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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-24] British Columbia. Supreme Court Apr 24, 1990

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 2505?  Proceedings  1 SMITHERS, B.C.  2 APRIL 24, 1990  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 24th day of April, 1990.  Delgamuukw  6 versus Her Majesty the Queen at bar, my lord.  7 THE COURT:  Could we have a word about scheduling.  Firstly on  8 the short term, I wonder -- well, I proposed that we  9 have three approximately one hour sessions today, and  10 a two hour session or thereabouts this evening.  11 Secondly, in view of the hospitality of the bar, I  12 wonder if it would be convenient to start at 9:00  13 o'clock tomorrow morning, instead of 9:30, and try and  14 finish about 4:30.  This is to partly accommodate our  15 reporters, who have been invited, and who I am sure  16 would like to get a little bit of time in before the  17 festivities to begin, if they are to be able to  18 provide a transcript at a reasonably early hour the  19 next day.  I expect that counsel will find that  20 convenient, will they?  21 MR. GRANT: That's fine.  22 THE COURT:  All right.  I would then propose that we would sit  23 approximately the same hours Thursday as today, and  24 that on Friday we will sit the same hours as today,  25 except that there be no evening session.  26 With regard to the long-term, can counsel tell me  27 how they think we are getting along, and what the  28 future holds for us in this regard?  29 MR. GRANT: Well, the plaintiffs' position, my lord, we have  30 reviewed our scheduling, and of course making certain  31 assumptions about the way we are going, it appears --  32 I believe Mr. Rush raised with you that we needed an  33 additional week last week.  34 THE COURT:  Yes.  35 MR. GRANT: And we assume that we may ask -- we assume that there  36 may be extended hours in that week in Vancouver.  37 THE COURT:  Yes.  38 MR. GRANT:  And when we look at our schedule at May, it appears  39 that right now at the outside we may need one  40 additional day over that week.  Now, we discussed  41 whether that should be on the Saturday or the Monday,  42 and we are basically in your hands.  The end part  43 of --  44 THE COURT:  That would be the week of May 7th, I gather, and you  45 would be talking about the Saturday the 12th?  46 MR. GRANT: That's right.  That's correct.  Plaintiffs' counsel  47 are generally -- I should advise your lordship, I am 25059  Proceedings  1 not sure if this was raised, I don't believe it was in  2 Mr. Rush's introduction, but our clients have  3 expressed to us that at the conclusion of our argument  4 two leading chiefs or one of the leading chiefs would  5 like to make a closing statement, but it would be very  6 brief.  It's not anything of any length.  So that  7 would happen at the end of our opening.  8 THE COURT:  All right.  Well, I'm not — do counsel want a  9 decision now on a Saturday?  10 MR. GRANT:  We don't need the decision from your lordship now on  11 the Saturday.  12 THE COURT:  All right.  I don't recall anything was set for the  13 12th, but I would like to check my schedule.  14 MR. GRANT:  We don't need that decision now, but we wish to  15 advise you, because you were concerned about our  16 schedule, and we looked over where we stood, and that  17 appears to be the situation.  18 THE COURT:  All right.  A matter I am about to mention, I think  19 I would prefer the Saturday, if possible, because I am  20 going to have to be telling counsel that I can't sit  21 on the Friday, the 1st of June.  So that's a day out  22 of that week of the province's time.  So I would  23 rather not take two days out of their time, but -- so  24 I will reserve on that question of Saturday, but my  25 present inclination is that counsel should plan on the  26 basis it's a good possibility that we will sit that  27 Saturday.  Yes, we are quite satisfied with that.  All right.  The only other matter from our perspective, My Lord,  31 is with respect to the matter I raised on Friday in  32 terms of which could -- which is a bit of a problem  33 for our scheduling later, not right now, but as we go  34 through, and that is that, as you may recall, Mr.  35 Macaulay had indicated that he would be providing the  36 response of Canada to the counter-claim by Monday.  I  37 was advised -- well, at my request -- nothing was said  38 to me until I asked counsel, not Mr. Macaulay, Ms.  39 Koenigsberg yesterday, that she didn't know when they  40 were going to get it.  It wasn't going to be  41 yesterday, and it would possibly be at the end of the  42 week.  This is problematic for us, because we want to  43 see Canada's response to the counter-claim for part of  44 our argument when we deal with that, and we want an  45 opportunity to review it.  46 On March 30th under the regular -- under the  47 previous schedule, I mean March 12th under the  2 8    MR. GRANT  2 9    THE COURT  3 0    MR. GRANT 25060  Proceedings  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  previous schedule, Mr. Macaulay wrote and advised that  the counter-claim would be delivered on April 9th.  As  you recall, there was a ten or eleven day hiatus from  that, and assuming the eleventh day -- everything  slipped by the eleven days, and that would put their  delivery of the counter-claim would have been due on  April 20th.  And as Mr. Macaulay said, he hoped it  would be done by Monday.  Now we find it would be the  end of this week.  MR. MACAULAY:  I don't know where Mr. Grant got the — perhaps  Ms. Koenigsberg did say that.  I hope to have my  instructions late today.  I should mention, my lord,  that there is a very recent decision of this court  that has a bearing on one of the important positions  that we have taken in regard to the counter-claim, and  it's not something the plaintiffs need be overly  concerned about.  A recent decision of the Chief  Justice.  That is a matter we are seeking  instructions.  I hope to have that by tonight,  certainly before Friday.  COURT: All right.  GRANT: I just wonder if my friend -- I presume he is meaning  the railway cases, but I may be wrong.  MACAULAY: That's right.  THE  MR.  MR.  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  THE COURT  Yes.  The railway --  Yes, right.  In any event, that is -- we don't want -- I mean, I  am not trying to be -- we don't want to slow our  process, but we certainly must review their reply to  the counter-claim for us to properly deal with the  counter-claim.  Well, you are going to have all next week anyway.  Yes.  You see --  Nothing else to do.  There was a possibility, until our review of our  schedule, that we would have been starting that part  of the argument by Friday, but it appears that that's  all right.  All right.  Well, now there is one other matter that  I have to lay on counsel, which I regret, but if we --  well, it's not.  We open in Vancouver on the 7th of  May, and normally we would run three weeks, which  would -- the first week will be taken up by the  plaintiffs, the next two by the province, and then we  would be down the week of the 28th, and I regret to  say that because of matters in another province, I 25061  Proceedings  1 cannot avoid being away the week of June 4th.  I have  2 to be in either Ottawa or Halifax.  I would propose  3 that we sit four weeks, that is the weeks of May 7th,  4 14th, 21st and 28th, except for the 1st of June.  And  5 I hope that --  6 MR. GRANT:  That's satisfactory.  7 MR. WILLMS:  My lord, this is something that we have been trying  8 to come to grips with, and that is how much --  9 originally we were going to have a week from the close  10 of the plaintiffs' argument to get our final argument  11 in form so that it all ran smoothly and wasn't  12 disjointed.  Now with the plaintiffs perhaps closing  13 their case on a Saturday, we would -- and we haven't  14 come to a decision yet on how much time we think we  15 will need.  We will certainly need time from the point  16 at which my friends finish their oral argument, and it  17 will be more than the Sunday before we can start our  18 oral argument, so that I can say to your lordship that  19 we would not be ready, if my friends finished on the  20 Saturday, we wouldn't be ready to start the following  21 Monday.  We would like the opportunity to ensure that  22 we are not going to be left with some matters that we  23 haven't dealt with, and although my friends have  24 generally followed the outline of their argument, they  25 do pop back and forth.  26 And, for example, we still haven't heard, I think,  27 the last week on what the law of aboriginal title is.  28 I hope we hear that by the end of the week.  But those  29 are the kinds of important things that go right to the  30 beginning of our oral argument, and we just can't go  31 right away.  How much time we'll need, I don't know,  32 and it really depends on how many more pages the  33 plaintiffs give us this week, and in the first week  34 back in Vancouver.  35 THE COURT:  Well, I understand what you're saying, Mr. Willms,  36 but I have to say that I see grave difficulties of  37 accommodating it.  It seems to me that we have all had  38 pretty good notice of what this case is about, and I  39 just don't know where we are going to find a week for  40 that indulgence.  41 MR. WILLMS:  My lord, with all due respect to my friends, we  42 still don't know what their case is.  I am afraid to  43 say we don't know what their case is.  We have been  44 waiting and waiting, and we are now almost in the  45 fourth week -- we are in the fourth week of their oral  46 argument, and we don't know what their case is.  47 Hopefully we will find out by the end of this week or 25062  Proceedings  1 by the beginning of the week in Vancouver.  But we  2 would rather reply to something when we finally know  3 what their case really is.  4 THE COURT:  I know that's what you would rather do.  Is it  5 possible?  Where is the time?  I don't see the time.  6 MR. WILLMS:  My lord, the time as originally scheduled --  7 THE COURT:  But that's gone.  No point talking about the  8 original schedule.  9 MR. WILLMS:  What I am saying, my lord, is that Canada,  10 originally the province and Canada had suggested six  11 weeks of time.  As I understand it, even sitting three  12 on, one off, or taking another period of time off,  13 there is still six weeks, plus the three days of reply  14 that your lordship has referred to before the end of  15 June.  16 THE COURT:  Yes.  But there is not six weeks.  Is there six  17 sitting weeks?  18 MR. WILLMS:  There is one week that your lordship is unavailable  19 in June.  2 0 THE COURT:  Yes.  21 MR. WILLMS:  And there is the originally scheduled week at the  22 end of May, and I thought your lordship just suggested  23 that we would sit that week.  2 4 THE COURT:  Yes.  25 MR. WILLMS:  So that's just a change of a week there.  The only  2 6 extra time that I am aware of would be whatever time  27 we need, and I'm not -- I don't know how long it will  28 be to ensure that we've covered everything before we  29 start our argument.  And that -- even if it was a  30 week, my lord, that's two weeks out of the remaining,  31 I think there's seven weeks remaining or eight before  32 the end of June.  33 THE COURT:  Actually there is nine.  34 MR. WILLMS:  So I -- we don't perceive that we will take longer  35 than three weeks, My Lord.  In fact we are trying to  36 make sure that we stick to the three weeks that we  37 originally estimated and don't run over.  And I don't  38 know what my friend Mr. Macaulay's estimate is.  I  39 think Canada originally said two weeks, perhaps three.  40 I still think it can be done before the end of June.  41 And if it requires longer hours here and there, we are  42 certainly willing to do that, my lord, or Saturdays,  43 although that's perhaps not the best for all, but  44 there is time that is needed between when my friends  45 finish and when we start.  46 THE COURT:  Well, if Canada took the same position you did, then  47 it had to have a week before your argument, and 25063  Proceedings  1 it's -- there wouldn't be time.  2 MR. WILLMS:  Well, I haven't heard my friend's position.  3 MR. MACAULAY: It's very unlikely we will take that position, my  4 lord, very unlikely.  We had hoped to take only two  5 weeks and not three.  We may have to take a little  6 more than two weeks than we expected to take because  7 of the counter-claim, but we are going -- we are not  8 going to take more than three weeks.  9 THE COURT: Well, I still don't think we can finish in June on  10 that basis.  If we don't sit the week of the 14th --  11 MR. MACAULAY: There is reply.  12 THE COURT: If we don't sit the week of the 14th, there is — the  13 week of the 21st, which is a four day week, the 27th,  14 which is a four day week unfortunately, which is eight  15 days, and I have to be away the week of the 4th of  16 June, and there is five days in the week of the 11th,  17 which would be your three weeks, Mr. Willms, then  18 there would be two weeks for the -- for Canada and no  19 time for reply, which means that we wouldn't be able  20 to finish this trial until some time towards the end  21 of July, which I think would be unfortunate.  