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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-14] British Columbia. Supreme Court Jun 14, 1990

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 28457  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  Vancouver, B.C.  June 14, 1990  THE REGISTRAR: Order in court. In the Supreme Court of British  Columbia, this 14th someday of June, 1990. Delgamuukw  versus Her Majesty the Queen at bar, my lord.  THE COURT:  Mr. Rush.  MR. RUSH:  My lord, I would propose dealing with one of the two  outstanding exhibit documentary issues.  There are  two.  One refers to a letter of Mr. Downie that my  friends, the Province, seek to have added, I presume,  to their exhibit collection, or at least placed in  their argument.  The other has to do with additional  portions of Sheila Robinson's treated thesis.  I will  deal with the first.  THE COURT:  Yes.  Okay.  MR. RUSH:  In the course of the argument raised by the Province,  reference was made to Exhibit 969-2.  This has a --  this exhibit was placed in evidence by the Plaintiffs  in the course of the evidence of Dr. Ray.  This is a  document largely entitled "Hunting for Gold by Major  William Downie."  And in the course of it, there is a  Chapter 3 which sets out part of Major Downie's  travels of the Skeena to the Forks of the Skeena and  Bulkley, and then on up the Bulkley.  Now --  THE COURT:  That would be when?  MR. RUSH:  This was in 1859.  THE COURT:  Yes.  MR. RUSH:  And my friend relied on this particular document to  make an argument about whether or not Major Downie  made observations as he was passing through about the  existence of the "Village of Gitanmaax".  And in the  course of his argument, I drew my friend's attention  to -- and my friend noted the absence of the word  "village" preceding the word "Gitanmaax" and sought to  draw some distinction of moment from that absence.  In the course of his submission, I drew his  attention to the document which is -- was entered by  the Province in the evidence of Mr. Williams in  Exhibit 1174-1.  And, in particular, of that document  I drew his attention to page 00017 in which this  document penned by Major Downie makes reference to the  Village of Gitanmaax and where their canoe will stop.  :  Is that on the same trip?  Oh, yes.  It is the same trip.  :  Yes.  THE COURT  MR. RUSH:  THE COURT 2845?  Submissions by Mr. Rush  1 MR. RUSH:  They are taking about the same time and place.  Then  2 my friend provided us with a handwritten copy of a  3 document apparently under the hand of Major William  4 Downie also dated in October, October 10, 1859.  And  5 this appears to be a report to Governor Douglas.  And  6 this report, we don't know how, but I presume perhaps  7 by normal administrative events, turns up in a  8 Colonial Office as part of their repository.  And my  9 friend takes --  10 THE COURT:  In the Imperial Colonial Office?  11 MR. RUSH:  Yes.  At least it is said to come from that source.  12 THE COURT:  Yes.  13 MR. RUSH:  And my friend -- this document was not exhibited, and  14 he seeks to now advance that document as part of his  15 argument.  Now, my responses are these --  16 MR. WILLMS:  My lord, I might be able to shorten my friend here  17 because he has actually missed the point by a wide  18 mark here.  And if I could make the point, then he  19 could respond to it.  2 0 THE COURT:  What do you say, Mr. Rush?  You have the floor.  Do  21 you yield?  22 MR. RUSH:  Well, if I missed the point, I obviously should  23 yield, my lord, it makes a lot of sense.  24 THE COURT:  All right.  25 MR. WILLMS:  The point is actually much simpler than the way my  26 friend put it.  At Exhibit 1174-1 there are two  27 documents.  The first document at the tab is a  28 handwriting by Downie.  At the end of the tab are --  29 is an extract from the Papers Relating to British  30 Columbia, the typed extract.  When the document was  31 marked we thought the document was the same thing.  In  32 other words, we thought the handwritten document at  33 the beginning of the tab was the --  34 THE COURT:  Can I see the document 1174-1.  35 MR. WILLMS:  So you'll see, my lord, at the beginning of the  36 tab, tab 1 there is the handwriting.  Now, if you go  37 to the back of the tab there is an extract from the  38 Papers Relating to British Columbia, pages 71 through  39 74.  4 0 THE COURT:  Yes.  41 MR. WILLMS:  The only purpose for drawing your lordship's  42 attention to the other handwritten document is that  43 the handwritten document that I handed up the other  44 day is the one that is reproduced at the back of the  45 tab.  And it is in Downie's hand.  And that was the  46 only point, it was to show that whoever compiled the  47 Papers Relating to British Columbia didn't make 28459  Submissions by Mr. Rush  1 something up when they wrote down that Mr. Downie had  2 told Governor Douglas about his trip and omitted the  3 word "village".  4  5 And it is at the second -- it is on page 72 of the  6 papers at the back of the tab.  You'll see at the  7 bottom, my lord, the third line from the bottom:  8  9 "I succeeded in avoiding the danger of a  10 collision with them.  We could go no  11 further than Kittamark, the Forks of the  12 Skeena River in the canoe."  13  14 And throughout this report Downie refers to village,  15 village, village, but he doesn't refer to a village at  16 Kittamark.  17 THE COURT:  Right.  Is this printed document the same as the  18 handwritten down?  19 MR. WILLMS:  Not the handwritten one at the tab.  It is the same  20 as the handwritten one that I handed up the other day.  21 THE COURT:  I see.  22 MR. WILLMS:  And that is the only purpose of this exercise.  I  23 wanted to draw your lordship's attention and mark it  24 to show that Major Downie made two documents.  It is  25 the second that Major Downie wrote, my lord.  I have  26 got an extra copy.  2 7 THE COURT:  Yes.  28 MR. WILLMS:  But it is this document, the document from the  29 Colonial Office that found its way into the Papers  30 Relating to British Columbia.  31 THE COURT:  All right.  So you say, then, that this document is  32 already in?  33 MR. WILLMS:  It's in.  This is just Major Downie's handwritten  34 version.  And I just wanted to make sure that it was  35 clear that somebody in the Colonial Office hadn't made  36 something up when they were doing the Papers Relating  37 to British Columbia.  They took it from a letter from  38 Major Downie.  39 THE COURT:  All right.  40 MR. WILLMS:  That's the only point, my lord.  And my suggestion  41 is that it just be put in at tab 1 of Exhibit 1174.  42 THE COURT:  All right.  43 MR. RUSH:  Well, my lord, if it was so simple one would have  44 thought that it would have come forward in the course  45 of the Defendants' evidence.  At no time did I raise a  46 question about whether or not the print in the  47 Colonial -- in the Papers Related to British Columbia 28460  Submissions by Mr. Rush  1  2  3  4  5  6  THE  COURT:  7  MR.  RUSH:  8  9  10  11  12  13  14  15  16  17  18  19  20  21  THE  COURT:  22  MR.  RUSH:  23  24  THE  COURT:  25  MR.  RUSH:  26  27  28  29  30  THE  COURT:  31  MR.  RUSH:  32  33  34  35  THE  COURT:  36  MR.  RUSH:  37  38  39  40  41  42  43  44  THE  COURT:  45  46  47  MR.  WILLMS  was inaccurate.  My point is that that was a report by  Downie.  And I accept the fact that the printed  version states what Downie said, although I'm not sure  that I have checked it chapter and verse against what  he wrote.  Yes.  But my point is that it is a report made after the  diary which is contained in Exhibit 1174-1.  And, in  particular, page 00017 is the diary reference which  would have been a more contemporaneous reference than  his report, which in fact is a condensation of the  diarizations which he made.  And in that page -- and  in that particular page he makes reference at the  bottom of the page at 00017:  "The land gets -- appears to be very low to the  north when we pass here until we get up to the  Forks is the Village of Gitanmaax.  Here the  canoe will stop."  I haven't found it.  It is on this page?  That is 00017, the very bottom of the page "The land  gets".  What does it say?  "The land gets very low to the north when we  pass here until we get up to the Forks is the  Village of Gitanmaax."  Yes.  All right.  Now, my point was that in the diary recording that  would be closer to the event than the report, which is  a condensation of the event, the reference to  Gitanmaax is plain.  That's an argument that is being put forward?  That's an argument.  Now, what I say, my lord, is  that there is no need for this document.  There is no  point to the document.  The printed version of it is  there.  I don't know what my friend took from my  interjection, but I certainly didn't make it to  contest the Papers Related to British Columbia.  If I  were to do that then there would be a large amount of  documents that were contested.  I don't think there is any need for this document,  Mr. Willms.  It is not disputed that the printed copy  is an accurate reproduction of the handwritten one.  :  That's fine, my lord.  If it is not disputed, it is 28461  Submissions by Mr. Willms  1 not necessary.  2 THE COURT:  I will return the document, Mr.  Willms, with my  3 notation on it for which I apologize.  We can now  4 proceed with number two.  5 MR. WILLMS:  My lord, the submission that I would like to make  6 is at tab 4 of volume 4.  I think it should be that  7 book there.  8 THE COURT:  Yes.  9 MR. WILLMS:  Tab 4.  And the submission related to Dr.  10 Robinson's dissertation which was marked for  11 identification as Exhibit 1193A and 1193B, I attempted  12 to mark the exhibit during the evidence of Dr.  13 Robinson.  And my friend objected to marking the  14 exhibit in toto.  And we've been waiting until my  15 friend was ready to deal with the issue.  And I take  16 it he is ready to deal with it.  17  18 I say, my lord, in the first paragraph that  19 treatises in this case, and this is the Court's  20 definition, "include published or unpublished  21 articles, Ph.D. theses, monographs, or other writings  22 by scholars in the same or related fields as the  23 experts."  And your lordship referred to the  24 City of St. John v. Irving Oil case, which is the  25 appraiser's case, and said in that judgment:  26  27 "I believe the opinions of the expert witnesses  28 must be assessed and weighed in the light of  29 other learning, for there is no other reliable  30 way to do it except perhaps demeanour and  31 internal consistency which are inadequate tests  32 for expert evidence in exotic disciplines...  33 It is therefore my conclusion that the  34 treatises, as defined earlier, are admissible  35 in evidence..."  36  37 The first point that I make is that Dr. Robinson's  38 dissertation falls squarely within this ruling.  It is  39 a Ph.D. dissertation, and it falls within your  40 lordship's thesis ruling.  And that ruling, my lord,  41 is in full in the A.G.B.C. supplement.  I am not going  42 to ask your lordship to turn to it, but it is at  43 volume 1, tab 4A.  44  45 Now, the Plaintiffs here make two general  46 allegations about Dr. Robinson's evidence.  And this  47 is really the point, my lord, of why I want the -- I'm 28462  Submissions by Mr. Willms  1 seeking to have the dissertation marked.  First, they  2 say that she "uncovered information which attests to  3 the prehistoric nature of land ownership in the  4 general area...[however] in the present case she was  5 loathe to draw conclusions from that information from  6 her dissertation which might lend credence to [the  7 Plaintiff's case]."  And I call that really my  8 friends' credibility arguments.  I say that a review  9 of her whole dissertation puts that assertion firmly  10 to rest.  And I will deal with that in a moment.  11  12 Second, the Plaintiffs say that "she did not take  13 account of [the] information [contained in Hudson's  14 Bay materials]."  And I am referring here, my lord, to  15 the Plaintiffs' argument in volume 4.  And I call this  16 the inadequate research argument that my friends are  17 advancing.  Much of her research for this case was  18 based on her dissertation research.  And I say the  19 Plaintiffs now seek to suppress the evidence that Dr.  20 Robinson considered the same types of materials that  21 Dr. Ray considered.  And I say, in fact she went far  22 further in her consideration of the historical record  23 than did Dr. Ray.  A review of the footnotes and  24 bibliography to the dissertation and the dissertation  25 itself makes this clear.  26  27 Although the dissertation falls within the ruling  28 in this case, it was not necessary to mark Dr.  29 Robinson's dissertation in support of her opinion  30 since the sources of her opinion were disclosed by  31 reference to the dissertation in her report.  And, my  32 lord, in her bibliography to her report the  33 dissertation is listed.  And my friends had notice of  34 that since 1987.  And, of course, this dissertation is  35 in the National Library on microfiche.  I say it is  36 now necessary to mark the dissertation to refute the  37 Plaintiffs' allegations about Dr. Robinson.  I also  38 say that in addition to that, my lord, the Plaintiffs'  39 cross-examination has made the whole dissertation  40 admissible.  41  42 Now, I point out in paragraph 4 that Mr. Grant has  43 already acknowledged that all of Chapter 3 of the  44 dissertation could be marked as an exhibit by virtue  45 of his cross-examination.  46  47 I point out in paragraph 5 that extracts from 28463  Submissions by Mr. Willms  1 Chapter 7 of the dissertation were put by Mr. Grant to  2 Dr. Robinson.  3  4 I point out in paragraph 6 that extracts from  5 Chapter 4 were put by Mr. Grant to Dr. Robinson in  6 cross-examination.  7  8 I point out in paragraph 7 that Mr. Grant put the  9 bibliography of the dissertation to Dr. Robinson on a  10 number of occasions and took her through it in  11 cross-examination.  12  13 I point out in paragraph 8 that parts of Chapter 6  14 were marked in the cross-examination of Dr. Robinson.  15 And your lordship said, in a preliminary ruling, that  16 your initial view was the rest of Chapter 6 could go  17 in.  18  19 Now, I point out in paragraph 9 that Dr. Robinson  20 pointed out in her cross-examination that her research  21 for the dissertation included the whole northwest  22 coast, including the adjacent areas.  That it included  23 parts of Alberta and covered British Columbia.  And  24 also in cross-examination by Mr. Grant, Dr. Robinson  25 said that the research that she did in preparing her  26 opinion report relied in part on the research for the  27 dissertation.  28  29 And I point out in paragraph 9, my lord, that the  30 dissertation is clear evidence of the exhaustive  31 nature of Dr. Robinson's research.  32  33 Now, before I carry on with --  34 THE COURT:  What status is it in now?  35 MR. WILLMS:  It is an exhibit for identification, my lord.  36 MR. GRANT:  Certain parts were agreed that they would be  37 exhibits proper, ruled or agreed.  38 MR. WILLMS:  They haven't been marked yet.  3 9 THE COURT:  Yes.  40 MR. WILLMS:  The whole thing is as an exhibit for  41 identification.  42 THE COURT:  What number is it, please?  43 MR. WILLMS:  It is Exhibit 1193A and 1193B.  44 THE COURT:  Thank you.  Well, Mr. Willms, I think that I should  45 hear your friends.  I think I have heard enough to ask  46 for them to respond, simply because we have had so  47 much of this information.  I would like to know what 28464  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  it is that is so different from this one from so many  others and the same kind that we have treated in a  reasonably, I hope, uniform way.  MR. WILLMS:  Thank you, my lord.  THE COURT:  Mr. Grant.  MR. GRANT:  Thank you, my lord.  Yes, my lord, there is two  principal concerns I have that there is an implication  here, firstly, that is not correct.  And I wish to  refer that to you.  Firstly, that Dr. Robinson's  thesis is a foundation for her opinion report.  And  her own testimony indicates that that is erroneous.  That's the first point.  I am going to go through  where that comes up here.  The second is that there is utilization by my  friend in his argument of the dissertation for  opinions which are not in her opinion report, which  was -- which were not disclosed to the Defendants --  to the Plaintiffs upon which opinions which were  relied which were not opinions which were lead out of  Dr. Robinson and she was not cross-examined on.  And  my friend, for the first time in this supplementary  argument, raises these -- this new opinion.  And that  I say at this point we can no longer call reply  evidence to rebut it.  We had no notice of that  opinion.  Now, what I submit, my lord, in paragraph 2 of my  submission in the blue book is that there is a  distinction between Dr. Robinson's writings, who was a  live witness tendered by the Provincial Defendant, and  the writings of other learned authors.  Her  dissertation could have been entered as part of her  opinion evidence if proper notice had been given.  And  at that point I mean, my lord, if my friends intended  that part of her dissertation formulated part of her  opinion, they should have given proper notice that she  had this opinion.  And the first time we see this in  my friends' submissions filed last Friday.  The  provisions of the Evidence Act should have been  followed in terms of the nature of the opinions --  :  Well, was her dissertation not included in her  bibliography?  :  Her dissertation was included in her bibliography.  But if you look at what my friend says in paragraph --  starts in paragraph 11 on page 5 of the submission he  was going through.  THE COURT  MR. GRANT 28465  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:  Yes.  MR. GRANT:  You see, my friend says that there is a difference  between hunter/gatherers and agricultural populations  in terms of societies with firmer boundary  definitions.  And that, as I recall, is in her direct  evidence.  And there is no -- that was talking in  general terms.  But what my friend now says about  Chapters 2 and 5 were not chapters that were put to  Dr. Robinson in direct or in cross:  "She discusses the agriculture, in particular  tobacco and potatoes, of the coastal Indians in  contradistinction to adjacent interior areas."  Then he cites some of the quotes she makes.  In  paragraph 12 she refers to the question of the foreign  tobaccos and the middlemen.  Going over to paragraph  13, he is dealing with the Hudson's Bay records  question which I will come to in a many moment.  But in chapter 14 or paragraph 14 my friend then  goes on that in Chapter 5, this is of her  dissertation:  "Dr. Robinson examined the cultivation of  potatoes on the coast where she concluded:  'Potato gardens were of sufficiently  manageable proportions to adapt  pre-existing technologies and patterns of  land and labor use directly to the  cultivation of this new food plant.'.  Here she relied on discussions in Chapters 2  and 3 about tobacco growing."  Something I dare say I never examined her on.  "The discussion of the significanceof northwest  coast Indian agriculture, sections of which  were put to Dr. Robinson in cross-examination,  show that the discussion which preceded Chapter  6 is essential when considering the conclusions  in Chapter 6.  In fact, Dr. Robinson said on  page 326 of her Dissertation:  "Inland areas were not as carefully divided 28466  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.  MR.  among resource owning groups because they  contained fewer and less culturally  important natural resources.  For the same  reasons, they were not exploited for  agricultural purposes."  Now, going to paragraph -- and emphasis is added on  the "agricultural purposes".  When going to paragraph  16, my friend says:  "When considering the extract from page 339 of  Chapter 6 of the Dissertation put to Dr.  Robinson and mentioned at page 62 of the  Argument..."  And I may say that you've ruled that section 6D, this  whole section would go in. And that's been ruled on.  But not all of Chapter 6.  " is clear that the preceding discussion  in the Dissertation is essential to the  conclusion, including the discussion of tobacco  cultivation and potato cultivation in sections  2 and 5."  In other words, what we have here for the first time,  my lord, is a proposition never before put forward in  evidence as opinion evidence or anything to reply to  is the Gitksan and Wet'suwet'en did not -- there is no  evidence that they grew potatoes or tobacco, therefore  they didn't have territorial resources.  Now, if that  was part of the opinion of Dr. Robinson relating to  the evidence in this case, it should have been set out  as her opinion.  :  Can I be reminded whether Dr. Robinson's  dissertation was first tendered in chief or in  cross-examination?  :  Dr. Robinson's dissertation, I will just take you to  that, if you look at my blue book.  WILLMS:  Cross, my lord.  Extracts were tendered in cross.  GRANT:  I differ with this because it was -- what was said  on about the fourth page in chief on qualifications,  it is right after tab 1 in volume 288.  My friend  introduces the dissertation.  And he says at line 11:  THE COURT  MR. GRANT  "Now, I've just  lord."  and I won't mark it, my 28467  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  I'm sorry, where are you?  In the blue book of mine.  Yes.  Tab 1, line 11.  This is Mr.  Willms.  "Q  A  Q  A  Now, I've just -- and I won't mark it, my  lord,but the results of your research was an  over 500-page dissertation discussing the  issues that are set out in your curriculum  vitae?  Yes.  And this is it?  Yes. "  And my friend first introduced -- within the first  four pages of his leading Dr. Robinson, introduced the  dissertation and elected not to mark the dissertation  at that point.  Extracts of the dissertation germane  to the issues of Dr. Robinson's opinion were put to  her on cross-examination.  And as I say in paragraph 3 of my submission, the  Provincial Defendant only changed the position after  the completion of cross-examination several days later  and endeavoured to tender the entire dissertation.  And that's at volume 295 pages 22262.  The issue of  the lack of notice under the Evidence Act was raised  directly by the Court.  And it was agreed by Mr.  Willms at this time, in November that would be,  November 9th of last year:  "Now, certainly, I could pull portions of it  but, in my submission, I've got it here, we can  go through and patchwork through it.  I don't  understand the difficulty that my friend has in  putting in the whole dissertation."  Now, Dr. Robinson, in her evidence explained at  Chapter 3, which has been tendered as an exhibit  proper deals large with ethnography and ethnology.  And I've got the page reference in the tab.  It should  be my lord page 21738, lines 7 to 11.  Now, she  commented that she relied on Chapter 3 of her  dissertation.  And focus was made on Chapter 3 of her  dissertation when she said:  This is what relates to  the entire area.  And Chapter 3 went in in its  entirety. 28468  Submissions by Mr. Grant  1 The Provincial Defendant wants to tender the  2 entire dissertation to imply that Dr. Robinson relied  3 on all of her research for her thesis.  And I say, my  4 lord, on her own cross-examination this is not true.  5 And that becomes apparent when one goes to the  6 position in paragraph -- excuse me, in paragraph 17,  7 page 7 of my submission.  Paragraph 15, actually, on  8 page 6, my lord, that's where I start with it.  And I  9 will come back to the other opinion that my friends  10 are raising.  11  12 The Defendant in paragraph 13 of this section of  13 argument, which my friend started to read, endeavours  14 to bootstrap Dr. Robinson's evidence by suggesting  15 that she relied in her opinion on whatever she  16 referred to in her Thesis.  This, in my submission, is  17 directly contrary to her own evidence.  She did cite  18 in her opinion report to two Hudson's Bay records  19 which she relied for the purposes of her opinion.  20 Surely, the Plaintiff are entitled to assume that the  21 witness set out in her report the references from the  22 Hudson's Bay records upon which she relied.  23  24 Furthermore, nothing in the submissions made by  25 the Defendants answers the direct evidence of Dr.  26 Robinson that:  27 She did not see earlier reports of Brown before  28 her opinion;  29 She did not rely on Ive's article;  30 She did not rely on the oral histories as recorded  31 by Baynen;  32 She did not rely on Peter Skene Ogden;  33 She did not use Coupland's Archaeological Thesis  34 although she was aware of it.  35  36 Now, furthermore, my lord, and this I say is the  37 effect of filing the dissertation and my friends'  38 argument, is that it is effectively misleading.  It is  39 apparent from her own evidence in which she refers to  40 George Simpson's Journal of his journey cited in her  41 bibliography.  But she clearly indicated that she did  42 not rely on George Simpson's Journal for the purposes  43 of her opinion report.  In other words, even when she  44 had read material pre-1984 for her thesis which may  45 have been relevant for her opinion report, this did  46 not mean that she relied on the work at all for the  47 purposes of her opinion report. 28469  Submissions by Mr. Grant  1 And I put the references of that page in the --  2 it's about the fourth page from the end of the binder,  3 my lord, in which Dr. Robinson was cross examined  4 about George Simpson, the Governor of the Hudson's Bay  5 Company.  And then on page 21700 I questioned Dr.  6 Robinson:  7  8 "Q   Have you reviewed his journals?  9 A   Not recently.  10 Q   Have you reviewed them?  11 A   Some time ago, yes.  12 Q   Before your own dissertation?  13 A   No.  While I was doing research for the  14 dissertation.  15 Q   Well, that's what I meant, before your  16 dissertation?  17 A   Yes.  18 Q   While you were doing research for it?  19 A   Yes.  20 Q   But not -- you didn't review his material for  21 the preparation of this report.  22 A   Not specifically, no."  23  24 Now, in other words, my lord, the implication is  25 that everything in the bibliography of her  26 dissertation is relied upon by Dr. Robinson for her  27 opinion report.  And when one looks at the things that  28 may -- that are cited there, there are examples where  29 things directly bearing on the Gitksan or Wet'suwet'en  30 areas, on Dr. Robinson's own evidence she did not  31 specifically refer to them in the preparation of her  32 report.  It is not that they are not in the  33 bibliography of the opinion report, it is that they  34 are not referred to in that report.  35  36 Now, I say, my lord, that in this case you allowed  37 the Provincial Defendant to put in those sections of  38 the dissertation which were logically connected or  39 explanatory of the portions of the dissertation which  40 were referred to the witness on cross-examination.  41 And this is similar to the situation of notes or other  42 material of Plaintiffs' witnesses or any expert  43 witnesses in this case where what you've said that if  44 something is raised on cross-examination you can put  45 in what is logically connected to it.  46 THE COURT:  But that is ordinarily common garden variety  47 evidentiary practice.  We are in a different category 28470  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  when we are dealing with dissertations, aren't we?  Well, yes. --  For the purpose of this case.  For the purpose of this case.  And you have made the  rulings on dissertations.  But, my lord, I never  understood your rulings on the dissertations to mean  that this -- this ruling on treatises could avoid or  bypass the Evidence Act requirements of notice of  opinion.  And that's the -- this is what I saw.  And in the first part of my submission I said,  well, my friends are really focusing on a report to  deal with credibility.  But looking carefully at what  my friends have actually done, again I realize that  they have a much more -- much more direct impact.  And  I deal with that in paragraph 13 on pages 5 and 6 of  my submission.  Now, I will start with paragraph 12.  The  Defendant, I submit, by endeavouring to tender the  entire dissertation at this late stage, is prejudicing  the Plaintiffs' abilities to properly reply to a  document that has not been marked as an exhibit to  this point.  Now, not just to a document, but of  course the document is there and we all know about it.  But what I say, and I use the word "theory" here,  is that it is an opinion.  When you look carefully at  what the Defendants have done, there is an opinion  which the Defendant first advances in the  supplementary argument of June 9, 1990 in those  paragraphs to which I referred to.  And this opinion  extrapolates from the Robinson thesis of tobacco  production among the Haida and Tlingit and suggests  that the lack of such evidence of tobacco production  among the Gitksan and Wet'suwet'en is indicative of a  lack of territoriality.  Now, no such proposition or theory is advanced by  Dr. Robinson in the opinion report, my lord, delivered  in compliance with the Evidence Act.  No such opinion  was posited to Dr. Daly, Dr. Mills, Mr. Brody, and I  may add Dr. Ray, or any of the Plaintiffs' witnesses.  This development of yet another theory of why the  Plaintiffs did not have territory before contact is a  matter that the Plaintiffs did not either  cross-examine Dr. Robinson on nor have the opportunity 28471  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  to lead reply evidence because it was not advanced  until now.  The admissibility of the thesis so that  the Defendants can rely on yet another theory which  was not raised in their case is highly prejudicial.  And I dare say it is contrary to the provisions of the  Evidence Act.  