr. Sterritt's description is set  out at the top of the page.  In most all cases Mr. Sterritt made and retained  notes of his intereviews.  Only the notes of deceased  chiefs were exhibited in the proceedings by the  plaintiffs because of objection to notes of interviews  about the territories from living informants.  Mr.  George testified that he relied on the Wet'suwet'en  territorial affidavits in order to prepare the map  showing the internal boundaries of the Wet'suwet'en  House territories.  And he gives there, my lord, the  affidavits relied on, the information that he relied  on in order to draw his conclusion, which is on the  top of page 512, that in respect of the Wet'suwet'en  territory that overlay Exhibit 4 -- 646-9-B reflected  the territory of the Wet'suwet'en hereditary chiefs.  He further stated in 512 that 9-A and 9-B together  reflected the external and internal boundaries of the  Gitksan and Wet'suwet'en, subject to the changes which  he testified to.  My lord, I am going to pause there for a moment  just to refer your lordship to the fact that I have  also included a passage of Mr. Sterritt's  cross-examination by Mr. Goldie.  And this deals with  the sources of the information.  And I include this  for your reference, because in the course of the  examination -- in the examination a question was  raised about the sources of the information, and Mr.  Sterritt at page 8674 says unequivocally "the  hereditary chief, if they knew the name of a mountain  along the boundary, they provided the source of that  information, not me."  :  Where is that?  This is line 7 on 8674.  :  Thank you.  Now, my lord, you may just make a reference to that,  perhaps, at the top of page 511 of my argument.  Now, if I just, my lord, may proceed here with  these points in the middle of 512.  My lord, the evidence of the chiefs and elders  concerning territory was not unblemished.  As I have  argued earlier, some of the chiefs on  cross-examination placed feature names in the wrong  place, could not recall if certain features (usually  named in English) were in their territory, were vague  about specific points on the boundaries or confused 25709  Submissions by Mr. Rush  1 house ownership with government trapline ownership.  2 What I have done here, my lord, is made reference to  3 the Elizabeth Jack example, and I have already  4 addressed your lordship on that, and I simply draw  5 your lordship's attention to the plaintiffs' argument,  6 which I set out on this point in the second to last  7 paragraph on 513.  8 I will also give as another example the testimony  9 of Mrs. Lucy Bazil, and I have also addressed your  10 lordship on that point, and I don't intend to speak to  11 that again.  12 On 514 I just ask your lordship to note that in  13 addition to the submissions made here, we further  14 submitted on this point at the location I have  15 indicated in the transcript -- or in my argument.  16 Now, my lord, going to the bottom of the page.  17 THE COURT: 514?  18 MR. RUSH:  Yes.  The nature of the process for gathering  19 information about the house territories required that  20 interviews be conducted with knowledgeable persons,  21 chiefs and other house members.  Many of the people  22 who were the initial informants also swore the  23 territorial affidavits.  And I there list as examples  24 many of those persons.  25 And going to the -- including James Morrison, Sam  26 Morrison, Stanley Williams, Pete Muldoe and so on.  27 Information was acquired from other chiefs living and  28 deceased, but not relied upon by the affiant.  This  29 information was passed to Mr. George, Mr. Joseph, Mr.  30 Sterritt, Mr. Williams, and Mr. George in the process  31 that has been described, and that information by this  32 process was, of course, hearsay.  The fact that  33 hearsay information may have been the basis in some  34 cases for the drafting of the early maps and for the  35 first draft of the territorial affidavits in no way  36 detracts from the direct evidence of the territorial  37 affiants who spoke directly to the same territories  38 and geographic features based on independent, their  39 sources of information.  40 The information shown on the maps and reflected in  41 the boundaries was the end product of gathering more  42 detailed and exact information about the hereditary  43 chiefs about their territories.  The more information  44 that was gathered and understood by the researchers,  45 the more certain the maps became.  It was, however,  46 the checking and cross-checking of information that  47 began in December, 1986 and followed through to the 25710  Submissions by Mr. Rush  1 drafting of the last affidavit which resulted in  2 finalized boundary descriptions and maps.  3 And I say something, my lord, at the top of 516  4 about the evolutionary process inherently involved in  5 mapping.  And then I go to the bottom of 516, and I  6 note, my lord, that Mr. George and Mr. Sterritt knew  7 the geography of the territory and the features being  8 referred to on the ground.  Because of that they could  9 map and label the features given to them on  10 topographical maps containing no English names for the  11 features.  Mr. George could map the Gitksan and  12 Wet'suwet'en names on the maps and know that they  13 referred to the ground site.  And I refer to Mr.  14 George's evidence in that respect.  15 Now, my lord, how else could this information have  16 been gathered in an oral culture with interwoven  17 community connections and a centralizing feast  18 institution?  We say it was a truly remarkable and  19 unprecedented task to record, label, verify the names  20 and boundary locations in an area the size of New  21 Brunswick.  And it could only have been achieved by  22 the method used in this case.  The affidavit means of  23 proof was a reliable and expeditious way to take the  24 evidence out of its hearsay character and put it  25 before the Court in a direct way.  26 Mr. George also testified that he went on a number  27 of field trips in aid of his preparation work on the  28 territorial affidavits.  And I there set out where Mr.  29 George went on his field trips.  30 Mr. George also accompanied your lordship on the  31 view, and I make that reference on page 518.  32 Now, my lord, I take you to the bottom of 518, and  33 I make this submission.  What do the maps, 646-9-A and  34 646-9-B, represent?  The maps speak to the truth of  35 the location of the boundary of the house territories  36 as drawn on the map and as existing on the ground.  37 The boundaries were contiguous, without gaps.  The  38 labelling of chief and house names to an area on the  39 map correctly shows the ownership of that area on the  40 ground.  The external boundaries of the Gitksan and  41 Wet'suwet'en territories together correctly show  42 where, on the ground, the dividing line is between the  43 Gitksan and Wet'suwet'en people and their neighbours.  44 And the final paragraph, my lord, are the  45 underlying facts founding Mr. George's opinion  46 reliable?  We say yes, without doubt.  The affidavits  47 of the hereditary chiefs and knowledgeable elders 25711  Submissions by Mr. Rush  1 represent the body of evidence proving the boundaries  2 and territorial ownership.  That evidence was tested  3 and its reliability is unshaken.  The witnesses who  4 testified about house territories had direct on the  5 ground knowledge of the land, its geographical  6 features, its boundaries and ownership, and this  7 knowledge was passed to them from previous, now  8 deceased, holders of the house names and other  9 knowledgeable elders who themselves had knowledge of  10 the territory.  11 And I think, my lord, that the plaintiffs' review  12 of the 133 Gitksan and Wet'suwet'en territories speaks  13 eloquently to that fact.  14 Now, my lord, I said that I would go to 5:00  15 o'clock, and I'm going to keep to my word here.  I  16 have a further section to address you on, and if  17 you'll allow me, I don't intend to argue it.  I am  18 simply going to, if I may direct you to it, and point  19 out what the argument is.  20 My lord, beginning at 520 is what we call other  21 claims to the territory not proved.  And this is the  22 suggestion by the defendants that there is an overlap,  23 and that that overlap somehow detracts from the proof  24 of the ownership of the Gitksan/Wet'suwet'en  25 territories.  And I invite your lordship to read this,  26 and I set out the reasons why this is a completely  27 untenable argument.  And I simply say that what they  28 rely on are claims, the claims are unsupported in the  2 9 evidence.  30 At 521 the claims are bald assertions.  The  31 mapping of these claims by Mr. Magwood demonstrates  32 how specious these claims really are.  And I detail  33 Mr. Magwood's evidence in this respect.  And you will  34 recall that he was essentially given the claims of the  35 neighbouring peoples and asked to draw them to the  36 best that he could.  And I think that his evidence  37 makes it very clear just how unsupported those claims  38 are.  39 I also refer to Mrs. Ladouceur's evidence at 523,  40 and I direct your lordship to 524.  And I say that the  41 documents that Mrs. Ladouceur referred us to do not  42 show proof of any other ownership interest in the  43 Gitksan and Wet'suwet'en territory either in terms of  44 the common law land tenure principles or by the  45 evidence and law, and I should say standards of that  46 law established by the Gitksan and Wet'suwet'en  47 people. 25712  Submissions by Mr. Rush  1 My lord, I just direct your attention to Exhibit  2 101, and Mr. George's, Mr. Sterritt's evidence on  3 that.  I also direct your lordship's attention at page  4 525, directly to Mr. Sterritt's response about the  5 Nishga claim.  And you will see that Mr. Sterritt's  6 evidence is that they resiled from much of what they  7 had asserted on previous claims.  8 My lord, I direct your attention to the bottom of  9 526, where Mr. Sterritt drew the court's attention to  10 the inter-societal mixing around Bear Lake, and the  11 fact that the Gitksan did not exclude the Stikene or  12 the Sekani relatives from those areas, but that did  13 not mean that there was any giving up or loss of  14 Gitksan or Wet'suwet'en ownership.  15 My lord, I direct your attention to the bottom of  16 527, that in fact the areas where there were Sekani  17 relatives located, that there were also areas of  18 proved ownership in the Gitksan/Wet'suwet'en people.  19 Over to 528 I refer to Mr. Joseph's evidence about  20 confusion that was compounded by the introduction of  21 the mapping and D.I.A. administrative systems, and Mr.  22 Joseph's and Miss Dora Wilson-Kennie's evidence in  23 that respect.  24 My lord, our conclusion is that the evidence of  25 the Gitksan and Wet'suwet'en people demonstrates that  26 they are the owners of the territories in this  27 lawsuit, and their evidence more than satisfies the  28 test in Baker Lake of dominion over their land.  29 And finally, my lord, I simply refer you to the  30 last section, 530 to 532, which is a short section on  31 mapping of the fishing sites.  Mr. Grant has already  32 addressed you on this point, and I ask your lordship  33 to be mindful while reading this particular portion of  34 our argument of Mr. Grant's earlier submissions to you  35 with regard to mapping -- the mapping the fishing  36 sites and fisheries of the Gitksan and Wet'suwet'en  37 people.  38 Now, that concludes the plaintiffs' submissions  39 with regard to mapping of the territory, my lord, and  40 I would ask you, of course, even though perhaps I  41 touched briefly on certain portions of our written  42 argument, that that by no means lessens our -- the  43 importance of other portions that I didn't touch on.  44 I can advise your lordship that if the Court and  45 the Court Reporters and the staff and every one else  46 is willing to be here at 7:00, my lord, we would like  47 to pursue the plaintiffs' argument at that time. 25713  Submissions by Mr. Rush  1 THE COURT: Yes.  Arrangements have been made for us all to be  2 here.  Look forward to seeing someone at that time.  3 MR. RUSH: Thank you very much.  4 THE COURT:  All right.  Thank you.  5 THE REGISTRAR:  Order in court.  Court stands adjourned until  6 7:00 o'clock.  7  8 (PROCEEDINGS ADJOURNED AT 5:10 P.M. TO 7:00 P.M.)  9  10 I HEREBY CERTIFY THE FOREGOING TO  11 BE A TRUE AND ACCURATE TRANSCRIPT OF  12 THE PROCEEDINGS HEREIN TO THE BEST OF  13 MY SKILL AND ABILITY.  14  15    16 LORI OXLEY  17 OFFICIAL REPORTER  18 UNITED REPORTING SERVICE LTD.  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 25714  Submissions by Mr. Jackson  1 (PROCEEDINGS RESUMED AT 7:05)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Jackson.  5 MR. JACKSON:  My lord.  6 THE COURT:  I understand that we're going to have two  7 approximately one-hour sessions this evening with a  8 ten- to fifteen-minute break between.  9 MR. JACKSON:  Yes, my lord.  10 THE COURT:  All right, thank you.  11 MR. JACKSON:  The material that's been handed up to you is a  12 section which will go into the Plaintiffs' submissions  13 as volume 5 at the back under tab 2.  I trust there's  14 still room in the binder.  15 THE COURT:  Yes.  