If you  22 could abridge the time you need between arguments to,  23 say, two days, it could be done.  24 MR. WILLMS:  My lord, I don't know how much — I don't think  25 that we'll need a week, but I am concerned that when  26 my friends get extra time, that it appears that it  27 comes off ours, and in my submission that shouldn't  28 happen.  We want to be ready to present our argument  29 in reply to whatever the plaintiffs' argument may turn  30 out to be.  And there is a day lost already, as your  31 lordship suggested, in respect of June 4th and the  32 short week -- there is two days there.  33 THE COURT:  Yes.  Well, it's awkward, but we shouldn't be  34 sitting this time.  This trial should have been over a  35 long time ago, and we are here now.  It's trying to  36 deal with a practical problem, which seems to me we  37 must finish this trial by the end of June.  And on the  38 present arrangements, as I see it, if the plaintiffs  39 finish on the 12th, which seems to me now to be highly  40 desirable, the only sensible compromise would be to  41 have you begin your argument, Mr. Willms, on the 16th,  42 that's the Wednesday of the following week, four  43 days --  44 MR. GRANT: Maybe I should say something.  I find it somewhat  45 surprising that my friends expect that on Saturday the  46 12th there is going to be something substantial that  47 change their position.  I mean, my friends will have 25064  Proceedings  1 had four weeks of our legal argument, and they have  2 had our summary for, I guess, almost two months by the  3 time they start, or over two months, that I am a bit  4 at a loss as to what they expect is going to happen.  5 THE COURT: I am too, and I am not going to speculate, nor do I  6 think anyone should.  It doesn't lie in the mouth of  7 the overholding tenant to complain about the thinking,  8 anxiety of the owner to repossess his property.  9 MR. GRANT:  That's a very good analogy.  10 THE COURT:  Well, Mr. Willms, I would hope that you could  11 persuade your colleagues to be ready to begin on  12 Wednesday the 16th of May.  13 MR. WILLMS:  Well, my lord —  14 THE COURT:  Earlier if you find that you can do so.  I think you  15 should be able to do so.  That's speculation.  16 MR. WILLMS:  We don't want to stretch this out.  We want the  17 case finished by the end of June, and this is solely  18 for the purpose of dealing with the plaintiffs'  19 argument and for no other purpose.  2 0 THE COURT: All right.  21 MR. MACAULAY: My lord, the plaintiffs' three day reply, when  22 will that take place in the scheme of things?  23 THE COURT:  27th, 28th and 29th of June.  24 MR. MACAULAY:  Well, that gives us just two weeks then.  25 THE COURT:  Yes.  Yes, it does.  And if your argument takes more  26 than two weeks, well then the plaintiffs' reply will  27 have to be late July.  That schedule is premised on  28 your submissions being two weeks.  29 THE COURT: There is that proviso that this is premised on your  30 argument being two weeks.  If it's more than two  31 weeks, then it can't be done.  32 MR. MACAULAY:  All right.  33 THE COURT:  All right.  Let's advance our cause as much as we  34 can.  Proceeding, Ms. Mandell.  I am on page 104.  35 MS. MANDELL:  I am there too.  36 THE COURT:  Thank you.  All right.  Yes.  37 MS. MANDELL:  My lord, I would like to begin this section by  38 answering a question which you raised yesterday, where  39 you said why would Mrs. MacKenzie's mother grant  40 rights to Mrs. MacKenzie's husband to her territory,  41 and the answer --  42 THE COURT: Was that it, or was it Mrs. MacKenzie that granted  43 the rights?  44 MS. MANDELL:  It was announced Mary MacKenzie took the name  45 Gwaams, announced her husband would have rights to the  46 territory, and it was her mother who at that time was  47 the head chief.  And I think if your lordship will 25065  Submissions by Ms. Mandell  1 permit me to depart from the text and attempt to  2 explain that answer, it will also pave the way for the  3 next portion of the argument which the plaintiffs are  4 urging on you.  5 The answer to the question has to do with three  6 separate areas which are important to the organized  7 society.  One is the feast, the second is the nuclear  8 family, and the third is the chief as steward and  9 manager of the land.  And if I could first begin with  10 the feast.  11 Your lordship will recall that at the feast there  12 has to be more than one side there to witness the  13 feast and to witness the transactions which occur.  14 And it will be the father's or the spouse's side which  15 will be there as witnesses.  And your lordship will  16 recall that the law that you cannot marry within your  17 own house and clan will require that there will be  18 another side which will be available to be part of the  19 witnessing other side at a feast.  20 Now, there is, and as was described by Mr. Grant,  21 an interwoven need for reciprocity within the system,  22 where the father's side provides services, and in  23 return they are -- they are repaid at the feast.  And  24 this balance or contribution between the father's side  25 and also the spouse's side, where the contributions  26 are acknowledged at the feast, is one very important  27 way that the system works, and one way to extend the  28 reciprocal giving is through access to the territory.  29 And if I could ask your lordship to turn in the  30 argument to page 152.  There is a very good  31 explanation of this by Johnny David, which I would  32 like to refer you to.  The second quote on page 152.  33 Johnny David provided an example where he benefited  34 from the rights of andemnuk, the rights to the  35 spouse's side, and returned the benefit at the feast.  36 He said:  37  38 "My wife's Uncle Francis Lake John said that I  39 could use my wife's hunting territory which is  40 called Nanika.  That was done at a feast that  41 was held here.  Francis Lake John got up and  42 announced it at a feast.  My brother-in-law  43 also go up and said that I could use my wife's  44 hunting territory."  45  46 "This is how its been done in the past, and it  47 is still happening today, where the man can 25066  Submissions by Ms. Mandell  1 hunt on his wife's territory.  When I use my  2 wife's territory any game that I shoot or any  3 money that I make from the furs is all spent at  4 a feast that my wife would put up.  It is how  5 things were done in the past and it is still  6 happening today even if some of the younger  7 people don't understand the system..."  8  9 And what Johnny David is explaining is the  10 relationship between the contribution at the feast of  11 the mother's house by the spouse, who has access to  12 the mother's house's territory, and all of that is  13 part and parcel of the interwoven reciprocity which is  14 exhibited at the feast.  And I might say that although  15 it's a point I will develop later, that with respect  16 to dax gyet, the dax gyet of the spouse will be raised  17 by being able to provide for his wife at his wife's  18 house feast, and so too will the dax gyet of the  19 giving chief or the house chief, because in a society  20 where dax gyet is raised by the sharing, the fact that  21 the spouse will provide food to the house chief's  22 feast reflects back on the dax gyet of the house chief  23 who extended the access right to the spouse.  24 Now, if I could also look at it from the point of  25 view of the nuclear family.  26 THE COURT:  Well, Ms. Mandell, the reason I asked the question  27 was simply because of the context of the dialogue we  28 were having about the nature of the aboriginal  29 interest, and the suggestion that the chief was the --  30 was in a position equivalent to trusteeship or close  31 to trusteeship, and was it a proper use of that  32 authority to benefit personally by giving these rights  33 to her husband or her immediate family.  That's the  34 only reason --  35 MS. MANDELL:  I appreciate that.  That's what prompted my answer  36 in return, because I don't -- I think that what here  37 is important is that it's not a personal benefit, in  38 the sense that the chief personally benefits by  39 extending rights to the immediate family, but it's  40 systemic, and it's part of the whole nature that the  41 system operates that Mary MacKenzie's husband should  42 in fact be granted spousal rights, and this is  43 something which is both part of the law and part of  44 the system.  And I wish your indulgence to continue  45 with the explanation, and I think that in the course  46 of it, it will become more clear exactly how it is  47 systemic and how it is not personal, in the sense of a 25067  Submissions by Ms. Mandell  1 personal benefit to the trustee, as your lordship  2 conceived of it.  3 THE COURT:  Well, what your short answer is, is this is part of  4 Gitksan law that the -- that it's expected that the  5 husband will have access to the wife's --  6 MS. MANDELL:  That's the point I will develop.  But why it is  7 must still be further explained.  And I just wanted to  8 direct your lordship to the practise which will be  9 explained through the argument, that the women will go  10 on the man's territory, and there the children will be  11 raised, and this is another aspect of this right,  12 because one way -- you have got the territory of the  13 father's side feeding the children of the house, and  14 one way to repay that reciprocity is to grant access  15 rights to the father's side back to the house's  16 territory.  And of course you'll appreciate that if  17 the women are going on the husband's territory, and  18 they are raising the children on the house's  19 territory, you will have the spouse's of the husbands  20 from the house and their children present on the  21 house's territory.  And so present on each others  22 territory is an interlocking kinship relationship  23 which all this is there to reflect.  24 If I could also lastly mention the issue of  25 management.  Your lordship will recall that we had  26 identified the house chief as the steward of the land.  27 And this ability, in fact this systemic system where  28 there is access rights granted to the spouse and to  29 the father's side, enables the chief as manager to  30 make sure that the resources are properly harvested.  31 And I can draw to your lordship's attention, for  32 example, where you have on Namox's territory access  33 rights being granted to Alfred Mitchell in the  34 evidence, and Alfred Mitchell there is a specialist  35 and did harvest the resources, and he knows the  36 territory.  And so at that point there can be rights  37 extended to people outside the house who carry special  38 knowledge, which is to the benefit of the high chief  39 who wishes to manage the house territory properly.  40 You can also envisage the situation where there is  41 too many women in the house, for example, and if they  42 were all on their spouse's territories, there would be  43 no one or too few people left to manage the house's  44 territory.  So the rights to be able to grant access  45 to the father's side and spouse's side permits the  46 chief as steward to pull in the personnel required to  47 manage the territory as he or she feels is 2506?  Submissions by Ms. Mandell  1 appropriate.  So in short the abundant kinship  2 relationships and the entailing rights of access which  3 are part and parcel of the system enable the lands to  4 be managed.  5 And I'll now develop the way in which the  6 grantings of right of access to the territories is  7 part of the ownership system of the Gitksan and the  8 Wet'suwet'en.  9 THE COURT:  Going back to page 104?  10 MS. MANDELL:  I am going to go back to page 104.  11 THE COURT:  Yes.  12 MR. WILLMS:  My lord, the extract at the top of the page is  13 hearsay.  14 MS. MANDELL:  Yes.  My lord, the first section which I have here  15 included is the fact that the authority of the chief  16 to grant access rights to others is, as Art Mathews  17 described it, jurisdictional privilege.  He says:  18  19 "This is the part of the sharing of your  20 territory, you would call it jurisdictional  21 privilege, to be given as a sharing part of the  22 wealth which comes out of one's territory."  23  24 Now, one of the main ownership points which we  25 begin by stating is that those who have been granted  26 access rights do not share in the -- this is access  27 rights from outside of the house -- do not share in  28 the ownership or jurisdiction of the house territory.  29 The right of a chief to grant -- the chief or his  30 delegate to grant or withhold access to the house  31 territory is closely linked to his responsibility to  32 the house members to see that the land is properly  33 used, its general fertility maintained, the basic  34 subsistence requirements fufilled, and surplus created  35 for the feast.  