And I say -- I say that when my friend says, well,  there is something in the opinion that explains what  you cross-examined her on, or there is something in  the opinion that implies she looked at Brown, even  though she said she didn't look at particular reports  of Brown, she looked at some for sure, but she didn't  look at others.  When he says that, that's one thing.  But what he has done here in these paragraphs is he  has now advanced an entirely new opinion which I  didn't cross-examine Dr. Robinson on tobacco  production among the Haida and Tlingit and that  relation to territoriality at all because I didn't  think it was relevant.  It was not in her opinion  report, and it wasn't relevant.  And that is what my  friends are now doing.  And the outcome of that, my lord, is that we would  have to go through and try to -- well, what do we do?  I am certainly not going to want to re-open the case  to call evidence about whether there is tobacco  production or agriculture production in early days  among the Gitksan and Wet'suwet'en.  That was just not  an issue.  It has never been raised as an issue until  this point in time.  And that's when I say the  treatise ruling is an exception to the general rule,  and that it does not override the Evidence Act  provisions.  And my friend can not use your treatise  ruling, in my submission, to bring in a new opinion.  :  But didn't Dr. or Ms. Albright, whichever it is,  rely on the opinions of all of the other  archaeologists to whom she referred in her report as  part of the support for her opinion?  Surely she did.  I mean Aims and MacDonald gave opinions on the likely  duration of habitation at Prince Rupert Harbour at  Kitselas Canyon, and she incorporated that into her  her report and in her evidence.  :  In her report she incorporated it, not just by her  citation.  And in her evidence she said:  "I rely on  what Dr. MacDonald said about the Prince Rupert  Harbour."  It was very clear that Dr. Robinson said: 28472  Submissions by Mr. Grant  1 "I rely upon this and I adopt this".  And there is no  2 difficulty with that kind of an issue.  3  4 But here what we have is that it is like -- it is  5 like if all of a sudden -- if Dr. Albright had done a  6 thesis on archaeology in among the Iroquois, let us  7 say, and no mentions made of it.  It is just in her  8 bibliography, no mentions made.  And then in final  9 argument we say:  This dissertation by Dr. Albright  10 which is in her bibliography about the Iroquois shows  11 that if you find these three factors you have  12 territoriality and we are relying on this.  And my  13 friends, I would say, would be somewhat outraged.  And  14 we would say:  Well, it is in her bibliography, but  15 she never mentions it in her report.  She never --  16 remember that Dr. Robinson does not cite her  17 dissertation in her report at all.  18 MR. WILLMS:  That's incorrect.  It is on page 3.  She says:  19  20 "In connection with this study of Indian  21 agriculture on the northwest coast which will  22 be referred to here as Robinson 1983, I  23 investigated ethnographic and early historic  24 records pertaining to the Tlingit, Haida, Coast  25 Tshimsian and native neighbouring populations  26 tracing the connection between European fur  27 traders and the adoption of agricultural  28 practices by some coastal native groups  29 required that I develop an understanding of  30 changes in regional economies stemming from  31 direct and indirect contact with Europeans  32 which is applicable to a study of the Gitksan  33 and Wet'suwet'en."  34  35 Perhaps my friend just didn't see that.  36 MR. GRANT:  What I meant, my lord, is that you remember that Dr.  37 Robinson's report came in two parts.  The footnotes  38 and the paragraphs.  In her footnotes there are not  39 any footnotes referring to where she is saying:  I  40 rely on Chapter 3 of my dissertation.  In her oral  41 evidence though, and she was examined on that very  42 paragraph, she said -- I said:  Where is the  43 ethnographic and historical material in your  44 dissertation?  She said:  It is in chapter 3.  And I  45 have got that extract right here.  I have cited it in  46 this submission --  47 THE COURT:  But that submission depends upon her having perfect 28473  Submissions by Mr. Grant  1  2  3  MR.  GRANT  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  THE  COURT  25  26  27  MR.  GRANT  28  29  THE  COURT  30  MR.  GRANT  31  32  THE  COURT  33  MR.  GRANT  34  35  36  37  38  39  40  41  42  43  THE  COURT  44  MR.  GRANT  45  46  THE  COURT  47  MR.  GRANT  recall of the contents and the location within the  contents of her dissertation, doesn't it?  :  Well -- but, my lord -- no.  Well, in her opinion  report she said:  I studied -- I did comparative  analysis of ethnographic and ethnohistorical material.  So I said:  Where is that?  And we went to that.  And  we not only went to Chapter 3, we went into other  parts of her dissertation.  But she did not in her  report, she did not in her oral evidence give this  opinion that my friends say now.  And I say it may  well be there within the 560 pages of her  dissertation.  But if that was an opinion upon which  my friends are relying, it should be said:  This is  the opinion where there is no tobacco production,  there is no territory.  Which is basically, if you  take everything away, that's what it is.  And I say, my lord, that at this point if they had  said that in the opinion report we would have notice,  we would have been able to deal with that theory or  that opinion.  And we haven't dealt with it at all.  And here it is on June 9, 1990 advanced for the first  time.  :  Is this the only item that is included in your  friend's apostrope argument that falls within the  category of the argument you are now advancing?  :  Those paragraphs 11, 12, 14, 15, 16 and 17 of my  friend's submission and the citations.  :  That's paragraphs 11 to 14 and --  :  I have listed them there.  11, 12, 14, 15, 16 and 17  of my friend's submission.  :  11, 12, 14 --  :  15 and 16.  And, of course, this is where my friend  is arguing that Chapters 2 and 5 of her report go in.  Now, your lordship did make a ruling on this  point.  And I think that it might be helpful if you  look at the second extract after tab 1 of volume 295  at page 22267.  My friend suggests you made a  preliminary ruling about Chapter 6.  I spoke to that  issue.  And then this is what you concluded.  Line 16,  my lord.  :  What page are you on?  :  Page 22267.  It is after the first page.  It is in  volume 2 95.  :  Yes.  :  Line 16.  And you said: 28474  Submissions by Mr. Grant  1  2 "All right.  Well, I think all of chapter 3 may  3 go in.  I think those parts to which the  4 witness asks for access to in chapter 4 during  5 her evidence and those parts related to that  6 subject -- but not the whole of chapter 4 may  7 go in, I think it's only two pages.  I am  8 uncertain about chapter 6 because the part that  9 has been put in starting at page 316 and  10 extending to 317, I don't know -- well, I'm  11 sorry, I think all of the part (d) can be put  12 in which I understand is chapter 6, and does  13 chapter subsection (d) extend to include 32325  14 to 326, and 340?  15 MR. GRANT:  Yes, it does, I believe.  16 THE COURT:  All right.  Well, I think all of  17 chapter (d) may go in.  I will not rule on the  18 balance of chapter 6.  I don't have a  19 submission from counsel about chapter 7.  I  2 0 don't remember what it is all about."  21  22 And then there was a lunch recess.  And after Mr.  23 Willms made further submission at page 22271, my lord,  24 you say:  25  26 "Well, there's been such a flurry of material  27 and flurry is not the right word -- blizzard of  28 material and the rulings that -- I'm not sure  29 that I can be consistent in this.  I think that  30 I'm going to mark this, the whole thing, for  31 identification and let's get on with other  32 things and deal with this later.  And I'm  33 terribly conscious of the time pressure now..."  34  35 So that's where it was left.  Now, you may note,  36 my lord, that in the discussion, and this is what --  37 in the discussion on November 9th in my friend's  38 submission he did say:  I want it all in.  But he  39 argued, and he focused his argument on what I put in  40 and why Chapter 3 and Chapter 4 and Chapter 6 should  41 go in.  He didn't focus on Chapters 2 and 5.  And this  42 is why I didn't want the entire dissertation to go in  43 because I didn't know what else he was going to use it  44 for, but now I do know.  And I object to those  45 chapters going in.  I object to those materials going  46 in.  47 28475  Ruling by the Court  1 And it was left with my friend that he could --  2 and as he said, that anything that was logically  3 connected that he could argue for that logical  4 connection.  And I don't logically connect it to what  5 I led out of the witness in cross-examination.  And I  6 maintain that of course he is entitled to that.  But  7 he has to show where that logical connection is.  And  8 there isn't that in Chapters 2 and 5.  And I ask that  9 those parts that you have already ruled on, given that  10 my friends now have already -- my friend since  11 November has not taken any position of logical  12 connection except what he specifically referred to on  13 November 9th, and has always maintained the position  14 just put it all in, that those parts that you directed  15 should go in are the parts that should be the exhibit  16 proper.  17 THE COURT:  All right.  Ms. Russell?  18 MS. RUSSELL:  Nothing, my lord.  19 THE COURT:  I don't think I need to hear you, Mr. Willms.  I am  20 mindful of the difficulties we have with these  21 matters.  But I think this falls generally within the  22 ruling that I made regarding treatises in which I  23 specifically reserved the question of weight.  I have  24 made a note opposite page 5 of the Province's argument  25 that Mr. Grant objects to paragraphs 11, 12, 14, 15  26 and 16 of this part of the Province's argument because  27 it is based on opinions in Dr. Robinson's  28 dissertation, not specifically the issue of  29 pre-evidence notice.  30  31 I have referred myself to pages 22271 and 22272 of  32 the transcript.  And I think that it would be  33 inconsistent to do anything but to allow this in, but  34 to -- but to treat these paragraphs as subject to the  35 ruling that I made previously, especially with regard  36 to the question of the weight to be applied to them in  37 view of the course of the trial that Mr. Grant has  38 outlined this morning.  The exhibit may be marked as  39 an exhibit at the trial subject to what I have just  40 said.  41  42 (EXHIBIT 1193A:  Men & Resources on the North Coast of  43 North America, Volume 1)  44  45 (EXHIBIT 1193B:  Men & Resources on the North Coast of  46 North America, Volume 2)  47 28476  Submissions by Mr. Willms  1  MR.  WILLMS  2  3  THE  COURT:  4  MR.  WILLMS  5  6  7  8  9  THE  COURT:  10  MR.  WILLMS  11  THE  COURT:  12  MR.  WILLMS  13  THE  COURT:  14  MR.  WILLMS  15  THE  COURT:  16  MR.  WILLMS  17  18  19  20  THE  COURT:  21  MR.  WILLMS  22  23  24  25  THE  COURT:  26  MR.  WILLMS  27  28  29  30  31  THE  COURT:  32  MR.  WILLMS  33  THE  COURT:  34  35  36  MR.  WILLMS  37  THE  COURT:  38  MR.  WILLMS  39  40  THE  COURT:  41  MR.  WILLMS  42  43  44  THE  COURT:  45  MR.  WILLMS  46  47  THE  COURT:  :  My lord, there are just a couple of other loose  ends .  Yes.  :  One is your lordship asked, I believe, in  transcript 356 how long the restriction on Indian  pre-emption lasted.  And it lasted until 1953 when  that particular clause was repealed.  And the Act that  repealed it was the Land Act Amendment Act.  1953?  :  1953.  That's a Provincial statute?  :  It's a Provincial statute, yes.  Land --  :  Land Act Amendment Act 1953.  Yes.  All right.  Thank you.  :  Another, we said that we would refer to your  lordship where you could find PC1265 in the yellow  binders.  It is in volume 18, tab Roman numeral  VIII/2-16.  Thank you.  :  Your lordship during the McKenna-McBride Commission  asked what the results were on the ground of the  commission.  And there is an Exhibit 1204, my lord,  which has extracts --  1204?  :  1204 has extracts of the report of the Royal  Commission dealing with the agencies.  And there are  coloured maps in that exhibit, my lord, that show what  was added, what alterations took place as a result of  the McKenna-McBride —  Do we have Exhibit 12-4 conveniently handy?  :  Do you want to look at it?  Yes.  It would be helpful if I look at it now so I  know whether it is something that I have to be worried  about.  :  There should be a map in a plastic envelope.  Yes.  I think I have found that.  :  And the map will contain a graphic summary of what  is in writing.  This one?  :  Yes, my lord.  And then I think there is a Stewart  Lake agency map as well.  I think that one might be  the Babine Lake Agency or the Babine Agency.  This is the Babine Agency.  :  I believe the Stewart Lake Agency map is in there  as well at another tab.  Well, it suggests that the only -- the only new 28477  Submissions by Mr. Willms  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  reserves are between Kitwangar, as it is called, and  Kitsegukla.  And so we are in the vicinity of  Smithers, I guess, or is that Moricetown?  MR. RUSH:  That is Moricetown.  THE COURT:  Moricetown.  Yes.  And some new reserves outside the  claim area on northwestern Babine Lake.  It appears  that -- oh, I'm sorry, there are some new reserves in  Kitwancool country.  But there doesn't seem to be  anything new in, for example, along the -- between the  Forks and Kispiox and north of Kispiox.  Yes, all  right.  Well, that's more or less what I wanted to  know.  Thank you.  That would indicate most of the  reserves that exist now were allotted prior to the  McKenna-McBride Commission.  MR. WILLMS:  Most of them were done by -- except for Kisgegas  and Kuldo, they were done by O'Reilly.  THE COURT:  Yes.  MR. WILLMS:  And Kisgegas and Kuldo was Bowell.  And Bowell also  added, I think, one or two at Kispiox.  THE COURT:  All right.  MR. WILLMS: Now, the last point, my lord, is a reference to the  disks and the argument. We have been reviewing the  Plaintiffs' disks and noticed a difference between the  disks and the written argument that was provided to us  by the plaintiffs. And so we would like -- we thought  it was clear because there is -- in transcript 326 at  page 24811 at line 34 Mr. Plant said this:  "Could I just add to that that we are operating  on the assumption that the final argument of  the Plaintiffs consists of what we have called  here the hard copy as it has been added to from  time to time.  The transcript obviously isn't  complete because Mr. Grant is referring to  parts of his written submission and elaborating  on other parts, but it's -- well, I guess it  would be a combination of the transcript and  the final written argument as opposed to the  diskette.  THE COURT:  Yes, I should think that the diskette  is no more than an aid memoire of what was the  basis for the oral arguments."  And my friend, Mr. Grant said:  'Right.  What we have found is that we haven't received any  additional hard copies from my friends, but the 28478  Submissions by Mr. Willms  1 portions of the argument have either been deleted or  2 added to.  And one section was extensively re-written,  3 completely re-written in the diskette.  And we just  4 want to make it clear, my lord, that if there is no  5 hard copy provided by our friends that we are not  6 treating the diskette as anything more than an aid  7 memoire, that it is not their argument.  Because if it  8 is their argument then there is new material that has  9 been provided by way of the diskette which we haven't  10 been able to respond to.  11 MR. GRANT:  I may speak to that.  I think because I was away  12 last week during the argument there are -- as I  13 indicated a week before, there are certain errata  14 pages.  And I think one example was inadmissible that  15 my friends objected to inadmissible evidence of Dr.  16 Mills, a quote from her report.  And I put in the  17 direct reference.  And my intention always was, and I  18 was under the misunderstanding that it had been  19 delivered with the diskettes.  But I will provide it  20 tomorrow morning with these errata pages.  I hope that  21 that will answer my friend's questions because Mr.  22 Rush's staff, of course, is dealing with the questions  23 you raised with me earlier about something else  24 happening with the diskettes which appears to suggest  25 that something else was included.  But that will be  26 dealt with, too.  27 MR. WILLMS:  My lord, I don't have any problem with errata.  But  28 what has happened is a whole section of the argument  29 has been re-written, about 30 pages of the argument  30 has been re-written on a diskette.  And that is not  31 errata, in my submission, that is a different  32 argument.  33 MR. GRANT:  But I think the way this could properly be dealt  34 with, my lord, if my friends spoke to me I would  35 certainly determine what had happened.  This is the  36 first I have heard of this.  And so I think if my  37 friends would advise me of what their concerns are and  38 where, I will look into it and get it sorted out.  39 THE COURT:  Well, excuse me, as a matter of law the argument is  40 what counsel have said in court.  As a matter of  41 practice or practicality, rather, in preparing my  42 judgment I will be working off both the summaries and  43 the diskettes.  And it may be that if they are not all  44 the same I may fall into some, what I think will be  45 relatively minor error.  I am not going to be able, I  46 suspect, check everything against everything else.  I  47 don't think I am going to have the -- I am not going 28479  Submissions by Mr. Willms  1 to read the transcript and compare it with the  2 outline.  And I'm not going to compare the outline  3 with the diskettes.  And I am not going to compare the  4 diskettes with the transcript.  I think that it will  5 be useful if I could have diskettes which would  6 conform to the outline.  And that will reduce my  7 problem by a third or probably a half.  8 If I am taking quotations out of the outline,  9 there is always the problem that the risk that they  10 weren't said in argument.  And I am probably going to  11 assume that counsel intended to incorporate into their  12 argument anything that is quoted in their outline  13 because that's available to me anyway, whether counsel  14 said it or they didn't say it.  So I'm not sure it is  15 the most important problem in the world.  I think  16 counsel take the risk that if their diskette doesn't  17 conform to their argument they may find me -- that is  18 conform to their oral argument, they may find me  19 referring more to their diskettes than to their in  20 court transcript argument.  21 MR. GRANT:  Well, my intent, my lord, was that if there was any  22 change of the page, that page would be in the outline  23 of the argument.  2 4 THE COURT:  Yes.  25 MR. GRANT:  Also that I would have the hard copy of the page so  26 that your outline of the argument would match the  27 diskette.  2 8 THE COURT:  Yes.  29 MR. GRANT:  Also, of course, the Plaintiffs and I think the  30 defendants, too, have not read all of our outline of  31 argument.  But, of course, we didn't intend to read  32 everything.  33 THE COURT:  No.  In many cases you said you are not going to  34 read it, and you are adopting it.  35 MR. GRANT:  That's right.  But because of the size of it, my  36 friends have now indicated that they have some other  37 problem.  If they correspond it with what it is and  38 where it is, and advise us out of court.  And it may  39 be something happened with the disk, I don't know.  I  40 can't answer that.  That, I would think, would be the  41 more sensible approach to this.  42 MR. WILLMS:  It is not sensible to ask us to compare my friends  43 diskettes with the written argument.  They are the  44 ones that know what they change.  They are the ones  45 that should provide us with what they have changed.  46 We have only found this because in taking a couple of  47 examples and comparing them we found them.  But to go 28480  Submissions by Mr. Willms  1 through all of their diskettes and compare them is a  2 burden that we shouldn't have to bear.  It is a burden  3 that the Plaintiffs should have to bear.  They are the  4 ones that made the changes.  5 MR. GRANT:  And we will provide those.  As I say, the hard  6 copies had intended to be there of what we had  7 changed.  What we have changed I will provide.  8 THE COURT:  I have to say I am finding the diskettes much less  9 useful than I hoped they would be, particularily the  10 Plaintiffs, because of the fact that some of their  11 diskette items include up to 300,000 and 400,000  12 characters.  And it becomes almost as difficult to  13 manager that volume of material in a diskette as it is  14 physically to handle the documents.  But that is part  15 of the learning process that we are going through in  16 connection with these matters.  If diskettes are to be  17 useful I think they have to be broken down into more  18 manageable size, preferably under 100,000 characters.  19 And I think that my present view is that unless they  20 have distinctive headings they are very difficult to  21 find.  I am having my technical staff try and work out  22 a system of identifying volumes of diskette material  23 by some numbering system which I will measure against  24 an index, but I am not sure how successful that is  25 going to be.  All right.  Is there anything else that  26 is so-called loose ends that counsel wish to speak to?  27 MR. WILLMS:  No.  2 8    THE COURT  2 9    MR. GRANT  3 0    THE COURT  Nothing else  9  No.  Well, I think we will probably take a short  31 adjournment then.  32 THE REGISTRAR:  Order in court.  This court is adjourned for a  33 short recess.  34 (PROCEEDINGS ADJOURNED AT 10:05)  35  36 I hereby certify the foregoing to  37 be a true and accurate transcript  38 of the proceedings transcribed to  39 the best of my skill and ability.  40  41  42  43  44 Lisa Franko,  45 Official Reporter,  4 6 UNITED REPORTING SERVICE LTD.  47 28481  Submissions by Mr. Willms  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 28482  Submission by Mr. Macaulay  1 (PROCEEDINGS RECONVENED AT 10:20 A.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Macaulay.  5 MR. MACAULAY:  My lord, Miss Russell is handing up a replacement  6 for that summary, and I'll ask her to explain why a  7 replacement at all and what it involves.  8 THE COURT:  Yes.  I think it's the black one.  9 MR. MACAULAY:  The black one is the old one.  10 THE COURT:  Oh, I see.  We have a new one.  11 MR. MACAULAY:  Yes, my lord.  12 THE COURT:  Thank you.  13 MS. RUSSELL:  We're into a beautiful shade of Tory blue.  14 THE COURT:  Yes.  15 MS. RUSSELL:  My lord, this document replaces the summary of  16 argument which was filed on April 12th, and it is  17 basically the same document only reformatted, we hope,  18 to be much more accessible and easily found.  We have  19 tabbed each chapter, each major section by Roman  20 numeral.  In addition, we have taken Chapter X, which  21 is a summary of history and anthropology of the claim  22 area, and reorganized that slightly so that each  23 section begins on a new page and will, we hope, be  24 easier to find.  In addition, within that section we  25 have added some new material, not a great deal, under  26 the existing topic headings.  This is at Roman numeral  27 10.  2 8 THE COURT:  Yes.  29 MS. RUSSELL:  So we've added some new material there.  There  30 won't be -- there is not a great deal of new material.  31 We have also deleted some material simply because it  32 has been covered in detail by our friends and there's  33 no need to repeat it.  And we have tidied up some  34 references there.  Other than that, it is basically  35 the same chapter, and I don't think you'll find it  36 very different.  We are hopeful that these will be  37 changes which will make the material more easily found  38 by all the parties.  This will replace that original  39 summary, and we will work from that.  In addition, my  40 lord, we will be adding more addenda which will follow  41 from topics contained in this summary.  Thank you, my  42 lord.  43 THE COURT:  Thank you, Miss Russell.  44 MR. GRANT:  Before my friend proceeds if I can just clarify one  45 point.  I see just from the scanning of this index  46 that the federal response to the counterclaim does not  47 appear to be included here.  Does my friend intend to 28483  Submission by Mr. Macaulay  1 do the similar modification or changes to that?  2 MR. MACAULAY:  The answer is yes, my lord.  As your lordship  3 will recall from the recent argument, the recent  4 jurisprudence was referred to, and our changes will  5 reflect that, of course.  There will be some changes  6 in the counterclaim argument.  The counterclaim  7 argument was presented -- filed and presented  8 separately.  It never was in that book that we're  9 talking about.  It's in another book.  10 Now, I referred to the summary in my argument  11 yesterday.  I'm still dealing with this new book.  I  12 had quoted from Tomlinson's -- letter of Tomlinson's  13 made in 1875, which had been at page 117 of the old  14 summary.  That's to be found at page 57 of the new  15 one.  So it's the very same quotation.  I referred  16 also to several pages of the summary starting with a  17 letter of Tomlinson to the Kispiox chiefs of September  18 10th, 1885, and then I went on to Mr. Graham's letter  19 and to the Reverend Mr. Stephenson's letter.  20 THE COURT:  Where are those letters?  21 MR. MACAULAY:  Well, they were at the old page 193.  They are  22 now to be found, all those references ending with  23 something that Barbeau had said, they are now to be  24 found starting at page 130 and going on to page 134.  25 MR. GRANT:  Of tab 10?  2 6 MR. MACAULAY:  Of tab 10, yes.  Tab 10, Part III.  So the  27 references I had made in oral argument are the same,  28 they just are in different pages now.  2 9 THE COURT:  All right.  Thank you.  30 MR. GRANT:  And just to be clear, my lord, I understand then  31 that except for the counterclaim this is the -- there  32 won't be addendum to this argument from what my  33 friends have explained, that this is -- in this  34 section of the argument.  35 MR. MACAULAY:  I expect not, unless something very unusual comes  36 up and it's drawn to my attention that something is  37 inaccurate or ought not to be there or something of  38 that order.  39 THE COURT:  All right.  Is Canada organized in such a way that  40 there might be a diskette of this argument?  41 MR. MACAULAY:  Oh, yes, my lord.  42 THE COURT:  Yes.  All right.  43 MR. MACAULAY:  Now, I was sitting in the court room when there  44 was that discussion a few minutes ago about diskettes.  45 Partly because of the time constraints we are not  46 going to read every line of our summary.  4 7 THE COURT:  No. 28484  Submission by Mr. Macaulay  1 MR. MACAULAY:  But it's part of our argument.  2 THE COURT:  Yes.  You're adopting it.  3 MR. MACAULAY:  Yes, my lord.  As if — as if —  4 THE COURT:  As if read.  5 MR. MACAULAY:  As if read.  6 THE COURT:  Certainly.  7 MR. MACAULAY:  Now, there were — I started off yesterday — I'm  8 coming back now to the topic the Loring reports, and  9 your lordship has my notes for oral argument, pages of  10 notes, 22 pages of notes.  I found a typographical  11 error on the first line of the first page.  The date,  12 as I said, should have been 1889.  13 THE COURT:  Yes, I made that correction.  14 MR. MACAULAY:  May I hand up a corrected page?  15 THE COURT:  Absolutely.  16 MR. MACAULAY:  That's the correction.  And at page 3 there was  17 another typo.  I pointed out that in the second  18 paragraph, the last full line, the last word should be  19 "villagers" and not "villages," and I'm handing up  20 that page again with that typographical error changed.  21 MR. GRANT:  Which line?  22 THE COURT:  Page 3?  23 THE REGISTRAR:  Yes.  24 MR. MACAULAY:  Page 3.  It should read now:  25  26 "...defensive purposes following a massacre of  27 the villagers,"  28  29 not villages.  30 May I continue now, my lord, with my subject?  We  31 were dealing at the adjournment with the Ksun Canyon,  32 and I had reached tab 30 on page 10.  I now want to  33 turn to the next paragraph of my notes for oral  34 argument, and we will now come to tabs 31 and 32,  35 which complete the subject of the Ksun Canyons.  36 MR. GRANT:  If I could just — with relation to Ksun, your  37 lordship asked yesterday about where Ksun was in  38 relationship, and it's something that I was trying to  39 recall, and I just last night was looking at the  40 material, and I think the evidence of the canyon --  41 there is not many canyons between Kispiox and  42 Kisgagas, but in Exhibit 358-22 there's the canyon  43 location at Wila'tiks hon, which is marked on that,  44 and I took the liberty of highlighting it just so your  45 lordship would see the relationship, and by the  46 relationship it would appear to be about 18 kilometres  47 upstream of the Kispiox -- upstream of the junction of 28485  Submission by Mr. Macaulay  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.  MR.  THE COURT  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  MR.  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  the Kispiox and the Skeena River, and that's that  Wila'tiks hon.  MACAULAY:  That sounds like rebuttal or reply but —  GRANT:  Well, your lordship asked where it was, and I had  hoped that there was a way to pin-point it, but there  isn't many canyons there, but there is this canyon.  Isn't there a 17 mile bridge or 17 mile something?  Bridge, isn't it?  On Kispiox River.  Yes.  On the Kispiox River, 17 mile bridge.  Oh, I'm sorry.  This, of course, is on the Skeena.  This is on the Skeena.  I think my friend would  agree that from Loring's description Ksun is on the  Skeena.  