I squeezed it in.  16 MR. JACKSON:  The first section of this part of the argument, my  17 lord, deals with a number of issues relating to the  18 Plaintiffs' asserted right to ownership and  19 jurisdiction which arise out of questions your  20 lordship posed to counsel in the last week in  21 Smithers.  And the issues raised by your lordship's  22 questions fall into two categories:  The first one,  23 the issue of jurisdiction as it relates to land and  24 resources; and secondly, the issue of jurisdiction as  25 it relates to matters other than lands and resources.  26 And I'm addressing myself to the first of those issues  27 on page 1, and I have set out there the nature of the  28 interrogatory your lordship has posed on this issue,  29 and it's most succinctly stated at page 1 in the first  30 passage:  31  32 "But if the House owns the territory why do you  33 have to prove anything about jurisdiction if  34 you own the territory?"  35  36 And on page 2, my lord, you see the passage I have set  37 out there in which you have taken the position that  38 ownership of land and resources subsumes jurisdiction  39 or authority over that land and resources, and I've  40 set out a passage there which reflects that.  In  41 relation to this matter, my lord, at page 3, the  42 Plaintiffs have a number of submissions, the first one  43 of which is as follows:  If your lordship accepts the  44 Plaintiffs' submission that the nature of the  45 Plaintiffs' aboriginal rights in land and resources is  46 properly characterized as ownership -- and I'm at page  4 7 3, my lord. 25715  Submissions by Mr. Jackson  1 THE COURT:  Yes.  2 MR. JACKSON:  And adopts the further proposition that one of the  3 essential elements of that ownership is the authority  4 to harvest, manage and conserve the land and  5 resources, then it is not necessary for your lordship  6 to go any further and to make any separate ruling on  7 the issue of jurisdiction over those lands and  8 resources.  And there is judicial support, my lord,  9 for that proposition, which I have set out at page 3  10 and 4, in the judgment of the Privy Council in the  11 Attorney General of British Columbia and the Attorney  12 General of Canada.  13 THE COURT:  Well, can I just stop you there, Mr. Jackson, and  14 just say that I think your paragraph number 1 on page  15 3 raises a serious legal difficulty for me, and one  16 which I have been grappling with and I have no very  17 firm view on it, but you see what -- the second branch  18 of your proposition there, that is if the court adopts  19 the further proposition, one of the essential elements  20 of that ownership is the authority to harvest, manage  21 and conserve the land and resources, then it is not  22 necessary -- well, that raises the fundamental  23 question as to whether that authority is an incident  24 of ownership or whether it's regulated or controlled  25 in some way by the general or other law of the  26 province.  27 MR. JACKSON:  Yes, my lord, I appreciate these are separate  28 points, and Miss Mandell will be addressing you  29 separately on this issue, because it is a point of  30 great difference between my friends and I.  They say  31 that whatever rights which the plaintiffs have, be  32 they characterized as aboriginal title or some other  33 interest, they are subject to regulation by the  34 province through the vehicle of Section 88 of the  35 Indian Act, and that is the straight argument, my  36 lord, and something which we will be grappling with  37 later in the week.  38 THE COURT:  All right, I'll look forward to hearing from you  39 then.  40 MR. JACKSON:  And the Privy Council decision, my lord, dealt  41 with the competence of the Province of British  42 Columbia to grant exclusive fishing rights in both  43 tidal and non-tidal rivers.  So far as non-tidal  44 rivers were concerned, my lord, in which there was no  45 public right to fish, and where the fishery is an  46 incident of the ownership of the bed of the river,  47 because these particular lands were within the railway 25716  Submissions by Mr. Jackson  1 belt, the bed of the river was within the proprietary  2 domain of the federal government, and Lord Haldane, in  3 the course of his judgment, said:  4  5 In the present case, therefore, their Lordships  6 entertain no doubt that the title to the solum  7 and the water rights in the Fraser and other  8 rivers and the lakes so far as within the belt  9 are at present held by the Crown in right of  10 the Dominion, and that this title extends to  11 the exclusive management of the land and to the  12 appropriation of its territorial revenues."  13  14 And that, my lord, reflects the subsuming, as it were,  15 of a regulatory managemental authority within the  16 general rubric of ownership.  17 THE COURT:  But that's not the way it worked, is it?  18 MR. JACKSON:  The Province always collected a royalty on the  19 appropriation of the territorial revenues in terms of  20 the railway belt.  21 THE COURT:  Yes.  Well, I'm not sure which railway belt you're  22 talking about, but let's talk about the Crows Nest.  23 MR. JACKSON:  No -- we're talking about the -- the great reserve  24 established as a result of the terms of union.  25 THE COURT:  The main line?  2 6 MR. JACKSON:  Yes.  27 THE COURT:  You say the Province didn't collect a royalty on the  28 timber and the coal and everything that's extracted  29 from it?  30 MR. JACKSON:  I think that was pursuant to particular  31 arrangements rather than as a necessary incident of  32 any ownership.  I think those royalties and other  33 arrangements were as a result of special arrangements.  34 THE COURT:  All right.  So you say I should take it, at the  35 moment, at least, that statement is face value?  36 MR. JACKSON:  In support of your lordship's proposition of  37 ownership subsuming a jurisdictional management  3 8 component.  39 THE COURT:  All right.  40 MR. JACKSON:  Your lordship in volume 328 stated what in effect  41 is a proposition which would reflect Lord Haldane's  42 views, where you put in what you viewed what the  43 Plaintiffs' position was highest:  44  45 "I have assumed...that at the end of the day  46 what I would say, if I accepted all your  47 submissions, would be that the Plaintiffs are 25717  Submissions by Mr. Jackson  1 entitled to judgment, that they have an  2 interest in the following lands, followed by a  3 description of them in some way...And that the  4 form of such interest is as follows, and it  5 would say it's a right to enjoy and possess and  6 to manage and harvest its fruits and  7 benefits...it seems to me that that's the form  8 of order that would be the most you could  9 expect to receive on this case, and that's why  10 I'm having serious difficulty with this  11 question of jurisdiction."  12  13 My lord, if your lordship does take the position that  14 harvest, manage, conserve is within the rubric of  15 concept of ownership, we would accept that statement  16 of your lordship's, subject to a qualification which  17 I've set out at the bottom of page 4, that the right  18 to enjoy and possess would be an exclusive right to  19 enjoy and possess.  And, my lord, this could be your  20 lordship's proposition we are prepared to  21 reverentially incorporate, as it were, in our previous  22 submissions, and I have referred you to volume 3 of  23 our previous submissions.  And your lordship may  24 remember on a previous occasion I sought to answer  25 some other questions your lordship had regarding  26 whether the Plaintiffs' rights were in the nature of  27 fee simple, or what was the precise nature or quality  28 of the interest we were seeking.  And that proposition  29 is set out at the top of page 5 with the additional  30 element of right to harvest, manage and conserve.  So  31 that the Plaintiffs' interest extends to the full  32 exclusive possession of the territory and all of its  33 resources, including the right to harvest, manage and  34 conserve its fruits and benefits.  35 My lord, that is, as I say, on the first  36 assumption that ownership does subsume jurisdiction.  37 And while there is judicial support for that broad  38 characterization of ownership, the plaintiffs have  39 not, out of some sense of perversity, pleaded  40 ownership and jurisdiction, they have pleaded  41 ownership and jurisdiction because within Canadian law  42 there is also a broad spectrum of authority which does  43 characterize and divide the relationship to property  44 as between ownership and jurisdiction.  And that  45 distinction, my lord, is set out in a passage I have  46 taken from Dr. Dorcey, McPhee, and Mr. Sydneysmith's  47 book, which seeks to explain the rather complex 2571?  Submissions by Mr. Jackson  1 relationship between federal and provincial rights in  2 the area of resource regulation and environmental  3 protection.  And in the last part of that passage you  4 will see the authors say:  5  6 "The federal and provincial governments, as  7 proprietors of public lands, can accordingly  8 regulate the use of these resources much in the  9 same manner as a private owner would.  In  10 addition, many aspects of resource  11 administration come within the grants of  12 legislative jurisdiction made to the respective  13 levels of government in the B.N.A. Act.  This  14 jurisdiction is distinct from the rights and  15 powers that devolve upon a government through  16 its ownership of a resource, and may either  17 complement or conflict with them."  18  19 And that relationship, that potential conflict between  20 ownership on the one hand and jurisdiction on the  21 other, is also made manifest somewhat paradoxically in  22 the same case I have just referred your lordship to,  23 where Lord Haldane, in referring to a previous  24 decision of the Privy Council in 1898, the Attorney  25 General of Canada, the Attorney General of the  26 Provinces, dealing with the relationship between the  27 provinces' proprietary interest in a fishery in a  28 non-tidal water in an area outside of the railway belt  29 contrasted its relationship to the federal  30 government's jurisdiction under Section 91(12) over  31 seacoast and inland fisheries, and in the passage I've  32 set out at page 6, Lord Haldane, in referring to that  33 earlier decision, stated:  34  35 "It recognized that the province retains a right  36 to dispose of any fisheries to the property in  37 which the province has a legal title, so far as  38 the mode of such disposal is consistent with  39 the Dominion right or regulation, but it held  40 that, even in the case where proprietary rights  41 remain with the province, the subject matter  42 may be of such a character that the exclusive  43 power of the Dominion to legislate in regard to  44 fisheries may restrict the free exercise of  45 provincial rights."  46  47 And so there, my lord, you have that characterization 25719  Submissions by Mr. Jackson  1 of ownership and jurisdiction, not as one subsuming  2 the other, but as ones which may in certain  3 circumstances conflict one with the other, and I've  4 set out in the following pages at the bottom of page  5 6, top of page 7, a statement again of Dr. Dorcey and  6 his associates on the relationship between federal and  7 provincial proprietary interests and jurisdictional  8 rights.  And I would say, my lord, that the discussion  9 in these passages, of course, is all made outside of  10 the context of any discussion of aboriginal rights.  11 THE COURT:  Yes.  12 MR. JACKSON:  That was not an issue in any of these cases.  13 THE COURT:  They had the easy problems.  14 MR. JACKSON:  Although in terms of how easy it was, I should  15 note that Lord Haldane in this case made the point  16 that he and his colleagues were not a little upset at  17 all these references being made to the Privy Council  18 on issues which they found enormously difficult to  19 resolve in the abstract.  No doubt a similar problem  20 which caused the Chief Justice Dixon to issue his  21 caveat that aboriginal rights ought not to be resolved  22 in a factual vacuum.  The distinction, my lord,  23 between ownership and jurisdiction is made even more  24 explicit in some of the modern comprehensive land  25 claims agreements, and I've set out at page 7 some  26 provisions from the Inuvialuit Final Agreement, which  27 is earlier referred to in volume 1 of the Plaintiffs'  28 submissions, where the Inuvialuit, under the  29 agreement, are granted a fee simple title in certain  30 lands, and notwithstanding the grant of that fee  31 simple title, the agreement specifically -- and you  32 will see at paragraph 7, subparagraph 85, the  33 agreement says:  34  35 "Notwithstanding Inuvialuit ownership of beds of  36 rivers, lakes and other water bodies,  37 (a)  Canada shall retain the right to manage  38 and control waters, waterways" --  39  40 For certain particular purposes.  And so under the  41 agreement, ownership and jurisdiction are split, the  42 one is not subsumed within the other.  It is the  43 Plaintiffs' submission that in the absence of a treaty  44 or a modern land claims agreement, the aboriginal  45 rights of the Plaintiffs, at least so far as the  46 Provincial defendant is concerned, embraces both a  47 proprietary interest in the lands and resources, its 25720  Submissions by Mr. Jackson  1 ownership and authority to harvest, manage and  2 conserve the lands and resources in its jurisdiction.  