And that's the point I mentioned in  36 the last part of my opening address about the chief  37 needing to make sure that the house territory is  38 properly managed.  It is also linked to the kinship  39 relationships of the house members to their father's  40 side and the spouse's side, relationships which are at  41 the heart of the reciprocal exchange of rights and  42 responsibilities which underpin the Gitksan  43 Wet'suwet'en systems.  And I have attempted to explain  44 that to you.  45 Now, this has been described as a law, and it was  46 stated as the law of access, and Mary MacKenzie and  47 Olive Ryan both testified to it. 25069  Submissions by Ms. Mandell  1  2 "It's Gitksan law that no one goes on anyone's  3 territory without getting the permission from  4 the head chief of the house of the territory,  5 even if it's your husband, your wife or your  6 children."  7  8 And Olive Ryan and Joan Ryan testified that with  9 the passage of the chiefly name, passed the  10 jurisdiction or the authority to the high chief to  11 grant permission to others to use the territory.  And  12 Olive Ryan stated:  13  14 "Each chief holds the hunting ground in their  15 own, and their fishing site, they name the  16 fishing site, and the other house can't use.  17 If they going to use it, they go to the owner  18 and ask -- that's permission."  19  20 And Mary MacKenzie stated:  21  22 "I have the authority of giving permissions."  23  24 Alfred Joseph for the Wet'suwet'en stated the same  2 5 way.  26  27 "The chief has authority to determine who use  28 their territory.  Gisdaywa has exercised that  29 authority to permit others to use his  30 territory."  31  32 And Johnny David stated the same thing.  33 Now, the permission of the chiefs to grant access  34 to others -- others outside of the house to use house  35 territory is a decision which is not made by the  36 chiefs alone.  And in the next section, which I will  37 refer you to, the evidence demonstrates that the --  38 within the house the chief consults with the  39 sub-chiefs and at times in a more broader way with the  40 wilnat'ahl, the clan, the wiltsiwitxw and the  41 decisions with respect to others who use the territory  42 from outside the house or are announced at feasts.  43 And I might here mention that it's part of the balance  44 between the chief and his kinship ties within the  45 house and outside that while the chief may, with the  46 passage of the chief's name, have the final  47 responsibility with the territory, he doesn't have 25070  Submissions by Ms. Mandell  1 the -- he or she doesn't have the final authority,  2 which ultimately rests with the house members upon  3 whose support the chief relies in order to feed the  4 name of the chief at the feast.  And he also will rely  5 upon and require the support of the spouse and on the  6 father's side as well in order to feed the name of the  7 chief at the feast.  And so it's within the context of  8 his support network or her support network that the  9 decision-making with respect to others using the  10 territory is fully exercised.  11 And I am not going to draw you into all of the  12 examples of how the decision-making here is done, but  13 I would ask you to turn to page 112, and I think that  14 I can illustrate this point by reference to statements  15 made by Alfred Joseph and also by Dan Michell.  At the  16 bottom of page 111, if you can begin there.  Alfred  17 Joseph testifies that the sub-chiefs are the advisors  18 of the high chiefs.  19  20 "The sub-chiefs -- it could be your younger  21 brother and it could be an older brother or an  22 uncle who is older than you, and they are --  23 still the advisors.  So -- one has to  24 consult -- they are your family.  So -- a house  25 chief cannot offend the other chiefs within the  26 house.  So you have to consult with them."  27  28 And he testified that with respect to decisions  29 made on his house territory:  30  31 "I consult with my uncles and cousins."  32  33 And this is the point that I had earlier stressed,  34 because in the feast house only one person cannot do  35 all the work.  You need the support of the house  36 members.  37 Dan Michell said:  38  39 "Well it's an ongoing thing with all our clans  40 and especially the ones that hold the names,  41 the chief names.  We get together and we all  42 have meetings and discuss what we're going to  43 do.  Like for the use of it, how it's going to  44 be arranged, who is going to look after each  45 area of the territory and how it's to be used."  46  47 And if I could here ask -- although I referred to 25071  Submissions by Ms. Mandell  1 it in a different place in the argument, I think that  2 if I could marry Dan Michell's statement, which is  3 reflected at page 179 in the argument, I could  4 complete this point at this point.  5 THE COURT:  Yes.  6 MS. MANDELL:  At the bottom of the page Dan Michell testified  7 that decision as to use rights on Namox's territory by  8 people who are not members of the clan are decided at  9 the feast hall.  The feast hall provides the forum.  10  11 "Where we can speak about it openly at the feast  12 hall with other chiefs listening in as  13 witnesses.  And (it is) there that final  14 decisions are made to whatever is going to  15 happen."  16  17 And he goes on to explain that -- on page 180 that  18 Sylvester Williams was designated as a caretaker to  19 look after a portion of the Knedebeas' territory by  20 Christine Holland, and this was announced at the  21 feast, and similarly Alfred Michell had the right of  22 access to Knedebeas' territory, and this was announced  23 at the feast.  These are two non-house members that  24 were granted rights of access by a process which  25 involved the decision-making within the house, and  26 finally which was taken to the feast.  And this, your  27 lordship will remember, is the same process which was  28 earlier described with Mary MacKenzie's husband, where  29 her grandmother, a decision was made that he would  30 have access rights, and this too was announced at the  31 feast.  32 And if I could lastly on this point take you back  33 to the quote of Art Mathews Junior, which is found on  34 page 107 and 108.  35 What Mr. Mathews Junior here is talking about is  36 the consultative process which occurs in his house  37 when decisions are made regarding the territory of  38 Axtii Hiikw.  And you will see that -- without reading  39 the quote -- what he is testifying to is that the  40 house may go broader than the consultative process  41 within the house.  "We have to involve other chiefs,  42 like our wilxsi leks or whatever.  You mean you pull  43 out the chiefs, the forerunning chiefs to make these  44 decisions."  45 And then he explained on page 108 that in some  46 decisions this is outside of the feast hall, but with  47 respect to the management of the house territories 25072  Submissions by Ms. Mandell  1 they may go broader than that, and consult within the  2 clans of the villages, and occasionally they may go  3 broader than that still.  4 So with respect then to the process by which these  5 decisions are made, and I am returning to page 112 at  6 this point, this description by the hereditary chiefs  7 of the necessity to consult with other chiefs is a  8 clear indication of the balance of authority within  9 the traditional system.  No one chief can acquire all  10 the power within the Gitksan or Wet'suwet'en systems.  11 If they did, there would be a power struggle and  12 possibly major disruption in the system.  The checks  13 and counter-balances are compulsory in the sense that  14 they are required in order to maintain the system and  15 the authority of the chiefs.  This is the delicate  16 process of requiring the consent and support of your  17 house and your father's side and your spouse's side,  18 all those that assist you at the feast, in order to  19 make management decisions about the territory which  20 will be consistent with the authority of the chiefs in  21 the feast hall.  22 Now, I would like to here talk about the various  23 kinds of access rights which are central to the  24 system, which are granted to those outside of the  25 house as a matter of law.  And the first one is  2 6 Anmnigwootxw and Negehdeld'es.  And this is the  27 granting of access rights to those that are part of  2 8 the father's side.  Anmnigwootxw, and your lordship  29 will recall is the Gitksan description of that right,  30 and Negehdeld'es is the Wet'suwet'en.  The statement  31 of the law was stated for the Gitksan most clearly by  32 Solomon Marsden, and at the bottom of page 113 stated  33 the law this way:  34  35 "Anmnigwootxw is when the son travels with his  36 father on the territory, he will be with the  37 his father until his father dies."  38  39 THE COURT:  I'm sorry, Ms. Mandell.  A moment ago, I don't know  40 if it was at page 179, one of the references you gave  41 me this morning where you went forward into the  42 back —  43 MS. MANDELL:  152.  44 THE COURT:  No.  It was Johnny David's passage.  45 MS. MANDELL:  That's on page 152.  46 THE COURT:  Well, all right.  It's also there as well.  I was  47 given the word Andemnuk, A-n-d-e-m-n-u-k, which I was 25073  Submissions by Ms. Mandell  1 told was the right of the husband of the wife's  2 territory.  3 MS. MANDELL:  Andemnuk is spouses, and Anmnigwootxw we are  4 talking about.  5 THE COURT:  Not the same word.  6 MS. MANDELL:  That's father's side.  Not the same word.  7 THE COURT:  So Andemnuk is just the spouse?  8 MS. MANDELL:  Spouse.  Yes.  9 THE COURT:  Thank you.  10 MS. MANDELL:  We are talking now about the father's side.  11 THE COURT:  Yes.  12 MS. MANDELL:  And your lordship will recall the description  13 provided to you by Mr. Grant in organized society  14 about the very many contributions that the father's  15 side is duty-bound to make to the lifetime of a  16 person, beginning with the birth feast and moving  17 through to being a major contributor in all of the  18 major milestones of a person's life, as well as having  19 a major role to play in providing the services for the  20 house feast when there is a death, funeral, a  21 headstone or a pole raising.  And your lordship will  22 recall that within the context of the feast structure  23 the father's side is repaid for the services which  24 they provide.  2 5 THE COURT:  Thank you.  26 MS. MANDELL:  Now, Solomon Marsden stated the law of  2 7 Anmnigwootxw.  28  2 9 "Anmnigwootxw is when the son travels with his  30 father on the territory, he will be with his  31 father until his father dies.  But after his  32 father dies he does not say he owns this  33 territory.  He leaves, and if he wants to go  34 back there, he has to get permission from the  35 head chief of that territory before he goes  36 back onto the territory where him and his  37 father were before.  This law is the law that  38 shows that its been followed and is the law of  39 the land.  It shows that its been followed  40 because ... the boundaries haven't changed on  41 the territories."  42  43 And what Solomon is talking about is the fact that  44 even though people will be granted access rights, it's  45 still -- it still doesn't change the boundaries of the  46 territory, but the law is that the father's children  47 can accompany him while the father's alive to the 25074  Submissions by Ms. Mandell  1 father's territory.  And if there is going to be the  2 children staying beyond that, it's with the permission  3 of the house chief.  4 Negehdeld'es, the presentation of the law was  5 presented by Alfred Joseph, and it's the same law.  6  7 "Negehdeld'es is a situation where the  8 Wet'suwet'en chiefs may permit the son of the  9 chief's family to use the territory.  This is a  10 common occurrence among the Wet'suwet'en.  When  11 the chief passes on, the children who have used  12 the territory should move back to their own  13 territories on their mother's side.  In fact,  14 the children of the chief who is passed on may  15 be given permission to continue to use the  16 territories."  17  18 And I just wanted to draw to your lordship's  19 attention on page 114 that Mary Johnson testified that  20 when there is a divorce feast which occurs, the  21 children still have rights of access to their father's  22 territory while he is alive, but they wouldn't have  23 access rights to the territory of the new husband.  24 On page 115 Emma Michell had a very nice  25 explanation for the word Negehdeld'es.  She says it  26 means frying meat over the fire and then using it at a  27 feast.  And I thought that that definition aptly  28 described the nature of the right.  The right is  29 temporary, which is frying, and the benefit received  30 by the user is repaid at the feast.  31 And as Dan Michell said, and which we have already  32 said, the right of access to a house territory through  33 the Negehdeld'es does not give rise to rights of  34 ownership.  