Yes.  All right.  And this is Exhibit 358-27?  358-21.  I'm sorry, my lord.  21.  Yes.  That's the map atlas.  MACAULAY:  22, isn't it?  GRANT:  This particular one I believe is 21.  This is the  fishing sites.  COURT:  All right.  Well, that's useful.  Okay.  Thank you.  Mr. Macaulay.  MACAULAY:  Well, now that this is on the table, I don't know  how Mr. Loring measured things, but my recollection --  I tried to work out what the distances were, and it  seems to me that he had Woo'olp, that's W-o-o-o-l-p,  which appears on this map, at the 20 mile mark or 22  mile mark, so that the canyon we are talking about  starting at 23 miles and ending at around 30 miles,  29, 30 miles, would be beyond anything shown on that  map.  You see, Woo'olp is a fishing reserve, and he  gave in one of his -- and it may even be in that  exhibit we've just looked at -- he gave distances as  he calculated it.  But I'll come back to that.  All right.  You think it's further up the Skeena  than this?  COURT  MACAULAY  Yes.  COURT:  All right.  MACAULAY:  Beyond Woo'olp.  COURT:  Yes.  Well, that's an interesting subject for  someone to busy himself with.  MACAULAY:  Loring, in reporting on the fishing stations, and  he reported on a great many, he would describe them in  this fashion:  he would take a datum point, and  sometimes that was Hazelton, and then he would say the 28486  Submission by Mr. Macaulay  1 first one is three miles up, the next one is a half  2 mile beyond that, the next one is a half mile beyond  3 that, and so on, and that's how the calculation was  4 made.  5 Coming back to the canyons, and there were two he  6 was talking about, Ksun and Upper Ksun, your lordship  7 will recall he described the number of buildings at  8 the one, lodges, 9 at Ksun and 12 at Upper Ksun, which  9 the Upper Ksun he said was 29 miles above Hazelton.  10 THE COURT:  That's not far from what Mr. Grant says because he  11 says 18 miles above Kispiox.  12 MR. GRANT:  On this map I followed the river on the scale, and  13 it was 18 kilometres from that junction there, yeah.  14 MR. MACAULAY:  We're talking about kilometres and miles.  15 THE COURT:  Well, that's true.  Yes.  16 MR. MACAULAY:  In 1897 Loring predicted that the Gitksan who  17 lived at the canyons would abandon those dwellings.  18 And that's at tab 31.  We've seen this report before.  19 It's the one where he describes the number of lodges  20 and that half of them are winter dwellings.  At the  21 bottom of the first page he says:  22  23 "The time is not far off when Ksun will be  24 abandoned altogether.  The Indians are steadily  25 improving their ways of living, in conformity  26 to which the present mode of inhabiting it,  27 will prove inconsistent."  28  29 Of course, he wasn't talking about the fishery but the  30 dwellings.  There is no report on any such an  31 abandonment, but Loring's winter visits ended in 1910.  32 He stopped going there in the winter in 1910.  That  33 may be about the date when the permanent residents  34 moved somewhere else.  35 The other reports on his total of 31 visits to  36 Ksun and Upper Ksun are listed there, and they're at  37 tab 32, and some of them are merely that, they are  38 just records of the fact that he visited Ksun and  39 returned, but others have some detail.  At tab 32 the  40 first of these reports -- these are the ones we  41 haven't looked at.  We haven't looked at any of these.  42 He says in September 1898 that his visit "was prompted  43 by a desire to investigate there, a number of fishing-  44 right disputes arising, from time to time, during each  45 year."  46 Then the next report under this tab, if you turn  47 beyond the blue separating page, is October 31st, 28487  Submission by Mr. Macaulay  1 1899.  The second page, where he says that:  2  3 "There, a great many grievances spring up,  4 from time to time, and require setting to  5 right."  6  7 Beyond the next blue divider is merely a travel  8 expense statement of a visit to Ksun.  Beyond the  9 following -- and there is no corresponding report.  10 That's an expense voucher for September of 1900.  11 Beyond the next divider after that, April 1901, on  12 the second page of that report he says -- and here he  13 says:  14  15 "The latter,"  16  17 and he's talking about the two canyons,  18  19 "are about twenty four and thirty miles,  20 respectively, in northerly direction of here,  21 and the fishing and curing stations of both,  22 include the right and left banks of the Skeena.  23 Yearly dissensions are there as to  24 infringements on each other's holdings."  25  26 And he adds a comment that's not easy to understand.  27 He says:  28  29 "It only will be a matter of some years more  30 that the old mode of fishing and curing, in  31 exact points, is bound to become obsolete and  32 the wrangles regarding same die for want of  33 occasion."  34  35 And the only thing I can think of is that he's  36 referring to the use of nets, which, of course, would  37 mean that they wouldn't be fishing at the canyon at  38 all.  But that didn't happen that soon because in  39 October of 1901 -- he had been there in April, he was  40 back in October, and he says:  41  42 "My visit was prompted by a promise to  43 investigate, there, a number of fishing right  44 disputes as usual, from time to time arising  45 every spring and fall, and returned to this  46 office on the 21st."  47 28488  Submission by Mr. Macaulay  1 After the next blue divider we have the report of  2 October 31st, 1902, which is merely a record of his  3 attendance at the Ksun fisheries, Ksun and Upper Ksun.  4 And then the next report for April 1903 is just a  5 report.  He went to Ksun and Upper Ksun to arrange  6 matters regarding some contentions then existing.  It  7 was usually a long trip.  He left on the 13th and  8 returned on the 18th, and that was pretty well the  9 time it took in these cases, my lord.  10 The next one is April 30th, 1904, the following  11 year, and he reports merely that he had been to Ksun  12 in April.  Interestingly enough, he -- in the next  13 paragraph he reports on the Hazelton Hospital site.  14 Dr. Wrinch had originally been stationed at Kispiox,  15 but it was decided that he should -- the medical  16 centre should be at Hazelton sometime before that  17 entry.  18 Then the April 30th, 1906 report refers to the  19 Ksun fishery and regulating matters there.  20 The 1907, May 1907 report, the second page just  21 reports a visit to Ksun and Upper Ksun Canyon  22 fisheries.  23 The next page in this tab is the February 1908  24 report, where he says:  25  26 "On the 3rd instant I repaired to Ksun and  27 Upper Ksun in connection with some disputes, of  28 long standing, among the Indians there, and  29 returned to my office on the 8th."  30  31 The next one is July 1908.  He's back there again  32 in that same year, and he says at the bottom of the  33 first -- of the first page:  34  35 "On the 13th instant, I repaired to the Ksun  36 canyon fisheries and returned on the 17th.  37 There, as well as elsewhere, the salmon are  38 running well."  39  40 In December 1908 he's back again.  This is a  41 winter visit.  And there is no detail of the visit,  42 just the dates, the 7th to the 11th, a shorter visit.  43 There is a travelling expense for 1910 for his  44 visit to Ksun and Upper Ksun, but no report.  45 In October 1910 though — that was early 1910,  46 February.  That seems to be the last winter visit, at  47 February 1910.  He's back in October 1910, and on the 28489  Submission by Mr. Macaulay  1 second page of that report of October 1910 he says he  2 went up on the 24th and was back on the 28th.  3 In September 1911 he reports going up to Ksun and  4 Upper Ksun Canyon fisheries.  5 August 31st, 1912, is the next, and he reports  6 going to Ksun and Upper Ksun.  7 In May 1914 he refers to the occupants of the Ksun  8 and Upper Ksun Canyon fisheries as being "the  9 occupation of the elder population," and thereafter  10 some other references to the fact that it's the older  11 population.  We have seen some of those in the review  12 of these reports.  13 In October 1914 he records a visit to Ksun.  14 And I'm turning to the next report.  In September  15 1915 he goes to Ksun.  That's at the same time --  16 that's the same month as he took the automobile trip  17 up the Kispiox Valley.  Our expense report for that  18 trip shows he went on horseback on that case.  There  19 was a trail by then.  He didn't go up on the ice as he  20 had on some other occasions, earlier times.  21 In September 1917 he makes the following report.  22 He says:  23  24 "In preparation of the season about to  25 ensue,"  26  27 I think it is.  2 8    THE COURT:  Yes.  2 9    MR. MACAULAY:  30  31 "...those of the northern villages began to come  32 in to trade,"  33  34 that's Kisgegas and Kuldo,  35  36 "and likewise will the older people about here,  37 and of the Hagwilgets, fall into line in the  38 pursuit of fur so soon as the storing away of  39 salmon and garden produce will have been fully  40 accomplished."  41  42 He's describing there the traditional round that was  43 still in place then.  44  45 "In regard to the former item, the people  46 have been most fortunate in putting up a very  47 large supply, of which fact I fully assured 28490  Submission by Mr. Macaulay  1 myself on my having visited the main localities  2 of the Ksun canyons on the 17th, and wherefrom  3 I returned on the 21st..."  4  5 That's 1917.  6 In 1918, the second page, he reports having gone  7 to the lower Ksun Canyon fisheries, only the lower,  8 and he was away only from the 16th to the 18th.  9 And those are -- we have now looked at all the  10 reports that we can find anyhow about the Ksun Canyon.  11 It is the place he visited most.  Talk about a yearly  12 round.  Well, his yearly round had that feature, that  13 invariable feature.  In one year he was there three  14 times, and often twice.  He was there winter, spring  15 and fall, and occasionally in the summer.  16 Now I'm returning to another topic, my lord, that  17 arises out of the study of the Loring reports.  I am  18 now going back to the bottom of page 10 of my notes.  19 Loring described the old Gitksan and Wet'suwet'en  20 societies generally in the context of change.  He was  21 not an anthropologist.  The plankhouses or longhouses  22 were described by him as rookeries or shacks, and  23 that's the -- the way he described them is to be shown  24 in tabs 33 and 34, and he says they were inhabited by  25 the older Indians or not inhabited.  26 Tab 33 is a fairly early report.  It's May 1895.  27 And he says at the bottom of the page -- this is tab  28 33, my lord.  He says at the bottom of the page:  29  30 "Succeeded to thin out the overcrowded  31 rookeries, of the village by drawing off some  32 of the population (especially the younger) to  33 healthful localities by laying out localities  34 for separate holdings, not in touch with the  35 old villages etc. etc."  36  37 And under that same tab there is a report in 1900,  38 and he reports -- and these reports go on and on.  39 There are many, many of this kind.  He says:  40  41 "I have the honour to state that the Indians  42 have been during this month exceptionally busy  43 in building and perfecting their homes.  It is  44 by the way worth noting that all, but those few  45 of the very old, gregarious and tenacious of  46 deeply rooted habits, are very comfortably  47 housed." 28491  Submission by Mr. Macaulay  1 And then at the bottom of that page he says:  2  3 "In drawing conclusions with the old  4 villages and the new, the former appear very  5 somnolent and solitudinous by comparison with  6 the latter.  7  8 Next spring, I will have taken down those  9 of the old houses, and no longer occupied, the  10 ground leveled and the space they occupied sewn  11 in grass-, and thus effect a somewhat less  12 marked contrast, in that respect, between the  13 two."  14  15 Under the same tab there is another report I want  16 to refer to, a much later one, a report of July 1915,  17 on the second page of that report where he says at the  18 second last paragraph:  19  20 "Rewarded by success in the old village  21 here, another of the huge and unsightly shacks,  22 sorely out of perpendicular and decaying of  23 material, has been removed.  These amount to an  24 eyesore and source of danger in case of fire.  25 Moreover, their presence does not permit any  26 access of sunlight to the dankness of the  27 spaces between them."  28  29 And, of course, those buildings had no windows.  30 Through a hole in the roof smoke was let out.  31 Tab 35 deals also with -- I'm sorry -- deals with  32 another matter.  Loring was asked to report on the  33 chiefs in his bailiwick, and in -- this is in May  34 1895, my lord.  And he reports that the Gitksan chiefs  35 are hereditary, solely hereditary, and he encloses a  36 list.  And he then goes on to report that the chiefs  37 of the Hagwilget division, and by that he means a very  38 large area, including Babines and people at Stuart  39 Lake and people at Takla Lake and Landing and so on,  40 he says that they were appointed by the Roman Catholic  41 priests, mainly predecessors of the present one.  And  42 those appointments did not expire at any given time.  43 If you turn the page, and I'll be coming back to  44 this list, we have the chiefs of the villages.  The  45 names of the chiefs are given.  Most of them you will  46 recognize, my lord.  Get-an-max, that we now call  47 Get-an-gal-dogh, who was the head chief of Gitanmaax, 28492  Submission by Mr. Macaulay  1 of course, in 1888, when the troubles arose there.  2 Spookw and so on.  And they have all the villages,  3 including, of course, Kitwancool and the northern  4 villages.  Their ages are given, the translation of  5 the names, which is interesting, and also remarks  6 about their temperament and disposition.  Not  7 surprisingly, Get-an-gal-dogh, who is age 68, is  8 tenacious of old customs.  The next one, a 14-year-old  9 boy, is described as intelligent and energetic.  The  10 third one, age 30, industrious and persevering, and so  11 on.  Gol-Doe, the head chief, the first chief, is age  12 70 and is described as old-fashioned in thought and  13 deed.  The second one, a great hunter and trapper, as  14 you would expect.  These names and chiefs reappear, of  15 course, in the story after Loring too.  16 You may remember, my lord, that one of them, a  17 Kitsegukla chief, who is described there as Mol-aghan,  18 was one who had shot another Indian in his village in  19 self-defence and was brought to Hazelton at the time  20 of the troubles there.  There was a coroner's inquest,  21 and that -- Mol-aghan was found to have been justified  22 in that killing.  That was at the same time as the  23 Kitwancool Jim affair was going on.  24 Cook-sans, that's Guxsan, the second chief in that  25 village, whose name means the gambler, is age 70 and  26 is described as very intelligent and a great orator,  27 and we'll come across his name again.  Of course, the  28 present Guxsan and all those names are still with us  29 pretty well, I think.  30 Loring knew and was familiar with the names and  31 characters and presumably the activities of all of the  32 principal people in his bailiwick.  33 Now, as I have mentioned earlier, in the villages  34 that -- back to page 11 of my --  35 MR. GRANT:  If my friend could just assist.  He relied in this  36 reference that Loring referred to the Hagwilget  37 division.  I take it, because my friend hasn't  38 included it, that there was no similar list of  39 Hagwilget chiefs.  4 0    MR. MACAULAY:  Well, that's wrong.  There was.  41 MR. GRANT:  Appended to this letter?  42 MR. MACAULAY:  No, the next letter.  The next letter included  43 the -- and my friend can look it up easily because it  44 would -- in sequence it would be -- that's 1209-1-85.  45 That's the first volume of the second series, and  46 he'll probably find the other letter at 1209-1-87 or  47 88 or something like that. 28493  Submission by Mr. Macaulay  1 MR. GRANT:  Thank you.  2 MR. MACAULAY:  There are a great number of chiefs given in that  3 second list, nearly all of whom are outside the claim  4 area.  There are only two, I think, in the claim area.  5 I could have made a collection to review twice and  6 three times and four times that size, but we haven't  7 got time to do that.  8 MR. GRANT:  I just wanted to know.  9 MR. MACAULAY:  In the villages that he visited in 1889 Loring  10 noted widespread destitution.  It's at tab 36, and  11 we've already seen that report in another connection.  12 It's one of the earliest reports, and it's the second  13 paragraph where he says:  14  15 "Destitution is very prevailing among the  16 Indians of all the villages I have visited.  In  17 some cases actual distress and pitiful to see."  18  19 And he says he gave relief.  And in March 1890 --  20 THE COURT:  Remarkable that he would start his letter by saying  21 that everything is going nicely and in the next  22 paragraph he says destitution is very prevailing  23 amongst the Indians of all the villages, distressful  24 and painful to see.  25 MR. MACAULAY:  Yes.  Well, I can only assume that he is getting  26 on well in his first round with the discussions he's  27 having with the chiefs of the villages.  28 THE COURT:  Yes.  I suppose, yes, that's a possible  29 rationalization.  30 MR. MACAULAY:  Because he was having discussions in these early  31 encounters with the villagers about law enforcement,  32 about the potlatch, about various things, and he was  33 saying that he was being well-received in these --  34 some of these villages, and from his point of view  35 that was going well.  36 In the collection of our -- in this 11 volume  37 collection we have the monthly relief vouchers, and  38 obviously he had a budget because there were three or  39 four or five every month, and he had to account for  40 the fact that he had -- one month he had to pay $3 for  41 a sack of flour rather than 2 and a half and why, and  42 he had to give every name and why the relief was  43 given.  We have a collection from 1893 to 1913.  If he  44 continued making those detailed reports after 1913, we  45 haven't found them.  And I'll come back to that.  But  46 in March of 1890 he reported that the supply of dried  47 salmon was exhausted, and we have seen that report 28494  Submission by Mr. Macaulay  1 before.  2 According to Loring's information, there had been  3 two starvation years in the past.  And he -- that's at  4 tab 37.  I've sidelined it.  At page 2 at the bottom  5 of the page he says:  6  7 "Within the last hundred years there were two  8 years of famine in salmon - for the reasons of  9 which no theory can be made to fit - when a lot  10 of Indians died of starvation.  And, for the  11 sake of demonstration, may it here be said that  12 comparatively only a few years ago the potato  13 and other root crops were grown by the Indians  14 of these parts.  Flour, rice, bacon and  15 frequently beef are now pretty much of general  16 use.  With the exception of Babine,  17 comparatively few Indians waste their time over  18 fishing, and, indeed, many of them will not eat  19 salmon as formerly, but occasionally freshly  20 caught fish.  I find in making his computation,  21 on the enormous quantity of the salmon alleged  22 to be caught, Mr. Helgason,"  23  24 that's the fisheries officer,  25  26 "takes Babine for the example whereon they are  27 made to fit all the Indians of this Agency.  28 There must also be taken into account that 277  29 (Sikanees and Na-anees) who never take a look  30 at a salmon, and that settlements like Glen  31 Vowell scarcely a salmon, and that the younger  32 people are off earning wages, whilst to the  33 poor, the old and decrepit is mainly left to do  34 the fishing.  Everywhere, the dogs' share of  35 the salmon consists in bones, the skin and the  36 tail."  37  38 He is reporting there on -- and that's 1905.  He  39 is reporting there on a very considerable change in  40 connection with his challenge to Mr. Helgason's  41 statistics based on the taking of salmon by the  42 Babine.  What Helgason appears to have been doing was  43 to take the Babine catch and multiply it by all the  44 Indians, including Sikanees and Na-anees, who eat no  45 fish at all, and the Gitksan, who were clearly eating  46 less by that time.  They were -- their life was  47 changing, their economy was changing, they were 28495  Submission by Mr. Macaulay  1 changing, their need for salmon was changing.  2 The perils of raids by neighbouring people are  3 referred to only twice, and this, of course, must have  4 no longer -- well, obviously no longer was a fact of  5 life.  The first time he mentions that is that first  6 visit to Kisgegas where he gives an account of the  7 reason for which the village was moved to its very  8 exposed, windy site following a massacre.  And another  9 reference is in 1909.  10 THE COURT:  What was the first one?  11 MR. MACAULAY:  Well, the first one was when he first went to  12 Kisgegas.  It's at tab 38, my lord.  In 1890 he  13 noticed that the village was in a very exposed  14 position, exposed to the wind, and that's why they  15 were all in the woods in shelter in the winter.  And  16 he recites that the old village had been in a more  17 sheltered place, but they chose this one for defensive  18 purposes because there had been a massacre by the  19 Nishga.  And the old village, when he got there, was  20 there to see.  He says -- you know -- "the old  21 village, which stands totally deserted on a sheltered  22 plateau nearer to the forks of the Skeena" and the  23 Babine.  So that raid had not taken place all that  24 many years before.  25 Under the same tab after the blue divider, in  26 1909, the second page, he's talking -- and we'll be  27 coming back to this.  This was a letter written about  28 the land claim really.  After Joe Capilano's visit  29 there was talk about the Indians were saying, as they  30 had in Metlakatla in the 1880s, that they had never  31 been conquered and the land had never been bought from  32 them and, therefore, they owned the land.  And his  33 comment was they "are quite unmindful of the fact that  34 formerly the Tsimpsian and Nass Indians periodically  35 made raids upon these Indians and were carried off in  36 great numbers to be sold as slaves to the Hydahs, and  37 never were under any sort of protection till the  38 advent of the white man afforded them such," from  39 those raids.  40 In the plaintiffs' case we have other references  41 to that.  Those are the only references to that  42 feature of the former life that Loring makes.  He does  43 refer to a border dispute with the Nishga, which was  44 going on then, at tab 39.  It's a letter of 1893, and  45 the problem was Loo-lach was said to have been  46 murdered by some Nass Indians.  Loring reports he had  47 to investigate that.  He reports that Loo-lach had 28496  Submission by Mr. Macaulay  1 been drowned, in fact, and then says there was great  2 enmity between Loo-lach, Sie-me-deeks and others of  3 Kit-wan-gah, and then he gives two names, three names  4 of the Nass Indians.  5  6 "Frequently threats were exchanged, if either of  7 the parties were caught trapping beaver in a  8 swamp designated."  9  10 So there was a contest between the Kitwanga chiefs and  11 their neighbours, the Nishga -- the Nass people, the  12 Nishga.  13 The problems of matrilineal inheritance are noted  14 by Loring, and that's to be found at tab 40.  The  15 first reference is in 1896.  He is discussing the  16 Hagwilget division.  That would be the Wet'suwet'en  17 today.  18 MR. GRANT:  Well, my friend is jumping back and forth because I  19 thought he just said when Loring referred to Hagwilget  20 he was referring to many groups, including the Babine  21 and the Carrier to the east.  22 MR. MACAULAY:  That's right.  23 MR. GRANT:  And not just the Wet'suwet'en.  24 MR. MACAULAY:  And he is talking about the Hagwilgets in the  25 larger sense, the Babines as well and the other  26 Carrier people living at Tatla Lake and whatnot.  And  27 he says:  28  29 "The brother, or more, of the latter" --  30  31 First -- of late years -- sorry.  32  33 "Of late years they have become freed from the  34 once objectionable tribal usages.  One of these  35 was, to deprive the widow and children of a  36 deceased Indian, of everything in possession.  37 The brother, or more, of the latter,  38 stopped in and after degrading the widow, by  39 compelling her to wear the filthiest rags  40 procurable, enslaved her to manual drudgery for  41 two years, she, with her children receiving, as  42 sustenance, the scantiest leavings of the one  43 enjoying the comforts of the home and property,  44 once their own.  The same custom prevailed,  45 with less rigorous methods, amongst the  46 Kit-Ksuns,"  47 28497  Submission by Mr. Macaulay  1 the Gitksan,  2  3 "and was easier done away with."  4  5 That is his first reference to the ramifications  6 of some of the older rules.  Another is to be found in  7 1901 in that same tab after the blue divider on the  8 second page, where he says in the middle paragraph on  9 the second page:  10  11 "A matter worthy of mention is, that such of  12 the lesser of the objectionable customs  13 formerly existing among the Indians, are almost  14 effaced and the change they have undergone in  15 that respect, alone, is surprising.  Of the  16 once tribal usages the most cruel, was to  17 deprive the widow and children of a deceased  18 Indian of all they possessed, by the uncle of  19 the children on the mother's side, and only in  20 very few instances am I now yet called upon to  21 intercede."  22  23 That is the -- another reference to the crest system,  24 which, in fact, is still with us.  25 My lord, this is a convenient time for the  2 6              adjournment.  27 THE COURT:  Yes.  All right.  Thank you.  28 THE REGISTRAR:  Order in court.  Court stands adjourned for a  29 short recess.  30  31 (PROCEEDINGS ADJOURNED AT 11:15 A.M.)  32  33 I hereby certify the foregoing to  34 be a true and accurate transcript  35 of the proceedings transcribed to  36 the best of my skill and ability.  37  38  39  40  41    42 Leanna Smith  43 Official Reporter  44 UNITED REPORTING SERVICE LTD.  45  46  47 28498  Submissions by Mr. Macaulay  1 (PROCEEDINGS RESUMED AT 11:30 A.M.)  2  3 THE COURT:  Mr. Macaulay, so the reporters will know, do you  4 wish to sit until five?  5 MR. MACAULAY:  Yes, my lord.  6 THE COURT:  Or till six?  7 MR. MACAULAY:  Till five, I think.  At the adjournment I had  8 something I ought to bring up now so that my friends  9 will know.  Tomorrow -- and the sequence of the  10 argument, of course, is as important as the character  11 of the argument.  Tomorrow we were to make submissions  12 on matters of law followed by a further -- further  13 submissions on the evidence that would deal with those  14 matters of law.  Largely because of the effect of the  15 recent decisions of the Supreme Court of Canada, we  16 found ourselves in a position where we will not be  17 able to make those submissions until Monday.  We can't  18 do it tomorrow.  I've just learned this now.  The --  19 we have to be absolutely certain of our instructions  20 and our instructions come from a single source, but  21 many groups and departments and officials and so on  22 are involved, and it has ramifications in many, many  23 other cases in other provinces and so on.  In the  24 circumstances I am going to have to ask your lordship  25 to -- that this case stand down tonight until Monday.  26 I am saying that, I know that we have a time  27 constraint beyond which we can't go and I have to live  28 with that and I will and tailor my -- the case  29 accordingly.  But it's not something I can do anything  30 about.  I may ask your lordship's indulgence to sit a  31 bit late next week to catch up on that time.  32 THE COURT:  Well, I tend to put myself in counsel's hands in  33 these matters.  I am not against a long weekend.  34 Unfortunately, as I have mentioned before, this is a  35 difficult time of the year with so many of the  36 organizations and emanations of the bar having matters  37 that they wish to attend to largely of a social  38 nature.  I find myself heavily committed for the next  39 two weeks, but I can -- I can sit until either five or  40 six most days and --  41 MR. MACAULAY:  Yes.  42 THE COURT:  — except that counsel remember that I think it's  43 next Thursday that I can't sit in the afternoon.  But  44 if you are still of the view that we can finish, with  45 some of the inconvenience you have just mentioned,  46 within time to leave your friends three days for  47 argument, then which, of course, unfortunately 28499  Submissions by Mr. Macaulay  1 includes a Saturday --  2 MR. MACAULAY:  Yes.  3 THE COURT:  -- I would be happy to accede to your suggestion.  4 MR. MACAULAY:  I will finish in time to leave my friends three  5 days for argument.  6 THE COURT:  Yes.  All right.  7 MR. GRANT:  Can I just raise two matters, and I am not sure,  8 Miss Mandell may have raised a couple of these  9 yesterday.  I don't think so, though, because now my  10 friend refers to scheduling.  One is that I had some  11 time ago and up until a few days ago Miss Koenigsberg  12 suggested that they are going to endeavor to finish on  13 the Tuesday so we would complete on the Friday.  I  14 take it that this may have the impact at least of  15 pushing us into the Saturday and if that's my friend's  16 present thinking, then it's good for us to know that.  17 The other point is that we were going to ask that  18 there not be a sitting next Saturday, because we would  19 like to have next weekend protected in terms of being  20 sure that we have everything to deal with in the  21 reply.  