3 And, my lord, I would --  4 THE COURT:  You would say then that that is ownership free of  5 all provincial regulatory or other resource -- or  6 other legislation, including Land Act, Land Titles  7 Act, and all those other provincial legislative  8 enactments that relate to the land within the  9 territory found to be subject to this aboriginal  10 right?  11 MR. JACKSON:  Yes, my lord.  12 THE COURT:  Yes.  13 MR. JACKSON:  At pages 8 to 14, my lord, and I'm not going to go  14 over them with you, but I would refer your lordship to  15 them, I set out some of the areas of conflict between  16 the provincial and the Plaintiffs' jurisdictional  17 schemes.  18 THE COURT:  I'm sorry, page 14?  19 MR. JACKSON:  Page 9 to 14.  20 THE COURT:  Oh, 9 to 14, and —  21 MR. JACKSON:  And I will be coming back to that in a later area.  22 The second issue which your lordship raised in  23 questions was the issue of jurisdiction as it relates  24 to issues not connected with land and resources.  And  25 I've set that out at page 14.  And your lordship will  26 recall that with the benefit of reflection your  27 lordship, in a preliminary way, formulated for the  28 benefit of counsel some views on how your lordship saw  29 the relevance of the evidence in the submissions which  30 counsel were addressing to you on matters of  31 jurisdiction which related to areas other than land.  32 THE COURT:  Yes.  33 MR. JACKSON:  And I've set out that passage at page 15.  34 THE COURT:  Well, I'm sure you understand that these are all  35 very tentative.  36 MR. JACKSON:  Yes, my lord.  We've approached this with that in  37 mind to, as it were, provide food for thought, and to  38 try and prompt the Plaintiffs into being as precise as  39 to the nature of the interest being claimed and to  40 articulate why these submissions are urged upon your  41 lordship.  And your lordship characterized the issue  42 in the cases as being one of a conflict between lore  43 and culture, and you expressed the view that your  44 lordship felt that this court could not make any order  45 which would impose a cultural authority or a  46 jurisdiction upon individual Gitksan and Wet'suwet'en  47 who were not parties to this action, particularly in 25721  Submissions by Mr. Jackson  1 relation to minors, and that your lordship was  2 concerned that orders of this court might convert what  3 at the present moment was a voluntary jurisdiction in  4 the sense of one where people were free to adhere to  5 or not, into something of a wholly different character  6 which could raise a number of issues.  And what we say  7 in relation to those thoughts, my lord, is that, first  8 of all, that the characterizing the case as a clash  9 between lore and culture we say does not do full  10 justice to the nature of the relationships between the  11 Plaintiffs and the Province.  Nor do we say does it do  12 full justice to the nature of the evidence.  And at  13 page 16 to 18, my lord, I have suggested that a number  14 of those heads of evidence and heads of submissions  15 based upon them bespeak something which the rubric  16 culture does not reflect in the fullness of those --  17 of that evidence.  We say, my lord, for example, while  18 the ancient histories of Gitksan and Wet'suwet'en  19 houses are certainly part of their culture, the laws  20 which determine membership in a house and the  21 enforcement in those laws through birth and adoption  22 are rules taught and followed by the Gitksan and  23 Wet'suwet'en within the central institutions within  24 the feast in the house.  While song recording past  25 trespasses may be part of the culture, the law  26 prohibiting trespass and the sanctions which are  27 imposed demonstrate the system of land holding among  28 the community of people where clearly defined  29 boundaries are intensely important and where people  30 can expect that sanctions will result if trespass  31 continues.  32 And at page 18, my lord, we say that when Stanley  33 Williams picked up the bear which he killed, about  34 which you have heard much, and sang the song of the  35 bear; and put the bear on his shoulders and walked to  36 the village and again sang the song, his actions of  37 course can be described properly as cultural, but at  38 the same time he is reaffirming the obvious  39 long-standing spiritual connection between the people,  40 the lands and the animals, reflecting harvesting laws  41 which in the rigor of their training and the antiquity  42 of their practice can hardly be described only as  43 cultural.  44 THE COURT:  But it was voluntary.  4 5    MR. JACKSON:  Voluntary?  4 6    THE COURT:  On his part.  47    MR. JACKSON:  Yes, my lord.  The point I'm seeking to make is 25722  Submissions by Mr. Jackson  1 that within the context of the Gitksan and  2 Wet'suwet'en system, the fact that something is  3 voluntary does not mean that it does not have a  4 character of something which is more than simply  5 culture as compared to our law.  6 THE COURT:  Stanley Williams didn't say everytime he shot and  7 killed a bear he did this.  8 MR. JACKSON:  No, my lord.  The fact that he did this on this  9 particular occasion was symptomatic or symbolic of a  10 relationship both to his territory, to the animals,  11 and to his place in the community, and his  12 relationship to that community.  13 THE COURT:  Well, take an even more graphic illustration.  When  14 Pete Muldoe acquired fee simple titles of land within  15 another chief's alleged territories and boundaries, he  16 was clearly not -- he clearly did not consider himself  17 at that moment bound by Gitksan law.  18 MR. JACKSON:  My lord, that kind of example, which of course is  19 repeated in the evidence on more than one occasion, is  20 something I will be addressing.  21 THE COURT:  All right.  22 MR. JACKSON:  Specifically in relation to some arguments made by  23 my friends as to the continued viability of the  24 Plaintiffs' system of authority.  My lord, in terms of  25 the juxtaposition of a conflict between lore and  26 culture, it is our submission that the concept of  27 aboriginal rights, properly understood in its  28 historical context, and I'm reading here from page 18,  29 my lord, contains both the principles and the process  30 for cultural and economic accommodation.  The  31 treaty-making process and its modern equivalent, the  32 comprehensive land claims agreements, are built upon a  33 recognition of aboriginal rights as legal concepts  34 imbedded in the law.  In this way these agreements are  35 designed to provide the framework for accommodation  36 and not conflict between aboriginal organized  37 societies and other Canadians.  It is our submission  38 that the conflict to which your lordship referred is  39 the consequence of the provincial government acting in  40 violation of the legal rights of the Plaintiffs.  41 THE COURT:  Can't you put it the other way just as easily,  42 though, and say that the comprehensive land claims  43 agreements are a combination designed to avoid the  44 conflict I have identified, and that it can't be said  45 with absolute certainty that the rights that were  46 recognized in the comprehensive land claims were  47 admitted to be legally enforceable, that they dealt 25723  Submissions by Mr. Jackson  1 practically and, I suppose, kindly and generous, and  2 in an accommodating way with the problem that they  3 wanted to resolve.  But can you say that it -- can you  4 argue that -- I must assume that the -- I guess it's  5 the federal government who agreed to those claims,  6 recognized that these were enforceable rights that  7 they were conceding by way of agreement, and even if  8 they do, even if they were, how does that bind anyone  9 else?  10 MR. JACKSON:  It doesn't, my lord.  What we say about those  11 agreements is that if your lordship was faced with  12 those agreements, as it were, out of context, then  13 those agreements could be fairly characterized in the  14 way your lordship has expressed.  What we say,  15 however, is that when you look back to the practice of  16 the Crown over some 400 years in various parts of  17 North America, that the modern land claims agreements  18 are part of a chain of continuity of recognition of  19 rights.  2 0    THE COURT:  Doesn't this whole argument come right up against  21 Chief Justice Dixon's dictum that each of these claims  22 is to be treated as suigenuris.  23 MR. JACKSON:  I don't think so, my lord, because what Chief  24 Justice Dixon was saying, I think, was that these  25 cases ought not to be viewed as legal abstractions,  26 and I -- and of course in the Amodu Tejani(?) case the  27 Privy Council made exactly the same point.  Your  28 lordship has said as much using the language that we  29 have to be on the ground in relation to these matters.  30 I don't think Chief Justice Dixon was saying that the  31 suigenuris nature of the rights means that the court  32 cannot look for and find guidance in consistent and  33 persistent practices of the Crown, particularly when,  34 as we say, those practices bespeak legal obligations  35 which are imbedded in the common law, the practice and  36 the continuity there is something which your lordship  37 can take and should take into account in deciding  38 whether or not in British Columbia, as part of the  39 common-law pre-existing rights of aboriginal peoples,  40 exist as a matter of law and not as a matter of  41 sovereign grace, dependent upon the particular  42 practices observed by the British Columbia colonial  43 authorities in this part of the world.  And that is  44 exactly the point on which Mr. Rush will be addressing  45 your lordship tomorrow morning.  46 THE COURT:  Well, I understand your point, I'm just troubled by  47 whether I can accept it and give effect to it without 25724  Submissions by Mr. Jackson  1 trying all the claims individually and seeing why they  2 reached the conclusions they reached, because I have  3 intended in this case to treat the language of Chief  4 Justice Dixon both in Guerin and in Krueger and Manuel  5 he talks about site specific and these sort of things  6 as meaning that each claim stands on its own, and I am  7 having some difficulty with the quantum leap that  8 you're asking me to take here to say that because  9 these things were done with relation to those Indians  10 in those circumstances, that that means that that was  11 in recognition of a legal right.  12 MR. JACKSON:  Well, my lord, our position, and it is at the  13 heart of our position, is that I think this is the  14 point of great difference between our position and my  15 friends'.  It is our position that using the words of  16 Mr. Justice Strongest?) in St. Catherine's Milling,  17 that the practice of the Crown, as reflected in the  18 bilateral consentual treaty-making which took place  19 over several hundred years, that those practices  20 ripened into rules of the common law, and your  21 lordship will recall --  22 THE COURT:  Well, I understand that argument, and you've made  23 that argument, and if I might say so, made it very  24 well.  I have no difficulty with that argument as it  25 raises a legal problem that all these matters seem to  26 end up as is a question of difficult choices between  27 pretty well circumscribed options, and I have no  28 difficulty with that one.  I am still having a lot of  29 difficulty with the question of jurisdiction.  It  30 seems to me that at the end of the day I still come  31 down to a question of defining the nature of the  32 ownership, and once you do that you have subsumed -- I  33 think you have subsumed jurisdiction.  34 MR. JACKSON:  As I say, my lord, we have no problem with that  35 subsuming of jurisdiction, so far as in relation to  36 lands, and if your lordship feels that that is a way  37 which is more comfortable in terms of the precedence,  38 more consistent with the precedents, of course the  39 precedents I've given your lordship point in both  40 directions.  What I am dressing at this point, though,  41 is the issue of jurisdiction as it relates to the  42 issue which most troubled your lordship in the  43 non-land resources area.  44 THE COURT:  Well, can I ask you what I asked Miss Mandell, what  45 you are asking for in a way of an order that would  46 give effect to that part of your submission?  47 MR. JACKSON:  My lord, the paragraph 4 of the prayer for relief 25725  Submissions by Mr. Jackson  1 seeks a declaration, and I've set this out on the top  2 of page 19, the right to govern themselves, the  3 members of the houses represented by the Plaintiffs in  4 accordance with Gitksan and Wet'suwet'en law,  5 administered through Gitksan and Wet'suwet'en  6 political, legal and social institutions as they exist  7 and develop.  That was the general tenure of that  8 paragraph.  And we say, my lord, in response to your  9 lordship's concern about this court imposing a  10 cultural jurisdictional authority upon people not  11 before the court, that a declaration in those terms  12 does not impose a cultural authority upon individual  13 Gitksan and Wet'suwet'en.  14 THE COURT:  Well, you would be asking me to make a declaration  15 that would impose this matrilineal concept upon every  16 Gitksan, whether he subscribes to it or otherwise.  