Dan Michell said that his children may use  35 the Namox territory as Negehdeld'es:  36  37 "but they don't inherit the territory like on  38 the mother's side."  39  40 And I have summarized the components of the law as  41 they have broken down from the quotes.  The children  42 have rights of access to the territory of their  43 father's house while he is alive.  Upon the death of  44 the father, the children return to the territory of  45 his mother's house.  Upon the death of the father the  46 child may stay on the father's house territory with  47 the permission of the head chief of that house, and 25075  Submissions by Ms. Mandell  1 when the chief extends access rights after the death  2 of the father, the decision is made with the support  3 of the house, and it is announced at the feasts.  4 I am going to illustrate each of those various  5 aspects.  The first is that the children have rights  6 of access to the territory of their father while he is  7 alive.  And I mention here that this aspect of the law  8 flows from the fact that it is the practise of the  9 Gitksan and Wet'suwet'en to raise the children on the  10 territory of their father.  11 And I might mention here, my lord, that the  12 evidence properly read, in our view, demonstrates that  13 while it's less common today for this to happen,  14 because school has interposed and we have got breaks  15 in the movement completely after 1950 at least of the  16 children to the father's territory with the mother,  17 there still is some of that going on.  And certainly  18 this was the rule, in terms of its overall practise  19 before 1950.  Although it's still going on, and many  20 witnesses, young and old, and I have cited them, did  21 testify to their having been raised or having been  22 taught their skills on the land on their father's  23 territory.  24 Mary MacKenzie testified that it was expected that  25 she would go with her husband to his trapline.  26 Alfred Michell was raised on the Namox territory  27 on Goosley Lake by his father who was trapping on the  28 upper eastern part of the territory.  29 Henry Alfred learned to trap beaver on his  30 father's Kanoots' territory at Buck Flats.  31 Johnny David, who is raised on his father's  32 Smogelgem territory east of Houston.  33 Sylvester Williams was raised on Caspit's  34 territory at Blunt River by his grandfather, and  35 Alfred Joseph testified that Andy George of  36 Smogelgem's house was trapping with his father Thomas  37 George on Gisdayway's territory.  38 These are some but not all of the examples of  39 evidence of chiefs, fairly young and also deceased,  40 who were raised or taught on their father's territory.  41 Now, I am at page 118.  Upon the death of the  42 father the child returns to the territory of the  43 mother's house.  And the Gitksan law in this context  44 was explained and testified to again by the very many  45 chiefs who spoke about that as being the experience of  46 them or their children in the context of their giving  47 their testimony. 25076  Submissions by Ms. Mandell  1 Mary MacKenzie testified that when her husband Ben  2 MacKenzie passes away, their children and grandson  3 will have to ask permission from the chief to go to  4 Luutkidzwiis' territory.  It doesn't belong to them,  5 but they could be given permission to go there once in  6 a while.  7 Mary MacKenzie testified that Ben MacKenzie, her  8 husband, moved from his father's territory to that of  9 his mother's house upon the death of his father.  And  10 she had explained the very interesting history of Ben  11 MacKenzie's grandmother and grandfather, where there  12 was a house which had been built on the territory.  13 They were homesteading, raising cattle, and Mary  14 MacKenzie's husband's grandfather David MacKenzie  15 trapped on the territory along the Suskwa River east  16 of Hazelton.  And your lordship will appreciate these  17 are two Wolf territories, one Gitksan and one  18 Wet'suwet'en that are side by side, and the two houses  19 upon a very strategic marriage were able to merge  20 their two territories together, which they did during  21 the lifetime of David MacKenzie.  But she says when  22 David MacKenzie died, Ben never set foot again on that  23 territory, because it belonged to his grandfather, and  24 it is a Wet'suwet'en territory.  So he kept to his own  25 part -- Luutkidzwiis' trapline territory.  It's an  26 example of somebody that changed the -- properly  27 changed the pattern of his access with the death of  28 his father.  29 Stanley Williams testified that he went on both  30 the territories of Haaxw with his father, one  31 territory at Sedan Creek and the other at Lome Creek.  32 His father had the right to go there because of  33 Amnigwootxw.  After his father died, Stanley didn't  34 return back to those territories.  35 The Wet'suwet'en had similarly many examples that  36 were evidenced through the witnesses.  37 Emma Michell testified that her father received  38 permission to use Caspit's territory.  Caspit, who is  39 called One Eyed William, extended the permission to  40 include her brothers.  However, after her father  41 passed way:  42  43 "Her brothers did not continue to use Caspit's  44 territory but instead they went to Sam Goosley  45 and then the Telkwa River area which is the  46 territory of their own clan."  47 25077  Submissions by Ms. Mandell  1 Madeline Alfred testified that following her  2 husband's death and before the headstone feast one of  3 her children will go back to Kanoots' territory with  4 the permission of Freddie Joseph, who was the  5 sub-chief in the house of Madeek.  She said:  6  7 "For the last time to get beaver for the feast."  8  9 And then later Henry Alfred testified that he or  10 his brother would provide food for his father's  11 headstone feast with the permission of the new chief.  12  13 "...my brother or myself will have permission  14 from Freddie Joseph, to hunt on my Dad's  15 territory for the last time."  16  17 Now, the third part of the law again was  18 illustrated through the evidence that upon the death  19 of the father, the child may stay on the territory of  20 the father's house, with the permission of the head  21 chief.  And there were many examples where this was  22 provided.  Alfred and Billy Mitchell continued to have  23 rights of access to the Namox territory at Goosley  24 Lake following the death of their father.  And I won't  25 ask you to turn to it, but I will mention that I --  26 that at page 123, I'll be coming to it, I wanted to  27 tie together for your reference here that the  28 continuity of this was that it was then announced at  29 the feast that they would be permitted to do that.  30 Madeline Alfred was married to Peter Alfred, and  31 she described how her husband authorized Peter Jim,  32 the son of the former Mediik, to go onto Mediik's  33 territory at Buck Flats.  And we heard evidence that  34 Peter Jim's father was Peter Alfred's uncle, and that  35 Peter Jim had lived all of his life on the territory,  36 didn't go to school, stayed there and was granted  37 rights of Negehdeld'es to remain following the death  38 of his father.  Alfred Joseph has given permission to  39 Leonard and Andy George, who are members of the house  40 of Smogelgem, to use the territory Kaiyexweniits at  41 Owen Lake.  And again this is a case where their  42 father was the former Gisdaywa, and he passed on  43 fairly late in the children's life, so they had --  44 Andy and his brother had spent a good deal of their  45 adult life on the territory and were attached to it  46 and were continued in their permission to be able to  47 stay there. 2507?  Submissions by Ms. Mandell  1 There were several Gitksan examples of the same  2 point, and I have drawn out only a few.  3 Art Mathews Junior testified that the children of  4 Jeffery and Wallace Morgan are welcome to have access  5 to the fishing sites of Tenimgyet.  It is their  6 privileged rights through Anmnigwootxw.  And this is  7 the case where their father Jeffery Morgan was the  8 head chief of the house, and in respect for him and  9 for whatever other reasons the house thought was  10 appropriate they were granted Anmnigwootxw rights.  11 Consent to remain in the father's territory is  12 often given, particularly in the circumstances  13 described by witnesses such as Thomas Wright, James  14 Morrison and Alfred Mitchell, when it was obvious that  15 they had contributed and assisted a great deal to the  16 father's house.  The inherent reciprocity within the  17 Gitksan and Wet'suwet'en systems together with the law  18 of respect -- and I'll get into that at another time.  19 I know your lordship tripped your toes on it when we  20 were dealing with it in organized society, and I'll  21 bring it back in later.  Accounts for the fact that a  22 child may be permitted to remain on his father's  23 territory permanently.  24 Art Mathews described how the chief has given  25 Henry Wilson, the brother of late Charlie Smith,  26 permission through Anmnigwootxw to have access to a  27 fishing site across from Wilson Creek area.  2 8 And you heard evidence that Henry, who was given --  29 who was given rights of Anmnigwootxw, had difficulty  30 in accessing any fishery at Kitsegukla, and he had  31 been trained in all the fishing sites of Tenimgyet,  32 and it was an obvious extension of Anmnigwootxw to  33 him, both for his benefit and for the benefit of the  34 house.  35 Now, the final aspect of this is that when the  36 chief extends access rights after the death of the  37 father, this decision is made with the support of the  38 house and is announced at the feasts.  And we hear  39 outlined some examples where this was evidenced  40 through the witnesses.  Alfred Joseph testified that  41 decisions made by his house regarding the gaining of  42 rights of access, while made by members of the house  43 outside the feast hall, are announced at the next  44 feast.  45 And I have already referred you to Dan Michell's  46 statement, and also the fact that Alfred Mitchell and  47 his brother Billy's rights were announced at the feast 25079  Submissions by Ms. Mandell  1 by Namox.  2 Similarly it was announced for the Gitksan at the  3 feast in 1985 when Jeffery Morgan died, and this  4 should read that their children may continue to have  5 access to Tenimgyet's fishing sites.  6 I wanted to pick up on a statement which Art  7 Mathews Junior.  8 THE COURT:  I'm sorry, you are on page 124, and you had an  9 addition to that paragraph.  10 MS. MANDELL:  It was announced at the feast in 1985, when  11 Jeffery Morgan died.  It should read that their  12 children may continue to have access.  13 THE COURT:  All right.  Thank you.  14 MS. MANDELL:  I wanted to pick up on the fact that the granting  15 of access rights, while it's also related to kinship  16 and to stewardship, as I have earlier explained, is  17 also deeply founded in what I am going to call the law  18 of respect and what Mr. Grant also referred to.  And  19 this was explained by Art Mathews Junior in the  20 context of the granting of access rights to Richard  21 Morgan and his brothers.  And he said it this way, and  22 I am reading from the top of page 125:  23  24 "This is...one of our great laws that we care  25 for each other, as I have indicated in our own  26 languages, to do that, to try and expand on it,  27 to try and drive it across that it's caring,  28 it's a social group we have, kinship is ...  29 essential for the very survival of our  30 ancestors to live as they've lived and continue  31 this into today's world and we do these things  32 as they have done through Anmnigwootxw and do  33 the helping and the sharing of the  34 territories."  35  36 And I think that that illustrates as well the dax  37 gyet, which is involved in giving and sharing of the  38 territories, that it's part of survival and it's part  39 of caring and it's part of keeping the kinship group  40 strong across house boundaries.  And that's what is  41 being talked about by Art Mathews here in this quote.  42 Now, I would like to address you on a second legal  43 right of access, which may relate to Anmnigwootxw and  44 it may not.  And that's the caretaker principle.  This  45 is a case where a caretaker is a word which has been  46 used -- it's almost generic.  You hear it meaning many  47 things.  But in Gitksan law one of the meanings of 25080  Submissions by Ms. Mandell  1 caretaker was described by Art Mathews Junior where he  2 talked about a second form of Anmnigwootxw.  The first  3 we have already heard about, and that occurs when a  4 person on the father's side is given a name in the  5 house of the father, and with the name passes rights  6 to the territory, by receiving a name from within the  7 house, the person on the father's side is empowered  8 with sufficient authority and control over the  9 territory to make decisions regarding the management  10 of the territory.  