I just -- I don't know what that means, but to  22 my friends, in light of what he has just said, but I  23 ask him to if he's got problems with that to let us  24 know at an early stage, because of our planning that's  25 what we had hoped for.  26 THE COURT:  Yes.  All right.  I am sure Mr. Macaulay will let us  27 know as early in the week as possible if a sitting on  28 Saturday will be required.  2 9 MR. MACAULAY:  Yes, I will do that, my lord.  30 THE COURT:  All right.  Thank you.  31 MR. MACAULAY:  As it is now, I'm dealing with only particular  32 aspects of our written submission.  33 THE COURT:  Yes.  34 MR. MACAULAY:  The ones I consider that are important to make.  35 MR. GRANT:  I am sorry, the other point is is the order then  36 going to be generally after this submission as in the  37 outline?  That's how both the plaintiffs and the  38 Province generally operate.  In the outline of  39 argument that was delivered this morning, is that the  40 order of argument?  41 MR. MACAULAY:  Generally, my lord, I hope to finish this and  42 also deal with the one other topic if there is time  43 today.  4 4 THE COURT:  Yes.  45 MR. MACAULAY:  But it's a topic that can be shifted around.  46 Some things can be shifted around and others make  47 it -- are very difficult to shift around. 28500  Submissions by Mr. Macaulay  1 THE COURT:  Yes.  2 MR. MACAULAY:  I am to be finished this and deal with another  3 matter today and then we will be dealing pretty well  4 as -- in the way the outline is set out.  5 MR. GRANT:  Thank you.  6 THE COURT:  Well, I just want to say that I find that my energy  7 weariness ratio is slipping a bit and I find it  8 difficult to sit for more than an hour at a time.  So  9 we will sit as presently planned for approximately  10 three one-hour segments this afternoon.  11 MR. MACAULAY:  Well, I am not surprised to hear that and I am  12 going to try to avoid as much as I can in the question  13 of evening or lengthy sittings.  14 THE COURT:  All right.  I understand that.  Thank you.  15 MR. MACAULAY:  The medicine men, my lord, were hardly mentioned  16 in the Loring reports.  There is just the occasional  17 reference -- there is a great deal about medicine  18 which I don't cover here, but on medicine men, perhaps  19 the only -- or one of the two only references is at  20 tab 41 where in the year 1900, that's the year that  21 Dr. Wrinch arrived, he -- Loring had been the sort of  22 practical doctor up to then.  Loring reports:  23  24 "Though many ill —"  25  26 from la grippe,  27  28 "-- only one death occurred here, and that in  29 the instance of a decrepit old man who wanted  30 naked through the woods refusing advice and  31 assistance offered by his next of kin.  He was  32 one of the few of the old medicine men left,  33 practicing magic rites."  34  35 And there is practically no reference, although  36 Loring's interest in medicine and things medical was  37 very considerable, he made only that in one other  38 passing reference to the medicine men.  39 The oolichan fishery he did report about, that is  40 the people leaving for the oolichan fishery.  And that  41 was, as your lordship will recall, that that was part  42 of the annual round.  People would leave in late  43 February or early March for the Nass along the trail  44 and fish there and bring back on their backs on these  45 bentwood boxes the oolichan grease.  At tab 42 are his  46 references to that.  47 In 1895 he reported -- in February 1895 he 28501  Submissions by Mr. Macaulay  1 reported:  2  3 "A portion of the old people, that is, all  4 those still intent on making grease, are gone."  5  6 May I also here state that the young and the middle  7 aged people along the Skeena River have given up the  8 latter practice and learned to spend their time to  9 beter advantage.  10 Beyond the blue divider there is a report of 1896,  11 in the second page where he says, the very last  12 paragraph:  13  14 "Very few of the Indians left for the Nass  15 River at the end of this month to make and  16 procure Oolichan grease.  Their number on that  17 errand is getting less every year, as their  18 energies are lately getting absorbed to improve  19 their new homes in severalty, to which they are  2 0 becoming more and more attached."  21  22 And the following one on this same subject of  23 oolichans is February 1901, the second page again  24 where he says at the top of the second page:  25  26 "Very few Indians left for the Nass river at  27 the end of this month, to make and procure  28 oolichan-grease.  Their number on that errand  29 is getting less every year, as their energies  30 are, of late, getting more absorbed to improve  31 their new homes in severalty, to which they are  32 more and more becoming attached."  33  34 Just the same thing as he said the year before.  And  35 in May of 1902, the second page, he reports:  36  37 "Not a single Indian left this season for the  38 Nass to make oolichan grease, and believe the  39 custom another of the past."  40  41 Of course, he's referring to the -- no doubt to the  42 central villages and that couldn't apply to Kisgegas  43 or Kuldo, if they went over to the Nass or wouldn't  44 likely apply, but that was a disappearing custom.  45 MR. GRANT:  Why is my friend saying that -- is that apparent  46 from this record that he's referring to specific  47 villages? 28502  Submissions by Mr. Macaulay  1 MR. MACAULAY:  No.  It's not apparent from the records.  I am  2 making a gloss on it.  My own gloss.  3 MR. GRANT:  Okay.  Thank you.  4 MR. MACAULAY:  The habit of villages retiring to winter shelter  5 in the woods is often referred to, but usually in the  6 context of a custom that's less and less resorted to.  7 We have seen -- I have collected a few of the  8 references and there are many, many of them, but there  9 are few and we have seen a couple.  They are at tab  10 43.  The first two we've seen and that is the -- at  11 the time of the first visit to -- what's happened  12 here, my lord, is that instead of -- I was on the  13 wrong tab.  This is the -- we've seen the first visit  14 to the Hagwilget, what we call Hagwilget today.  It's  15 on the second page of this 1209-5.  And he didn't find  16 them in the village.  He found them Ziz-Zollagh,  17 Z-i-z-z-o-l-l-a-g-h, which was their winter village.  18 Again, in the same -- the following year, the  19 following month, January 1890, he arrived at Kisgegas  20 and he found again the villagers had all gone to the  21 woods.  He says in the third paragraph on page one:  22  23 "On arrival found, that all the people had left  24 for a few miles distant and were encamped  25 through the woods taking advantage of its  26 shelter and fuel."  27  28 After the green divider, he reports in 1898, December  29 1898:  30  31 "I have the honour herewith to state that  32 nearly all of the Kit-Ksun and Hoquel-get  33 Indians are in; many of both in winter-camps.  34 These camps are resorted to for reasons of  35 shelter in the timber, and the ready access to  36 firewood."  37  38 After the next green divider, December 1902 in the new  39 century, he says:  40  41 "I have the honour to state herewith, that all  42 of the KitKsuns —"  43  44 The Gitksan,  45  46 " -- and Hokwelgets are in; many of both are in  47 winter camps.  These camps are resorted to for 13 MR. GRANT  14 THE COURT  15 MR. GRANT  28503  Submissions by Mr. Macaulay  1 reasons of shelter in the timber, and fire-wood  2 in plenty ready at hand.  The custom of living  3 there is not as prevalent than formerly, and  4 among the KitKsuns is fast becoming obsolete."  5  6 So by 1902 the Gitksan were not doing this so much.  7 MR. GRANT:  The wording seems to be almost identical to that in  8 the 1898 record, my lord, if you add the next  9 paragraph to what my friend said.  10 MR. MACAULAY:  Well, in this report the difference is that he's  11 reporting the custom of living there is not as  12 prevalent than formerly.  And that's what he said in 1898 as well.  Well, maybe he just uses old reports as precedents.  It certainly seems precedents were used by Mr.  16 Loring.  17 THE COURT:  Some professionals do that.  18 MR. MACAULAY:  And then he goes on to describe in this report of  19 1902 what they are doing:  20  21 "   On the locations, the Indians are most  22 comfortably housed.  In this respect more  23 attention is being paid to better space, plenty  24 of light, and everything else conducive to  25 health and comfort, and matters essential to  2 6 domestic economy.  27 There the Indians suit their style of  28 living to their means.  In eradicating the  29 stuffy and overheated cabin, I have been  30 attended by success, and the general conditions  31 are constantly undergoing a steady progress for  32 the better to an astounding degree."  33  34 Now, what he's talking about there isn't the move from  35 the log house, the the plank house to single family  36 dwellings.  He's talking about the move from a single  37 room cabin to the frame house.  38 In December 1904, he says, and this is the next in  39 the same tab, the next report:  40  41 "   Many of the old people have gone into  42 winter-camps.  These are resorted to for  43 shelter in the timber, where there is fire-wood  44 ready at hand.  Formerly this custom, of living  45 through the winter, had been more general, but  46 is being practiced of much lesser degree as  47 years go by." 28504  Submissions by Mr. Macaulay  1  2 That's 1904.  And and he carries on.  I should read  3 the next paragraph perhaps:  4  5 "   On the locations in severalty -- "  6  7 Now, what he means by locations in severalty, my lord,  8 are the allotments on reserves to individual families.  9  10 "   On the locations in severalty, the people  11 now are no more living in over-heated rooms,  12 and clean water in pans and kettles is on their  13 stoves as the rule.  The necessity of such  14 observances has become so forcefully inculcated  15 that neglect in these and other hygienic  16 respects are rare."  17  18 The next one I have under this tab is November 1906  19 where he says in the third paragraph on the first  20 page:  21  22 "A good many of the old and decrepit of the  23 people are beginning to move into the timber  24 for their winter quarters, and more of the  25 young men of the population are being taken on  26 for assisting in the railway survey work under  27 way and supplemented by additional forces in  28 the field."  29  30 That was one reason, of course, why winter shelter  31 wasn't used any more.  People were working in the  32 winter as well as at the canneries in the summer by  33 that time, by 1906, when the railway started coming  34 through, which I will come to.  35 In 1911, in December, he says the same thing.  On  36 the second page he says in the middle of the page:  37  38 "Many of the old people, betaken to winter  39 camps, are comfortably situated amid shelter  40 and dry timber in plenty, whereas, of course,  41 the middle aged, and the younger of the  42 population, are differently housed and  43 environed with modern comforts and conditions."  44  45 The next one in this collection is November 1917.  46 It's the last one in this tab.  And he says there on  47 the second page: 28505  Submissions by Mr. Macaulay  1  2 "Many of the old, accompanied by the smaller  3 children, are preparing to take up, for readier  4 access to fire wood, their winter camps in the  5 timber and for the shelter it also affords."  6  7 And so older people were still living that way of life  8 and it's entirely vanished now as late as 1917.  But  9 the middle aged and younger people were moving in --  10 were living in a very different way.  The old seasonal  11 round was still maintained in the northern villages.  12 I am at the top of page 12 now, my lord, of my  13 notes.  At Kisgegas and Kuldo, and until the advent of  14 the railway, at least, by the Wet'suwet'en as well,  15 the Wet'suwet'en continued their traditional way of  16 life longer than the Gitksan, their neighbours in the  17 central and western villages.  18 And tab 44, I start with one of the annual  19 reports, 1891, and it's at the second page, and I have  20 side-lined the second and -- yes, the second page I've  21 side-lined that.  It shows that in the case of  22 Kisgegas, the author, Loring, says:  23  24 "This band depends mostly on fishing, hunting  25 and trapping."  26  2 7 And about Kuldo:  28  29 "This band fishes, hunts and traps."  30  31 And about the Hoquel-gets, which, of course, is the  32 general term, he says:  33  34 "They entirely depend on hunting and trapping  35 and fishing for substinence."  36  37 That's in 1891.  The next report, it's another annual  38 report, the report of 1894, and I've side-lined on the  39 second page of that and the third page the entries I  40 want to draw your attention to.  Again, about  41 Kisgegas, and this is a few years later, he says:  42  43 "   These Indians depend mainly on hunting and  44 trapping; and their hunting grounds range  45 beyond the headwaters of the Skeena River.  46 Very few of these Indians have ever been to  47 the coast." 28506  Submissions by Mr. Macaulay  1  2 And about Gol-Doe, or Kuldo, he says:  3  4 "They depend mostly on fishing and hunting."  5  6 Over the page, he is now dividing the Hoquel-get  7 division into bands.  He has at the top the Hoquel-get  8 division, Lach-al-sop, and that's Moricetown, the  9 number 151 Indian people at that time; 24 houses.  You  10 divide the number of houses into the number of people  11 you'll see that those must have been, some of them, a  12 lot of them, anyhow, are the traditional houses, plank  13 houses, and he says about them:  14  15 "They follow fishing, hunting and trapping."  16  17 The Lake Connelly band, which he describes as the Lake  18 Connelly Carrier band, that's Bear Lake, there were 21  19 people there and they had three houses and they were  20 fishing and trapping too.  And then over the page, my  21 lord, there is the Sicanee band, also at Bear Lake, 49  22 of them.  He says they are nomadic, settling down  23 during the winter about the lake.  And they subsubsist  24 by fishing and trapping.  So we have -- there he's  25 reporting Sicanees and Carriers at Bear Lake.  You can  26 see from this list how large the Hagwilget division is  27 at that time, all way from -- although he spent nearly  28 all his time, it's quite clear from his report he  29 spent all his time in the Gitksan/Wet'suwet'en area.  30 There is hardly -- he does get over to Babine, but  31 that's about the limit of his travelling.  32 MR. GRANT:  My friend would agree that he spent all his time  33 among the Gitksan, didn't he?  34 THE COURT:  I think that's what he said.  35 MR. MACAULAY:  I don't agree with that.  3 6 MR. GRANT  37 THE COURT  3 8    MR. GRANT  No.  He said the Gitksan and Wet'suwet'en.  That's right.  My recollection of the evidence is --  39 MR. MACAULAY:  He can say that in reply.  40 MR. GRANT:  I just want to be clear.  I thought my friend may  41 have overstated --  42 MR. MACAULAY:  I don't think I did.  43 MR. GRANT:  — his position.  44 MR. MACAULAY:  The next under this topic after that report of  45 1894 --  46 THE COURT:  Was that '84 or was that '83?  47 MR. MACAULAY:  It was May 1894.  It was actually dated 1893, 28507  Submissions by Mr. Macaulay  1 dated June 1893 appeared in the Sessional Papers of  2 1894.  So it was 1893.  Just as an aside, for the  3 information about people down in Prince George and  4 Stuart Lake and so on, Loring, according to those  5 reports, depended very much on the effect as he -- on  6 the situation that the Lach-al-sop and Hagwilget  7 Indians had a lot of communication with those other  8 people and of course they were all of the same  9 religion and the church had a very tight organization  10 seemingly there and that's beyond -- beyond Moricetown  11 he didn't go very much personally, but kept in touch  12 with his -- the rest of his flock in an indirect way.  13 It was too big, too large an area.  Just as Mr. Todd  14 who was nominally the first Indian agent for the  15 Skeena for the Gitksan had never got there that we  16 know of anyhow.  He was -- he had his hands full on  17 the coast.  Ultimately Loring's area was cut down and  18 an agency was established at Prince George.  19 In June 1895, at page 2, about the traditional  20 ways of the Hagwilgets Loring says:  21  22 "   It might be generally believed that I am  23 able to furnish monthly statements in my  24 reports of matters pertaining to the Interior,  25 but that the same is not the fact, I have here  26 the honor to mention.  The Indians  27 (Hoquel-gots) of the above parts are hunters  28 and trappers, solely, and make their  29 appearances here in a body, to trade as at  30 present writing, and again about end of  31 November.  I have an understanding with the  32 Bands of no ready intercourse with this office,  33 to have me informed of anything wrong going on,  34 by their swiftest runners, going day and night,  35 in response to which, I am ready to travel  36 under same conditions and meet the case without  37 delay, at any time, should the emergency  38 arise."  39  40 And he's talking now about his far flying empire how  41 he's dealing with, the more remote of the Hagwilgets.  42 In July 31 -- on July 31, 1895, which is the next  43 report under this tab 44 he says on the first page  44 first paragraph:  45  46 "I have the honor to report that aside from the  47 Indians, of the Kit-Ksan Division, engaged in 2850?  Submissions by Mr. Macaulay  1 hooking salmon at their fisheries, or getting  2 berries and then absent mining, packing and  3 working at the canneries of the coast, very few  4 of the old are at present remaining in their  5 respective villages."  6  7 And then in the third paragraph he says:  8  9 "The Indians of the Hoquel-get Division, not  10 employed in hooking and curing salmon, or  11 picking berries, are out hunting.  Under the  12 existing circumstances it is utterly impossible  13 to furnish in this report items individually,  14 but only collectively as their condition,  15 progress, etc. as in compliance with your  16 Circular."  17  18 Then he refers down farther to "la grippe" in Fraser's  19 Lake and Stony Creek and Fort George.  And then off he  20 goes to Tsis-lee-tin on the 19th.  21 The following report is the report of May 30, 1896  22 and where he reports on the -- generally on the  23 Indians of the Skeena.  He says:  24  25 "The Indians of the Skeena, nearly all, but the  26 old, departed for their various vocations,  27 anxious to earn the means to go on with the  2 8 many great improvements left under way and  29 begun, keeping me expectant as to further  30 results after their return in the fall.  31 The Hoquel-gets are beginning to come in  32 with their winter's catch of fur, according to  33 reports, a good one."  34  35 And that underlines the difference between Gitksan of  36 the central and western villages at any rate who were  37 often away from their villages earning money and the  38 Hagwilgets are coming in with their furs.  39 MEMBER OF THE PUBLIC:  Your honour, I hate to interrupt.  What  40 year is this happening in the eighteenth century or  41 nineteenth century?  42 THE COURT:  1896.  43 MEMBER OF THE PUBLIC:  Thank you very much, your honour.  44 MR. MACAULAY:  In August of 1896, he reports again:  45  46 "The Hoquel-gets — "  47 28509  Submissions by Mr. Macaulay  1 in the first paragraph,  2  3 " -- are coming in to trade and putting up  4 their salmon, are mostly all gone -- "  5  6 No.  7  8 " -- after coming in to trade and putting up  9 their salmon, are mostly all gone to the  10 mountains to hunt caribou, mountain sheep,  11 goats and marmots."  12  13 And:  14  15 "Those are the Kit-Ksuns are away fishing on  16 the coast during the season."  17  18 That was the wrong reading, my lord.  19  20 "Those of the Kit-Ksuns away fishing on the  21 coast, during the season, are beginning to  22 return, provided, inter alia, with material to  23 finish up their homes with, such as tools,  24 stoves, windows, nails, hinges, hooks, etc."  25  26 A report of March 1897 -- now, this is all in the  27 nineteenth century that this is starting to happen,  28 not the twentieth.  In the second page of the March  29 31, 1897 report, he reports:  30  31 "   Many of the Indians of the Skeena have gone  32 with the miners, carrying their freight, on  33 toboggans, and other have begun their constant  34 freighting for the season.  35 The majority of the Hoquel-gets are yet out  36 hunting and trapping."  37  38 The report, the annual report of July 1901, the only  39 part of that report I want to deal with is the fourth  40 and fifth page and sixth page which I have side-lined.  41 Also the seventh.  Under the heading Kisgegas Band is  42 the first reference I want to make.  Under the heading  43 Resources and Occupations for the Kisgegas Band he is  44 saying:  45  46 "The resources of this band are, catching  47 salmon, especially in the canyon below the 28510  Submissions by Mr. Macaulay  1 village, hunting and trapping; this band's  2 hunting and trapping grounds extent far beyond  3 the head-waters of the Skeena and Babine  4 rivers, Bear Lake, also to Stikine.  These  5 Indians mostly depend on their resources and  6 till their potato-patches.  The women,  7 accompanied by their children, gather wild  8 berries and dry them for winter use."  9  10 About the Kuldoe Band under the same heading of  11 Resource and Occupation Loring says:  12  13 "The river furnishes a good supply of salmon.  14 The large hunting and trapping grounds give  15 large returns to so few people.  The  16 occupations, aside from growing potatoes and  17 gathering wild berries for winter use, are only  18 such fitting the resources."  19  20 And on the following page, my lord, there are general  21 comments under the heading Characteristics and  22 Progress.  And he has this to say:  23  24 "The Indians are of a highly acquisitive turn  25 of mind, industrious and law-abiding.  26 Retrospectively considered, it redounds credit  27 to their good sense, generally, that the former  28 promiscuous giving of presents at feasts, in  29 exchange for social recognition, is now found  30 after all to be a painful delusive equivalent.  31 From observation of facts, I strongly incline  32 to the opinion that the settling of Indians on  33 holdings in severalty is the fundamental  34 requisite in making them independent and  35 self-reliant, and happily the natural  36 conditions of this agency as such as to favour  37 the department's desire in that direction.  38 Moreover, already the push and bustling  39 energy displayed in little settlements, in  40 fresh and healthy localities, make the old  41 villages look sleepy and desolate by  42 comparison, their tall weather-stained totems,  43 in impersonation of solitude, completing the  44 effect.  45 Such being the diverse influences at work,  46 the miscellaneous earnings by packing, mining  47 and so forth, are invested by the Indians in 28511  Submissions by Mr. Macaulay  1 the faith that they are laying up a future of  2 more comfort and repose, on their holdings and  3 in the embellishment of their homes.  On the  4 former are raised a sufficient amount of  5 potatoes and vegetables to supply the latter.  6 Thereby is asserted no little aptitude for  7 mixed farming, which in itself is a step  8 towards it, and shows the forecast of the work  9 to become more general."  10  11 That is as much a comment on the purpose of Loring's  12 activity as to the actual achievements of the Indians,  13 but it helps explain what he's trying to achieve.  And  14 over the next page he deals with the Hoquelgets and  15 under Resource and Occupation the general comment is:  16  17 "The resources of the Indians of this group are  18 hunting, trapping and fishing; in all of which  19 pursuits they engage.  The Indians of the  20 Hoquelget village and Moricetown follow packing  21 with their horses, and mining to some extent.  22 Only the Fort Babine men do some packing with  23 their horses, and mining, being in direct line  24 of travel to the crossing of Takla Lake for the  2 5 Ominica."  26  27 And so that's the first reference that I can find to  28 the Hagwilget and Moricetown Indians packing and  29 mining.  It was after the turn of the century.  That  30 was intended that -- those reports, my lord, were  31 intended to show the difference between the Gitksan of  32 the western and central villages, the Gitksan of the  33 northern villages on the other hand and the  34 Wet'suwet'en of the -- what we now call Hagwilget and  35 Moricetown.  36 MR. GRANT:  If my friend is finished this tab, I just want some  37 clarification from him, because he's dealing with the  38 northern villages.  One of his references the 1896 one  39 of August 31, Loring says, after referring to  40 Kisgegas, the latter village is the most northerly one  41 of the agency.  It's right under the reference my  42 friend referred to.  Now, is my friend attributing  43 that to Loring not knowing at that time about Kuldo or  44 that in 1896 or that he was just mistaken in his  45 directions?  Because my friend is here dealing with  46 the northern villages.  47 MR. MACAULAY:  Well, by that time it seems to me, if I can go 28512  Submissions by Mr. Macaulay  1 back in my notes, he had been to Kuldo and it may be  2 that he thought that Kisgegas was north of Kuldo.  3 Yes, he was in Kuldo the first time in March 1890.  4 MR. GRANT:  Thank you.  5 THE COURT:  So this is a mistake?  6 MR. MACAULAY:  But Kuldo was a minor, a very small place.  It  7 had 30 odd people.  Kisgegas on the other hand was the  8 largest village of all at that time.  Loring had not  9 only been to Kuldo, he had been to their winter camp  10 before then.  A place called Getsup.  We have seen  11 that.  I couldn't tell you where -- whether Getsup is  12 north of Kisgegas or not.  I think it's described as  13 50 miles north of Hazelton -- Kispiox.  There are no  14 milestones there and no roads and it must have been  15 difficult to make out exact distances.  One of the  16 things that Loring dealt with at Hazelton not only in  17 the field but at Hazelton and during his visits to the  18 villages themselves also, and I am talking now about  19 the Gitksan villages and the two Wet'suwet'en villages  20 as distinct from visits to the camps and fishing  21 stations in the field, was to settle the unending and  22 recurring disputes, and I will be making submission  23 about that yet.  At tab 45 I've included first a note,  24 I think it's his second report, November 2, 1889.  His  25 first report was a couple of days earlier.  He says:  26  27 "It has been a busy time with me ever since  28 arrival.  There are Indians streaming in from  29 all directions, day in, day out.  They either  30 come to tell me their grievances, or have  31 disputes to settle.  One about a Martin skin,  32 the other about a Canoe or a fishery."  33  34 And he says :  35  36 "Sickness and ailments of all descriptions to  37 attend to,"  38  39 And so on.  Tab 46 he refers to a visit to Moricetown  40 where he said:  41  42 "I thought it necessary to go there on account  43 of disputes of fishing platforms in the canyon  44 of the Hoquel-get river."  45  46 And there clearly he's talking about the Moricetown  47 Canyon.  So there were disputes in the villages too. 28513  Submissions by Mr. Macaulay  1 That's in March 1893.  2 In December 1893, back at Moricetown, and he says:  3  4 "There had been trouble at Lack-al-sop",  5  6 Moricetown,  7  8 "concerning a bridge, spanning the canyon  9 there.  One faction of the Indians there  10 claiming sole right to same and tore up the  11 bridge, forbidding to replace it by another at  12 that point.  I arranged matters satisfactorily  13 and am assured no further trouble will arise in  14 the subject."  15  16 The next report about going to the villages themselves  17 about these things, again he's going to Moricetown in  18 December 1894.  He says:  19  20 "My trip to Lack-al-sop consumed four days.  21 There I spent two days in settling some  22 disagreements and complaints."  23  24 In the next -- after the divider, the green divider,  25 the next report is April of 1895.  He's back at  26 Lack-al-sop, at Moricetown, where he says:  27  28 "... I found the Indians well and anxious to  29 have me have settle some dissensions as to  30 fishery rights, etc."  31  32 And he adds that:  33  34 "Most of the young Hoquel-get Indians are still  35 out killing Bears in their Caches and are yet  36 trapping, while fur is still in its prime."  37  38 The next report of that kind is that I have included  39 in the -- at that point is June 1895 and he, with Mrs.  40 Loring as is variably the case, until she died anyhow,  41 he left:  42  43 "accompanied by Mrs. Loring as Interpreter by  44 Canoe with Captain to same and three sailors  45 for Old-Kitse-gukla, distant eighteen miles  46 down the Skeena,"  47 28514  Submissions by Mr. Macaulay  1 And he says:  2  3 "There I found everything well, few contentions  4 existing, I easily disposed of."  5  6 The next one is a report of February 1896, the  7 following year, and again he says at the beginning of  8 the report:  9  10 "I have the honour to report that on the 3rd,  11 accompanied by Mrs. Loring, as Interpreter, and  12 Indian with a toboggan, and another as Packer,  13 I left here on the ice of the Skeena River for  14 New and Old Kitse-gukla, villages nine and  15 nineteen miles, respectively below here.  16 Mainly the object of my visit was to straighten  17 out some difficulties existing, at the latter  18 place, in regard to claims to the use of  19 smokehouses by different families near several  20 of the fisheries and disputes as to some of the  21 latter.  After settling many other matters of  22 contention there and, by way, at  23 New-Kitse-gukla, I returned, arriving back here  24 on the 7th."  25  26 The next report of that in that vein is July 31, 1896,  27 the same year.  On the second page he's starting to  28 call it Moricetown now.  