17 MR. JACKSON:  No, my lord.  What we say is that the Plaintiffs'  18 jurisdiction is exercised within the framework of a  19 kinship society and is non-coercive.  Any declaration  20 of this court, therefore, is exactly what it would  21 imply, it is declaratory of an existing state of  22 affairs and would not impose anything different upon  23 individual Gitksan and Wet'suwet'en.  And a  24 declaration of this court, therefore, in the form of  25 paragraph 4 of the prayer for relief would not subject  26 individual Gitksan and Wet'suwet'en to any legal  27 sanctions such as those that might flow from  28 disobedience to an order of this court requiring them  29 to pay taxes.  The order of this court does not  30 convert the legal imperatives of observing the  31 obligations of a kinship society into the legal  32 imperatives of obeying the laws of a state society  33 such as Canada, backed as it is with the authority of  34 police officers, a Criminal Code which authorizes  35 fines and imprisonment, and the power of the judiciary  36 to commit for contempt of court, and therefore your  37 lordship in declaring a right of jurisdiction would  38 not subject those individuals to an authoritarian  39 regime or require them to act in ways different from  40 that which they are prepared to act by virtue of the  41 forces which bear upon them or don't bear upon them,  42 depending upon the degree of their commitment to the  43 kinship society of the Gitksan and Wet'suwet'en.  And,  4 4 my lord --  45 THE COURT:  I'm having a lot of difficulty with this, Mr.  46 Jackson.  Perhaps I can put it in terms that I can  47 understand.  What do you say about the general law of 25726  Submissions by Mr. Jackson  1 the province as every child must attend school until  2 he's 15 years of age, subject to certain objections.  3 You say that I would have to strike that down as to  4 whom --  5 MR. JACKSON:  No, my lord, we're not asking you to strike that  6 door down.  7 THE COURT:  You wouldn't strike that down?  8 MR. JACKSON:  No.  We're not asking you to.  9 THE COURT:  What about all the health regulations and pure foods  10 and environment and all those things.  11 MR. JACKSON:  In setting out, as we have, certain heads of  12 jurisdiction, which we did in our submissions, your  13 lordship will see we did not deal with a variety of  14 issues which the Plaintiffs have not sought specific  15 authority in relation to, nor do they seek to exclude  16 provincial laws pertaining thereto.  And your  17 lordship, in fact, will recall that that was part of  18 your lordship's concern, that some of the heads of  19 jurisdiction which were claimed, such as the right to  20 regulate the internal affairs of the house to  21 determine house membership, to conduct feasts, were  22 areas which were not subject to federal or provincial  23 laws conflicting therewith, and your lordship wanted  24 to know why that raises a justiciable issue, given  25 that the Plaintiffs can exercise those kind of rights  26 without the orders of the court.  What we say, my  27 lord, in relation to that, is that those areas of  28 jurisdiction were led not only to illustrate the  29 overall structure or framework of the Plaintiffs'  30 jurisdiction in other areas, particularly in relation  31 to lands and resources.  In other words, the  32 jurisdiction in relation to lands and resources was  33 not, as it were, an ad hoc body of authority, it was a  34 body of authority which was reflected in other areas  35 through the institutions of the house, through  36 institutions of houses acting collectively, so that  37 your lordship could see that the jurisdiction in  38 relation to proprietary interests was something  39 consistent with the way the chiefs in the houses  40 exercised jurisdiction in other areas.  But over and  41 above its evidentiary importance, we also say, my  42 lord, that those heads of jurisdiction -- and that's a  43 point which I make at page 20, my lord -- that those  44 heads of jurisdiction bespeak what we say is the  45 pre-existing right of the Plaintiffs to govern  46 themselves, and that is a right, my lord, which the  47 federal and provincial governments do not at this time 25727  Submissions by Mr. Jackson  1 recognize, and it is a right which if it is declared  2 in your lordship's judgment is not simply something of  3 symbolic importance, it is of practical effect and  4 would be something which would bear directly, my lord,  5 in relation to any negotiations which will be  6 consequent upon any order of this court.  And of  7 course the Court of Appeal has made it very clear the  8 expectation of everyone is that these matters  9 ultimately will be resolved by negotiation and not by  10 the fiat of the court.  So that a declaration in  11 relation to those matters, which does not, in terms of  12 its specificity, seek to exclude educational laws or  13 health laws, is something which we say your lordship  14 can and should grant.  15 THE COURT:  Well, I'm sorry, I thought you said a moment ago  16 you're not seeking to strike down laws of general  17 application.  Now I think you're saying that you are.  18 MR. JACKSON:  My lord, the Plaintiffs are not specifying the  19 particular areas of jurisdiction which they -- over  20 which they exercise and govern themselves.  They have  21 articulated a number of particular heads of  22 jurisdiction upon which we have asked this court to  23 make declatory rulings.  24 THE COURT:  Then the note I made a moment ago, Plaintiffs do not  25 seek an order striking down the general laws of the  26 province, now you tell me now that is not an accurate  27 note of your --  28 MR. JACKSON:  I was referring, my lord, to your reference to  29 land, education and health.  30 THE COURT:  Public health, yes.  What about traffic?  31 MR. JACKSON:  In relation to lands outside of reserves, I don't  32 think the Plaintiffs have ever voiced an objection to  33 the traffic laws of the province, my lord.  34 THE COURT:  So the province can continue to regulate the use of  35 the highways and can continue to impose roadside  36 suspensions and all those other things that go with  37 the regulation of traffic?  38 MR. JACKSON:  I don't believe the Plaintiffs have suggested that  39 that would be any different, my lord.  40 THE COURT:  So that — well, is there a happy little bundle of  41 rights that you can -- that I can add to my note after  42 the "but"?  43 MR. JACKSON:  We can try to provide your lordship with something  44 which clarifies this a little bit more.  The point of  45 trying to articulate, as I said, the areas of  46 jurisdiction in our submissions was to give your  47 lordship, as it were, a short list of the particular 2572?  Submissions by Mr. Jackson  1 jurisdiction which the Plaintiffs are claiming outside  2 the area of lands and resources.  3 THE COURT:  You say the Plaintiffs are not seeking an order from  4 this court which would permit another Canadian court  5 to adjudicate disputes or breaches of law internal to  6 the Gitksan and Wet'suwet'en system.  What other  7 Canadian court would you have in mind there, the  8 federal court or the provincial courts or what?  9 MR. JACKSON:  No, my lord.  That was meant to be a general  10 statement that we are not seeking from this court an  11 order which would permit any other court, whether it  12 be this court, a provincial court, a federal court, to  13 intervene in the internal affairs of the Gitksan.  14 This was in relation to your lordship's concern that  15 any judgment that your lordship made would impose some  16 cultural authority which hitherto had been voluntary.  17 The point we're trying to make in that passage is this  18 would not --  19 THE COURT:  Then would it be more accurate, if I might be  20 forgiven by putting it that way, that what you're  21 really saying is that the Plaintiffs are seeking an  22 order from this court which would prevent any Canadian  23 court from adjudicating disputes or breach of law  24 internal with the Gitksan and Wet'suwet'en system?  25 MR. JACKSON:  I think that would be putting it too highly in the  26 sense that we're not seeking a preclusive ruling from  27 your lordship, we're saying the nature of the Gitksan  28 and Wet'suwet'en society and its rule-making is such  29 that the intervention of an outside body such as a  30 court would in fact be inconsistent with the nature of  31 the kinship obligations.  32 THE COURT:  All right.  Now, your next sentence:  33  34 "The Plaintiffs are seeking from this court  35 recognition that their laws and institutions  36 exist and must be respected by the governments  37 of Canada."  38  39 So you're asking for a declaration that the feast  40 system is alive and well in Gitksan country, and that  41 it must not be impaired by any enactment of any  42 Canadian legislative body.  43 MR. JACKSON:  I don't think we're seeking a declaration in that  44 kind of specificity, my lord.  Paragraph 4 of the  45 prayer for relief is left in the form it is in order  46 to, as it were, give space for accommodation.  One of  47 the points which the Plaintiffs have struggled with is 25729  Submissions by Mr. Jackson  1 to seek declarations which do in fact provide the  2 basis upon which real negotiations can take place.  3 They have some content to them, but they do not  4 confine or limit the possibility of accommodation  5 between the Plaintiffs and either the federal or the  6 provincial governments to a point where those  7 negotiations would not in fact be productive or  8 fruitful.  9 THE COURT:  I take it you have no concern with the -- with what  10 troubled me as expressed to Miss Mandell, that there's  11 no one here representing persons under disabilities,  12 and that I shouldn't be concerned about making an  13 order that might affect the right of unrepresented  14 persons, such as a child, to opt out of this whole  15 cultural mosaic that you and your colleagues have  16 painted.  17 MR. JACKSON:  I don't think that is a concern your lordship  18 should have, given the nature of the declaration your  19 lordship would be making.  2 0 THE COURT:  That's why I'm having trouble seeing how I could  21 frame the kind of declaration you are seeking without  22 it possibly affecting the rights of other  23 unrepresented third parties.  24 MR. JACKSON:  It's not clear to me, my lord, what rights of  25 unrepresented third parties would be negatively  26 affected by the order of the court.  27 THE COURT:  Well, let's take the case of a young Gitksan person  28 who received a gift by will from a non-native of land  29 within the claim territory.  Is she required as a  30 Gitksan person to submit to the laws and institutions  31 of the Gitksan, or is she entitled to say no, this is  32 a private right that I have.  33 MR. JACKSON:  I would have thought even under the effect of your  34 lordship's declaration she would be able to make that  35 individual choice, and the consequences of that would  36 be something as between her and the chief or members  37 of the house to which she belonged and would not be  38 the subject of any negative sanctions or consequence  39 which would flow from this court's declaration.  In  40 other words, this court's declaration would not change  41 that particular situation in any way or shape,  42 vis-a-vis her relationship or rights as a Gitksan  43 person.  44 THE COURT:  But I take it you would say that if a dispute arose  45 as to who should be the hereditary chief of a house,  46 that this court would have no jurisdiction?  47 MR. JACKSON:  No, my lord.  And it would not have any greater 25730  Submissions by Mr. Jackson  1 jurisdiction than it does today arising from the fact  2 that this court has declared in effect that the  3 Gitksan have a pre-existing right to govern  4 themselves, the precise contours of which and the  5 precise details of which are not defined but are left  6 for further definition.  7 THE COURT:  Mr. Jackson, I don't think I should take up so much  8 of your time, but I think you can see that I'm  9 troubled, and what I would like you to do for me is to  10 give me a draft of what you say I should -- or what is  11 the declaration you say I should make, because you see  12 that it troubles me because I do not foresee all the  13 possible consequences, and that is a scary thing to  14 ask a judge, trial judge to do, is to do something for  15 the first time, never been done before, and I would be  16 very interested in seeing what language you say should  17 reflect the court's judgment on that part of your  18 prayer for relief.  19 MR. JACKSON:  My lord, I will — we will provide your lordship  20 with that draft.  21 THE COURT:  Thank you.  And I wish you all the luck in the world  22 in drafting it.  23 MR. JACKSON:  My lord, at page 20 and 21 I've set out some  24 further submissions regarding why we say a declaration  25 in relation to what I've broadly characterized as a  26 right to self-government in terms of areas outside of  27 lands and resources is of significance and why the  28 plaintiffs have requested it.  We will in fact amplify  29 that in relation to your lordship's concerns.  My  30 lord, starting at page 21, the argument turns to the  31 legal foundations for the Plaintiffs' right to  32 jurisdiction, and the first part of that, my lord, is  33 at page 23, the concept of aboriginal jurisdiction as  34 part of the common law of aboriginal rights.  