The Gitksan and the Wet'suwet'en  11 use the word "caretaker" in this context; however,  12 this is not the only context for the word caretaker.  13 And your lordship will appreciate that how this  14 differs from the earlier Anmnigwootxw earlier talked  15 about, or for that matter any access matters we talked  16 about, is that somebody will receive a name in the  17 house, and with the name will come certain rights of  18 authority which passes to the high chief when the name  19 is passed to them.  20 One example is that of Charlie Smith.  I should  21 just mention that on Charlie -- Charlie Smith was  22 Anmnigwootxw in the House of Tenimgyet.  And on page  23 127, I am not going to take you into it, but we just  24 demonstrate his lineages for the purposes of your  25 lordship appreciating that there was Anmnigwootxw  26 connection to Charlie Smith and his taking of the name  27 in Tenimgyet's House.  And Mr. Grant has already gone  28 into the facts of Charlie Smith.  You will recall that  29 he is a case where there was -- he was given a name in  30 the House of Tenimgyet, but he was not from the house,  31 and Mr. Grant was trying to explain earlier that this  32 is a feature of the organized society which may occur.  33 And I am not going to go into all of the facts of  34 Charlie Smith, as Mr. Grant has already referred them  35 to you, but simply to stress that during a period  36 of -- where the house was depopulated and weakened  37 because of disease around 1917, Tenimgyet's House  38 decided to give the name Bii lax ha to Charlie Smith,  39 and this was passed to him in the early twenties.  And  40 he took care of the territory for some twenty years.  41 And Art Mathews has a lovely description, and it feeds  42 in part to your question about it like a trustee.  43 This is on page 127.  He said:  44  45 "You might say that type of anmgwootxw he took  46 the territory and held it in trust (for the  47 House)." 25081  Submissions by Ms. Mandell  1  2 I think this is a nuance on your question whether  3 the head chief is a trustee, but this is one which was  4 seen to be like a trustee situation for the House of  5 Tenimgyet, where the name was held by somebody outside  6 the house in trust for the house.  7 And he -- Art Mathews is explaining the jurisdictional  8 component that passed with the name when this type of  9 Amnigwootxw was instituted at page 127:  10  11 "This Amnigwootxw I'm talking about now through  12 Charlie Smith was the actual taking of  13 Amnigwootxw name from our house and using it to  14 show control, jurisdiction, and ownership.  If  15 he did not obtain the name Bii lax ha all other  16 chiefs wouldn't have recognized -- he had no  17 voice, he had no business talking about this  18 house, he had no rights to be Amnigwootxw care  19 keeper, so in that sense he had to obtain the  2 0 name Bii lax ha."  21  22 And Solomon Marsden testified that Charlie Smith  23 passed the territory and the seat in the feast hall  24 back to the rightful owner when he saw that the house  25 members were getting stronger.  And this is at page  26 128.  He, Charlie Smith, held the territory for about  27 twenty years.  28 Another example of caretaker in the Gitksan sense  29 is referred on page 128.  And this is -- was within  30 the evidence of Glen Williams, who explained that his  31 grandfather, Lelt, who was from the Frog clan on his  32 mother's father's side, gave Glen permission to use  33 Lelt's fishing site at Gwin Delkw.  And he explained  34 why.  35  36 "A   Because my grandfather's around 96 years  37 old now.  He's blind and he's in the hospital.  38 And I'm his grandson.  And he wants to ensure  39 that -- that there is somebody there present  40 and it's visible that somebody is using it and  41 somebody is not going to go there and just  42 claim it or use it without his consent."  43  44 And there is a Gitksan word which describes this  45 kind of authority.  46 So the case of Glen, it's not a situation where  47 Glen is given a name in his mother's, father's house, 25082  Submissions by Ms. Mandell  1 but it is a case where he's being asked to caretake  2 Lelt's fishing site.  And it's not Anmnigwootxw in the  3 sense that you earlier heard about it, because here  4 rather than it being on his father's side, it's really  5 on his grandfather's side on his father's side.  So  6 it's one generation further back.  But it's still  7 caretaker, and it's still permission, and it's still  8 Anmnigwootxw.  9 Now, the Wet'suwet'en have a similar concept of  10 caretaker, where a name will be given in the house,  11 and with that name passes the right to caretake the  12 territory, and of course rights of access.  The  13 Wet'suwet'en situation is different than that of  14 Charlie Smith.  It was testified to by Madeline  15 Alfred, Henry Alfred and Bazil Michell.  One of the  16 crucial differences is that Bazil's not related by  17 blood.  This isn't a Negehdelde'es or Anmnigwootxw  18 situation.  It's a non-blood kinship relationship.  19 I'm sure if we trace back in the genealogy there will  20 be some blood.  But anyways, it's not an obvious one.  21 The Wet'suwet'en have a word in the sense that  22 Bazil Michell was caretaker of the territory, and the  23 word is Waghunlii.  24 A life interest -- and this is a designated life  25 interest -- a life interest was given to Bazil Michell  26 for a portion of Wah Tah Keg'ht's territory.  Bazil  27 Michell was given a chief's name from the House of Wah  28 Tah Keg'ht.  The passage of an access interest in land  29 to him is not perfectly parallel to the case of  30 Charlie Smith, in that the interest passed to Bazil  31 was for his lifetime, while in the case of Charlie  32 Smith there was no time duration formally established.  33 However, in both cases non-house members were given a  34 name, rights of access and the authority as caretaker  35 over the territory.  36 I would like to take you into the circumstances of  37 Bazil's relationships, because it illustrates a number  38 of points about both the right and also the organized  39 society.  40 Bazil was born into C'enegh Layex, the House of  41 Many Eyes, Hagwilnegh.  So the first point is he is  42 not a member of the House of Wah Tah Keg'ht whose  43 territory he is going to be given.  44 As a young man he assisted Peter Bazil, the former  45 Wah Tah Keg'ht, in burying a chief from Babine and in  46 bringing the chief's name Wah Tah Keg'ht back to  47 Moricetown where it was given to Peter Bazil at a 25083  Submissions by Ms. Mandell  1 feast.  And both Madeline and Bazil described this  2 contribution that Bazil made.  Madeline says:  3  4 "He went with my brother (Peter Bazil) Wah Tah  5 Keg'ht to Babine to deal with the funeral of  6 the previous Wah Tah Keg'ht who passed away way  7 there.  Bazil helped him."  8  9 And I just note for your lordship that Madeline  10 talks about Peter Bazil as her brother, but according  11 to the geneaology he is Madeline's first cousin.  12 Madeline's brother and Peter's brother were first  13 sisters.  14 Peter -- or Bazil Michell described his  15 contribution:  16  17 "When he died we buried him in Babine.  Peter  18 and I paid the expenses.  We held a feast."  19  2 0 And the name which Bazil was given in Wah Tah  21 Keg'ht's House is described by Madeline, has more  22 power than the chief's name Dzee, which is held by her  23 today, and if you look at the seating chart in Wah Tah  24 Keg'ht's House, you see that Bazil Michell sits beside  25 Henry Alfred.  Bazil's name Hadah K'umah, that is the  26 name previously held by Madeline Alfred's sister.  27 Now, I would like to depart for a minute and  28 attempt to explain something which you asked with  29 respect to the territory of Olive Ryan.  I think this  30 is probably the best example of it.  31 The houses don't always manage the territories in  32 precisely the same ways.  For some of the houses  33 sub-chiefs, and this is the case of Wah Tah Keg'ht and  34 also Hanamuxw, the sub-chiefs will be generally viewed  35 as controlling or take care of specific parts of the  36 specific house territories.  And so you will have a  37 situation which is evolved over time, as in the case  38 of Bazil, where whoever received the name Hadah  39 K'umah, would also expect to be the caretaker of the  40 west side of Wah Tah Keg'ht's territory.  And as I  41 understand the evidence of Hanamuxw, similarly the  42 area behind Kitsegukla in the valley is an area within  43 Hanamuxw's House that Gwaans, whoever receives the  44 chief's name Gwaans, would be expected that they would  45 be able to caretake in that sense.  And so when, for  46 example, Olive Ryan received the chief name Gwaans,  47 she, like the Gwaans before her, would be expected to 25084  Submissions by Ms. Mandell  1 care for and control a certain parts of the house's  2 territory.  3 This is a territory along the Skeena River, I'm  4 told, that Gwaans has, and I can point out to you  5 exactly where it is.  6 MR. WILLMS:  Perhaps we could have a reference from the evidence  7 to support the previous territories as well.  8 THE COURT:  I'm sorry.  9 MS. MANDELL:  It's in the argument.  10 THE COURT:  The previous territories.  11 MR. WILLMS:  The previous Gwaans' territory.  12 THE COURT:  Oh, I see.  I don't — I don't know.  You have me  13 there.  14 MR. WILLMS:  I don't know where my friend got that.  Maybe she  15 does.  16 MS. MANDELL:  We can help.  17 THE COURT:  I'll be surprised if you can, but good luck.  I  18 don't remember a thing about it.  19 MS. MANDELL:  I think it came out in one of the other witnesses.  20 THE COURT:  Well, it may have.  I'll be surprised.  I like to be  21 surprised.  22 MS. MANDELL:  Well, it's — we'll carry on with the explanation  23 in any event.  24 When Bazil Michell then was passed the name Hadah  25 K'umah, he was passed the rights to the west side of  26 Wah Tah Keg'ht's territory, and that's the -- I had  27 finished the explanation, it's the major point I  28 wanted to explain, and also to explain that not all  29 the houses do it the same way.  This is typical of  30 these two houses, and you have seen evidence of it.  31 Now, when Bazil received the name Hadah K'umah, the  32 feast was done according to proper procedure, and on  33 page 132 just demonstrated that the inviting was done  34 by the proper clan and the right people did it, and  35 there was an interesting point that I wanted to stress  36 on page 132 .  37 Bazil Michell was 89 years old when he gave his  38 commission evidence, and he was given the Hadah K'umah  39 territory before he was married.  That's probably 65  40 years ago or 70 years ago.  He remembered from whose  41 territory the animals were taken for the feast, and  42 it's something which strikes at the very deep  43 significance of whose territory do you hunt on to  44 contribute to the feast.  And you will recall Mr.  45 Grant stating that the foods that are brought from the  46 various territories are announced at the feast, and  47 the length of time that this detail is held in Mr. -- 25085  Submissions by Ms. Mandell  1 in Bazil's head was something which I noted.  And he  2 in fact did hunt from the Hadah K'umah territory, and  3 I'll explain later that that's quite common,  4 especially among the Wet'suwet'en, to use the  5 territory that you are going to inherit in order to  6 hunt from for the feast.  7 There were songs sung, and Bazil Michell testified  8 that it costs over $6,000, and the whole Laksilyu clan  9 helped, and that there was a proper witnessing of the  10 territory.  And he remembers who from the various  11 clans were there to witness.  And it was also  12 announced where Madeline Alfred's family was  13 themselves doing the hunting.  And this is a point  14 that I'll return to later, where here you have got  15 basically house business, that is who within the house  16 is using the territory.  That's announced at the  17 feast, so Bazil and all others will know how that  18 house has divided up the boundary of their territory  19 and are using it.  20 And this is a point that I wanted to draw to your  21 lordship's attention at the bottom of page 133.  22 Madeline testified that Peter Bazil benefited from  23 giving the name and the rights to the territory to  24 Bazil Michell, because Bazil was able to assist Peter  25 Bazil in taking care of a very large territory.  26  27 "the reason why Peter Bazil giving the use of  28 that territory to Bazil Michell was because  29 Peter did not have any brothers to work with  30 and he adopted him as a brother.  That is why  31 they were working together ... he always helped  32 him out, that is why."  33  34 And the point here that Madeline is identifying is  35 the point which I have earlier referred to, that the  36 head chief as steward has a number of options as to  37 how he or she is going to be able to manage the  38 territory now under his control.  And in this case it  39 was strategic for Peter Bazil to bring in a man, a  40 hard working man of the land to work one part of the  41 territory, where at that time he didn't have  42 sufficient person power to work with him to do the job  43 properly.  