He's back at Moricetown.  He  29 says:  30  31 "During my stay there, from the 24th to the  32 27th, I adjusted many difficulties as to claims  33 to rights to fisheries etc., also the  34 contention as to attempted charging toll by a  35 faction of Indians having re-built a good  36 bridge spanning the Hoquel-get River at the  37 canyon there, by those, having on account of  38 absence, given to aid in its re-construction.  39 I brought the population to a mutual  40 understanding to render voluntary assistance in  41 any repairs needed, from time to time, in the  42 future, avoiding any differences, as to special  43 claims to arise."  44  45 The next report I have included is August of 1896.  46 That's a report in which he mentions going -- this is  47 just by the way.  He mentions going to Kisgegas and he 28515  Submissions by Mr. Macaulay  1 was accompanied by Mr. -- Reverend Mr. Field, who is  2 the Anglican vicar at Hazelton.  And on page two he  3 reports, the second paragraph:  4  5 "On the 22nd all the families of the village,  6 in neat attire, called on me, in contrast to  7 only a few years ago, when the blanket was worn  8 entirely, not one was to be seen then.  On the  9 evening settled everything in way of  10 difficulties existing amongst the Indians."  11  12 At the bottom of the page, my lord, he gives a  13 description of what he's doing there.  He's setting  14 out hundred foot lots.  He says:  15  16 "The lots on the new village site"  17  18 There is a new village being built,  19  20 "are 100 foot in width and so arranged that the  21 houses on those of the second street will come,  22 alternately, to the centre of the open spaces  23 to those of the first.  24 There are thirty-eight houses in the old  25 village, five only of modern pattern.  The new  26 site will be built up entirely of the latter  27 land."  28  29 It's an example of the shifting of the village from  30 the old site to the new and the construction of single  31 family dwellings, which I will submit had a very very  32 considerable impact on the population.  33 At the bottom there is a PS where he says:  34  35 "I, here, after concluding may yet be permitted  36 to state to have in the foregoing forgotten to  37 mention, that of the seven of the locations  38 taken up at once of the nineteen, for the  39 present laid out, four were immediately covered  40 with logs & building material, already prepared  41 and got out, by the populating forming -- "  42  43  44 That -- there is a typo there.  45  46 "population forming, a 'bee', Christians by  47 others yet Heathens, assisted." 28516  Submissions by Mr. Macaulay  1  2 That was the then current term of our people who were  3 Christians.  4 MR. GRANT:  What was?  5 MR. MACAULAY:  Heathens.  The next report of these — these  6 disputes in the villages themselves is a report of  7 September 1896.  It's a slightly different kind of  8 dispute.  He says:  9  10 "... one of the principal difficulties  11 existing"  12  13 This is at Kispiox.  He got there on horseback this  14 time.  There was -- he says:  15  16 "There one of the principal difficulties  17 existing was, that a new Salvation Army party  18 stated — "  19  20 "Started" that should be,  21  22 " -- in opposition to the old one, now  23 converted to an Epworth League."  24  25 The Epworth League was a Methodist organization.  26  27 "On investigation found that it was decreed the  28 latter to be displaced by the former, and the  29 Methodist Missionary Mr. Pierce, who is doing  30 good work there, to be driven off the field.  31 That move I nipped in the bud and thereby  32 prevented perhaps serious trouble therefrom  33 likely to arise."  34  35 And then he refers to the a complaint that a cabin had  36 been destroyed by fire.  And in the same letter  37 towards the bottom he reports that he and Mrs. Loring  38 went to "Kit-wan-gah, a village twenty-nine miles down  39 Skeena" on the right bank, and he reports that he was  40 "busy engaged in hearing complaints and settling  41 matters, working on lines of locations and holding  42 conference," and doing the same.  On the following  43 page, that same report, he says:  44  45 "On my way back,"  46  47 He's coming back from Kitwanga, 28517  Submissions by Mr. Macaulay  1  2 "I stopped and called in at every fishing camp  3 on both sides of the Skeena, settling many  4 points under dispute saving thereby the Indians  5 in those isolated parts leaving their  6 occupations."  7  8 In other words, he's saying they wouldn't have to come  9 into town to have them settled.  10 The report of October 1896, it starts with an  11 account of a trip to Ilie-sam-dagh, the fishery 59  12 miles up the Skeena - that must have been pretty close  13 to Kuldo - and situate on its right and left bank.  14 But in the second paragraph he says:  15  16 "Many of the, up to then, existing difficulties  17 I arranged at the Agency, but by my deferred  18 visit I obligated by appearing in person and  19 settling every matter brought before me."  20  21 What he's saying there is that although this is the  22 first time he got to Ilie-sam-dagh which we saw  23 before, very considerable station with eleven  24 smokehouses and 19 fishing stations, he had earlier  25 before October 1896 settled a number of those  26 difficulties at the Agency, that is at Hazelton.  So  27 you can't -- you can't count up the number of cases in  28 which there were difficulties by looking at the  29 reports of the out trips.  30 On November 30, 1896 he went to Kitse-gukla with  31 Mrs. Loring, three dogs and a toboggan.  And he says:  32  33 "The object of my visit was to allay the  34 dissensions existing there between a Salvation  35 party and Heathens, also to adjust contentions  36 as to encroachments on one another's wood camp  37 stations for supplying the steamer  38 'Caledonia'."  39  40 And on the following page at the very end he says:  41  42 "The bands of Indians on visiting, in turns,  43 each other's villages are bound to congregate  44 here, in large bodies, seeking the Agency for  45 advice, and have determined upon differences of  46 very considerable nature, to which by applying  47 remedies after the difficulties attending their 2851?  Submissions by Mr. Macaulay  1 application are carefully to be considered."  2  3 What he is saying there is they are coming in, that's  4 the feast season, and while they are in town for the  5 feast, he's dealing with these complaints at that time  6 too.  7 In 1897, on the second page, he went to Kispiox  8 and dealt with another problem dispute.  He said:  9  10 "The leaving of the Indians there, on Monday  11 following for their respective hunting grounds,  12 prompted me to pay them a visit.  Many cases  13 demanded official attention, and especially  14 concerning the settling on separate holdings;  15 also the attempted assuming, in part, the  16 chieftain-ship by Big Louis over Ghail, his  17 uncle.  The former conceived the idea that he  18 should be ahead of the Heathens, left, whilst  19 the latter after becoming a Christian, ought to  20 confine himself to the party of the latter,  21 only."  22  23 And he returned to -- that was an account of a --  24 Ghail was the head chief of Kispiox.  He had  25 apparently become a Christian and the issue arose  26 whether or not he could still lead his -- those of  27 his -- his house, his village, perhaps.  His village  2 8 who were -- hadn't gone that way.  And Big Louis, the  29 constable, was prepared to take them on.  30 In 1897, March 1897, he reports having to deal —  31 well, he says -- he says this:  32  33 "In the spring of every year, since the Str.  34 'Caledonia' has been plying on the Skeena, the  35 people of the respective villages, named, are  36 arrayed in opposition to each other, and  37 indeed, those of one and the same community  38 bitterly contend, even to threatening violence,  39 for locations whereon to cut cordwood.  Some of  40 the latter are more favoured with the advantage  41 advantage for the steamer's landing, and  42 facilities, in general, for handling the wood  43 than others, such as having hillsides sloping  44 towards the river for chuting, etc."  45  4 6 And he mentions how much the Indians received per cord  47 and then he says he: 28519  Submissions by Mr. Macaulay  1  2 "went about six miles below Kitse-gukla, with  3 the interested parties, arranging matters  4 satisfactorily in that direction and returned."  5  6 Which was another form of dispute that he was having  7 to deal with but of a new kind.  Back in Moricetown,  8 which he has come back to calling Lach-al-sop, in  9 October of 18 -- oh, we are back in 1893 here.  The  10 next one.  And that's about the bridge again.  I don't  11 think we have to --  12 MR. GRANT:  That's the same.  13 MR. MACAULAY:  Well, it's the expense account for the same trip.  14 And then in 1917 to show that this didn't entirely die  15 out by any means, January 1917 he says:  16  17 "During the month, many of the people of the  18 villages on the Skeena were visiting each  19 other; and this office had steadily being  20 beseiged with those having complaints to make,  21 principally affecting hunting and trapping  22 grounds, accumulated during the whole of the  23 season, and time to come."  24  25 So that he's still -- and this is January, the season  26 when they congregated for the winter feasts, he's  27 still got these disputes over hunting and trapping  28 grounds to deal with.  My lord.  29 THE COURT:  All right.  2 o'clock, please.  Thank you.  30  31 (PROCEEDINGS ADJOURNED FOR THE LUNCHEON RECESS)  32  33 I hereby certify the foregoing to  34 be a true and accurate transcript  35 of the proceedings transcribed to  36 the best of my skill and ability.  37  38  39  40  41  42 Laara Yardley,  43 Official Reporter,  44 UNITED REPORTING SERVICE LTD.  45  46  47 28520  Submissions by Mr. Macaulay  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Macaulay.  4 MR. MACAULAY:  My lord, may I refer back to a question raised by  5 my friend.  It was a document handed up by my friend,  6 part of his map.  7 THE COURT:  This morning?  8 MR. MACAULAY:  It was a map.  The Plaintiffs' map of their  9 fishery.  10 THE COURT:  Oh, yes.  11 MR. MACAULAY:  And I am just looking for my copy of it.  And it  12 had to do with the distances, or at least distances so  13 far as Loring understood them.  I will make a copy of  14 this other -- another report for your lordship.  But  15 it is to your document number 1209D, 238A.  And in  16 fact what it is, is a list of locations.  It says:  17  18 "British Columbia, Babine Agency.  19 List of locations or plots claimed by Indians  20 on the ground that they have been held by them  21 in continued occupation for many years past."  22  23 And the first list are a list of five that are --  24 locations that are near Kitwanga or Lauren Creek and  25 so on.  That is the western end of the Skeena.  There  26 are a number of others.  There was Kitwancool,  27 Andimaal.  And then on the second page there is a list  28 of the Kispiox fisheries on the Skeena in order  29 proceeding up the river from Kispiox.  And the first  30 one he lists -- and they are all the Indian names.  31 The first one is on the right bank two miles above  32 Kispiox.  And then he goes on, the next one is on the  33 left bank one and a half miles beyond the latter.  And  34 each time it is beyond the previous one, if your  35 lordship follows me.  So that after the second one we  36 are three and a half miles up from Kispiox.  If you  37 add them up they come to 10, 12 miles.  38 THE COURT:  To where?  3 9 MR. MACAULAY:  Well, to Woolp.  4 0 THE COURT:  Yes.  41 MR. MACAULAY:  Remember I showed your lordship Woolp.  I don't  42 know if your lordship has that map.  43 THE COURT:  Yes, I have it here.  That's where your friend says  44 it might have been Ksan.  45 MR. MACAULAY:  I think what I had better do is get a copy for  46 your lordship and my friend.  I hadn't included it in  47 the list because it didn't mean -- they had been by 28521  Submissions by Mr. Macaulay  1 and large reserved, that particular line of them.  2 THE COURT:  Yes.  3 MR. MACAULAY:  But whether or not -- my point is whether or not  4 Loring was right on his mileages, he called Woolp --  5 he considered Woolp to be, say, 11 miles or whatever  6 it is above Kispiox which would be 19 miles above  7 Hazelton.  8 THE COURT:  Yes.  9 MR. MACAULAY:  And what he describes as Ksan would be some miles  10 beyond that, Lower Ksan and Upper Ksan 6 or 7 miles  11 further.  The names often, but not always, correspond  12 with the names that the -- sometimes, I should say,  13 but not always -- the names in Loring's list  14 sometimes, but not always, correspond with the names  15 now given to them by the Plaintiffs.  I don't say one  16 thing or another about that.  But Woolp is certainly  17 the same name.  It is now spelled W-O-O-O-L-P.  The  18 only difference is that Loring had one less 0.  19 THE COURT:  Mh'm.  20 MR. MACAULAY:  He spelled it W-O-O-L-P, which is the second last  21 one.  22 MR. GRANT:  It appears the last one is the same as or spelled  23 differently Xsa'iis.  That's right on the edge of that  24 sketch map, my lord.  X-S-A, apostrophe --  25 THE COURT:  L-I-S?  26 MR. MACAULAY:  I-I-S.  27 THE COURT:  Or is it L-O-S?  28 MR. MACAULAY:  Well, on the Plaintiffs' map.  It is X-S-A  29 apostrophe, L-L-S, or is it L-I-S?  30 MR. GRANT:  I-I-S.  Xsa'iis.  31 MR. MACAULAY:  And Loring calls it Ksa'iis.  I don't know if  32 Madam Registrar is in the position to make  33 photocopies, a couple of photocopies of this?  34 THE COURT:  Oh, yes.  35 MR. MACAULAY:  It is easier.  3 6 THE COURT:  Yes.  37 MR. MACAULAY:  Rather than to wait until tomorrow or something  38 like that.  But I thought that since we have this map  39 here that that ought to be looked at.  And then we  40 can -- it's a matter of adding up the half miles up to  41 that point.  42 THE COURT:  Yes.  43 MR. MACAULAY:  Now, Loring may be wrong in his mileages, but  44 those were his ideas of mileages anyhow.  And what it  45 seems, and I had looked at that list when I fell on  46 the material concerning -- about Ksan because I was  47 trying to find out where these canyons were on the -- 28522  Submissions by Mr. Macaulay  1 at their map, map 22.  2 THE COURT:  I'm sure they would be pretty obvious on the ground.  3 MR. GRANT:  Yes.  4 MR. MACAULAY:  Oh, I suppose so.  5 MR. GRANT:  Yeah.  There is not very many canyons in that  6 stretch.  7 THE COURT:  I don't remember having them pointed out to me.  8 MR. MACAULAY:  You can't see them from the road, apparently.  9 The ordinary road, so I'm told.  You have to go to  10 the -- you have do go to the edge of the river.  11 THE COURT:  We flew right down the river at that point, but I  12 don't remember them being pointed out.  13 MR. GRANT:  Yes.  And that's what I was trying to recall.  But  14 my notes are that that canyon wasn't pointed out.  But  15 there is not that many between them --  16 MR. MACAULAY:  But then we weren't looking for them, either.  At  17 that time, my lord, there had been no mention made of  18 the Ksan Canyons.  19 THE COURT:  No.  20 MR. MACAULAY:  Now, we know that he thought — he considered  21 Kisgagas to be the -- it was then considered Kisgagas  22 was about 34 miles up the river.  But that was four  23 miles in from the Forks.  So that the Forks themselves  24 would be -- give or take a mile or two, the Forks  25 would be about half a mile up the river from Hazelton.  26 I can't tell your lordship exactly where those canyons  27 are.  2 8 THE COURT:  No.  29 MR. MACAULAY:  Except by reference to these reports.  An air  30 photo would be the thing we would need, I think, to  31 determine exactly where they are.  32 MR. GRANT:  My lord, just in my mileages here all I did was use  33 a pen and this scale followed from the Forks up when I  34 gave that estimate of 18.  It was my own count.  35 THE COURT:  Yes.  36 MR. GRANT:  From the scale just to give you an idea.  And that  37 was, of course, the river miles.  38 MR. MACAULAY:  Loring made lists of that kind on a number of  39 occasions.  He listed the Kispiox, for instance, all  40 the Kispiox fishing stations on the Kispiox River  41 going 70 miles up the river.  He listed them on the  42 Skeena.  And we have a lot of -- a lot of those names  43 now, those earlier -- earlier reports.  And they often  44 correspond with the names we have now, which isn't  45 surprising because Mrs. Loring -- Mr. Loring might  46 have been not much of a linguist, I don't know if he  47 was or not.  But Mrs. Loring, of course, spoke the 28523  Submissions by Mr. Macaulay  1 language.  2  3 Now, my lord, I say at the bottom of page 12 of my  4 notes that a great deal of building of single family  5 dwellings was done by the Indians on dry ground away  6 from the old villages starting in 1890, and continuing  7 for the next 30 years.  The first reference, and I am  8 going to go through that one fairly quickly, tab 47 is  9 an annual report of 1894.  It is the second page of  10 that one, that annual report that I have sidelined.  11 This is, mind you, the report itself is dated July  12 1894.  He says:  13  14 "The general progress made by all the above  15 mentioned bands" --  16  17 And he was referring to the Gitksan bands.  18  19 "...from year to year, is remarkable,  20 especially during this last year.  The houses  21 built of late are all of the modern kind and  22 their furnishings correspond."  23  24 And then farther down the page which I have  25 sidelined also:  26  27 "The most progressive of the eight villages is  28 Get-an-max.  The people of the younger  29 generation are anxious to have new homes with  30 some land attached, removed from all connection  31 with the old heathen village.  32 The plateau, having the old village on the  33 left bank of the Skeena, extends in a straight  34 line across the delta to the Hagwilget River.  35 On the portion reaching in length to the latter  36 river and its right bank, I laid out a new  37 village, leaving this agency, at a good  38 distance, in the middle of both.  According to  39 nature of the ground, it was most suitable to  40 give each family six hundred feet in length and  41 one hundred feet in width, and averaging about  42 fifty-four feet additional in length as  43 foreground to each location.  This makes each  44 holding a trifle over one and a half acres.  45 The young people of other bands are ready  46 to follow the above mode of living, and are  47 eager to abandon the old rookeries for small 28524  Submissions by Mr. Macaulay  1 holdings and severalty."  2 And that was in 1894.  3 THE COURT:  He wasn't laying out reserves there, was he?  4 MR. MACAULAY:  Oh, no.  This was inside reserves.  5 THE COURT:  Oh, yes.  6 MR. MACAULAY:  This severalty, these are locations inside  7 reserves.  8 THE COURT:  All right.  Thank you.  9 MR. MACAULAY:  And it is not the fact that they are reserves,  10 what I am saying -- pointing out to your lordship is  11 they were moving from the traditional villages  12 completely.  13 MR. GRANT:  Well —  14 MR. MACAULAY:  To the — the process had started.  15 THE COURT:  To new locations?  16 MR. MACAULAY:  New locations of single dwelling families.  17 THE COURT:  Within the reserve?  18 MR. MACAULAY:  They were within the reserve, yes.  19 MR. GRANT:  I just want to be clear.  I understand that my  20 friend's thrust of this is that they were moving from  21 the longhouse type of structure to individual houses  22 within the villages, within their villages; is that  23 right?  24 THE COURT:  Near the villages.  25 MR. MACAULAY:  Near the villages.  26 MR. GRANT:  Or to new villages.  27 MR. MACAULAY:  Well, they were new village sites near the old  28 village sites.  2 9 THE COURT:  Yes.  30 MR. MACAULAY:  We can take an example of something we can see  31 today.  We can see the last remnants of the old  32 Hagwilget Village down in the canyon as you go over  33 the bridge.  34 THE COURT:  Mh'm.  35 MR. MACAULAY:  There is still some stumps and posts there.  And  36 in the 1920s Jenness was able to locate each one, The  37 House of Many Eyes, The House in the Middle of Many.  38 And all of those houses that had names, and the poles  39 that were in front of the various ones.  Those have  40 disappeared now.  But it was from those locations to  41 the present locations that they were moving.  42  43 And in the next -- the report I mentioned July  44 1896 he talks about Moricetown.  He says:  45  46 "The major part -- Of the twenty six houses at  47 Moricetown, the major part are of the old 28525  Submissions by Mr. Macaulay  1 Indian kind; of heavy beams and thereto split  2 cedar slabs attached.  Nine are of improved  3 models, of hewn logs and nicely shingled; I am  4 assured that any to be built, in the future,  5 will be of the latter pattern."  6  7 That was in 1896.  So it was starting at Moricetown.  8  9 In 1897, July 1897 he said, at the second  10 paragraph of the first page here:  11  12 "A new bridge at the lower Hoquel-get village  13 is built, and some comfortable houses are there  14 being erected and other improvements made."  15  16 And he talks about a new church.  Now, "the lower  17 Hoquel-get village" there, I submit, is what we call  18 Hagwilget.  Lachalsop was the other name for  19 Moricetown.  20  21 And in 1897 in May, he says at the bottom of the  22 first page:  23  24 "The people thus absent, and those at the  25 coast, would much rather stay at home adding to  26 their improvements, could it be, at all,  27 possible for them to earn there the means  28 necessary, contiguously.  29 Since the Indians here have started nice  30 houses outside of the old villages, and have  31 become to take an interest to improve same and  32 their surroundings, I deplore much this fact,  33 as it must follow, of necessity, that progress  34 in that direction is retarded."  35  36 He is saying they are down at the coast.  And because  37 they are down at the coast, they are not able to do  38 the work that he would like to see done, and that they  39 would like to do.  40  41 And then he goes on to describe a new house on the  42 following page.  43  44 "The new houses of the Indians contain all the  45 articles for comforts and convenience to be  46 wished for, such as stoves, tables, shelves,  47 coal oil lamps, chairs, bedsteads overspread 28526  Submissions by Mr. Macaulay  1 with good blankets, coverlets, etc.  The  2 outground are animated by children playing  3 about well based and comfortably dressed.  In  4 the instances of the people's absence  5 everything, thereabouts, seems forsaken and  6 still."  7  8 And he goes on about the domestic life and the  9 gardens.  10  11 In the next report I have included in this group  12 it's a -- in the year 1900 in October.  And he says in  13 the first page:  14  15 "I have the honour to state that the Indians  16 have been during this month exceptionally busy  17 in building and perfecting their homes.  It is  18 by the way worth noting that all, but those few  19 of the very old, gregarious and tenacious of  20 deeply rooted habits, are very comfortably  21 housed."  22  23 We have that read that before, my lord.  24  25 "Commonly considered, the progress made and  26 sustained is astounding, the drawback  27 notwithstanding of their by circumstances  28 enforced absenteeism during the best parts of  29 the season.  The Indians' houses are nicely  30 furnished and arranged, and are made as  31 suitable as means can afford."  32  33 And then they go on about their wives and so on.  34  35 "In drawing conclusions with the old villages  36 and the new..."  37  38 And he makes the obvious comparison.  And they are  39 sowing grass on the sites of the old rookeries.  40  41 The next one I want to refer to is October 31,  42 1901.  On page 2 it briefly says:  43  44 "In all the villages, and especially on those  45 on holdings in severalty, a good many houses  46 are being constructed, mainly, towards  47 completion." 28527  Submissions by Mr. Macaulay  1  2 In 1902 in July, on the second page he is talking  3 about Rocher Deboule.  That was one of the names, the  4 name most commonly often used for Hagwilget in the  5 earlier times and in his way.  He says:  6  7 "On the 29th inst., I repaired to the village  8 of Hoquel-get, or Rocher Deboule.  The  9 concourse of the Indians to meet the Reverend  10 Father Morice, there, induced me to make use of  11 the occasion, and enabled me to set to rights  12 any contentions existing.  Many of the people,  13 especially many of their children, I  14 vaccinated.  15 I found various improvements made and under  16 way, such of land fenced, planted and cleared.  17 Four new houses of new pattern are under  18 construction."  19  20 And he went on to say there was a new bridge.  21 That's, I suppose, the bridge we see now or its  22 predecessor when you drive in towards Old Hazelton.  23 August 30, 1902 on the second page has a similar entry  24 about Moricetown.  He had reported on all the old  25 plank houses in Moricetown.  And now he is says:  26  27 "On the 25th inst., I repaired to Moricetown to  28 subdivide some wild hay lands, which step  29 because of necessity, in order, to avoid in  30 future the protrusions to same of a chosen few,  31 and out of proportion to the use of others.  32 Then, the supply of salmon, stored for the  33 coming winter, is of an enormous quantity, by  34 comparison with the usual amount.  About the  35 village, many improvements have been made and  36 are under way, and five new houses are under  37 construction."  38  39 So that's happening in Moricetown.  In September  40 30, 1902 he says, after saying that the Kitksuns have  41 returned from the coast with the exception of the ones  42 carrying freight in their own canoes, by canoe, he  43 says:  44  45 "The greatest activity is developed among them  46 by erecting nice frame houses on their  47 respective locations in selected places 2852?  Submissions by Mr. Macaulay  1 designated for that purpose.  2 At present five houses of that description  3 are under way at Glen-Vowell, and three  4 here..."  5  6 And that's Hazelton.  7  8 "...which occupation in this respect is more or  9 less being pursued along the river.  10 All fencing done is with an effort to  11 conform with the main object in view, to keep  12 animals from overstepping each others grounds.  13 The movement is conducted with an energy  14 surprising to behold.  There is a continuous  15 striving in keeping pace with each other as to  16 the best results in every respect."  17  18 And at the bottom of the next page on the same report:  19  20 "Constantly more land is being broken up and  21 fenced.  Houses of improved pattern are  22 becoming the rule, and their general drift is  23 by degrees tending from somewhat nomadic toward  24 more settled conditions."  25  26 And he is talking there about the Hagwilgets who  27 had a more traditional way of life.  And as he  28 described it nomadic.  29  30 Then in October 1903 he says:  31  32 "On the 26th inst., I repaired to New  33 Kitsegukla, in order to arrest and remedy any  34 mistakes in the settlement of the new locations  35 there which later on may become too firmly  36 established to admit of alteration.  That there  37 are already 15 houses on that locations in  38 severalty there, attests to the amount of  39 energy developed for a good purposes.  In  40 regard the latter my travelling diary,  41 accompanying returns for this month, furnishes  42 some of the particulars.  43 In addition to dwellings of modern pattern,  44 everything else will, also, correspond to suit.  45 The fences are already up, and such as follow,  46 will be models of strength."  47 28529  Submissions by Mr. Macaulay  1 There is the development of a new town, my lord,  2 that's New Kitsegukla.  3 MR. GRANT:  That's right.  Because religous matters that my  4 friend is aware of.  5 MR. MACAULAY:  As we saw 41 people leaving the Old Kitsegukla  6 and going down there.  And I'm sure my friend will  7 correct me when I suggest -- if I'm wrong, if I  8 suggest that is now Carnaby.  9  10 In December 1905 Loring says:  11  12 "I have the honour to state that everything is  13 doing well.  Also this month has proved very  14 mild for this time of year.  It is gratifying  15 to note the general progress developing amongst  16 the Indians from year to year.  On the  17 locations in severalty...",  18  19 those are these locations inside the reserves,  20  21 "...the condition is especially marked.  22 Though, to begin with, the Indians were very  23 partial to favour the small cabin, they are now  24 vying with each other, who can erect the  25 roomiest of houses.  Clean water in pans and  26 kettles as a rule is on their stoves."  27  28 That was a health measure, my lord, and was apparently  29 being pushed at the time.  30  31 And in May of 1919 he is reporting generally as  32 follows, and that is at the first page at the bottom.  33  34 "Without exception all habitations are situate  35 on healthy soil, which mainly evolved by the  36 forming of locations in severalty, and thus  37 having afforded the opportunity to that  38 effect."  39  4 0 And over the page:  41  42 "The Indians' houses are now of a well-lighted  43 and commodious pattern.  Their successive  44 stages of development are yet in evidence, of  45 which the small log cabin was the last to have  46 been superseded.  47 In the major part the locations consist of 28530  Submissions by Mr. Macaulay  1 self-contained homes, and a marked improvement  2 in the domestic life of the people is likewise  3 keeping well apace."  4  5 He is there talking about the change from the  6 small log cabin which was the first of the new type of  7 house to the frame house.  8  9 My lord, at the top of page 13, could I hand out a  10 new page 13.  There is a typo there towards the bottom  11 of the page.  I have repeated the words "Hagwilget  12 Clan Chief" twice.  