And this  35 in large measure, my lord, is something I have already  36 addressed your lordship on at some length in terms of  37 dealing with the strand of the common law which has  38 developed in the American cases, building upon the  39 foundation block of Worcester and Georgia, and I say  40 at page 23, my lord, that -- and your lordship is  41 correct in terms of identifying this as an issue of  42 first impression in the Canadian court in that the  43 issue of aboriginal jurisdiction, as the Plaintiffs  44 have articulated, has not come before a Canadian court  45 in the way it has come before your lordship, and  46 certainly has not been addressed on the basis of an  47 evidentiary foundation such as has been placed before 25731  Submissions by Mr. Jackson  1 your lordship.  The issue has, however, been the  2 subject of litigation, although that litigation has  3 usually been resolved on other grounds, and at page 24  4 and page 26, my lord, I have provided for your  5 lordship a short summary of how that litigation has  6 come about, and interestingly enough, in the same way  7 as some of the modern litigation in the United States  8 in relation to land rights and whether or not  9 aboriginal title is properly characterized as being at  10 the sufferance of the Crown in the way of the  11 Teehiton(phonetics) characterization, or as a  12 pre-existing legal right in the manner of the original  13 Worcester -- the original Marshall decisions.  So too  14 the issue of jurisdiction has arisen in the context of  15 the Six Nations, the Iroquois confederacy, and I've  16 set out at page 24 and 26 the resume of that  17 litigation.  And your lordship will see from that that  18 the Six Nations, after their crossing of the American  19 border into Canada, have in their relationships with  20 government taken the position that the Covenant Chain  21 which characterized their relationships originally  22 with the Crown is something of continuing significance  23 in the twentieth century.  And your lordship will see  24 at page 25 and 26 how the Six Nations addressed the  25 parliamentary committee on Indian self-government  26 using a discourse with which your lordship has become  27 familiar from the eighteenth century Covenant Chain  28 treaties.  The issue which has arisen in the courts,  29 however, has arisen in the context of a dispute  30 between the band council system established under the  31 Indian Act and the hereditary chiefs, and the Indian  32 Act system of election of band councils and band  33 chiefs was not applied to the Six Nations until well  34 after its first introduction in 1876 until 1924, and  35 the litigation which ensued was as to the competence  36 of the federal government to impose upon the  37 hereditary system a system of elected band councils.  38 And so in terms of the nature of the dispute, this  39 litigation was designed to get from the court a ruling  40 as to the pre-existing rights of the Iroquois.  41 Now, of course, my lord, you may recall that the  42 Iroquois, when they came to Canada, did not settle on  43 their own lands.  Lands were bought from the  44 Missassauga Indians by the Crown, and those lands were  45 then granted to the Six Nations, as it were, as  46 compensation or as a recognition of the -- their  47 alliance with the British Crown in the American War of 25732  Submissions by Mr. Jackson  1 Independence.  And therefore, the Six Nations'  2 relationship to those lands and their rights on those  3 lands are not analagous to the rights of the  4 Plaintiffs in what has always been their homelands.  5 The litigation which ensued, however, my lord, was  6 resolved on a much narrower issue, and in the case of  7 Logan and Styres in 1959 Mr. Justice King, and I set  8 this out at page 28, limited his examination as to  9 whether or not the Indian Act could be legally applied  10 to the Six Nations.  He limited his analysis to the  11 original deeds under which lands were granted to the  12 Six Nations, and he concluded at the bottom of page  13 28:  14  15 "In my opinion, those of the Six Nation Indians  16 so settling on such lands, together with their  17 posterity, by accepting the protection of the  18 Crown then owed allegiance to the Crown and  19 thus became subjects of the Crown....  20 ...While it might be unjust or unfair under the  21 circumstances for the Parliament of Canada to  22 interfere with their system of internal  23 government by hereditary chiefs, I am of the  24 opinion that Parliament has the authority to  25 provide for the surrender of Reserve land, as  26 has been done herein."  27  2 8 And we say, my lord, that Mr. Justice King's judgment  29 is limited to the proposition that so far as reserve  30 lands are concerned, the hereditary system of  31 government is subject to parliamentary, that is  32 federal modification.  It is submitted that Mr.  33 Justice King's statements do not support the wider  34 proposition that the acceptance of Crown protection  35 necessarily involves a surrender of pre-existing  36 rights of self-government.  And we say, my lord, that  37 because the Marshall decisions are the clearest  38 refutation of that proposition, that by accepting  39 protection the Indian nation so doing gives up its  40 rights to self-government.  That was a proposition  41 which was specifically addressed and rejected in  42 Worcester and Georgia.  We've also pointed out, my  43 lord, that in the American development of this strand  44 of the common law the fact that American Indians are  45 citizens of the United States and have the right to  46 vote, is not seen in any way as being inconsistent  47 with a continuing right of internal jurisdiction, the 25733  Submissions by Mr. Jackson  1 right to govern their own affairs within the  2 parameters of the American jurisprudence.  This issue,  3 my lord, as to conflict between the hereditary chiefs  4 and the band councils is one which has continued to be  5 the focus of litigation in which the Six Nations have  6 tried to have the courts address the issue of the  7 legitimacy of their pre-existing traditional form of  8 hereditary chiefs, and it's come before the court on  9 several occasions.  At pages 29 to 32 I've set out  10 some of those cases.  I'm not going to take your  11 lordship to them, because in the event all of them  12 have been determined on very narrow grounds in which  13 the courts, as it were, have side-stepped the issue,  14 which the Six Nations have sought to raise, so those  15 cases do not provide your lordship with much guidance  16 beyond knowing that underlying this litigation is an  17 issue which is very much seen by the Six Nations as a  18 live one, in the same way as it is seen by the  19 Plaintiffs as a live issue.  And the question of the  20 relationship between the hereditary chiefs and the  21 band councils is something that I will shortly  22 address.  23 The next case I want to refer your lordship to is  24 the case of Connolly and Woolrich, which I have set  25 out at page 32.  Would this be a proper place to take  26 the break, my lord?  27 THE COURT:  We'll take about 15 minutes.  28 THE REGISTRAR:  Order in court.  Court stands adjourned for 15  2 9 minutes.  30  31 (PROCEEDINGS ADJOURNED AT 8:00 p.m.)  32  33 I hereby certify the foregoing to be  34 a true and accurate transcript of the  35 proceedings herein transcribed to the  36 best of my skill and ability  37  38  39  40  41 Graham D. Parker  42 Official Reporter  43 United Reporting Service Ltd.  44  45  46  47 25734  Submissions by Mr. Jackson  1 (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Thank you.  Mr. Jackson.  5 MR. JACKSON:  My lord, Connolly and Woolrich was decided by  6 Quebec Superior Court just nine days after  7 confederation.  It is a case much beloved by conflict  8 of laws professors.  9 THE COURT:  Should that be 1869?  10 MR. JACKSON:  18 67, my lord.  11 THE COURT:  18 67.  12 MR. JACKSON:  Yes.  Yes, I think you are looking at page 33, are  13 you, my lord?  14 THE COURT:  Yes.  15 MR. JACKSON:  That's the case I think — I see, yes.  I think  16 it -- I will have to check that.  It is certainly not  17 1969, that's for sure.  18 THE COURT:  How many days after confederation?  19 MR. JACKSON:  Nine.  20 THE COURT:  Sounds like about July 9 then of that year.  21 MR. JACKSON:  And I was checking out books of authorities, my  22 lord, and unless we have placed it under somewhere  23 else, I didn't find it in our books of authorities so  24 I will be providing our friends and your lordship with  25 a copy of that case.  26 The issue in that case, my lord, was whether the  27 law of lower Canada would recognize a marriage between  28 a clerk of the northwest company and a Cree Indian  29 woman entered into 1803 in the Athabaska district in  30 accordance with Cree customary law.  Under the Common  31 Law conflict of law rules, a foreign marriage would be  32 recognized if it was valid under the law of the place  33 in which it was celebrated and if the marriage had  34 certain basic characteristics.  And the issue  35 therefore for his lordship was what was the law of the  36 place where the marriage was celebrated, and Mr.  37 Justice Monk determined that the law of the place was  38 the Cree laws as they were in force at that time.  And  39 what is of significance in his judgment is that, in  40 deciding the question of could there be such a thing  41 as laws in a territory occupied by aboriginal peoples,  42 his lordship reviewed the same juris prudence which we  43 have urged upon your lordship as being the foundation  44 cases for determining the nature of aboriginal rights  45 at common law, and he reviewed the Marshall decisions  46 and in the passage I set out on page 33, he applied  47 the doctrine of continuity, as we have called it, the 25735  Submissions by Mr. Jackson  1 idea that upon the assumption of sovereignty over an  2 area the pre-existing rights of aboriginal peoples are  3 not affected, and he held that the assertion of Crown  4 sovereignty in the Athabaska district did not affect  5 either the pre-existing territorial rights of the  6 Cree, of course which was not an issue before him, but  7 nor did it affect the pre-existing customary law of  8 the Cree Nation.  And in the passage I have set out at  9 page 33 and over on to page 34, he held -- and I will  10 just refer your lordship to the last paragraph on page  11 34 at the top:  12  13 "I have no hesitation saying that, adopting  14 these views of the question under  15 consideration..."  16  17 That is the Marshall doctrines:  18  19 "...the Indian political and territorial rights,  20 laws, and usages remained in full force - both  21 at Athabaska and in the Hudson Bay region  22 previous to the Charter of 1670..."  23  24 And that should be:  25  26 "...and even after that date as will appear  27 hereafter."  28  29 And his lordship then looked at the question of the  30 argument which was made against the application of  31 Cree customary marriage laws as being the law of the  32 place, that argument being that this was an area  33 within the bound of the Hudson's Bay territory and  34 therefore the grant of the Charter and the reception  35 of Common Law would have had the effect of eclipsing  36 the pre-existing customary law, and his lordship said  37 in a passage half-way down that second quote on page  38 34:  39  40 "It is easy to conceive, in the case of joint  41 occupation of extensive countries by Europeans  42 and native nations or tribes, that two  43 different systems of civil and even criminal  44 law may prevail.  History is full of instances,  45 and the dominions of the British Crown exhibit  46 cases of that kind.  That Charter..."  47 25736  Submissions by Mr. Jackson  1 That is the Hudson's Bay Charter:  2  3 "...did introduce the English law, but did not,  4 at the same time, make it applicable generally  5 or indiscriminately - it did not abrogate the  6 Indian laws and usages.  The Crown had not done  7 so.  Their laws of marriage existed and exist  8 under the sanction and protection of the Crown  9 of England and Mr. Connolly might bind himself  10 as well by that law, as by the Common Law of  11 England."  12  13 In some ways, my lord, that is not that dissimilar  14 to what Chief Justice Marshall said in Johnson and  15 Mcintosh when, as one of the bases upon which he ruled  16 that the conveyance made by the Illinois Indians to  17 Mr. Johnson could not be sustained, was that he had in  18 fact made an agreement under the customary law, the  19 land tenure system of the Illinois Indians, they in  20 fact had changed the arrangements, sold the land to  21 someone else, and he could not be heard to complain of  22 that having in fact incorporated as it were himself  23 into their laws.  The central point however here is,  24 my lord, what Mr. Justice Monk recognized was that  25 there was a pre-existing system and that the reception  26 of the Common Law was not such as to be inconsistent  27 with nor did it necessarily abrogate that customary  28 law of the Cree.  His lordship went on to find that  29 the Royal Proclamation in his view did nothing to  30 interfere with the continuing existence of the  31 customary laws of the Cree as respected themselves.  