44 Now, Bazil Michell's interest entitled him to  45 possession of the land with rights to harvest from the  46 territory and to authorize others to harvest under his  47 management.  As holder of a high chief's name in Wah 25086  Submissions by Ms. Mandell  1 Tah Keg'ht's House, he is consulted about decisions at  2 the feast regarding the territory.  However, his  3 ownership and jurisdiction differs from that possessed  4 by other high chiefs, that is in Wah Tah Keg'ht's  5 House, to the extent that he has only a life interest.  6 You will recall yesterday we spoke about the  7 interest in territory as the owner to include the  8 right of succession.  Upon his death, Bazil's death,  9 the name and territory will revert to the house of Wah  10 Tah Keg'ht, who Wah Tah Keg'ht's House will decide  11 upon the successor.  12 And the fact, though, that Peter Bazil -- that  13 Peter Bazil's designation to Bazil Michell was to be a  14 life estate, that is that interest, was reflected in  15 the evidence of Henry Alfred, who took Wah Tah  16 Keg'ht's territory upon the death of Peter Bazil, and  17 Henry Alfred testified that he was told by Peter Bazil  18 and confirmed the continued life estate of Bazil  19 Michell in the western part of the territory when he  2 0 took the name.  21 Now, my lord, I wonder if I could ask Madam  22 Registrar to put before you Exhibit 164.  2 3    THE COURT:  Yes.  24 MS. MANDELL:  I wanted to -- by reference to this map, you will  25 recall that the area that we are talking about is  26 marked in brown.  It's a sketch map that was  27 introduced during Henry Alfred --  2 8    THE COURT:  Yes.  29 MS. MANDELL:  I wanted to, by reference to the map, illustrate  30 that as caretaker there was a tremendous use made of  31 the territory by Bazil Michell, and I wanted to  32 illustrate to you, as I am moving through the next  33 portion of the argument, how and where he was spending  34 his life.  And you can, with reference to the map,  35 follow what I am going to be speaking about.  36 The first point, and I am on page 135, is that  37 Bazil evidenced a tremendous depth of knowledge of the  38 boundary place names and some of the oral history.  39 And I have set out on page 135 his, Bazil's  40 description of the boundaries of that Hadah K'umah  41 portion of Wah Tah Keg'ht's territory.  One of the  42 points I wanted to make here is to use this to help to  43 explain how the oral history stored among the Gitksan  44 and the Wet'suwet'en people.  It's not only the owners  45 of the territory who will hold the history and the  46 place names and the boundary points of the territory.  47 That knowledge will be learned, stored by other users 25087  Submissions by Ms. Mandell  1 and other people who have had access to the territory.  2 And your lordship will recall that James Morrison, for  3 example, gave a lot of evidence about certain of the  4 Gitksan territories, many of whom -- whose boundaries  5 he had learned through his rights of Anmnigwootxw.  6 And so he was the one that knows that area, and when  7 anybody would ask whose the right person to speak  8 about the boundaries, they would go to James, although  9 he is not an owner.  And similarly with Bazil.  Bazil  10 knows at this point the boundaries and the place names  11 of Wah Tah Keg'ht's territory on the Hadacuma portion,  12 and it's Bazil who will be the one that will pass this  13 information on to whomever it is that will next  14 receive it, although he's not the owner, he is the  15 user.  And that may help explain who and why various  16 ones of the affidavits that your lordship was exposed  17 to were the deponents, as opposed to the actual owners  18 of the territory.  19 Now, Bazil talked about various places, and I'll  20 just refer you to some of them.  He spoke about there  21 being -- that he and his family planted gardens at  22 Beaumont.  And your lordship will see that that's just  23 at the top near Porphry Creek.  That's north.  You see  24 its right at the very top of the area near Porphry  25 Creek.  He said that in the fall he would go to  26 Toboggan Lake with his aunt's husband to hunt for  27 moose and other animals.  And Toboggan Lake is at the  28 bottom of the territory.  29 THE COURT:  South of Evelyn, isn't it?  30 MS. MANDELL:  Yes.  31 THE COURT:  The lake that's shown there, I think?  32 MS. MANDELL:  Yes.  And he mentioned that his sister Josephine  33 beat him at shooting a moose.  And then he said in the  34 area near Beaumont otters are found, and that's back  35 up to the place where the gardens are.  He says there  36 is goats on the territory in the southern district at  37 Klo'otayx, which he's hunted, and he says the meats  38 packed out and the hide is buried and covered with  39 rocks.  Some people bring the hide back and use it for  40 blankets.  And that's in the area near Toboggan Lake  41 which is marked as goats.  Marked by Henry Alfred --  42 THE COURT:  That's Hudson's Bay Mountain?  43 MS. MANDELL:  Yes.  During the fall he worked in the woods,  44 sometimes trapping.  He said they set their nets close  45 to the mountain up to Boulder Creek behind Moricetown.  46 And that's back up close to -- Boulder Creek is  47 marked. 250?  Submissions by Ms. Mandell  1 THE COURT:  Yes.  It's north of Moricetown.  2 MS. MANDELL:  That's right.  During the winter — I'm sorry, he  3 fished for salmon at Tatsuka Lake, it may be a place  4 name.  Marten was trapped alongside John Brown Creek,  5 and that's marked.  6 THE COURT:  Yes.  7 MS. MANDELL:  And he talked about beavers being trapped in the  8 area between Moricetown and Beaumont.  And you will  9 see that pretty much takes up the centre of the --  10 along the creeks of the territory.  And I wanted to  11 just draw on page 139 where he said that he had a  12 cabin at the east end of Kitsegukla Lake, and that's  13 at the far western area of the territory.  14 THE COURT:  Yes.  15 MS. MANDELL:  He refers to it as well as Guxsan Lake.  And you  16 will recall that Herbert Wesley has a cabin on the  17 other -- the west end of the lake.  18 Now, the point I am attempting to illustrate here  19 is that Bazil spent his life throughout this area  20 using the resources to its fullest, and that's  21 reflected by the various places that he illustrated  22 his resource use occurred from within the territory.  23 On page 138 of the argument Bazil says:  24  25 "At each place where the beaver have lodges,  26 three or four traps are set and then he moves  27 to a different area.  That's how we preserve  28 the beaver stock."  29  30 And I am here just drawing to your attention that,  31 as you will hear more about, that as caretaker he  32 practises harvesting techniques which are designed to  33 preserve the beaver and maintain a healthy stock.  34 Now, we set out on page 139 and 140 that as the  35 owner of the territory in the caretaker sense it's  36 really not an owner.  As caretaker Bazil permits  37 others of his kinship group to use the Hadah K'umah  38 territory, and he -- Madeline Alfred as well testified  39 to the people she knew on page 139, who used the  40 territory at Bazil's invitation.  Amelia Michell:  41  42 "probably traps with Bazil.  Josephine Michell  43 traps with Bazil and is a member of the clan.  44 Estelle Michell was Bazil's wife.  Walter  45 Michell is a member of Bazil's family."  46  47 And so you've got -- you see here now Bazil, whose 25089  Submissions by Ms. Mandell  1 not from the House of Wah Tah Keg'ht, but who has a  2 name, having control of the territory, within the  3 context of the law permitted to and does grant access  4 rights to his spouse and his father's side and his  5 sister, and that now Wah Tah Keg'ht's territory has  6 those people lawfully on it, who are not part of the  7 owning house.  8 THE COURT:  Are you at the top of page 141 now?  9 MS. MANDELL:  I am.  10 THE COURT:  I think we should take the morning adjournment then.  11 THE REGISTRAR:  Order in court.  Court stands adjourned for a  12 short recess.  13  14 I HEREBY CERTIFY THE FOREGOING TO BE  15 A TRUE AND ACCURATE TRANSCRIPT OF THE  16 PROCEEDINGS HEREIN TO THE BEST OF MY  17 SKILL AND ABILITY.  18  19    2 0 LORI OXLEY  21 OFFICIAL REPORTER  22 UNITED REPORTING SERVICE LTD.  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 25090  Submissions by Ms. Mandell  1 (PROCEEDINGS RECONVENED AT 11:15 A.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Ms. Mandell.  5 MS. MANDELL:  My lord, you trip over your mistakes in order to  6 make your conclusions.  I'm going to ask you if you  7 would turn back to page 134, and I would like to  8 correct a misstatement of the position which we are  9 taking.  10 THE COURT:  134?  11 MS. MANDELL:  134.  And at the same time, impress upon you what  12 I think Basil Michell's example also illustrates.  13 We talk about Basil Michell's interest entitled  14 him to possession of the land with rights to harvest  15 from the territory and to authorize others to harvest,  16 under his management.  As holder of a high chief's  17 name in Wah Tah Keg'ht's House he is consulted about  18 decisions at the feast regarding the territory.  And  19 this sentence I would like to correct, which I think  20 more accurately reflects our position, rather than,  21 "However, his ownership and jurisdiction," I think it  22 should be:  "However, his life interest differs from  23 the ownership and jurisdiction" possessed by the House  24 of Wah Tah K'eght.  And then you can carry on.  2 5 THE COURT:  Yes.  26 MS. MANDELL:  And leave the sentence as it is.  27 THE COURT:  By Wah Tah K'eght.  2 8 MS. MANDELL:  And then you can carry on:  Upon his death the  29 territory will revert.  30 And the point that I would like to here emphasize  31 is that if you look at the use and occupation model  32 and also the ownership model which is being urged upon  33 you by the plaintiffs, you will see through the  34 example of Basil Michell that he is fully the user and  35 the occupier of the west side of Wah Tah K'eght's  36 territory, but he is not the owner.  And if you simply  37 looked at use and occupation, you wouldn't see the  38 laws behind it giving rise to Basil Michell's right to  39 the land.  40 All right.  If I could turn to page 141.  41 THE COURT:  Yes.  42 MR. WILLMS:  My lord, just so I can make a note.  Is the life  43 interest, does that extend to jurisdiction as well or  44 is that just ownership?  45 THE COURT:  Well, it's not ownership.  46 MR. WILLMS:  Well, no.  But my friend quoted the life interest  47 differs from the ownership and jurisdiction possessed 25091  Submissions by Ms. Mandell  1 by Wah Tah K'eght.  2 THE COURT:  Yes.  3 MR. WILLMS:  I can understand a life interest as being something  4 that would go towards ownership, but does it also go  5 towards jurisdiction?  That's what I am unclear about.  6 MS. MANDELL:  Well, he has some jurisdiction, too, with respect  7 to the name, and that's what was illustrated, I hope,  8 in the course of the discussion.  9 The next area of access rights which I wanted to  10 refer your lordship to is -- has been seen although  11 not completely developed in the example of Basil  12 Michell where access rights were granted for  13 assistance in burying.  14 And I wanted to begin the discussion by reminding  15 your lordship of the comments made by Mr. Grant in  16 organized society, that the chief is only as strong as  17 the House members, and that the guiding ethic of  18 management for the chief is the ability to feed  19 others.  And when this ethic is implemented, in  20 respect, the whole community benefits.  A House that's  21 properly managed will have surplus for the feast and  22 to fulfil their feasting obligations.  But when a  23 house receives in the feast without reciprocating they  24 live in shame because its members are never in a  25 position to pay off their debts in a proper manner.  26 And it's this basic relationship between the proper  27 management of the House and the proper management of  28 the House territory and their ability to live in a  29 reciprocating world which the feast demands, that the  30 access rule regarding the granting of territory rights  31 for the assistance in burying arises.  32 THE COURT:  Where are you now, Ms. Mandell?  33 MS. MANDELL:  I am on page 141, under the heading "Access rights  34 granted for assistance in burying".  35 THE COURT:  Yes, all right.  Thank you.  36 MS. MANDELL:  I just simply wanted to mention here too, before  37 going into the evidence, that the territories are one  38 of the places that the Houses have a certain amount of  39 collateral, if you will, where if there is the failure  40 on their part to acknowledge and pay for their proper  41 debts of the House, the territories can and are used  42 in order to back up the dax gyet of the House when it  43 comes to the fulfilment or lack of fulfilment of  44 certain feast obligations.  