So I have just eliminated one of  13 those.  And I would prefer if your lordship and  14 everyone else had the correct copy.  15  16 Now, as a result of the move out of the  17 traditional plank house or longhouse, purists calls  18 them plank houses, my lord.  The objection apparent is  19 that the Iroquois called them plank houses.  And if  20 you called them longhouses there may be some  21 confusion.  As a result of the move out of the  22 traditional long houses described by -- described in  23 Loring's reports of July 31, 1896 and November 30th,  24 1896 was that the older people couldn't rely on the  25 extended family for support.  And that to bet, my  26 lord, is a very major change in the economic and  27 social structure.  28  29 The first two reports under this tab are merely  30 his descriptions of what he is talking about, the  31 physical long house and plank house.  We have just  32 seen one at Moricetown.  That's the July 31, 1896  33 report on the second page.  That is the one:  "The old  34 Indian kind of heavy beams and thereto split cedar  35 slabs attached."  36  37 The next report under that tab describes a Gitksan  38 one to an extent, anyhow.  On page 2 of the report of  39 November 30, 1896 where he is talking about the houses  40 at Kitsegukla, Old Kitsegukla where he says:  41  42 "The village consists of three nice large  43 frame, seventeen split cedar and nine  44 log-houses.  The first, though good buildings,  45 are too large for comforts, and like the second  4 6                     named provided with the olden times  47 smoke-escapes, where at all the log-houses -- 28531  Submissions by Mr. Macaulay  1 whereas all the log-houses contain stoves."  2  3 The log-houses being cabins.  It is a description of  4 three kinds.  There is the frame traditional house, a  5 huge house but with the hole in the ceiling.  And then  6 the old style of split cedar.  And for that time, and  7 that was 1896, the new innovation which was the little  8 log cabin.  9  10 The next tab shows -- is the one on which I base  11 my submission.  He says in 1903 about these places,  12 about this development of social and economic change  13 from the longhouse to the single family dwelling, he  14 says:  15  16 "A good many of the Indians of locations in  17 severalty are busy getting out logs and  18 whip-sawing.  The old people soon will resort  19 to their winter camps in the timber.  Only some  20 of the latter population are yet to some extent  21 depending on getting occasional relief from the  22 Department, which necessity, in a few years to  23 come, will entirely have passed away with them.  24 The old people have lost the support, which  25 formerly a lodge containing the members of  26 three or four generations, afforded in common.  27 Divergence of ideas, contrasts in habits, and  28 so forth, strike the line of segregation.  29 Though the conditions evolve the changes in the  30 latter respect, it rests yet with the old  31 people to furnish the mainstay for the last  32 ditch, when all else, but the salmon fails."  33  34 That last bit what he is saying there is that the  35 old people are still serving the purpose of putting up  36 the supply of dried salmon which is the main stay for  37 the last ditch.  But I submit that that shows what's  38 been happening that the change in dwelling necessarily  39 involved a change in economic and social position.  40 And they no longer were enjoying -- the old people no  41 longer enjoying the support of the lodge.  It's the  42 only reference that can with some certainty be made to  43 the House, capital H, in all the reports.  He doesn't  44 call those old buildings lodges usually.  I think the  45 lodge is the unit, the social and economic unit he is  46 talking about.  47 THE COURT:  I don't even see the reference to House, capital H. 28532  Submissions by Mr. Macaulay  1 MR. MACAULAY:  No, it isn't.  I say it is the only reference to  2 an organization in his reports.  3 THE COURT:  To a communal —  4 MR. MACAULAY:  Well, to a House type — he talks about crests.  5 But this is the only, seemingly the only reference to  6 a capital H House which he calls a lodge.  7 THE COURT:  Yes, okay.  8 MR. GRANT:  My friend suggests that lodge is not referring to  9 the dwelling?  10 MR. MACAULAY:  Well, his word for those dwellings was either  11 rookerie or shack.  I just mention when he physically  12 described them, going back to the previous tab, he  13 called them houses.  14 "Of the 26 houses of Moricetown, the major part  15 of the old Indian kinds, heavy beams, et  16 cetera."  17  18 And then in the other one he -- yeah, he calls them  19 houses or buildings.  20 THE COURT:  Well, he is talking about generational communal  21 living of some kind?  22 MR. MACAULAY:  Yes.  23 THE COURT:  All right.  24 MR. MACAULAY:  If there is a reference to a house in the sense  25 of wilp which is the, I believe, the Gitksan term for  26 it, that's the one.  And he uses the term only that  27 once, lodge.  Though he talks, and I mentioned it a  28 few times, about crests.  29  30 I come now to the result of that development.  31 We've seen that relief was started right away in 1889,  32 and that's tab 50.  He made the arrangements at the  33 Hudson's Bay store.  And I am turning now, my lord, to  34 the next -- the other volume of these Loring reports.  35 The details of relief distribution is reported, as I  36 had mentioned earlier, from 1893 to 1913.  They are in  37 the exhibits.  38  39 By 1911 the Gitksan had little need for that kind  40 of support.  And that shows in tab 50.  51, I'm sorry,  41 at page 2.  Where he says:  42  43 "It may here be worth mentioning that of late  44 years the Kitsums have become that self-reliant  45 that seldom one of their number requires any  46 assistance, and the cases where relief are yet  47 to be extended remains with the Hagwilgets and 28533  Submissions by Mr. Macaulay  1 the Babines."  2  3 That's not to say, my lord, that there aren't any  4 Gitksan at all, but that it's much less and he is  5 noting it.  6 MR. GRANT:  The next paragraph should be read.  You should note  7 as well, my lord, to put it in context.  8 MR. MACAULAY:  Well, it simply says:  9  10 "The supply of salmon for winter use is large,  11 and the stock of dried wild berries is  12 plentiful, and the caches and cellars for the  13 keep of garden produce are well filled."  14  15 Oh, no doubt that will have an affect on the need  16 for welfare.  It was generally the elderly, the widows  17 and the cripple who were given this support.  And at  18 tab 52 I give three examples.  First, January 32, 1914  19 on page 2, he says:  20  21 "Much freighting with teams and sleighs, by the  22 Indians is yet prevailing, and with some  23 changes of detail all are busy at useful  24 employment.  Hence, any allusion at all of any  25 of these Indians being poor has become  26 relegated is some widows with children and to  27 those that are old and decrepit."  28  29 Under that same tab I am referring to another on  30 page 2 of December 1914.  Where at the top of the  31 second page he says:  32  33 "No fear of becoming short of sustenance and  34 their support can become apparent of this  35 winter, thanks to the salmon catch having been  36 good.  This likewise obtained of the potato and  37 general root crop.  Those of the necessitous of  38 the old, crippled and widows are from time to  39 time being provided with relief."  40  41 And the third is at November 1919 where he says  42 near the bottom of the first page:  43  44 "There exists no destitution among the people  45 except in the cases of widows with children and  46 some of the decrepit and old which are readily  47 being relieved in the usual way." 28534  Submissions by Mr. Macaulay  1  2  3 And I don't have to go on about that.  Page 54 he  4 had taken from employing from 1916 on, at any rate,  5 field matrons who were, amongst other things,  6 assisting and dealing with the old and decrepit, as he  7 calls them.  That's at tab 53.  8  9 But I would like to move on to tab 54.  The one  10 thing coming back to the house that we notice when  11 going through the individual relief vouchers is that  12 in some cases they are head chiefs.  Your lordship  13 will recall that in 1895 list of three chiefs from  14 each village.  Well, one of them later turns up in  15 need of relief.  And the successor to another of them.  16 One is from Kitsegukla, the other from Kitwanga.  And  17 a Hagwilget clan chief, that is the chief of not just  18 a house but a whole clan, according to Jenness the  19 head of the clan was also provided relief for a number  20 of years.  21  22 Now, that particular clan chief, in fact it was  23 his wife -- no, the head chief was the wife.  The  24 husband was crippled, described in the reports as  25 paralytic.  He was the second chief in another house.  26 So there were -- but the lodge system or the house  27 system was not -- clearly not providing for them.  And  28 that's not the system that the Plaintiffs described,  29 and a system that no doubt existed earlier.  I am not  30 going to bring your lordship through all the  31 individual relief vouchers in connection with that  32 submission.  They are all at page 55 -- tab 55.  33 MR. GRANT:  55 or 54?  34 MR. MACAULAY:  Well, both at 54 and 55.  I mentioned some  35 Gitksan.  That's tab 54, the two Gitksan chiefs.  And  36 they are identified as such in the document.  The  37 second one was identified as a head chief by one of  38 the Plaintiffs' witnesses as well in evidence before  39 the court.  The other one, the Hagwilget example of a  40 clan chief and house chief at the same time.  The name  41 and position is referred to in the exhibit.  I have an  42 excerpt from Jenness as well as a genealogy dealing  43 with that one.  44  45 But they -- the house system, however it  46 functioned at one time, wasn't working any more.  It  47 didn't fit the life that the majority of Gitksan and 28535  Submissions by Mr. Macaulay  1 Wet'suwet'en were leading.  And I'm not making that  2 submission about Kisgagas and Kuldo who were very  3 traditional places.  And that state of affairs may  4 have continued, the lodge and its support of the older  5 people.  6 MR. GRANT:  Just -- my friend, I take it, is referring to Fanny  7 Spanch?  8 MR. MACAULAY:  Yes.  9 MR. GRANT:  That chief.  Which appears from the extract — my  10 friend didn't make that clear.  But when we look at  11 the extract, I just ask you to note, my lord, at tab  12 54 it is the last entry in tab 54.  It appeared that  13 they were on their way from the Nass and were in want  14 of provisions on this particular journey.  15 MR. MACAULAY:  Yes.  The circumstances are set out there.  The  16 other one had his house burned down.  There are good  17 reasons for it.  I am not suggest that there weren't  18 good reasons for it.  19 MR. GRANT:  Which one?  20 MR. MACAULAY:  For either of them.  21 MR. GRANT:  Which one was burned down?  22 MR. MACAULAY:  The Kuohsun's house was burned down.  So he had  23 to give -- the Indian agent had to give reasons in  24 every case.  And he gives a particularily full reason  25 in the case of Kuohsun.  He also gives a reason in the  26 case of Chief Spookw.  27 THE COURT:  I haven't found the reference for — is it Spookw?  2 8 MR. MACAULAY:  Yes.  29 THE COURT:  Oh, I'm sorry.  30 MR. MACAULAY:  It is spelled differently there is all.  31 THE COURT:  Is it —  32 MR. GRANT:  June 8, 1907 entry, my lord.  It is the last entry  33 in tab 54.  34 THE COURT:  Yes.  What is the name?  35 MR. MACAULAY:  Fanny Spaach, S-P-A-A-C-H.  Under the new  36 spelling it would be Spookw.  37 THE COURT:  Yes, all right.  38 MR. MACAULAY:  She was head chief following the — I believe it  39 was the death on a trapline of the earlier Chief  40 Spookw.  41 THE COURT:  Yes.  All right.  Yes.  42 MR. MACAULAY:  And, of course, the case in 55, the case of  43 Netta-pish which has the old spelling here.  It's  44 Netta-pish, N-E-T-T-A-P-I-S-H.  I guess I had better  45 draw that to your lordship's attention.  Netta-pish  4 6              means Knedebeas.  47 THE COURT:  I haven't found that one either. 28536  Submissions by Mr. Macaulay  1 MR. MACAULAY:  It is in tab 55.  2 THE COURT:  Oh, yes.  3 MR. MACAULAY:  There are a number of those documents, quite a  4 number of them.  The only relevant one, and I have  5 sidelined it, is Netta-pish.  But, my lord, we should  6 point this out, perhaps I should mention this, the  7 third of these lists for August 1911, the reference is  8 to Jim Holland.  He was later referred to as James  9 Netta-pish.  It is the same person, the same family.  10 So whether it is Jim Holland or James Netta-pish which  11 is in the fourth of these documents, he appears as  12 James Netta-pish.  13 THE COURT:  Yes.  14 MR. MACAULAY:  Or simply as Netta-pish in some cases.  It is the  15 same family.  They are described in just the same way.  16 MR. GRANT:  My friend has jumped over my -- I am not sure how my  17 friend has made that connection that the August 11,  18 1911 and November 1911 the two people are the same.  I  19 mean is there some other document that connects them?  20 MR. MACAULAY:  James Netta-pish and Jim Holland?  21 MR. GRANT:  Well —  22 MR. MACAULAY:  Well, yes.  You see, my lord, you take those two,  23 Jim Holland.  The Jim Holland entry it is described as  24 "paralytic".  The James Netta-pish entry is "large and  25 destitute family, father paralytic".  And the next one  26 is "James Netta-pish, paralytic with large family and  27 destitute family".  The next one is "James Holland,  28 paralytic and large and very destitute family".  The  29 next one is "James Holland, helpless and paralytic  30 with large and destitute family".  The next is  31 "Netta-pish, large and destitute family, father ill,  32 (paralitic)".  The next is "James Netta-pish,  33 paralitic with large family".  34  35 Now, if you look at the genealogy which is part of  36 this tab 2 also of Knedebeas, you see that Jim Holland  37 was the husband of Christine McKenzie who was  38 Knedebeas.  So he went by the name of James Knedebeas  39 or James Netta-pish.  His chiefs name was Kela.  He  40 was the second chief in another house.  He was chief  41 number 12 in The House of Many Eyes.  But it appeared  42 that he went by two names.  He went by James Holland  43 or Jim Holland, James Holland, James Netta-pish.  The  44 constant is the description of the physical  45 affliction.  46  47 Now, that clan and that house or those two houses 28537  Submissions by Mr. Macaulay  1 because the husband belonged to one house and the wife  2 to the other, was not then supporting the head chief  3 and the second chief of the second house.  Not to the  4 extent that they didn't need that support from the  5 Indian agent.  6 THE COURT:  What was MrsMcKenzie's first name?  7 MR. MACAULAY:  Christine.  She comes up much later, my lord.  I  8 don't know if your lordship remembers a will.  9 THE COURT:  Yes.  10 MR. MACAULAY:  Noralee Mathew Sam.  11 THE COURT:  Yes.  12 MR. MACAULAY:  He bequeathed his trapline to his nephew.  The  13 difficulty was his trapline was on Knedebeas' land.  14 And Christine Holland made a row about that, the same  15 one.  My lord, it is 3 o'clock.  16 THE COURT:  All right.  Thank you.  17 THE REGISTRAR:  Order in court.  Court stands adjourned.  18 (PROCEEDINGS ADJOURNED AT 3:00)  19  20  21 I hereby certify the foregoing to  22 be a true and accurate transcript  23 of the proceedings transcribed to  24 the best of my skill and ability.  25  26  27  28  29  30 Lisa Franko,  31 Official Reporter,  32 UNITED REPORTING SERVICE LTD.  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 2853?  Submission by Mr. Macaulay  1 (PROCEEDINGS RECONVENED AT 3:20 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Macaulay.  5 MR. GRANT:  Just before my friend starts, I just wonder on this  6 James Holland your lordship may want to note Exhibit  7 1067, page 12, because the James Holland which my  8 friend referred to was born in 1883, according to  9 Exhibit 12, and he was Kela, but his father was James  10 Holland, who was Knedebeas.  So I think given the time  11 that Loring's writing, if it's the same person, the  12 James Holland, and James Knedebeas would be the father  13 of this one that he's referring to, my lord.  14 THE COURT:  I suppose that doesn't make a great deal of  15 difference to Mr. Macaulay's submission.  16 MR. GRANT:  It probably doesn't make much difference to his  17 argument, although I think it may make a difference to  18 the reply.  19 THE COURT:  All right.  20 MR. MACAULAY:  I know your lordship put this little map in.  21 THE COURT:  Yes.  22 MR. MACAULAY:  Could I suggest that the exhibit that I handed  23 up, which was 1209-D-383-A —  2 4 THE COURT:  Yes.  25 MR. MACAULAY:  283-A.  1209-D-283-A.  2 6 THE COURT:  Yes.  27 MR. MACAULAY:  — be put in at the same place?  2 8 THE COURT:  Yes, I've already done so.  29 MR. MACAULAY:  And I've added it up again, and my recollection  30 was right.  It's just over 20 miles from Hazelton.  31 THE COURT:  From Hazelton?  32 MR. MACAULAY:  Yes.  33 MR. GRANT:  Or from Kispiox.  34 MR. MACAULAY:  No, it's 12 and 3 quarter miles from Kispiox to  35 the last station.  36 THE COURT:  All right.  37 MR. MACAULAY:  You add another 8 because the distances given for  38 Ksun are from Hazelton.  39 THE COURT:  Yes.  All right.  40 MR. MACAULAY:  You have to add another 8.  41 MR. GRANT:  Is that in here on that exhibit?  42 MR. MACAULAY:  Well, no, it isn't.  He measures — in this  43 exhibit he measures from Kispiox, in this exhibit, so  44 in order to make it correspond to the measurement of  45 Ksun you have to add another 8 miles to this here.  46 That's all.  47 THE COURT:  That sounds eminently clear. 28539  Submission by Mr. Macaulay  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. MACAULAY:  And I remember doing that, my lord, some time  ago, trying to find where it was, see if one of these  places was --  MR. GRANT:  Is this -- my lord, just so that the reference is  the same, is this going under one of the tabs that my  friend's suggesting?  MACAULAY:  Well —  MR.  THE  MR.  THE  MR.  THE  MR.  COURT:  I just put it in my book.  GRANT:  Yes.  Okay.  COURT:  That is, my copy of Mr. Macaulay's notes, and I put  it in between pages 10 and 11, where I also put  your -- I'm sorry, pages 9 and 10, where I also put  your map.  I'm wrong again.  I put it in between pages  8 and 9.  GRANT:  Thank you, my lord.  COURT:  All right.  MACAULAY:  Well, I'll try and go a bit faster, my lord.  I'm  at page 14 of my notes now, and my submission is that  a great many of Loring's reports had to do with the  local economy and the way in which the Gitksan and the  Wet'suwet'en fitted into that economy.  And one of the  notes he made was that at a very early date the  Gitksan acquired new skills, and that's at tab 56.  And it doesn't take long.  It's on the very first  page.  He said:  "The Indians are also much advanced in handling  tools of all descriptions, principally those  for woodwork."  And he mentions the example of Mr. Stephenson's  building at Kisgegas, where a splendid dwelling-house  was built by the Indians and a school house was under  way.  And mining provided employment in the 1890s.  I'm  sorry, first I was going to say there was a variety of  jobs available at Gitanmaax, and that's at tab 57, an  annual report for 1895, and he lists them at page 2  under the heading "Get-an-max."  He mentions the  motley collection of people, if I could put it that  way, that live in Gitanmaax.  They were from all over.  And he says they are "packing into the interior,  canoeing, mining, sawing lumber, getting out cordwood  and working about the canneries of the coast."  They  had become thoroughly connected, joined to the  economy.  Mining had provided employment in the 1890s, and 28540  Submission by Mr. Macaulay  1 the exhibits at tab 58 and 59 show that that kind of  2 employment continued after the turn of the century.  3 The last of those is at tab 59, the very -- I have two  4 tabs there, but I'm just referring to the very last of  5 the reports I mentioned, which is dated November 1906,  6 and there he happens to mention that "those having  7 worked in the mines of the Omineca have returned,  8 whilst some are repairing to their trapping grounds."  9 This is in November 1906.  10 The coastal canneries, of course, and I think  11 that's a statement of the obvious, employed many, many  12 Gitksan during the entire period of Loring's tenure  13 from the very beginning and indeed for a year or so  14 before.  As I understand that, my lord, the origin of  15 the large influx of -- the large contingent of Gitksan  16 going down to the coast originated with the removal of  17 the Metlakatla Indians to New Metlakatla in Alaska,  18 but I may be wrong there, and I'm not giving that as  19 evidence.  But, at any rate, from the beginning to the  20 end there were -- I have various reports, and I could  21 have added another 10 or 20, referred to at tab 60.  22 Now, another aspect of this is sawmills.  Sawmills  23 were first established at Kispiox, and then at Glen  24 Vowell, and then at Andimaul, and the references are  25 at tab 61, 62, and 63.  26 Timber leases were obtained when the demand for  27 timber became very strong, and that's at tab 64.  The  28 references to that are at tab 64.  Tab 64, for  29 instance, on the first page, and this is 1911,  30 November 1911, he says in the middle of the page:  31  32 "It has as yet not been cold enough to shut off  33 the water for the three saw-mills that are  34 operated by the natives of the Skeena, and  35 lumber of every description remains in a brisk  36 demand.  In general, and along the line of the  37 Grand Trunk Pacific railway, Indian labour at  38 good wages is still much sought after..."  39  40 The packing and freighting jobs, of course, had  41 been available before Loring arrived in Hazelton, and  42 these jobs were still available during his incumbency,  43 and I refer to that in tab 65.  44 Survey work for the construction of the Grand  45 Trunk Pacific Railway provided a lot of employment.  46 And that's dealt with at tab 66.  And that was for  47 both the Gitksan and then the Wet'suwet'en.  In 28541  Submission by Mr. Macaulay  1 September 1906, this is tab 66, on the second page he  2 says:  3  4 "A good number of Indians are being employed  5 on the Grand Trunk Pacific railway survey,  6 which is likely to be carried on for all the  7 coming winter.  8 It is reported that some large contracts  9 for railway ties - to be distributed along the  10 Skeena - were given to several parties, in  11 which, no doubt, the Indians will take part to  12 a more or less degree, and thereby further  13 augment the ways and means wherewith to earn  14 money.  They are all good axemen supported by  15 plenty of energy."  16  17 In November 1906 he says:  18  19 "A good many of the old and decrepit of the  20 people are beginning to move into the timber  21 for their winter quarters, and more of the  22 young men of the population are being taken on  23 for assisting in the railway survey work under  24 way and supplemented by additional forces in  25 the field."  26  27 In May 1907 there is the usual contrast referred  28 to at the bottom of the page.  He says, bottom of the  29 first page:  30  31 "Many of the Indians, north of here, came in  32 to trade, and the results of the fur catch  33 proved very good, which likewise generally  34 obtains.  The prices of fur, especially such of  35 marten, are very high.  Only the pelts of bear  36 seem very low.  37 A good number of the younger Indians are  38 yet employed on the Grand Trunk Pacific railway  39 survey.  Since the surveyors thereof have  40 passed here and gone into the Bulkley valley,  41 lesser of the Kitsuns and more of the  42 Hagwilgets are being employed thereon.  This  43 naturally would follow, since the latter are  44 the more acquainted with the lay of the land  45 within their own range."  46  47 And that's where the Hagwilgets, as he called them, 28542  Submission by Mr. Macaulay  1 the Wet'suwet'en, started following the same  2 employment patterns as the Gitksan had for a long  3 time.  4 In February 1910, which is in the same tab, on the  5 first page I've highlighted he says:  6  7 "As formerly made note of, the majority of  8 the able bodied Indians are having steady  9 employment on the Grand Trunk Pacific right-of-  10                     way..."  11  12 Now, notice that's February.  That's winter.  It's not  13 just seasonal, which was a fairly long season, but  14 this is winter employment.  15 THE COURT:  What are non-sensical vapourings?  16 MR. MACAULAY:  Oh, the non-sensical vapourings.  I'm coming to  17 the non-sensical vapourings.  That had to do with the  18 land claims.  19 THE COURT:  Oh, you have a separate tab for that.  2 0 MR. MACAULAY:  Yes, my lord.  21 THE COURT:  All right.  22 MR. MACAULAY:  That had preceded this by a year.  Joe Capilano  23 had got up into the Gitksan area along with a  24 Tsimshian man, and there had been some considerable  25 trouble the year before.  26 MR. GRANT:  I take it this reference will be there.  27 MR. MACAULAY:  Oh, I can't assure my friend that I'll refer to  28 it again, but he's noted it and has a big asterisk  29 beside it.  30 MR. GRANT:  Well, I just want to make sure that your lordship --  31 it does explain what the vapourings are in that  32 paragraph, my lord.  33 THE COURT:  In this paragraph?  34 MR. GRANT:  Yes.  It says:  35  36 "...that they should be the masters of the land  37 which in their minds does not rest with certain  38 concessions, but comprises all or none."  39  4 0 THE COURT:  Yes.  41 MR. MACAULAY:  Yes, indeed, that was their position, my lord.  42 THE COURT:  I still don't know if that's the plaintiffs'  43 position.  44 MR. GRANT:  Well, that's the vapourings — that's certainly Mr.  45 Loring's understanding of what non-sensical vapourings  46 is.  47 THE COURT:  I understand Mr. Loring.  I still don't understand 28543  Submission by Mr. Macaulay  1 the plaintiffs' position in this case, whether it's  2 all or none.  All or none I think you put it.  3 MR. GRANT:  Yes.  No.  I think you do, and we've got those  4 references for you.  5 THE COURT:  Thank you.  6 MR. MACAULAY:  Well, then it was all or nothing, and it was not  7 use and occupation.  8 THE COURT:  You say it wasn't use and occupation?  9 MR. MACAULAY:  No, it wasn't, my lord.  I'll come to that.  10 I'm returning to my text now for a bit.  In  11 1918 — this is at the middle of page 15.  In 1918  12 there were jobs at high wages available, and the  13 commercial fish prices were also at a satisfactory  14 level.  And that's tab 68.  It's a fairly late report,  15 1915.  Particularly, the February 24th — 29th, 1916  16 report --  17 MR. GRANT:  Which tab?  18 MR. MACAULAY:  At tab 67, the second report in there.  The  19 second of the reports under tab 67, it's February  20 1916, where Mr. Loring says:  21  22 "Many of the Indians have also left, by  23 means of dogs and toboggans, with freight for  24 the interior of the Omineca and Ingenika placer  25 mines.  It is pleasing to note that also the  26 section parties along the Grand Trunk Pacific  27 railway line are largely made up of Kitsuns, at  28 which work they give the greatest satisfaction,  2 9 and their employment thereat is becoming more  30 and more of somewhat of a fixed nature.  31 Then amongst the Hagwilgets, where not so  32 long ago the people depended upon snaring  33 rabbits and grouse for a livelihood, some do a  34 considerable lot of hauling; and at the 'Silver  35 Standard' mine, a few miles to the east of  36 here, six four-horse teams are steadily  37 carrying ore to the railway platforms, and the  38 owners shipping, depend entirely upon them,  39 because of the reliance that can be placed in  40 them.  41 The prices of pelts are yet continuing to  42 get better, and many of the older people of the  43 Kitsuns of here and such of the northern  44 villages, and of the Hagwilgets and Babines are  45 out on their hunting and trapping grounds."  46  47 At tab 70 -- I'm trying to skip along a little 28544  Submission by Mr. Macaulay  1 faster than I was going here -- are some entries  2 concerning the Hagwilgets in particular, the  3 Wet'suwet'en, who were leading a more traditional life  4 up to after the turn of the century until the railroad  5 came.  In November 1904, at tab 70, the first of the  6 reports collected there Loring says at the bottom of  7 the first page:  8  9 "Hunting and trapping are fast becoming less  10 of an occupation with the Kit-Kauns - exclusive  11 of those north and beyond of Kispiox - and aim  12 in a larger degree to the up-building of homes  13 and bettering their lot by suiting  14 opportunities to the intent, and locations in  15 severalty are constantly in demand.  16 Likewise, are the Hagwilgets getting into  17 preferring that trend when occasions offer.  18 Many of them now are working for surveyors and  19 settlers in the Bulkley valley, and the Indians  20 frankly assert the desire that this mode of  21 gaining a livelihood should become more  22 general.  Apprehensions, ominous of a gloomy  23 future, are fast giving way to appeasement and  24 consent.  No doubt, but they will make a  25 progress at the ratio the valley gets peopled."  26  27 The next report on that tab is May 1907, where he  28 says at the bottom of the first page, on the top of  29 the second:  30  31 "A good number of the younger Indians are  32 yet employed on the Grand Trunk Pacific railway  33 survey.  Since the surveyors" --  34  35 and then we've read that before.  They've gone into  36 the Bulkley Valley, and the Hagwilgets are taking  37 over.  38 The following report, in August 1907, in the  39 middle of the first page, which is sidelined:  40  41 "The Indians of this part of the district  42 had plenty of employment, such as the Grand  43 Trunk Pacific railway survey parties, settlers,  44 prospectors and speculators afforded them, and  45 the demand for their services can scarcely be  46 supplied.  