32 THE COURT:  But does this get you anywhere, because surely under  33 English Law and therefore at least in 1859 British  34 Columbia Law, common law would recognize the law of a  35 marriage that's celebrated.  36 MR. JACKSON:  My lord, the sole point for referring to the  37 Connolly case is that it is in a Canadian context a  38 recognition of a strand of juris prudence which  39 reflects a recognition of an indigenous system of law  40 which regulates vis-a-vis the indigenous peoples,  41 their relationships between each other.  42 THE COURT:  I can see that.  Let me trouble you with one other  43 thought that's crossing my mind that you will want to  44 deal with and that is whether I can use any of the  45 Marshall juris prudence in this area by reason of the  46 fact that it seems to me, I say this without careful  47 thought or study, that he was saying you people have 25737  Submissions by Mr. Jackson  1 exclusive possession of those lands let's say beyond  2 the Appalachians beyond which we claim no  3 jurisdiction, and therefore you are in those areas of  4 sovereign people, and we can make treaties with you or  5 we can buy your land but we are not interfering with  6 your self-governments.  Can you make the same -- can  7 you make the same claim here subsequent to the claims  8 of sovereignty where at least since 1846, is it,  9 sovereignty over British Columbia was claimed putting  10 it in a different factual situation from what Chief  11 Justice Marshall was dealing with?  12 MR. JACKSON:  I don't think so, my lord, for this reason:  That  13 the Marshall decisions are all premised upon the  14 Crown's assertion of sovereignty over North America by  15 virtue of the doctrine of discovery.  I don't think  16 Chief Justice Marshall would ever have conceded that  17 the Crown or its successor in title, in terms of the  18 underlying title, the states and the Federal  19 Government of the United States did not have  20 sovereignty over the territorial United States.  His  21 point was that, consistent with that assertion of  22 sovereignty, consistent with the underlying title and  23 the sovereignty that goes with the doctrine of  24 discovery, was a pre-existing legal regime which  25 comprised both of rights to land, the rights he  26 characterizes as the rights to possession, and also a  27 jurisdiction whereby the Indian nations could govern  28 themselves, and that was consistent with the assertion  29 of sovereignty.  So in that sense, my lord, the fact  30 that the Crown asserted sovereignty in British  31 Columbia we say in no way contradicts -- in many ways  32 it is the point at which the Marshall principles kick  33 in as it were prior to the assertion of sovereignty.  34 There is no room for the common law recognizing any  35 rights.  There is no common law there.  It's only at  36 the point where the Crown asserts sovereignty that the  37 doctrine of Common Law aboriginal rights begins to  38 apply, and we say at that point, whether that point is  39 the Treaty of Oregon or whether that point is the  40 formation of the mainland colony of British Columbia  41 or whatever that point is, that is the point at which  42 the Common Law does provide and did provide  43 recognition of the aboriginal rights of the  44 plaintiffs, and we say that those aboriginal rights  45 comprise the package, rather inelegant word, but I  46 will use it anyway, the package of rights which we say  47 properly characterizes ownership and jurisdiction. 2573?  Submissions by Mr. Jackson  1 THE COURT:  Running also through my mind is a problem with  2 Campbell and Hall, I haven't read it for some years,  3 but sometime you might want to tell me whether you  4 think the assertion of sovereignty and the exercise of  5 sovereignty falls within the principles of Campbell  6 and Hall, the great case of Campbell and Hall as Chief  7 Justice Marshall called it, which seems to suggest  8 that when there is -- of course he was talking about  9 conquest.  10 MR. JACKSON:  Yes, my lord, in that case.  11 THE COURT:  And it may be limited to conquest but, if it isn't,  12 is he saying when the new regime takes over it can  13 create new laws or -- and, if it doesn't, the old ones  14 remain?  15 MR. JACKSON:  My lord, Campbell and Hall I think at this point  16 is in Mr. Rush's bailiwick and I may --  17 THE COURT:  — leave it to him.  18 MR. JACKSON:  — give that question to him.  19 THE COURT:  All right, thank you.  20 MR. JACKSON:  Page 36, my lord.  I note that in a series of  21 cases decided by the late Mr. Justice Sissons and Mr.  22 Justice Morrow, Connolly and Woolrich has been applied  23 to recognize both customary Indian and Inuit marriages  24 and customary adoptions even after the dates of the  25 reception of the English law into the territory.  The  26 issue, my lord, of the validity of these marriages, I  27 have addressed that issue at page 36.  Although much  28 evidence has been placed before your lordship  29 regarding the laws of the Gitksan and Wet'suwet'en  30 dealing with marriage, adoption and succession, this  31 evidence is not directed, nor do the plaintiffs seek,  32 my lord, any declaration relating to the validity of  33 any particular marriage, adoption or succession,  34 rather, that evidence is to demonstrate that the  35 plaintiffs as part of their organized society had and  36 continue to have a system for regulating these  37 important areas of their everyday lives.  They are  38 evidence, in other words, of their pre-existing and  39 continuing jurisdiction.  It is submitted that in the  40 same way the Connolly and Woolrich line of cases  41 recognizing customary marriages and adoptions  42 implicitly and in some cases explicitly recognizes a  43 pre-existing and continuing aboriginal jurisdiction.  44 This issue, my lord, of Indian jurisdiction was  45 one which Mr. Justice Steele addressed and rejected in  46 the course of his judgment in the Bear Island case and  47 I have set out at page 37 what his lordship had to 25739  Submissions by Mr. Jackson  1 say.  2  3 "The Constitution Act 1867 allocated  4 jurisdiction over all matters respecting Canada  5 to the federal and provincial governments.  It  6 did not leave Indian bands with any direct  7 jurisdiction over themselves.  It was submitted  8 by the defendants that, because the Act did not  9 specifically take away internal self-government  10 from the Indians, therefore the Indians had the  11 right to self-determination within their own  12 areas, subject only to the overall sovereignty  13 of the Crown.  I disagree.  14  15 The Act clearly provided, under s. 91(24) that  16 Indians and land reserved for the Indians were  17 under federal jurisdiction, just as municipal  18 institutions in the province were clearly under  19 provincial jurisdiction, by virtue of s. 92(8).  20 There was no residue left to the independent  21 jurisdiction of Indian bands or nations."  22  23 And that characterization of the exclusive  24 allocation of competence so far as jurisdiction is  25 concerned as between the Federal and Provincial  26 Governments is reflected in paragraph 34 -- 33 of the  27 Provincial Defendant's Statement of Claim and it is  28 also an argument which the Federal Defendant urges  29 upon your lordship in their summary of argument.  30 The response of the plaintiffs to that argument,  31 my lord, is set out at the bottom of page 37 and over  32 to page 38, and it is by reference to the American  33 situation, my lord, in the United States that  34 Constitution also allocates competences as between  35 federal and state jurisdictions.  The Worcester and  36 Georgia case, my lord, is premised upon the fact that  37 the Federal Government has as done the Federal  38 Government in Canada, exclusive jurisdiction to deal  39 with Indian nations in that case by virtue of the  40 treaty power and the commerce power.  It has never  41 been said however, my lord, that the fact that the  42 Federal Government has that exclusive power and that  43 the states have other powers not allocated to the  44 Federal Government that that excludes the idea of  45 inherent Indian jurisdiction as it was articulated in  46 Worcester and Georgia.  I shouldn't have said that it  47 has never been suggested because in the late 19th 25740  Submissions by Mr. Jackson  1 century, and your lordship will remember when I went  2 through some of those cases, one of which I have  3 referred to at page 38, the United States Supreme  4 Court in the Kagama case did in fact under the  5 influence of certain of the revisions of the Marshall  6 principles which took place in the late 19th century  7 did in fact say pursuant to the plenary power doctrine  8 that within the United States there are but two  9 sovereigns, the States and the Federal Government.  10 And that doctrine however, my lord, was we submit  11 aberration and in fact the United States Supreme Court  12 has now in its most recent juris prudence, and I refer  13 your lordship to the Wheeler case which I have already  14 dealt with as an earlier point, has recognized that  15 within the United States even though federal and state  16 jurisdictions are the only jurisdictions which are  17 referred to in the Constitution that the Common Law  18 had recognized as pre-existing the concept of an  19 Indian jurisdiction and that that can live alongside  20 with, compatible with a relationship between, on the  21 one hand, the Federal and, on the other hand, State  22 jurisdictions.  And so we say, my lord, that the  23 concept of Common Law jurisdiction is not inconsistent  24 with the pattern of allocation of legislative  25 competences as it is set out in the British North  2 6 America Act.  27 The last case I would refer your lordship to, and  28 I am not going to spend any time on it, is a recent  29 decision of the Provincial Court, arising under the  30 James Bay Agreement, my lord, and it was -- it related  31 to the question of whether or not a curfew was in fact  32 delegated legislation and therefore was subject to the  33 kinds of restrictions which those exercising delegated  34 powers are subject to, and the court, relying  35 principally upon the fact that the James Bay Agreement  36 has the status of a land claims agreement protected by  37 s. 35(3) of the Constitution Act of 1982, held that in  38 fact the curfew was not the exercise of a delegated  39 power, but what is of importance to the plaintiffs'  40 submission was the passage which I quoted at page 40  41 and underlined at the bottom of the page that the  42 judge, referring to the idea of an inherent  43 sovereignty as that term is used in the American  44 cases, held that his analysis squared with the idea:  45  46 "...that the Crees hold some sort of residual  47 sovereignty as regards their local 25741  Submissions by Mr. Jackson  1 governments."  2  3 And so, my lord, what we say is that there are  4 these strands in the Common Law which are somewhat  5 embrionic so far as Canada is concerned but, so far as  6 they have been developed in the United States, have  7 recognized that the Common Law does give effect to a  8 distinctive jurisdiction of Indian nations and  9 aboriginal peoples and we urge your lordship to affirm  10 that proposition in the declarations that your  11 lordship issues.  12 What doesn't exist in any other case, my lord,  13 including Worcester and Georgia, is an evidentiary  14 record such as your lordship has had in which the  15 plaintiffs have sought to describe the nature of their  16 authority, how it is exercised, in the areas it is  17 exercised, so that your lordship is not asked to make  18 declarations as it were in the air, but consistent  19 with the Court's directions in the Supreme Court  20 something which does reflect what exists on the  21 ground.  22 The next section, my lord, deals with a second  23 strand of legal foundation as it were for a  24 jurisdictional component to aboriginal rights and that  25 is that the Royal Proclamation we say properly  26 understood in its historical matrix against the  27 backdrop of the covenant chain treaty making does  28 acknowledge the continuing jurisdiction or internal  29 self-government of Indian nations.  And we say, my  30 lord, that the Proclamation, in guaranteeing that the  31 Indian nations with whom the Crown is connected and  32 live under the Crown's protection, that they should  33 not be molested or disturbed, that was a guarantee of  34 a fundamental freedom or liberty, the liberty of  35 non-interference and non-interference we say implies  36 the continuity of pre-existing powers of  37 self-regulation or self-government.  38 And, my lord, that interpretation of the  39 Proclamation was one which Mr. Justice Monk in  40 Connolly and Woolrich adopted.  41 Page 42, my lord, we say that further support for  42 the idea that inherent in the Common Law in addition  43 to the proprietary interest in lands is the  44 recognition of a right of internal self-government is  45 supported by the way in which the Treaty of Waitangi  46 has been interpreted by the Waitangi Tribunal, and  47 I've set out Article 2 at the bottom of page 42.  