And that's really what you  45 are going to be seeing in the examples of territories  46 passing for assistance in burying.  47 Now, Dr. Daly explained that when a person has 25092  Submissions by Ms. Mandell  1 paid for the expenses at a funeral and has been given  2 a hunting or trapping territory as recompense, it is  3 expected that this person's heirs would announce in  4 the course of his funeral feast, that the land was now  5 formally returned to the rightful owners.  In Dr.  6 Daly's opinion, returning the interest in the land at  7 the funeral feast is the customary law of the  8 Wet'suwet'en.  9 And although this is the general rule, an example  10 was provided in the evidence which reveals that an  11 alternative agreement may be arrived at between the  12 Houses.  And this was provided in the example given by  13 Florence Hall, and this involves the Smogelgem  14 territory near Walcott.  And this territory is owned  15 by the House of Smogelgem, and Florence Hall's father,  16 Little Dennis, paid for the funeral feast and the  17 headstone of MacKenzie who held the name Smogelgem,  18 when the -- when the clan did not themselves bury  19 their high chiefs.  And Florence testified about this  20 in her evidence:  21  22 A long time ago my father's grandfather,  23 Smogelgem, he's getting old having a hard time  24 at Walcott so they took him back to Hagwilget.  25 They used two poles to pack him there and  26 that's where he passed on and a year passed and  27 nothing was being done about his grave so my  28 father took it upon himself to have the grave  29 fixed and after...we got the grave fixed and  30 also he got a stone which he paid $700 at that  31 time and that's how we got that territory at  32 Walcott as [recompense].  33  34 And this was announced at the feast that the  35 territory would be passing to her clan -- or her  36 father, and she says:  37  38 that is where the announcement was made in the  39 presence of people that had come from long ways  40 that were invited to the feast...from Old Town,  41 Kispiox and all over...  42  43 And this was a Laksahmshu clan feast and it was  44 announced through Chief Tsabassa that Little Dennis,  45 her father, was given the rights to Walcott.  46 And exhibited was the photograph of the headstone  47 which was paid for by her father. 25093  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  And her evidence -- I didn't set it out in the  same detail as I did with Basil, but her family  accessed the territory at Walcott to -- to a full  extent.  She, Florence, had very detailed knowledge of  the boundaries of the territory, and so testified to  them and did so, in our submission, under  cross-examination with real elegance.  She lived with her family at Walcott in the fall  and winter and she testified that her mother would  trap while her father would selectively log.  And you  will -- it's an example which I won't dwell on here,  but it's one where the House territory was both used  in a manner where logging and trapping co-existed.  And also to be emphasized, that the user of the  territory, not the owner, according to the law, was  able to log the area, and this was accepted as part of  the terms of access that he had.  By virtue of the two clans working together,  Florence continues to have rights to the territory  with the consent of Smogelgem.  She described herself  as caretaking the territory:  it is deemed we are owners presently because we  all work together in the potlatch system and we  helped them a lot.  But when asked whether or not the Walcott  territory belongs to the Tsayu clan, Florence replied  that it does not:  "It belongs to Smogelgem..."  THE COURT:  Where is Walcott, please?  I knew once but I had  forgotten.  MR. GRANT:  It's in this area.  It would be just from —  THE COURT:  South of Topley?  MR. GRANT:  Yes.  Actually, south of Topley would be a good  description.  THE COURT:  Thank you.  MS. MANDELL:  The statement of Florence Hall — and I will —  I'm reading at 144 -- is significant in that it  demonstrates even though there is a right of access  given for assisting in the burial of the chief of  another House, it is always understood that no matter  how long that access continues the territory belongs  to the House who originally granted the right of  access.  This is the general rule.  The right of  access may continue for an extended period of time.  However, through the feast hall and the recounting of  the history explaining the reasons allowing persons to 25094  Submissions by Ms. Mandell  1 use the territory, the true owners of the territory  2 are always reaffirmed.  3 And I might here recall for your lordship the  4 example of Johnny David who was granted negeldeld'es  5 rights on a territory.  That was a very long, long  6 life, and his son and then his grandson are being --  7 have rights of access through Johnny, but the true  8 owners of the territory will continuously remind  9 this -- these generations that they are the owners.  10 And the example provided by Florence Hall is another  11 example where the right of access has gone beyond one  12 generation, but the general rule as to who the owners  13 are and who the users are will be recounted in the  14 feast hall and explained.  15 And like the situation we talked about yesterday  16 at peace settlements, the boundaries don't change.  17 People know who -- where the territory is and what's  18 being talked about.  And when Walcott will be returned  19 to Smogelgem -- which it will eventually -- the  20 boundaries of the territory are the same as when  21 Little Dennis received it for help at the funeral  22 feast.  23 The Gitksan, too, acknowledge the practice of  24 granting rights to territories because of assistance  25 in burying.  Olive Ryan says, "All the Chiefs agree  26 with it."  27 Solomon Marsden testified that there is a Gitksan  28 law which provides that rights to territories may be  29 granted where a person from another House of another  30 clan assists in a burial.  31 He testified that although there is a general law  32 that a person from a different House can go onto a  33 territory in recognition of helping to bury the head  34 chief:  35  36 this could not happen without the permission of  37 the chief of that House.  38  39 He is saying it is not automatic.  40 Dr. Daly differentiates the Gitksan and  41 Wet'suwet'en vision of the way that this law  42 functions.  The Gitksan regard such a payment, which  43 is a lifetime's use of a territory, as a pledge that  44 the owner will redeem the territory in public, with a  45 quantity of goods and services as soon as possible, so  46 as to obtain the return of their territory.  47 And you will recall that on the other hand, the 25095  Submissions by Ms. Mandell  1 Wet'suwet'en would expect that upon the death of the  2 user, the territory would be returned at the feast.  3 The Gitksan on the other hand expect that there be a  4 payment made and a redeeming of the territory.  5 This was demonstrated in the evidence of Thomas  6 Wright who testified to his being caretaker in his  7 life of his father's House of the frog territory at  8 Xsimxsan.  He had been granted access because he had  9 paid his father's funeral expenses.  If his  10 grandchildren -- and I might here mention that his  11 grandchildren are in the same House as his father,  12 which might explain this better -- were to use this  13 territory after his death, they would have to raise  14 the money needed to cover the cost of his funeral.  15 His grandchildren would be in a good position to gain  16 access to the territory.  And I would ask you to  17 stroke out the rest of that sentence.  It confuses and  18 doesn't help.  He says:  19  20 if my grandchildren didn't have the money, then  21 they wouldn't get the land.  It's the person  22 who puts up the funeral expenses, they are the  23 ones that are going to get the land.  24  25 And Solomon explained the dynamic between the  26 owner who's granting the territory and those that are  27 receiving it.  He was asked how long the land is given  28 in such circumstances, and he stated:  29  30 This is the law of the Gitksan people.  When a  31 chief buried a dead person, then that land --  32 is not taken back.  It -- is given to be kept.  33 If the chief that is giving the land makes a  34 decision that he wants -- the land back, then  35 it is; and if he says he doesn't want the land  36 back, then it is.  37  38 And he is saying that the chief giving can put  39 terms onto the giving.  40  41 ...they announce in the feast -- how the land  42 is going to be.  If -- they decide -- to just  43 use the land and give it back later on, [then]  44 they will say --  45  46 And he mentions these words.  47 25096  Submissions by Ms. Mandell  1 That means I'm just holding it.  2  3 So both the giver and the receiver can put conditions  4 onto the length of time that the land will be held.  5 And although this statement appears to contradict  6 the general proposition that the right of access to  7 territory when one has paid to bury a chief of another  8 House is temporary, the statement must be taken in the  9 context of the Gitksan system.  If the House which  10 owns the territory wants a territory returned, they  11 will ensure that the other chief is repaid for his  12 contribution to the funeral feast.  This will be done  13 publicly and announced in the feast hall.  At that  14 point, the other chief would be unable to insist on  15 keeping the territory.  If, on the other hand, the  16 chiefs of the territory neglect or ignore the debt,  17 the chief who has paid for the funeral would return  18 the territory, and, in effect, further shame the other  19 chief or keep the territory as payment.  In either  20 situation, the chief who has given the rights of  21 access is limited in what he can do by the conduct of  22 the chief of the House that owns the territory.  23 Now, James Morrison testified to several other  24 examples which resulted in the transfer of territory  25 through -- because of assistance in burial.  He talked  26 about a situation where a portion of the Waiget  27 territory was transferred for assistance in providing  28 funeral expenses.  And this is on the east side of  29 Chipmunk Creek.  Do you, my lord, need to have that  30 identified?  31 THE COURT:  No.  I know where Chipmunk Creek is.  B.C. Rail made  32 it a famous location.  It's like Port Moody, it's the  33 end of steel.  34 MS. MANDELL:  I'm not going to read you James' full statement as  35 to why it follows the pattern I've described, but I  36 would ask you to turn to page 148.  And I just  37 underscore the fact that he mentions that all -- all  38 three clans were there to witness, to approve what was  39 happening at the feast.  And that:  40  41 ...under Gitksan law, it is permissible to  42 transfer a territory as a thank you or as  43 compensation in the way that you've described.  44  45 And he -- I'm sorry, the question was, "Is that  46 permissible?"  And he answers, "Yes."  And I wanted  47 here to underscore that it's not -- the transfer of a 25097  Submissions by Ms. Mandell  1 territory is not something which is done by one chief  2 to another chief on a personal basis, but it affects  3 the -- it's witnessed and is part of the collection --  4 exercise of collective jurisdiction of all of the  5 chiefs acting together and witnessing what's taking  6 place.  7 He also, James, described an example of a Gitksan  8 territory transferred in compensation for assistance  9 in the funeral.  And this -- it's not the Irving  10 Creek, it's really the Bell-Irving River territory.  11 And I just also wondered if you wanted to have that  12 identified?  13 THE COURT:  No.  I know where the Bell-Irving River is.  14 MS. MANDELL:  And again, it's a case where there was assistance  15 in burying and the payment was access to the  16 territory.  And again, I draw to your lordship's  17 attention Walter Wilson's statement that:  18  19 ...the whole eight village were there to  20 witness what was happening, so everybody knows.  21  22 And then he mentioned as well that, "We know the  23 boundaries."  24  25 Every high chief in [every] village know the  26 transfer of that land to Willie Wilson and he  27 knows Daniel Skawill gave them the -- they  28 walked the boundary them days.  So that's how  29 we know the boundary, the traditional boundary,  30 not the one DIA give out them days.  31  32 And finally, James Morrison refers to Barker  33 Creek territory, also owned and transferred as a  34 result of assistance in the burying.  James Morrison  35 was amnigwootxw in this area, and that's how he knows  36 the history.  And again, I draw to your attention:  37  38 ...also the witness of the Clan Fireweed, Frog  39 Clan and the Wolf Clan, also the witness to  40 approve what was taken in that feast hall.  41 That is why it's important in the feast hall  42 and what was taken place in the feast.  43  44 And he testified that with respect to the Wii  45 Minosik territory, it was:  46  47 ...held the territory for thousands of years 2509?  