47 Many of the Hagwilgets are likewise thus 28545  Submission by Mr. Macaulay  1 employed, and, indeed, some of Stuart and  2 Fraser lakes are included."  3  4 The following report under this tab says:  5  6 "Of the Hagwilgets, 32,"  7  8 this is October 1909 now,  9  10 "32 have steadily been employed on the  11 contractor's waggon road from the forks of the  12 Skeena and Bulkley rivers to eight miles to the  13 south east of here.  Of these 25 were engaged  14 for over three months past.  They all give so  15 much satisfaction that their employment is  16 assured them for all winter."  17  18 And the last in this tab is October 1910.  At the  19 bottom of the first page he says:  20  21 "Though having conceived that the change of  22 conditions soon must divert the Indians'  23 activity from the hunting and trapping grounds  24 as the time would proceed, the result is  25 establishing itself inordinately earlier and  26 rather abruptly, notwithstanding the uniformly  27 high prices prevailing for all pelts.  This  28 already comprises some of the best hunters of  29 the northern villages, who prefer readier  30 returns, nearer here, to the rather tedious  31 mode of following and maintaining their lines  32 of snares and traps, for the length of the  33 season, over usually most difficult ground to  34 traverse."  35  36 And in the middle of that second page:  37  38 "During all of last summer, there could be  39 met with several four horse teams and six horse  40 teams, belonging to the latter Indians,"  41  42 that's the Hagwilgets,  43  44 "steadily carrying freight on the road between  45 here and the town of Aldermere."  46  47 As a result of the -- my lord, I'm at the bottom 28546  Submission by Mr. Macaulay  1 of page 15.  I'm going to the top of 16.  2 THE COURT:  Yes.  3 MR. MACAULAY:  As a result of improved conditions and high wages  4 and plentiful jobs, the Indians started purchasing  5 their supplies at the coast at lower cost and were  6 able to accumulate savings, which is mentioned in the  7 reports.  They were no longer in debt to the local  8 stores, which Loring described as a form of slavery.  9 He mentions they use the banks.  I'm not going to read  10 every report, but he makes a particular point of  11 reporting that the effect of debt to the local store  12 was something that was particularly detrimental to the  13 Indians.  14 THE COURT:  Well, it wouldn't be the first time that somebody  15 owed their soul to the company store.  16 MR. MACAULAY:  No, that's right, my lord.  None of this, none of  17 what we're seeing here is unique to Gitksan or  18 Wet'suwet'en, no, but he's reporting regarding them.  19 MR. GRANT:  None of this section.  20 MR. MACAULAY:  No, the experience of — that's right.  The  21 report I'm referring to there is January 31st, 1905,  22 at the top of the second page.  23 THE COURT:  I have it here.  2 4 MR. MACAULAY:  25  26 "The former enslaving practices to contract  27 indebtedness at the various stores, here, have  28 become entirely discarded, and consequently  2 9 they have more and more become reliant upon  30 efforts to meet contingencies as they arise and  31 less extravagant on what to choose and the  32 reaction to face."  33  34 That had to do with purchasing habits as well as debt,  35 I guess.  A person who has no hope ever of climbing  36 out of the trough will follow a different pattern in  37 purchases presumably.  38 And he mentions the purchases wholesale, at  39 wholesale prices, on the coast, which, of course, cash  40 income would allow them to do.  It's simply the  41 flexibility of money income.  He mentions the Union  42 Bank, which they frequented apparently.  They had  43 their savings.  44 Now, as the Gitksan and the Wet'suwet'en shifted  45 from the traditional to new occupations, trapping and  46 food fishing became less important.  Sort of  47 axiomatic, I suppose, but I thought I ought to include 28547  Submission by Mr. Macaulay  1 some references to it in here.  2 At tab 72, at the bottom of the report for  3 November 30th, 1904, we've read this before.  4 THE COURT:  Yes.  5 MR. MACAULAY:  Hunting and fishing become less an occupation  6 with the Kit-Ksuns, except for the northern villages.  7 And also likewise with the Hagwilgets.  That's that  8 one.  9 And then there is February 1912, on the second  10 page, where he says:  11  12 "Consequent the general educative process,  13 already the with the most pristine resource of  14 hunting and trapping has dwindled to naught,  15 and in comparison with other opportunities has  16 much been dimmed by the methods of its  17 exploitation, despite the high prices paid for  18 pelts."  19  20 And in August of 1918, at page 2, he says -- he  21 was talking about the salmon.  He says:  22  23 "A fair supply of salmon for winter is thus  24 far put away in its regular order and in  25 proportion to a reasonable extent.  26 In the latter respect, aside of the  27 effacement of barriers in the rivers and creeks  28 years ago, I doubt it here worthy the  29 mention" --  30  31 THE COURT:  Deem.  32 MR. MACAULAY:  33  34 -- "I deem it here worthy the mention that,  35 because of far less salmon as a subsistence by  36 the present generation of the people, and none  37 of the whilom large bands of ravenous dogs to  38 feed, its use must have been reduced to fully  39 one twentieth in amount..."  40  41 One twentieth, I think he means to 20 per cent because  42 another report that he makes around the same time he  43 says the reduction is by 80 per cent.  That's in the  44 same tab, the final -- the next report, July of 1919.  45 And there in the last report he says it's reduced by  46 80 per cent because of the adoption of different diets  47 and the passing away of older people.  And, of course, 2854?  Submission by Mr. Macaulay  1 there he's talking about dried salmon, which I doubt  2 if many people of any description today would eat  3 since you could freeze them.  4 MR. GRANT:  Well, that's inconsistent with the evidence, my  5 lord.  There's extensive use of dried salmon today.  6 MR. MACAULAY:  The Kisgagas and Kuldo villages continued  7 their -- as before their traditional occupations, but  8 there was migrations starting in 1902.  Well, it was  9 noted in 1902 and continued through the balance of  10 Loring's term as Indian Agent.  That's at 73.  That's  11 the beginning of the emptying of the north.  At tab 73  12 there's a report of March 31st, 1902, and on the  13 second page he says this:  14  15 "The Hoquel-gets are mostly all absent  16 hunting and trapping and are reported to be  17 doing well in that pursuit.  18 Regarding the Kit-Ksuns on the Skeena above  19 Kis-piox, I here must mention, that commencing  20 the winter before last, not a few of Kuldoe and  21 of Kis-ge-gas began gravitating towards  22 Kis-piox, and indications present the semblance  23 of their eventually becoming habitants of the  24 latter village.  25 If such practice should continue a natural  26 process of concentration of those Indians  27 nearer to Hazelton will come about, and (I) am  28 inclined to the opinion, that for obvious  29 reasons the result become much desirable.  The  30 facilities of profitable employment, - both  31 summer and winter, - which nearer here afford,  32 is the factor.  33 The deductions are that as by degrees those  34 increase as expedients, hunting and trapping as  35 resources, will wane correspondingly.  36 These conditions are approaching by bounds  37 and will more than all else prove the  38 remarkable acquisitiveness and fertility of  39 ready recourse with which the Kit-Ksuns are  40 possessed for the better."  41  42 The next time he takes up that theme is in  43 November 1903, where on the second page he says:  44  45 "Regarding the Indians of the Skeena, above  46 Kispiox, I here must mention, that for the last  47 few winters not a few of Kuldoe and of 28549  Submission by Mr. Macaulay  1 Kisgegas, begin gravitating towards Kispiox and  2 indications have the semblance of more coming,  3 with [some] getting to be habitants of that  4 village, Hazelton, for years, had its quota  5 from that source."  6  7 In 1910, at the bottom of the first page, I'm just  8 referring again to something I had read in another  9 context where Loring says that some of the best  10 hunters of the northern villages preferred to come  11 down rather than what he calls the "tedious mode of  12 following and maintaining their lines of snares and  13 traps" on very difficult ground.  14 MR. GRANT:  Which one is that?  15 MR. MACAULAY:  That's the October 1910.  16 And then in February 1912, on the second page, he  17 says:  18  19 "Apropos of this, those alive to the  20 situation, even of the northernmost villages of  21 Kuldoe and Kisgegas, are being drawn to these  22 parts of the Skeena because of the facilities  23 to improve their conditions; and, when  24 subjected to closer reflection, it would appear  25 that, unless the tentative project of a railway  26 passing in that direction, it will bring about  27 a concentration of the people with habitations  28 nearer by."  29  30 Then in 1915, there being no hope of a railway to  31 Kisgegas, he says:  32  33 "Regarding the Indians, above and north of  34 here and of Kispiox, I beg to mention that of  35 late not a few of Kuldoe and Kisgegas begin to  36 gravitate here and there, and the indications  37 have the semblance of more coming with the  38 intention to stay.  If such practice should  39 continue a natural process of concentration of  40 those Indians, nearer here, would come about  41 eventually, and (I) am inclined to the opinion  42 that for obvious reasons, the result should  43 prove rather desirable."  44  45 And finally, in 1916, April 1916, on the top of  46 the second page he says:  47 28550  Submission by Mr. Macaulay  1 "As previously has been mentioned there is a  2 tendency of the people of the northern villages  3 to gravitate toward these parts, which is  4 principally being fostered by readier  5 opportunities for employment and other  6 attendant conditions, and, if such practice  7 should continue, by this means a natural  8 process of concentration will eventually come  9 about."  10  11 And he says the same thing is happening at Old Fort,  12 which it did.  13 My lord, the population of Kisgegas was 260 in  14 1890.  We've seen that.  It rose to 295 in 1891, and  15 it fell to 235 in 1910.  By 1910 it was the second  16 largest village, Hazelton being the largest.  17 Gitanmaax I should say.  And although Loring predicted  18 the abandonment of those villages, it never did occur  19 in his time.  Mr. Boys, he gave commission evidence.  20 He is an elderly former Indian Agent at Hazelton.  He  21 served from 1946 to '51, and by his time there was  22 nobody at Kisgegas.  23 MR. GRANT:  At Kuldo and Kisgegas.  24 MR. MACAULAY:  Kisgegas.  And what he did — there was — the  25 bands merged.  In his time the bands were merged.  26 THE COURT:  The Kisgegas and Kispiox?  27 MR. MACAULAY:  No, Kisgegas and Hazelton.  2 8 THE COURT:  And Hazelton.  2 9 MR. GRANT:  Gitanmaax.  30 MR. MACAULAY:  Gitanmaax.  Gitanmaax Band at Hazelton.  31 MR. GRANT:  That was they administratively, I think his evidence  32 is, under the D.I.A.  33 THE COURT:  Yes.  34 MR. MACAULAY:  There was a considerable number of them living in  35 Gitanmaax, and there were problems about that, so that  36 was the way it was solved.  Others went to Kuldo.  We  37 hear of Mrs. McKenzie, for instance, who was a  38 Kuldo -- went to Kispiox.  She was of a Kuldo family  39 who went to Kispiox before her time.  I can't tell  40 you, my lord, when Kuldo vanished, but a long time  41 ago.  Perhaps I'll be able to find -- this is one of  42 those things where we haven't got -- nobody noticed.  43 It just slipped under the waves.  44 THE COURT:  Yes.  All right.  45 MR. MACAULAY:  The southern part of the claim area was almost  46 uninhabited in 1905.  Cheslattas, these are people who  47 do their fishing in Bella Coola, were the inhabitants 28551  Submission by Mr. Macaulay  1 of Cheslatta Lake itself.  2 THE COURT:  Where are you now?  3 MR. MACAULAY:  Bottom of page 16, top of 17, my lord.  And it's  4 tab 75.  5 THE COURT:  All right.  6 MR. MACAULAY:  And just before the adjournment I'd like to — I  7 mean, if we could go to 4:30.  I don't know if your  8 lordship can.  9 THE COURT:  I thought we were going to go to 5:00.  10 MR. MACAULAY:  I'd like to get through this.  11 THE COURT:  Yes, I think we should.  All right.  Should we take  12 an adjournment now and then come back and finish this  13 book?  14 MR. MACAULAY:  Very well, my lord.  15 THE COURT:  All right.  Thank you.  16 THE REGISTRAR:  Order in court.  Court stands adjourned.  17  18 (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  19  20 I hereby certify the foregoing to  21 be a true and accurate transcript  22 of the proceedings transcribed to  23 the best of my skill and ability.  24  25  26  27  28  2 9 Leanna Smith  30 Official Reporter  31 UNITED REPORTING SERVICE LTD.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 28552  Submissions by Mr. Macaulay  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  I'm sorry, my colleagues save all their emergencies  4 for four o'clock every afternoon, it seems, and I was  5 longer that I intended to be.  Thank you.  6 MR. MACAULAY:  My lord, I was at the bottom of page 16, top of  7 page 17, and this had to do with the southern end of  8 the claim area.  It's a letter at tab 75 in which he's  9 reporting to his superior.  10 THE COURT:  Tab 75?  11 MR. MACAULAY:  Yes, my lord.  12 THE COURT:  Yes.  Thank you.  13 MR. MACAULAY:  The second half of the page, the last paragraph  14 he says:  15  16 "No Indians are living on Ootsa and Francis  17 Lakes, and of those belonging to Cheslata Lake,  18 four families are living on the middle of its  19 northern bank; three families at its source,  20 and four families at the discharge of Cheslata  21 Lake."  22  23 That would be outside the claim area actually, my  24 lord.  25  26 "These Indians merely cut hay on the left bank  27 at the outlet of Ootsa Lake."  28  29 These particular Indians used to come up the Ootsa  30 Lake.  31  32 "All of the Indians under consideration  33 numbering, all told, about 45 have early in  34 this season betaken themselves to Bella Coola,  35 to fish and to work for the white settlers  36 there, and will not be back till the latter  37 part of August next.  I will be on the ground  38 upon the arrival of the first."  39  40 Now, I'm turning to another topic, my lord.  41 THE COURT:  Just a moment, Mr. Macaulay.  Do you remember what  42 Mr. Shellford said about when his family arrived in  43 the Shellford Hills area?  I think they arrived -- I  44 think he said they arrived around 1910, I think.  But  45 I'm —  4 6 MR. MACAULAY:  That's my recollection.  47 THE COURT:  Yes.  Miss Sigurdson will know.  Maybe she can 28553  Submissions by Mr. Macaulay  1 interrupt us when she finds it.  2 MR. MACAULAY:  Yes.  3 THE COURT:  I would be interested to know.  Thank you, Miss  4 Sigurdson.  All right.  5 MR. MACAULAY:  Well, as I understand it, and I'm not giving  6 evidence here, my understanding was that Indians were  7 moving down there in that period.  8 THE COURT:  All right.  9 MR. MACAULAY:  Jimmy Andrew and -- well, at any rate, at page 17  10 of my submission here I'm just repeating in tab 76  11 what we've seen before.  Loring heard, during his  12 visits to the Gitksan villages, in 1889 and 1890 that  13 a rumour had circulated in those villages that a  14 government official would come around for the purpose  15 of surveying and taking the best lands away from the  16 Indians.  And -- but in July 1890 Loring reported that  17 the Indians would welcome the Indians Reserve  18 Commissioner and they changed the attitude of a few  19 months earlier.  And that's at tab 77.  Reporting to  20 his superior that they had -- as he put it, contrary  21 to the feeling existing eight or nine months ago, by  22 July 1890.  23 After the Indian Reserve Commissioner's visit to  24 the Claim Area in 1891, about which your lordship has  25 heard a lot from the Province in its extensive  26 argument, Loring reported that the trouble experienced  27 at Kispiox, and there was some considerable trouble at  28 Kispiox, was quite unexpected and that there had been  2 9 a sudden change of attitude. And that's tab 7 8 where  30 he says in the first paragraph:  31  32 "The only exception to the assertion given,  33 was, the objection raised by the Kiss-pioux  34 Band to have its Reserve defined, that is, to a  35 reasonable extent.  They were well advised and  36 showed themselves submitting to the coming  37 event.  I was amazed at their sudden change of  38 attitude; there must have been undue influence  39 brought to bear on them, to have effected the  40 same.  But I am quite at a loss to define its  41 source as yet."  42  43 Loring reported -- and I'm going up to the -- oh, yes,  44 he reported -- in October 31, at tab 79, he reported  45 all the Bands so as far as he knew were satisfied,  46 except the Kiss-pioux.  But he said there was a report  47 going around, a rumour, that the Indians would be 28554  Submissions by Mr. Macaulay  1 required to buy the land.  And he said:  2  3 "This greatly excited even those, who are very  4 well satisfied on the Reserve question."  5  6 And he says:  7  8 "I am overwhelmed with interrogatories on this  9 subject.  This emanates from I intermeddling.  10 As far as I can find out, it is the old  11 Met-la-Kat-la spirit propagated to the Skeena,  12 lacking entirely in force, yet serving as means  13 to confuse the Indians."  14  15 In 1893 --  16 THE COURT:  When Mr. Loring had written this despatch at the  17 beginning of tab 79, had the Reserve Commissioners  18 been there?  19 MR. MACAULAY:  Yes, my lord.  Yes, before the end of October.  2 0    THE COURT:  Yes.  All right.  21 MR. MACAULAY:  And then my next tab is a letter, it's not to his  22 superior but to Edward Stuart.  Edward Stuart, my  23 lord, had given evidence at the Metlakatla inquiry of  24 1886 -- '87 -- I am sorry, 1884.  He was apparently  25 then living at Mr. Tomlinson's holy city in  26 Meansganeest and Loring there says to Stuart:  27  28 "I am putting to you a direct question,-  29 whether you were the means of circulating the  30 following misrepresentation,- or not, to wit:  31 It has been repeatedly reported to me, and in  32 two cases substantiated by two men of  33 Kit-wan-gah, that you have been circulating and  34 preaching to the people of the village named,  35 that in getting their land as a Reserve is  36 merely a means for the Government to mislead,  37 rob and cheat them, when convenient.  Also that  38 you compared the getting of a Reserve by the  39 Government as like a loan, and to a coat loaned  40 by one man to another, subject to return on  41 demand.  The Indians of Kit-wan-gah persisted  42 in the request of putting the question to you,  43 although contrary to my views, - to treat the  44 matter with contempt."  45  46 And then he goes on to tell them about the bad feeling  47 and so on that that engenders.  So it would appear 28555  Submissions by Mr. Macaulay  1 that he had found a source if not the source, and it's  2 to be remembered, my lord, that Tomlinson, who was the  3 master at Meansganeest, was Duncan's aginant  4 (phonetic) in Metlakatla, and Tomlinson stayed there  5 and ruled his holy city until 1913.  It's the same  6 Tomlinson, my lord, who had written a letter in 1886  7 to Kispiox that I'd quoted to your lordship yesterday.  8 And your lordship will remember that this letter was  9 delivered by Tomlinson's messengers.  They are  10 unnamed.  But the -- obviously Mr. Loring was making  11 it his business to find out who was doing the  12 agitating and the finger was pointing at Edward  13 Stuart.  14 THE COURT:  Stuart was a disciple of Tomlinson, was he?  15 MR. MACAULAY:  Yes, he was, my lord.  He gave evidence for  16 Tomlinson at the inquiry -- I'm sorry, for Duncan at  17 the inquiry.  There were certain accusations being  18 made of Duncan.  19 THE COURT:  Yes.  2 0 MR. MACAULAY:  And Stuart gave evidence.  21 THE COURT:  Is there a reply to this letter?  22 MR. MACAULAY:  No, my lord.  Not that we could find.  23 He does not appear -- Stuart does not appear on  24 the 1901 census.  Whether he was considered himself a  25 Metlakatla Indian by then - he was Gitksan, but  26 whether he considered himself Metlakatla Indian, that  27 may be the explanation, that being the explanation why  28 he wasn't on the 1901 census.  29 THE COURT:  Were you able to find it, Miss Sigurdson?  30 MISS SIGURDSON:  Yes, my lord.  Mr. Shellford's father came into  31 the Ootsa Lake area in 1912.  32 THE COURT:  Oh.  All right.  Just a moment.  33 MR. GRANT:  While we are on that Cheslata matter, I just  34 wondered if my friend just --  35 THE COURT:  Just a moment, Mr. Grant.  Can you give me a page  36 number.  37 MISS SIGURDSON:  Yes.  It's Volume 256, page 18885.  38 THE COURT:  Thank you.  Mr. Grant?  39 MR. GRANT:  While we are back on Cheslata, the tenor of what you  40 said is, I wonder, my learned friend only put in at  41 tab 75 this letter of June 30, 1905 which Loring  42 suggested he would be on the ground on arrival of the  43 first.  I take it my friend found no report of Mr.  44 Loring on the ground or he would have included that.  45 Is there such a report, a follow-up report?  4 6 MR. MACAULAY:  I will look for one, my lord.  47 THE COURT:  All right. 28556  Submissions by Mr. Macaulay  1 MR. MACAULAY:  The next thing in sequence is something we've  2 already seen.  In December 1983 the Kispiox people,  3 who were then in their winter village, asked Loring to  4 come and see them to discuss a reserve allocation.  So  5 it appears they had changed their mind by 1893 or were  6 starting to change their mind by 1893.  We've seen  7 that in connection with his visits to winter camps.  8 And then when the Kispiox chiefs asked the Indian  9 Reserve Commissioner to allot reserves for them in  10 February of 1896, this was not a letter addressed to  11 Loring, but Loring was then asked by his superiors to  12 report on the amount of land required and in his  13 reply -- I am not dealing now on the reserve  14 allocation.  But in his reply Loring said by way of  15 explanation that the Kispiox people had thought in  16 1891 that their reserve would encompass only their  17 village site, and after 1896 the Kispiox residents  18 appeared to have taken an active interest in the  19 allocation of reserves.  But that's another story.  20 That's the -- another -- I should say another subject.  21 In 1904 settlers entered the Bulkley and the  22 Kispiox valleys in some numbers, and of course it was  23 because that was anticipated that the Indian Reserve  24 Commissioner had been sent to the upper Skeena in the  25 first place and to the Bulkley Valley.  But that  26 didn't cause any disturbance.  There are two reports  27 of that year that refer to the matter and they are at  28 tab 83 and 84.  2 9 THE COURT:  Before you go on —  3 0 MR. MACAULAY:  83.  31 THE COURT:  -- can you tell me the date of the document in tab  32 82?  August — is it August 3, 1899 or '89?  33 MR. MACAULAY:  That's.  34 MR. GRANT:  It appears 1898, my lord.  35 MR. MACAULAY:  It — no, it's 1896, I believe, my lord, because  36 it was -- the letter that's referred to, it's a letter  37 that followed on the letter from the Kispiox chiefs to  38 the Indian Reserve Commissioner, which was February  39 10, 1896.  And I believe that's 1896.  I will get a  40 better -- I will look at our copy and see if I can get  41 a better copy.  42 THE COURT:  I must say it doesn't look to me like a six.  It  43 looks to me like either an eight or a nine, but for  44 that reason I would be glad if you would let me know  45 what you think it is.  4 6 MR. MACAULAY:  Yes.  4 7 THE COURT:  Thank you. 28557  Submissions by Mr. Macaulay  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT:  MR. GRANT:  I ask you to note the quote on the top of the next  page my friend has highlighted, my lord.  It's  somewhat different than what he said, although he got  the gist of it.  I can note it but I can't read it.  It says:  "In reply I have the honor to state, that the  Indians of Kitspioux were laboring under the  impression that their reserve would comprise  scarcely more than the area of the village as  they, at that time, did not listen -- "  That's at the top of page two?  Yes.  " -- as they at that time did not listen for  better information."  That's somewhat different than how my friend  formulated it in his summary.  MR. MACAULAY:  I don't think so.  THE COURT:  All it says:  "In reply I have the honor to state, that the  Indians of Kitspious were laboring under the  impression that their -- "  GRANT:  "Reserve".  COURT:  I am sorry, "that their — "  GRANT:  "Reserve would comprise".  COURT:  Yes.  GRANT:  "Scarcely more than the area of the village".  MACAULAY:  "As they" comma.  MR.  THE  MR.  THE  MR.  MR.  THE  MR.  MR.  MR.  THE  MR.  THE  MR.  COURT:  Yes.  MACAULAY:  "At any time".  GRANT:  "At the time".  MACAULAY:  "At the time", sorry, "at the time" comma "did  not listen for better information."  COURT:  Fine, thank you.  MACAULAY:  That's apparently what the Kispiox people were  telling Mr. Loring.  In tab 83 it's misplaced on my  page, page 19, it really should be down by the second  paragraph, because we are dealing now with 1904.  COURT:  I am sorry, I am not following you there, Mr.  Macaulay .  MACAULAY:  Well, on my text page 19 — 2855?  Submissions by Mr. Macaulay  1 THE COURT:  Yes.  2 MR. MACAULAY:  — that tab 83 pertains to the paragraph which  3 reads "by 1904 settlers entered the Bulkley".  4 THE COURT:  Oh.  All right.  5 MR. MACAULAY:  And the next tab 84 deals with the following  6 paragraph which starts with the words "quite suddenly  7 in 1909 a fierce opposition".  8 THE COURT:  All right.  I see.  All right.  9 MR. MACAULAY:  I am at tab 83.  And what I'm saying there is  10 that they got into the Bulkley Valley.  There was a  11 considerable settlement in the Bulkley Valley and in  12 the Kispiox Valley, but that development didn't cause  13 a -- any considerable rising or unrest.  In May 1904  14 Loring reports at the second page, he says:  15  16 "On the 23rd I repaired to Moricetown,"  17  18 And then at the very last paragraph he says:  19  2 0 "Again, I here must commend them for the  21 sensible attitude they maintain toward the  22 white settlers, who are taking up every  23 available piece of land, some of which the  24 Indians formerly considered theirs by a sort of  25 prescription."  26  27 And another letter in the same year, in June, the next  28 month, he says at the bottom of the first page:  29  30 "There are over twenty-two white settlers in  31 the Kispiox valley with a prospect for many  32 more.  Regarding the settlers and the Indians,  33 no friction of any kind occurred, despite the  34 former boast of the Kispiox Indians to hold  35 that only against all comers.  36 The like conditions prevail among the  37 Hagwelgets.  The choicest parts of the whole of  38 the Bulkley valley are taken up by the whites."  39  40 But in 1909 —  41 THE COURT:  That, of course, might be part of the trouble that  42 they had with the South African Script, did it?  4 3 MR. GRANT:  Yes.  4 4 MR. MACAULAY:  Yes.  45 MR. GRANT:  I'd ask you to just note, my lord, the next  46 paragraph on page two.  My friend doesn't wish to read  47 it, but you can highlight it as well. 28559  Submissions by Mr. Macaulay  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:  The top paragraph on page two?  MR. GRANT:  Yes.  It's of the June 30, 1904 letter.  THE COURT:  Yes.  June 30, yes.  Yes.  It hurts you both.  MR. MACAULAY:  Well, it's not a question helping or hurting.  I  am doing a narrative.  I am leading up to something  else.  THE COURT:  Yes.  MR. MACAULAY:  That's really the part of the Province's case, I  suppose, in a sense.  THE COURT:  Yes.  MR. MACAULAY:  I'm leading to something else and that is the  1909 claim.  And what I'm suggesting is that the 1909  claim followed by five years the settlement of those  two valleys, that there was an interval of five years  and the intervention from outside.  And I have that at  tab 84, the collection of reports that deals with  that.  The first one is May 4 of 1908.  I shouldn't  call it 1909.  It was May 4, 1908.  "I have the honour to report herewith that much  unrest was engendered among the Indians on the  Skeena consequent a letter sent to the villages  of the latter and intended to be likewise  circulated among those of the Hagwilgets.  The  letter to be accepted -- " "the latter -- "  THE COURT:  "The letter to be accepted".  MR. MACAULAY:  "The letter to be accepted by the latter, I  managed to prevent.  The said letter seems to have been  instigated, in so far, as I could ascertain, by  the advice of an Indian of the Fraser River  Agency, called Joe Kapelano, and was written by  a Tsimpsian Indian named Weedaldaal, of  Kitsumkalum, and at present at Port Essington,  B.C.  It was sent with the direction to prevent  the Missionaries and Agent from learning its  contents.  In consequence thereof, midnight  meetings were surreptitiously being held and  collections of money made for providing the  means to meet the Indian Kapelano and repair to  Ottawa.  The intents, I mainly believe them to  be, are to effect the whites giving up their  land to the Indians, etc.  The Indian emissaries, in so far as became 28560  Submissions by Mr. Macaulay  1 known to me, were Alec Morrison, of Kispiox,  2 James White of Hazelton, and Stephen Morgan, of  3 Kitwanga, who slipped down the river in some  4 canoes."  5  6 THE COURT:  "Chance canoes."  7 MR. MACAULAY:  "Chance canoes."  