It 25742  Submissions by Mr. Jackson  1 is an article which I have previously referred to in  2 greater detail but, as you see, the article talks  3 about the full exclusive and undisturbed possession of  4 the Maoris' lands and estates, forests and fisheries,  5 and the Treaty of the Tribunal -- Waitangi Tribunal in  6 the report which I have set out at page 43 has taken  7 the position that Article 2 is a guarantee "not only  8 of the possession of their lands but in the mana  9 (authority) to control them in accordance with their  10 own customs and having regard to their cultural  11 preferences...The tribes are entitled to develop their  12 own tribal authorities without undue circumscription".  13 We have said, my lord, in our previous arguments  14 that the Treaty of Waitangi in many ways is the most  15 explicit and detailed description of the nature of the  16 pre-existing aboriginal rights of indigenous peoples  17 and we say that the Orakei Report and the findings of  18 the tribunal therein parallel what the plaintiffs  19 assert are their pre-existing rights and the terms in  20 which they seek to character relief in paragraph 4 of  21 the prayer for relief, and we say that this  22 parallelism is not happenstance.  The Treaty of  23 Waitangi and the aboriginal rights asserted in the  24 Statement of Claim embody the fundamental principles  25 of the Common Law.  26 The last section of this argument, my lord, deals  27 with a third component of recognition of jurisdiction  28 and it is in the form of treaty making.  And again, my  29 lord, in relation to your lordship's previous comments  30 we say that the treaty making is of relevance insofar  31 as it bespeaks a pattern and a recognition of  32 pre-existing rights in other parts of the dominions  33 and possessions of the British Crown.  And in my  34 previous submissions I described and went through a  35 number of treaties, my lord, in which the right of  36 self-government was described explicitly and clearly  37 as part of the consentual arrangements between the  38 Crown and at various Indian nations over the course of  39 some 200 years.  The Canadian treaties, my lord,  40 negotiated particularly in the 19th century, the ones  41 in which I spent some time on, are not as explicit in  42 terms of dealing with self-government.  As your  43 lordship will recall those treaties deal principally  44 with the surrender of lands, the establishment of  45 reserves and the provision of particular forms of  46 economic assistance and certain guarantees of hunting  47 and fishing rights.  However, as I also related to 25743  Submissions by Mr. Jackson  1 your lordship, those treaties were not negotiated in a  2 vacuum and that, in the course of treaty making,  3 various assurances and oral guarantees were made by  4 the treaty commissioners which we say are relevant in  5 understanding what the treaty commissioners understood  6 to be the rights of the Indians prior to treaty  7 making, and I've, at page 45, my lord, set out and I  8 am not going to repeat them, I have set out some of  9 those provisions, some of the statements made on the  10 one hand by the Indians spokespersons at the treaty  11 making and on the other hand by the Crown's treaty  12 commissioners which we say coalesce around the concept  13 that the Indians had a right to govern themselves and  14 that the making of treaties with Canada was not  15 designed to interfere with that pre-existing right.  16 And we say, my lord, that applies to Treaty Number 8  17 as well as the other treaties.  18 The bottom of page 45 I set out the statements  19 made by Treaty Commissioner Ross at the beginning in  20 which in trying to encourage those who were reluctant  21 to enter into treaty said:  22  23 "As all the rights you now have will not be  24 interfered with, therefore anything you get in  25 addition must be clear gain... Indians are fond  26 of a free life, and we do not wish to interfere  27 with it.  When reserves are offered you there  28 is no intention to make you live on them if you  2 9 do not want to."  30  31 My lord, at page 46 through to page 49 I have set  32 out, and I am not going to go into it, some of the  33 academic discourse which has taken place as to whether  34 or not certain provisions in the numbered treaties are  35 inconsistent with a right to internal self-government,  36 and it is my submission that those provisions are not  37 inconsistent with a continuation of the right to  38 self-government and your lordship will see why I say  39 that and the way in which applying the Marshall  40 decisions to those arguments and looking at some  41 specific examples of treaty making in the 18th century  42 those arguments in fact are not well-founded, and I  43 will leave your lordship to grapple with those issues.  44 The next section, my lord, is a section which  45 tries to deal with some of the thorny problems which  46 have arisen in the context of the evidence relating to  47 how in fact the plaintiffs have sought to exercise 25744  Submissions by Mr. Jackson  1 their jurisdiction in the face of the competing  2 assertions of jurisdiction by the Provincial  3 Government in particular, and we say, my lord, that  4 while the assertion of authority by government over  5 the Gitksan and Wet'suwet'en peoples has certainly  6 challenged the authorities of the hereditary system of  7 houses and chiefs, it has never supplanted it.  8 My lord, at page 50 I've set out some of the dire  9 predictions of doom and gloom which were made by  10 various missionaries and anthropologists into the 19th  11 and into the 20th century that the Gitksan traditional  12 system, the hereditary system, along with the other  13 bailiwicks of their distinctive society were doomed to  14 extinction.  The defendants, my lord, acknowledge in  15 fact, of course those predictions have not come to  16 pass, but they recharacterized the argument in the  17 sense of saying that the Gitksan and Wet'suwet'en may  18 have survived but their systems of authority have not;  19 that they in fact have succumbed to the authority of  2 0 Provincial and Federal Governments and that they  21 exist, if they exist at all, as very pale images,  22 something which is not capable of being the subject of  23 judicial relief, either in terms of the concept of  24 jurisdiction as a matter of law or as a matter of  25 facts when you look at what has happened over the last  26 century.  And we say, my lord, that the conflict  27 between the kinship form of ownership at page 51 and  28 jurisdiction and that of the Canadian state by which I  29 refer to both the Federal Provincial Governments has  30 been a pervasive theme in the social and political  31 lives of the Gitksan and Wet'suwet'en people  32 throughout the present century.  The intensity of the  33 friction between these two radically different systems  34 of authority has ebbed and flowed from one generation  35 to the next.  These fluctuations have occurred in  36 relation to the political, social and cultural  37 initiatives taken, on the one hand by government, on  38 the other, by House groups and their respective chiefs  39 and elders.  40 From the perspective of the plaintiffs, the  41 challenge to their jurisdiction is mounted each time  42 one or other of the levels of government ignores the  43 system of authority of the Gitksan and Wet'suwet'en  44 peoples and thereby violates the ownership of the  45 house groups.  This has been a particularly painful  46 experience for the Gitksan and Wet'suwet'en in  47 relation to government-authorized use and alteration 25745  Submissions by Mr. Jackson  1 of house lands, and the attempted expression of the  2 Gitksan and Wet'suwet'en institutions, economic  3 activities, cultural practices, languages and values.  4 At each step in the development of the national  5 and provincial economy, the Gitksan and Wet'suwet'en  6 system of authority has found itself facing a new  7 level of pressure - from the early incursions into the  8 territories for transportation, communication and  9 prospecting activities; to land-clearing and  10 settlement for agriculture and urban centres; to  11 limitations upon age-old harvesting and managing  12 pursuits like hunting, trapping, fishing and the  13 gathering of plant-stuffs; to the alienation of  14 forests for selective logging and sawmill production;  15 to tourism and recreational hunting and fishing; and  16 to the large-scale contemporary resource extraction  17 and use, such as mammoth hydro-electric inundations of  18 valley bottom land, open-pit and other mining, and  19 clearcut logging practices.  20 At each of these stages of economic change and  21 development in the wider society the Gitksan and  22 Wet'suwet'en system of authority has been confronted  23 with renewed assertions of governmental jurisdiction.  24 We say, my lord, that the Gitksan and Wet'suwet'en  25 have simultaneously tried to respond to the changing  26 political and economic system and have sought to do so  27 within the goals and within the sanctions of their  28 aboriginal system of authority.  And the rest of this  29 section, my lord, is an attempt to explain the  30 evidence and some of the contradictions in the  31 evidence by a reference to this tension and clash  32 which has occurred between the assertion of  33 governmental authority over the Gitksan and  34 Wet'suwet'en and their territory and the ways in which  35 the Gitksan and Wet'suwet'en have sought using their  36 indigenous systems and seeking as it were to adapt and  37 accommodate this competing system have sought to  38 struggle with and maintain and have maintained their  39 system as a viable, dynamic part of their lives.  40 The first section, my lord, deals with an example  41 at the individual level of how this has come about and  42 we say at the level of the individual the Gitksan and  43 Wet'suwet'en person has been faced with the task of  44 picking his or her way through the complexities of the  45 competing jurisdictions in which he or she is  46 enmeshed.  In many situations a family will heed the  47 sanctions of its people's system of authority, while 25746  Submissions by Mr. Jackson  1 at the same time it is the sanctions of fines and  2 government, the jurisdictional strictures of  3 government which are instrumental in individual  4 Gitksan and Wet'suwet'en decision making.  It is clear  5 that the choices which individual Gitksan and  6 Wet'suwet'en make in the contemporary world are  7 dramatically affected by the reality of the sanctions  8 of the two opposing systems.  9 And we say a case in point, my lord, is to be  10 found in the evidence of Emma Michell, Chief Lilloos  11 in the House of Namox in the Tsayu Clan of the  12 Wet'suwet'en.  In the course of explaining her family  13 history, Mrs. Michell repeatedly asserted the  14 Wet'suwet'en system of authority and narrated  15 incidents where her relatives had suffered government  16 sanctioned appropriation of land, pastures, cabins and  17 equipment during the non-Native settlement of the  18 Bulkley Valley.  At the same time, against this  19 background, Mrs. Michell explained that she and her  2 0 husband had acceded to the demands of government  21 authority in the course of pole-camp contract work in  22 the 1940s.  23 She testified that her grandfather's relatives,  24 Canyon Creek Marry and her son, Jimmy Thomas, were  25 dispossessed of their land at Canyon Creek:  26  27 "...and that land at Canyon Creek was taken away  28 by the white people.  They chased them out;  29 they never paid nothing for the land."  30  31 Later, in cross-examination, she discussed the  32 dispute she had with her husband who -- she and her  33 husband had with the provincial land tax assessment  34 relating to a trapline cabin.  And in that same  35 cross-examination she admitted to having complied with  36 regulations pertaining to federal and provincial  37 jurisdiction, that she took out forest permits in  38 order to cut poles for the small business she  39 operated, she filed tax returns, and she also paid  4 0 stumpage.  41 Page 55, my lord, we try and place this in some  42 kind of context.  I mean, is this an acceding to the  43 jurisdiction, a withering of the existing authority of  44 the Gitksan and Wet'suwet'en?  And what we say is, my  45 lord, is that the human drama of this, Mrs. Michell  46 and her husband complied with jurisdictional rules of  47 the same government which earlier had dispossessed her 25747  Submissions by Mr. Jackson  1 relatives from their land.  She and her husband  2 complied with the government regulations pertaining to  3 pole-cutting in order to obtain work and support their  4 family.  It is submitted that they did so with the  5 knowledge and fear of the potential power of  6 government to violate Wet'suwet'en ownership and  7 jurisdiction, as evidenced by the witness' statements  8 of relatives having been dispossessed from their  9 hunting territories, and having herself experienced  10 the loss and destruction of trapping and domestic  11 equipment and goods.  And so, my lord, what that is,  12 and of course there have been many examples of it --  13 THE COURT:  Not many, not very many.  14 MR. JACKSON:  Well, there's been others, my lord, of ways in  15 which people have tried in fact to maintain their own  16 system, but facing the inevitability that the  17 government has certain power over their lives de  18 facto, and that they have to live within those  19 strictures.  