8 THE COURT:  What's a chance canoe?  9 MR. MACAULAY:  A canoe that happened to be passing by.  10 THE COURT:  Yes, I suppose.  11 MR. MACAULAY:  The next letter is a follow-up.  October 1908 he  12 went down to Kitwanga Reserve to do some of these  13 allocations of the reserves that he had been doing  14 over the years.  He says:  15  16 "On landing, I was surprised to be informed by  17 Revd. Price there that the Indians had held  18 meetings on the results of which they rather  19 not have the work done, at any rate not till  20 later on.  Upon stating my surprise at the  21 change of mind, after having opportuned me for  22 several years, coming prepared and  23 ill-affording the waste of time, demanded to  24 know the reason.  25 Reluctantly, I was told that they were  26 awaiting the result of the Kapelano deputation  27 to Ottawa in which some of the Indians of the  28 Skeena participated regarding additional land,  29 etc.  30 On being reproached why not notifying me of  31 the fact ere leaving my office, received the  32 consoling rejoinder that I might have become  33 displeased."  34  35 And on the following page:  36  37 "In reverting to the michief done by a few  38 miscreants - not contended to confine their  39 pernicious predilections within the district of  40 which they belong - I here must state that  41 Weedaldaal, of Port Essington, an emissary of  42 Kapelano's, came up the Skeena early last  43 spring (see my letter of the 4th of May last)"  44  45 That's an earlier letter we have just read.  46  47 "and under the guise of prospecting about 28561  Submissions by Mr. Macaulay  1 Kispiox, surreptitiously worked upon the minds  2 of the Indians that they had not been consulted  3 regarding the loss of land taken by the  4 settlers, and should stand up for their rights  5 in getting a settlement with the...Railway...  6 for right of way through this country.  7 Likewise did I manage to elicit from indirect  8 sources that Weedaldaal collected over $3000.00  9 amongst the Indians of the Skeena, wherewith  10 purporting to represent their cause in the  11 proper shape.  All was done so perfectly under  12 cover that I was kept quite uninformed of what  13 was transpiring, and those of the Indians  14 concerned are enjoined to perfect secresy."  15  16 The next letter is a series of telegrams back and  17 forth in which he reports first that the Indians were  18 preparing for a big secret meeting.  There were  19 threats of bloodshed against the whites made to take  20 place before Christmas, if no answer had been given to  21 them about the Kapelano deputation.  And after  22 reciting the telegrams he said:  23  24 "In support of the forementioned, I here beg  25 leave to add that all signs are portentously in  26 keeping with the statements made, and that that  27 portion of my telegram to you of the 30th  28 instant:  'Would advocate to give Indians,  29 Skeena, early advice that their grievance be  30 investigated sometime during May next,' would  31 remove the impending danger for future, and  32 allow conditions again to arise till rendered  33 impossible.  34 In the matter under consideration, the  35 Indians have seemingly enjoined each other to  36 secrecy and are most guarded in their  37 movements.  The Indians have the latest  38 patterns of rifles and plenty of ammunition.  39 The surplus of the white population has  40 departed by the last steamers, and navigation  41 is closed.  Topographically, Hazelton is  42 situate in a cul-de-sac."  43  44 Then there follows a series of telegrams that speak  45 for themselves.  And he continues after the telegrams  46 saying:  47 28562  Submissions by Mr. Macaulay  1 In regard to the foregoing, I here beg leave to  2 state that concerning all of the under  3 consideration, I repaired to Kispiox, Skeena,-  4 the head-centre of disaffection - on the 6th  5 instant and met the people.  Thereat - after  6 having visited the school, etc. - I brought in  7 the result of the advice from Ottawa rather in  8 a casual manner and as sometime ago received,  9 in order to avoid the appearance of it having  10 come in consequence of bad talk.  11 Concerning all leading up to the situation,  12 I had been much prevailed upon to furnish my  13 reports sooner than calculated by Mr. Valleau,"  14  15 The Magistrate,  16  17 "of here, coming to my office declaring that if  18 I did not wire, at once, in giving the state of  19 affairs amongst the Indians here, that he would  20 do so, and much would reflect upon me in taking  21 matters so cool on the lives of twenty-six  22 women and children possibly being jeopardized,  23 in result.  24 At present, I can report everything well,  25 but previous thereto the Indians did make, no  26 doubt, some very wanton -- "  27  28 I think he means wanton,  29  30 " -- remarks against the whites; and the  31 Provincial constable made reports of  32 threatening attitudes having been given.  33 On the situation, I derived my conclusions  34 in that the Indians, as a whole, acted very  35 sullen, did not have, as wont, their religious  36 marching nights, and their regular councils  37 were kept closed.  The apprehension prevailed  38 that the Indians of a dark night would rush the  3 9 town.  40 I advised the people of Hazelton that  41 should matters become worse, a party should  42 bivouac on the grave-yard hill back and east of  43 town, which meant holding the key of the  44 situation, but instead of that early on the  45 morning of the 2nd, a lot of useless rifle-pits  46 and trenches were dug by prisoners on the bank  47 of the Skeena, under the supervision of the 28563  Submissions by Mr. Macaulay  1 Provincial constable here.  Upon a meeting held  2 and composed of citizens of the town, on the  3 latter date mentioned - which I attended - the  4 rifle-pits were ordered to be filled in and  5 levelled up immediately.  6 By the way, in consequence thereof the  7 Indians of Kispiox have it that the holes and  8 trenches were hastily charged with boxes of  9 dynamite to which wires are attached."  10  11 Then in November 1908 he says he went to Kispiox again  12 in order to allay unrest and he says:  13  14 "In my opinion, from them emanated some false  15 representations"  16  17 That is Kapelano and his friends,  18  19 "wherewith to make good alluring promises,  20 whereupon were collected thousands of dollars  21 which deflected for fine array, travelling in  22 state and sumptuous living, with some, no  23 doubt, to spare.  24 It can easily be understood the amount of  25 mischief these secret proceedings could afford,  26 especially in a district like this where  27 conditions are under a forced draft, if proper  28 vigilance were lacking, where enormous tracts  29 of land are taken up, represented but by a few  30 stray settlers during the winter, whilst the  31 Indians believe themselves driven to a corner,  32 on short order, with the inherent craving for  33 range of limitless space.  At any rate, now  34 that the case in all its bearings is brought  35 home to the Indians and the perspective is  36 dispelled, in which they have viewed certain  37 chimerical machinations, I can declare that no  38 further apprehension need be had, on that  39 score, and the best of feeling is  40 re-established."  41  42 In April 1909, though, he reports that at the end of  43 his report, the second page:  44  45 Everything is doing well barring that a  46 discontent permeats the minds of the Indians of  47 the Skeena in consequence of what had been 28564  Submissions by Mr. Macaulay  1 engendered by malcontents among the Tsimpsians,  2 of the coast, in regard to extravagant demands  3 for land, and is constantly being kept aglow by  4 missives, from that source, surreptitiously  5 being supplied in that respect."  6  7 So apparently there were more letters being sent by  8 the Tsimpsians in the coast.  9 And in May 1909 he says this:  10  11 "According to what can be learned, few of the  12 Indians will leave here for the canneries of  13 the coast during the season, which largely can  14 be attributed to their minds being perverted by  15 the Tsimpsians regarding land.  16 In so far as can be discerned, the people  17 of here are being dictated to by the latter to  18 what course to pursue in regard thereof, and  19 enjoined to conform their demands with those of  20 the Tsimpsians.  21 All the instructions the Indians here  22 received are cunningly guarded with the  23 greatest secresy, and in substance are most  24 enigmatical to the closest scrutiny applied.  25 To the whites, the Indians are very sullen of  26 demeanor, and none of them here attend church  27 any longer, and other signs of that sort are  2 8 more coming into evidence.  29 It is plain that with the latter result,  30 the instructions given these Indians, from  31 without, are of a seditious nature.  32 And, it can easily be traced that these  33 Indians have become contaminated by some  34 agitators among the Tsimpsians, and they  35 primarily by Kapelano and his emissaries.  In  36 my opinion -- "  37  38 It doesn't matter what his opinion is.  There was a  39 report made to the Superintendent General of Indian  40 Affairs, that would be the Minister, by Loring,  41 presumably at the direction of Vowell, about an  42 incident, the plans involving the rescue of an Indian  43 prisoner named Jimmy Williams.  And the destruction,  44 the alleged plan to destroy Hazelton.  That's this  45 next letter.  And the time is getting short.  46 THE COURT:  Well, I don't have to adjourn at 5 o'clock, Mr.  47 Macaulay. 28565  Submissions by Mr. Macaulay  1 MR. MACAULAY:  I beg your pardon?  2 THE COURT:  I don't have to adjourn at 5 o'clock.  We can carry  3 on a little while, if the reporter is willing.  4 MR. MACAULAY:  I haven't got very far to go.  5 THE COURT:  No.  I think if it's convenient with the reporter I  6 think we should finish.  7 MR. MACAULAY:  Well, at the bottom of the page, the first page  8 June 24, 1909:  9  10 "Among the Indians of the villages of the  11 Skeena, secret meeting are constantly being  12 held, often lasting until day-light.  Thereat  13 pickets were stationed to guard against  14 surprise and attendants deemed objectionable.  15 All attending were enjoined to guard against  16 the Agent to get an inkling of what transpired.  17 Several of the Indians could not restrain  18 themselves under the apprehension of what  19 likewise were to befall my family and myself,  20 and, generally after midnight, cautiously  21 approached the rear of the Agency to apprise me  22 of the impending danger.  The information was  23 given with the assurance of being treated  24 strictly confidential.  25 Upon enquiry by whom the plans were  26 fostered, I solely received the reply,- 'They  27 all say so alike.'  28 The Indian constables, without exception by  29 intimidation and leaning, became likewise  30 absorbed and involved.  In result of close  31 scrutiny, I elicited the following:-  32 It were decreed that all the settlers had  33 to leave the lands they occupied.  In order to  34 effect it, Hazelton as the centre for supplies,  35 had to be destroyed, and the stores here (5)  36 would afford a rich loot and a large supply of  37 intoxicants.  It were cunningly arranged that  38 on a given night the Indians of the river  39 concentrate upon this point; a few houses were  40 to be set on fire, and the people having rushed  41 to the threatened parts would be massacred,  42 from points of vantage, in the glare of the  43 blaze.  Also that the wires were to be cut  44 simultaneously, and that all plans were so  45 minutely arranged not to permit of any possible  46 failure.  47 They admit, I am told, that many of their 28566  Submissions by Mr. Macaulay  1 number would be killed, in the cause referred  2 to, but claim that a goodly number make their  3 escape to the mountains.  4 As early as on the night of the 15th of  5 October last, whilst an Indian prisoner named  6 Jimmy Williams, of Kispiox, was kept in gaol  7 here to await my return from Kitwanga - for  8 alleged covering a settler of the Kispiox  9 valley with a rifle - two or more large canoes,  10 filled with armed Indians of Kispiox, were  11 reported to have come as far as Glen Vowell,  12 demanding of the people there to join them,  13 drop part way down the river and liberate the  14 aforesaid Indians; and if resistance shown, to  15 help kill the whites here.  This rumor did not  16 reach me till several months later, and was not  17 substantiated as fact, under promise of  18 secrecy, by a young woman named Mary, Wesley, a  19 few weeks ago.  2 0 That the movements of the kind are not  21 without some system is proven by each of those  22 of the said party having been told off to  23 knock, simultaneously, at every door of the  24 houses of the latter settlement with the same  25 demand.  During the night mentioned, the  26 prisoner broke out and got away.  The fact that  27 the latter met the rescuing party ere reaching  28 here, leads me to believe that the former was  29 apprised of the plan and rather resorted to the  30 desperate efforts to get away than await his  31 chances under a cross-fire.  32 It is being said that a secret compact  33 exists among the villages not to submit to an  34 arrest of any of their number, and to resist by  35 a combined force.  The Indians have become  36 fanatical and reason seems no longer to appeal  37 to them.  I am now aware that their demands  38 have become entirely too extravagant for  39 settlement based on anything rational.  The  40 demands - consisting that all the lands were to  41 be returned, intact, to the Indians - must have  42 emanated with Kapelano alleging to have  43 received concessions from His Majesty, the  44 King; and those going to Ottawa last summer to  45 serve as incentive to raise the amount of about  46 $4000.00 on this river, which was secretly  47 collected, in a general way, for Kapelano and 28567  Submissions by Mr. Macaulay  1 associates and the scamps of the villages of  2 this river, who, though low caste, posed as  3 chiefs.  4 That the administration of justice, beyond  5 a certain limit, can no longer be enforced is  6 patent.  7 It is surprising to learn of the amount of  8 magazine guns with ammunition, of the most  9 improved pattern, that of late surreptitiously  10 became possessed by the Indians.  On an  11 out-break, so general is the organization that  12 not only the men and boys, able to carry a gun,  13 can be reckoned with, but also the women.  14 Whereas, I am sure, that on the whole there are  15 not three effective guns to twelve men, in  16 actual possession, among the whites.  17 Though, the Hagwilgets have so far not  18 joined the movement, their grievances against  19 the settlers, having taken land, would be  20 tenfold by comparison, and a neglect in timely  21 precaution may turn them with the tide ere  22 realising the full force of the condition.  Any  23 untoward circumstance may at any time  24 precipitate the worst expected.  25 During last winter, the favoured plan,  2 6 among the whites here was, I have heard  27 rumored, rather to take the initiative -  28 because of being so few, with the village of  29 Kispiox and its people than to await to be  30 butchered by them on cunningly laid schemes,  31 and have no chance for their lives.  32 I here may beg leave to state that the  33 public in general awaits anxiously the results  34 of this report.  35 I urgently advocate the sending to Hazelton  36 of a force of sixty Royal North West Mounted  37 Police with a quick firing gun."  38  39  40 And then he says:  41  42 "Only that force is properly equipped, trained  43 and disciplined effectively to cope with the  44 situation."  45  46 And gives a rough sketch of Hazelton and its  47 topography. 2856?  Submissions by Mr. Macaulay  1 Then in June of 1909 he reports that on page two  2 the Indians are -- he said:  3  4 "In the Skeena and Bulkley rivers the salmon  5 are running extra heavy, and the Indians are  6 busy thereat to an unprecedented degree in  7 catching and curing and putting up large  8 supplies, especially so the Kitsuns at the  9 canyon of the latter river about three miles to  10 the east of here."  11  12 That would be Four Mile Canyon, I guess.  What's  13 called Four Mile Canyon.  14  15 "In proportion to that activity they appear to  16 neglect their former calling such as clearing  17 land and packing for whites consequent of their  18 perverted attitude and minds.  19 For the season, few of the Indians of here  20 did go to the coast, and the reports from the  21 various canneries are that, up-to-date, the  22 salmon have been very scarce there."  23  24  25 MR. GRANT:  Sorry, that would be the Hagwilget Canyon, I  26 believe, my lord.  2 7    MR. MACAULAY:  Oh.  Yes.  Maybe.  And then on July 31 he  28 reports:  29  30 "Aside of Glen Vowell, the villages of the  31 Skeena are practically deserted because of the  32 greatest activity prevailing in catching and  33 curing enormous quantities of salmon ever  34 known."  35  36 And on the second page he said:  37  38 "It is very much to be regretted that, in  39 general, the conditions are not what they  40 should be.  At the present writing, to the  41 exclusion of everything else, the Indians are  42 solely employed with piling up enormous  43 supplies of salmon.  44 In regard to this procedure, transportation  45 and destination of same, I will take proper  46 care of knowing.  47 In my opinion, a proper force of R.N.W. 28569  Submissions by Mr. Macaulay  1 Mounted Police, at an early date, and ere those  2 of the Indians from the outside return, would  3 render futile at once the well laid schemes."  4  5 And the last in this series, October 30, 1909, the  6 second page he says:  7  8 "On the Skeena, there is still considerable  9 agitation being carried on among them in  10 connection with the land question, but of late  11 conditions developing seem to lessen on their  12 part the chances for aggressive movements to  13 any serious extent.  14 By the way, through the unscrupulous  15 agitators their minds have become perverted to  16 such a degree that they believe that in future  17 all selling of land would rest solely with  18 them, and that they intend to establish Banks  19 of their own in all of the villages on the  20 Skeena wherein the moneys therefrom derived be  21 kept on deposit, that they no longer would have  22 to resort to work as a means of subsistence,  23 and in general are about to enter a sort of new  24 era.  25 Inter alia, they claim that they never had  26 been conquered, and are quite unmindful of the  27 fact that formerly the Tsimpsian and the Nass  28 Indians periodically made raids,"  29  30 etc.   And we've read that bottom part before.  The  31 sequel, my lord, of course, was what was sometimes  32 called the Kispiox raid, but there wasn't a common  33 front either.  There never was a common front.  And  34 that's shown in tab 85.  That is between the Gitksan  35 and the Wet'suwet'en.  There was a problem between the  36 Gitksan and the Wet'suwet'en over the reserve, the No.  37 3 Hazelton reserve.  Although it had been all allotted  38 apparently to the Gitksan, that contained a very  39 substantial part of the Wet'suwet'en fishing grounds,  40 and some sort of reorganization of the reserve  41 boundaries according to Loring was necessary, and  42 that's what he's referring to in this letter.  But he  43 makes some interesting remarks about the troubles that  44 were then current.  It's November 1909.  He says in  45 the second paragraph:  46  47 "Also it is remarked that the division should 28570  Submissions by Mr. Macaulay  1 be made in a formal manner by written agreement  2 signed by the leading men of both bands in my  3 presence, and that the agreement on the subject  4 be in duplicate and should be forwarded for the  5 information of the Department.  6 In reply to the foregoing I have the honour  7 to state that to effect an agreement on the  8 subject between the two bands concerned is  9 rendered utterly impossible by the fact that  10 these bands are not even on speaking terms  11 since that of Rocher Deboule refused to enter  12 into league with those of the Skeena in their  13 extravagant demands on the Government or offer  14 fight.  15 When impelled to write my letter on the  16 23rd of July last, the Rocher Deboule Indians  17 came and assured me that if the Hazelton  18 Indians were to attempt any fishing on their  19 side, too, they, (Rocher Deboule) would pick  20 off the others from the perches of their side  21 (opposite) of the canyon, and have their bodies  22 float off to the sea as so many flies.  23 I conceive no other way possible but simply  24 to effect a division, and since no one of  25 either band ever had a glimpse of the tracing  26 containing Tsitsk"  27  28 And he goes on to say that neither side is really  29 aware of where the boundary truly is.  There was a  30 mistake in the drawing of the boundary.  So that they  31 were not -- the Wet'suwet'en and the Gitksan were not  32 at idem on that subject.  And finally the -- almost  33 finally.  In November 1909, Loring, in making his  34 monthly report, refers to the incident at Kispiox some  35 days earlier.  On page two he said:  36  37 Since the descend of 50 constables and specials  38 upon the Village of Kispiox, at the break day  39 on the morning of the 6th, and the rest of  40 eight of its population, the Indians' behavior  41 underwent a radical change for the better, and  42 further trouble, on that score and in other  43 respects, is not likely to be expected.  The  44 work on the Kispiox valley wagon road has been  45 resumed and is peacefully progressing."  46  47 And then at the bottom: 28571  Submissions by Mr. Macaulay  1  2 "Consequent of the arrest of one Gohach  3 (Stephen Morgan) Indian of Meanskinisht, and  4 his trial and sentence of three months, under  5 the above date, at quietus, in connection with  6 the unrest of the Indians on the Skeena has  7 additionally been effected."  8  9 Meanskinisht, of course, was the Tomlinson's holy  10 city.  11 In the next letter, April 30, 1910, on the second  12 page -- on the first page he refers to a lot of  13 right-of-way work being done by the Kitsuns and the  14 Hagwilgets.  And on the -- at the very last sentence  15 of the report on the bottom of page two he says:  16  17 "As a whole, the Indians have become more  18 content than formerly, and have seemingly  19 abandoned the idea about securing the  20 unrestricted control over all the land."  21  22 And in June of 1911 he says:  23  24 "The district is entirely freed from the  25 perturbation whilom engendered, from without,  26 by some idle and worthless native demagogues.  27 It was ideal for the concoction of visionary  28 stuff that dreams are made of, and must admit  29 that for a time the boom gathered force.  In  30 the minds of these and a few of their  31 disciples, the thought of tilling the soil has  32 no part.  Its fumes of fancy was the lure for  33 easy money, or its equivalent, and, in theory,  34 would surely bring about the Indian's doom with  35 vultures and sharks closely following in his  36 wake.  37 Concerning the oft paraded 'rights of our  38 forefathers' would lie in this, that under  39 former conditions, when hunting and trapping,  40 the natives, perennially starving, roamed the  41 country -- "  42  43 Well, that's his understanding of the precarious life,  44 the second page, in the past.  That's not a report of  45 the event that day, at the time.  46 In a further report of July 11 -- July 31, 1911 he  47 says in the first page, the second half of the page: 28572  Submissions by Mr. Macaulay  1  2 "The Indians' general health continues to  3 remain excellent and a feeling of content  4 obtains among them.  5 In so far as can be now foreseen, all of  6 the false impressions, regarding land matters,  7 still exists in a measure with the -- "  8  9 And I take that to be "with the old people."  10  11 " -- with the old people.  With them an  12 obsession is less likely to be dislodged than  13 with those that can discriminate, and are in  14 touch with affairs of a practical nature."  15  16 So he's reporting, in effect, that the old people  17 still entertain that the land claim view --  18 THE COURT:  Where was that passage, Mr. Macaulay?  I was looking  19 at something else.  Were you still on June 30, 1911?  2 0 MR. MACAULAY:  No.  July 31, 1911, my lord.  21 THE COURT:  Oh.  Thank you.  Oh, yes.  22 MR. MACAULAY:  It can be made out the passage reads:  23  24 "In so far as can be now foreseen, all of the  25 false impressions, regarding land matters,  26 still exists in a measure with the old people.  27 Which them — "  28  2 9 THE COURT:  "With them".  3 0 MR. MACAULAY:  31  32 "With them an obsession --"  33  34 Oh.  Period.  35  36 "With them an obsession is less easily to be  37 dislodged than with those that can  38 discriminate, and are in touch with affairs of  39 a practical nature."  40  41 THE COURT:  Yes.  Thank you.  42 MR. MACAULAY:  And finally, in — well, almost finally.  I keep  43 saying finally.  In --  44 MR. GRANT:  My friend concurs that last quote is really an  45 opinion of Mr. Loring.  46 MR. MACAULAY:  It speaks for itself.  He's saying — he's  47 reporting that with the old people, the old people 28573  Submissions by Mr. Macaulay  1 still entertained that idea.  On December 31, 1912,  2 that's tab 88, my lord, Loring says in the middle of  3 the first page:  4  5 "The Indians' minds are entirely freed from the  6 former perturbation regarding the whites, and  7 the land they occupy.  Indian labour, at good  8 wages, is still much sought after, and the  9 satisfaction it affords redounds invariably to  10 its favour and credit."  11  12 And he says the older people are in their winter  13 camps.  Towards the end of his career he went up to --  14 that's tab 89.  He went up to Kispiox, which was the  15 epicentre of the disturbance and the campain and met  16 with the local men, who obviously he knew well, and he  17 gives this account, a meeting with them.   He said --  18 and this is on the second page.  I am sorry, third  19 page.  2 0    MR. GRANT:  Tab 8 9?  21 MR. MACAULAY:  Tab 89, yes.  And I have quoted it in my — in my  22 notes on the bottom of page 20.  Loring went up there  23 to deal with some local problem.  It was suggested to  24 Loring that an elected Kispiox village council set up  25 to deal with some local problems.  And he replied in  26 January 1919:  27  28 "I recapitulated to several the most prominent  29 amongst the Indians,"  30  31 Of Kispiox,  32  33 "the trouble the previous council had caused,  34 even to having deliberated upon how to drive  35 white settlers,"  36  37 And he puts in brackets:  38  39 "(I am putting this mildly, out of the Kispiox  40 valley, settling matters on the basis of  41 personal dislikes of each other, and in many  42 ways imposing upon the old people."  43  44 He was referring, of course, to the discussion that he  45 had known about -- he was talking to them, the people  46 in Kispiox, about the discussions the former council  47 had had in 1880 and 1990.  He didn't support the idea 28574  Submissions by Mr. Macaulay  1 of supporting another Kispiox council.  My lord, the  2 submissions perhaps can wait for another day.  3 THE COURT:  All right.  4 MR. MACAULAY:  But I have reviewed the evidence and I consider  5 it very important that I review this evidence, neither  6 of a historian, nor of an anthropoligist, nor of any  7 of the species of academics that we've heard so much  8 from, but the man who was in charge of running affairs  9 there for 30 years and who had a duty to report to his  10 superiors on what was going on and what ought to be  11 done and what, not only on what was actually being  12 done that day but on the general tendency and trend of  13 affairs.  My lord, it's 5:15 and I apologize to your  14 lordship for having taken so long.  15 THE COURT:  Oh, all right.  That's fine.  I think it's better  16 that we finish at this stage.  At any stage, I  17 suppose.  18 MR. MACAULAY:  Days marching nearer home.  19 THE COURT:  Yes.  And you are suggesting now that we resume on  2 0 Monday morning?  21 MR. MACAULAY:  Yes, my lord.  22 THE COURT:  What time would you like to start?  2 3 MR. MACAULAY:  9:30, my lord.  2 4 THE COURT:  9:30?  25 MR. MACAULAY:  Yes, please.  2 6 THE COURT:  All right.  Ms. Thompson, will the courtroom be  27 needed tomorrow?  28 THE REGISTRAR:  I didn't check with them.  2 9 THE COURT:  Why don't we just not tell them anything about it.  30 They might find out.  I think counsel should take  31 anything of particular sensitivity with them.  Other  32 than that, I think we can leave things here and if we  33 have to use the courtroom tomorrow we'll arrange to  34 have some special security in place to guard our  35 possessions.  I am not going to take my things away.  36 MR. MACAULAY:  There was one more thing, my lord.  37 THE COURT:  All right.  38 MR. MACAULAY:  It's a correction.  On the last page, 22 D there  39 is a typographical error.  There is a reference in the  40 first paragraph to the period of Loring's tenure.  It  41 says there 1889 to 1900 which, of course, is wrong.  42 So I ask -- I am handing up a new one.  Just so we all  43 know it's to 1920 and I'm just eliminating in the  44 revision --  45 THE COURT:  Yes.  All right.  4 6 MR. MACAULAY:  — the page.  47 THE COURT:  All right.  I wish you all a pleasant weekend then. 28575  Submissions by Mr. Macaulay  1 Thank you.  2  3 (PROCEEDINGS ADJOURNED UNTIL MONDAY, JUNE 18, 1990 AT  4 9:30 A.M.)  5  6  7  8  9 I hereby certify the foregoing to  10 be a true and accurate transcript  11 of the proceedings transcribed to  12 the best of my skill and ability.  13  14  15  16  17  18 Laara Yardley,  19 Official Reporter,  2 0 UNITED REPORTING SERVICE LTD.  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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