20 THE COURT:  But accepting that every dispossession was an  21 intolerable afront to justice, does that provide the  22 answer to the legal problem?  I mean, I don't know who  23 stole their camp equipment, I don't recall  24 specifically what evidence there was about that, but I  25 don't think there is any evidence that would say that  26 that was a government policy or a government direction  27 but some of the dispossessions were said to be -- but  28 is there enough here to generalize -- to say that that  29 is a matter that can be redressed by -- can individual  30 matters form the basis for a blanket claim to  31 aboriginal rights of the kind that's being advanced  32 here?  33 MR. JACKSON:  My lord, the Emma Michell is not offered to your  34 lordship as a platform upon which your lordship should  35 build a concept of aboriginal rights.  It's offered  36 rather as a rejoinder to the arguments which my  37 friends have made and your lordship will be hearing  38 that these kinds of actions of taking out licences, of  39 complying with a competing system of authority, are in  40 fact a recognition not only that there is a competing  41 system or authority but in fact a recognition of the  42 demise and the failure of their own system and the  43 fact that it is no longer a reality such that it can  44 be reflected in any judgment of this court.  So it's  45 not -- it's offered for a different proposition than  46 your lordship may have seen it.  47 THE COURT:  Well, I am not stopping you; I am just troubled by 2574?  Submissions by Mr. Jackson  1 the -- well, you don't think this is something you  2 should save for reply?  3 MR. JACKSON:  I think I have lost that opportunity, my lord.  4 THE COURT:  Well, maybe, yes.  All right.  5 MR. JACKSON:  Would this be a convenient time?  6 THE COURT:  Oh, I think we will carry on until -- we adjourned  7 at 8:00 and we came back at 8:15, so we'll go to 9:15.  8 MR. JACKSON:  The next section, my lord, looks at the manner in  9 which the hereditary system of authority has sought to  10 deal with the federal and provincial jurisdiction.  We  11 say that the response of Gitksan and Wet'suwet'en  12 House members over the past century to features of  13 governmental assertions of jurisdiction has been a  14 mixture of political resistance, cultural persistence  15 and cautious accommodation.  Throughout the past  16 century the peoples' own political representatives  17 have sought federal and provincial recognition of  18 Gitksan and Wet'suwet'en land title and jurisdiction  19 as the sound basis for social and economic growth and  20 development in the region.  While various actions have  21 been carried out in the political arena to this end,  22 the individual Gitksan and Wet'suwet'en families have  23 lived under a hereditary system of authority that is  24 constantly in collision and conflict with governmental  25 agencies and policies.  26 We do not seek, my lord, in this part of the  27 argument nor anywhere else to chronicle the resistance  28 of the Gitksan and Wet'suwet'en to the negative  29 sanctions and dire social and economic effects of  30 governmental authority but some examples of the  31 conflict faced by the people over the past century are  32 in order in terms of your lordship's attention and we  33 have provided some examples, my lord, to illustrate  34 the ongoing nature of the hereditary system of  35 authority especially under 20th century conditions of  36 conflict that have arisen between the system of  37 House-owning kin groups and the state system of the  38 Federal and Provincial Governments.  39 And the first section, my lord, deals with a  40 number of points dealing with game regulations and  41 trapline registration, and I would take your lordship  42 to page 58 and use the trapline registration as an  43 example of an apparent way in which the provincial  44 system has been imposed, and the plaintiffs have  45 co-operated within that system apparently in ways  46 which are not consistent with their traditional system  47 of authority, and this was an issue which was 25749  Submissions by Mr. Jackson  1 addressed at some length by Mr. Brody through a review  2 he undertook of documents relating to the initiation  3 of the trapline registration system and the ways in  4 which it was advertised to aboriginal peoples and the  5 perceptions which they brought to bear on the  6 registration of their hunting territories.  And Mr.  7 Brody addressed the question of trapline registration  8 through a number of documents, one of which was the  9 report by Mr. Pragnell, the inspector of Indian  10 Agencies for British Columbia in 1923, just two years  11 before the initiation of the trapline registration,  12 and Mr. Pragnell, in talking about the various models  13 which the province could adopt for trapline  14 registration, said at page 59 at the top as one of  15 the —  16 THE COURT:  I have read that.  17 MR. JACKSON:  Yes, my lord, and what Mr. Brody urged upon your  18 lordship was that this approach to trapline  19 registration was a way and was perceived by government  20 officials as a way to accommodate the hereditary  21 system of family-owned hunting territories so that  22 trapline registration would as it were build upon  23 rather than seek to undermine the existing indigenous  24 pattern of conservation and management of territories.  25 That being also the avowed purpose of trapline  26 registration to develop a system which would avoid the  27 abuses which white trappers had introduced by  28 over-harvesting and moving from area to area depleting  2 9 the game.  And what Mr. Brody sought to do was to show  30 how, while initially this was seen as being an  31 accommodation and while aboriginal peoples,  32 particularly the Gitksan and Wet'suwet'en, saw it as a  33 way in which they could register and protect their  34 rights, in fact the way the system was administered  35 through a patrilineal section through permitting  36 individual alienation and also the idea of registering  37 an individual to a trapline, those were ways which  38 were inconsistent with the indigenous system and yet  39 the fact of the matter was that this system was  40 originally conceived as one of accommodation, the  41 Indians perceived it to be one of accommodation, and  42 what you have had since is this uneasy attention  43 between trapline registration from the provincial  44 point of view whereby it's seen as their system and  45 the registration from the aboriginal peoples' point of  46 view whereby they saw it as a way in which by  47 registering they could protect their rights from 25750  Submissions by Mr. Jackson  1 outsiders.  2 THE COURT:  Was there any way I can conclude that the trapline  3 registration system has been a disadvantage in over  4 being an advantage to the Indians?  It seems to me  5 it's probably worked both ways, hasn't it?  6 MR. JACKSON:  My lord, I don't think we are seeking from your  7 lordship any opinion that it is in fact -- that  8 it's -- it has net advantages or disadvantages in the  9 abstract.  What we are suggesting here, my lord, is  10 that trapline registration should not be seen as  11 evidence of the abrogation of an existing aboriginal  12 jurisdiction to harvest, manage and conserve  13 resources.  The Indian people have sought to use it in  14 a way which compliments their existing system even  15 though in many ways that is very difficult to do, but  16 the extent to which the trapline registration system  17 is capable of protecting aboriginal interests I would  18 say is reflected in the fact that the Gitksan and  19 Wet'suwet'en sought to return to the original idea of  20 Inspector Pragnell by seeking a blanket trapline in  21 which all of the hunting territories of the Gitksan as  22 it were would be protected so that the provincial  23 system would operate as a protected device for  24 aboriginal interests until such time as those  25 interests could be protected either through  26 declarations of this court or more realistically in  27 the long term through the negotiation of a  28 comprehensive settlement.  29 THE COURT:  Well, I don't have any difficulty understanding what  30 you are saying.  I have difficulty in trying to reach  31 a conclusion that that would help or hurt anybody in  32 this lawsuit with respect to trapline registrations.  33 It seems to me that it's an axe with two blades.  34 MR. JACKSON:  My lord, we are seeking to the extent that the  35 Provincial Defendants point to trapline registration  36 and the laws which underpin it as being an example of  37 the abrogation of an Indian jurisdiction to harvest,  38 manage and resource --  39 THE COURT:  I see that as a different question, but you can  40 persuade me otherwise.  At the moment I see it as  41 being put forward by the Province as an indicia of the  42 exercise of a jurisdiction and I see it from the  43 plaintiffs' point of view as being a facility that was  44 created other than by our participation and our  45 passive acceptance at best and that it has been used  46 by some Native people for their advantage, and I don't  47 see very many examples of where it was to their 25751  Submissions by Mr. Jackson  1 disadvantage.  There may well have been a few examples  2 of disputes between whites and Indians over trapline  3 ownership but I don't recall very many of those, and a  4 few disputes between Indians about them, and the  5 result of that doesn't seem to me to hurt the  6 plaintiffs in any way at all.  So I am -- at the  7 moment I am pretty neutral about trapline  8 registrations.  I see what the plaintiffs are putting  9 it forward for and I have stated that but, apart from  10 that, it doesn't seem to me to be something that  11 weighs very heavily on either side of the scales.  12 MR. JACKSON:  My lord, I think I am going to allow Mr. Grant,  13 not at this point but in the course of his further  14 submissions, to deal with this issue.  15 THE COURT:  I will be glad to have any help I can get.  16 MR. JACKSON:  My lord, I want to move to page 75 of the  17 argument.  18 THE COURT:  75?  19 MR. JACKSON:  75.  And just to indicate to your lordship the  20 previous passages which I have leaped over deal with  21 some further examples of the kinds of pressures upon  22 individuals Gitksan and Wet'suwet'en which have caused  23 them to register traplines, some of the concerns they  24 have expressed in the course of this trial in terms of  25 the manner in which the Provincial Government has  26 managed resources which they themselves have nurtured,  27 and I would perhaps refer your lordship particularly  28 to the statement of Alfred Joseph at page 70 and 71  29 where, during the course of cross-examination by Mr.  30 Goldie, he explained how the results, the benefits,  31 the fruits of the wise husbandry of Gyolugyet was in  32 fact being drawn off by what the Wet'suwet'en saw as  33 being in fact the practices of the Provincial  34 Government in harvesting timber which was not  35 consistent with the Gitksan and Wet'suwet'en  36 harvesting laws.  And I just refer your lordship to  37 that at page 70 and 71.  The material also deals with  38 a matter which your lordship just referred to, how in  39 fact Gitksan and Wet'suwet'en have from time to time  40 sought to invoke provincial officials in the business  41 of adjudicating disputes where in fact they were  42 allegations of trespass so that in addition to using  43 the feast hall there have been other efforts in  44 certain cases to use as it were outside arbitration,  45 and that is only brought to your lordship's attention  46 for the purpose of making the argument that that  47 should not be taken as being an acquiescence in the 25752  Submissions by Mr. Jackson  1 provincial jurisdiction and a recognition of the  2 demise of their own.  3 Gitksan and Wet'suwet'en have sought to resolve  4 disputes in many different ways and they have not in  5 particular cases refrained from invoking outside  6 officials who they believe have a certain knowledge  7 and a certain ability to break a deadlock.  And of  8 course, my lord, the fact that I have skipped over it  9 is not an indication that -- of anything except the  10 lateness of the hour.  11 THE COURT:  Yes, all right.  Do you think you should start  12 another section tonight?  13 MR. JACKSON:  Unless your lordship wants to go a little bit  14 longer.  15 THE COURT:  Well, I have used up some of your time.  If you want  16 to stay a few minutes longer, I think you are entitled  17 to that.  18 MR. JACKSON:  I think this might be an appropriate point to  19 take, and we are starting tomorrow at nine, my lord.  20 THE COURT:  Yes, from nine to four, and then from about 5:30 to  21 about 7:00 or thereabouts.  Yes, thank you.  22 THE REGISTRAR:  Order in court.  23 THE COURT:  Thank you, madam reporter.  24 THE REGISTRAR:  This court stands adjourned until nine o'clock  25 tomorrow morning.  26  27 (PROCEEDINGS ADJOURNED AT 9:15 p.m.)  28  29 I hereby certify the foregoing to  30 be a true and accurate transcript  31 of the proceedings transcribed to  32 the best of my skill and ability.  33  34  35  36  37  38 Tannis DeFoe,  39 Official Reporter,  4 0 UNITED REPORTING SERVICE LTD.  41  42  43  44  45  46  47

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