Submissions by Ms. Mandell  1 but it was during Jack Wright's lifetime that  2 it was transferred to the House of Wii Gaak.  3  4 Mr. Morrison testified that this territory was  5 transferred to Wii Gaak in a caretaker situation, but  6 it was not a permanent transfer and it could be  7 returned or claimed back by Wii Minosik at any time.  8 Now, the conclusion is -- is mine that in the  9 cases involving lifetime access to territory -- and in  10 some cases it extends beyond lifetime access -- the  11 owning House retains an interest akin to a  12 reversionary interest.  When the debt has been paid,  13 either by the death of the caretaker or by repayment  14 of the debt in the feast hall, the territory including  15 full rights of ownership return to the original House.  16 The next section of access rights which we've  17 already referred to but which I here intend to  18 develop, is the andemnuk or the spouse's side.  This  19 is similar in legal form to that of negeldeld'es, but  20 the underpinnings for the reasons why the spouse is  21 granted access rights to the territory is somewhat  22 different than negeldeld'es and this is all described.  23 As I mentioned, this is spouse's side rights.  24 At page 150, I wanted to draw to your attention  25 the fact that in a matrilineal system, the patriline  26 is not ignored, and the spouse's side access is a good  27 example of this.  The relationship between the spouses  28 is demonstrated all the time in the feast hall.  The  29 rule against gaats marriage is important in order to  30 ensure that the spouses can perform their separate  31 functions in the feast hall.  At the time when a  32 person's House holds a feast, his or her spouse have a  33 very important role to play.  This becomes even more  34 significant at the time of a pole-raising or a  35 headstone feast.  The contribution, the role and the  36 performance of the andemnuk is one of the most  37 dramatic parts of the headstone or pole-raising feast.  38 The spouses may be from different Houses and different  39 clans.  However, the spouses get together and try to  40 outperform the hosts and each other by humour and  41 drama.  Usually they are in disguise and the host clan  42 and members of the hosting House do not even know the  43 identity of their spouse.  This demonstration and  44 performance and contribution of thousands of dollars  45 to the spouse's House -- that should be over the  46 lifetime of a marriage -- at the feast is recognized.  47 The spouse is entitled to take resources and utilize 25099  Submissions by Ms. Mandell  1 the resources from the territory, with the consent of  2 the Chief.  3 And I make the point that with the -- as with the  4 Gitksan, the right of access to the spouse's side  5 relates directly to the assistance provided by the  6 spouse's side at the feast.  And I've drawn your  7 attention to one of Johnny David's quotes, but I  8 wanted to here draw your attention to the other,  9 because it's the point that -- when the spouse does  10 what he should do or she should do on the territory of  11 the spouse, he can raise -- the spouse can raise his  12 dax gyet by harvesting from the territory and  13 fulfilling feast obligations.  And Johnny David  14 mentioned that it's part of the reciprocity that is  15 illustrated by this example:  16  17 People that were called the andemnuk depending  18 on how many feasts they attend how much money  19 they put out the people that witness these  20 occasions and the people are able to determine  21 how this andemnuk person will be in the feast  22 hall.  The husbands of the wives are also  23 allowed to go to the hunting territories and do  24 their hunting and what ever they receive from  25 the hunting territory is brought back to the  26 feast hall where it is distributed and some  27 times they are allowed to use the territory.  28  29 As this process continues the more the andemnuk  30 contributes the stronger his name will become  31 in the feast hall.  The andemnuk once he builds  32 up his or her name in the feast hall when a  33 person dies he is the person who is sent out to  34 invite the people to feast and when he does  35 this he's increasing the strength of his name  36 in the feast hall.  37  38 And I think that that's a good illustration of  39 the interconnectedness systematically between the role  40 the andemnuk plays in the feast hall, the granting of  41 access rights to the spouse's territory and how, if  42 it's done well, it will improve the dax gyet both of  43 the spouse and the House chief.  44 And as Johnny says, this still goes on today.  45 Now, I've provided some examples of andemnuk  46 using the territory of their spouse, which was  47 revealed in the evidence, and I'm not going to take 25100  Submissions by Ms. Mandell  1 you through to each one of them, but I wanted to --  2 none of them are unusual.  They are all exactly the  3 same point, and that is, that it's examples of  4 andemnuk use of the territory.  5 Glen Williams, on page 154, explained the fact  6 that andemnuk rights provide an opportunity for him to  7 teach his children.  And he says that he is one -- he  8 was -- testified that he utilizes the fishing sites in  9 the territory of Haalus.  His wife is a member of the  10 House of Haalus -- of Haalus.  And he explained as  11 follows:  12  13 Because it is part of their territories.  14  15 You see, this is the father having the  16 opportunity of teaching his children about their  17 House's territories, even though the father doesn't  18 have rights to the House's territories as an owner,  19 but only as a user.  20  21 The fishing hole is theirs and she has some  22 rights to it.  And I have a responsibility to  23 be with her.  And if we use the fishing hole we  24 use it under her direction.  And I also want to  25 encourage my children to learn, and try and  26 teach them some of the -- what I know in the  27 way of our Gitksan laws.  28  29 And I think that that's an aspect of the spouse's  30 right which is very important to the functioning of  31 the system.  32 I am reading -- and I just wanted to return at  33 page 155 to the bottom of Mary McKenzie's quote.  And  34 you asked again -- and the question which you might  35 wish you never asked -- why her husband has the  36 rights.  And at the bottom of the quote she says:  37  38 So this is why it's announced in the feasting  39 [hal], and him being my husband and he has to  4 0 support me with money which I may use in  41 another feasting.  42  43 And so she is again tying his access right into  44 her feasting obligations and she is expressing that is  45 part of why he was given the right to use her  46 territory.  47 Mary Johnson, at page 155 at the bottom, 25101  Submissions by Ms. Mandell  1 testified that the right of andemnuk will end with  2 divorce.  She testified that before she was divorced,  3 her husband had the right to Antgulilbix's territory.  4 After the divorce he did not have such rights.  5 And Olive Ryan and Johnny David testified that  6 andemnuk rights will also terminate upon the death of  7 a spouse.  As Olive says, "that's the end.  It's just  8 for her lifetime."  9 Now, the next section continues with the  10 obligations and the access rights of andemnuk.  And  11 the -- a proposition which we first developed is the  12 sharing of the resources from the territory of the  13 House contributes overall to the kinship relations and  14 obligations at the feast.  But there is a more  15 practical, day-by-day explanation as well, and that  16 is, that the spouse is expected to share resources  17 from the territory that he harvests -- he or she  18 harvests from, with the House, his family and his  19 extended family.  And many witnesses testified to  20 their receiving resources from their spouse's  21 territory to meet their day-to-day needs.  And I'm not  22 going to go into all the evidence there, but that's  23 the -- the way in which the system is also reciprocal  24 in terms of the spouse's use of House territory.  25 I might here mention that -- well, I'll mention  26 it later.  27 And we develop the point finally at page 157, as  28 we've mentioned earlier, that the food from the  29 spouse's territory is used at feasts.  And when this  30 is announced, as Henry Alfred described in his  31 evidence, it's announced where the territory came from  32 and Henry's paid back at the feast for his  33 contribution.  So the reciprocal circle is completed  34 in that way.  35 Solomon Marsden talked about a particular form of  36 andemnuk right which, at page 158, we describe, and  37 it's called Yuugwilwatx.  I probably mispronounced it  38 and I apologize.  This is the right which can be  39 extended to a couple.  It happens when people are  40 married, where a couple may be granted the right to  41 use a particular berry patch on the chief's territory,  42 and it's a privilege of access which has a Gitksan  43 name.  And Solomon described:  44  45 When a young man marries within the...House of  46 the young woman and they are both Gitksan  47 people, what usually happens is the head chief 25102  Submissions by Ms. Mandell  1 of that woman's House gives a part of the land  2 to this young man and he tells this young man  3 to use this land to bring the children up, his  4 children up on this land.  And also he would  5 give him a fishing site.  6  7 And asked how long this would last:  8  9 A.  If they happen to separate, then he has  10 no rights to that territory.  But if they go  11 on living together until his death then  12 he'll use that until his death.  And then it  13 goes back to his children.  14  15 Martha Brown testified to the same right of  16 access, and she mentions that the head chief will  17 retain jurisdiction to manage the territory,  18 notwithstanding that there may be the grant of a berry  19 patch.  And I'm on page 159, Martha was asked:  20  21 Q  After a Gitksan marries a person of  22 another clan, does she or he have any rights  23 to use the territory of that other clan?  24 A  It's an Indian law that you do have a  25 right - like she referred to me - I can go  26 up to berry patch and pick berries, or I can  27 go to a fishing ground and do my fish there.  28 This has all been the Indian law to  29 oversee - all chiefs to oversee other  30 members of in-laws.  31  32 The significance of this privileged right through  33 the spouse and father's side is that it means that any  34 given person may have up to three territories of three  35 different Houses to which they have access.  That's  36 providing the father is alive and they are married, a  37 person would have access to up to three territories.  38 Within such a system, the balancing and control  39 of access to resources is much less difficult.  If  40 one's own territory has a shortage of a specific  41 resource, one will have rights of access to one's  42 spouse and one's father's territory.  And I turn that  43 on its ear and say also that with respect to the high  44 chief as manager, there will be many more management  45 options open to him or her where there is the right to  46 draw from the talent of the spouse's side and the  47 father's side in managing and harvesting from the 25103  Submissions by Ms. Mandell  1 territory.  2 THE COURT:  Of course if there was a cross-cousin marriage, as  3 was suggested is preferable, there would only be two.  4 MS. MANDELL:  That's right, that's right.  5 I'm going to talk about cross-cousin marriages.  6 It provides an interesting access right over  7 generations.  I think that's the weighing out:  You  8 have access to less territories, but the Houses get to  9 know and pass on and become very familiar with  10 territories to which their families have generational  11 use.  12 And that's the next discussion where Dr. Daly  13 identified that the rights of access granted through  14 marriage can and does serve to create alliances  15 between matrilineal kinship groups.  16 It was Dr. Daly's opinion that the illustration  17 of rights of ownership and long-standing access rights  18 to territories between intermarrying clans and Houses  19 can be seen with the Gitksan.  The long-term access  20 rights (such as several chiefs hunting jointly on  21 their combined territories) are granted less  22 frequently to those who are not members of the  23 land-owning House, or for shorter durations than among  24 the Wet'suwet'en.  25 And we refer to the evidence of Art Matthews Jr.  26 who testified that at the Guxsan pole-raising of  27 October, 1986, the House announced, among other  28 decisions, that his mother, Kathleen Matthews, as  29 wilksiwitxw to the host, would be given the right to  30 use some of the host's fishing sites during the  31 remainder of her lifetime.  In the same announcement,  32 Art was given the right to assist his mother at these  33 sites by virtue of his having grandfather ties to the  34 host through Kathleen.  35 And another example provided by David Gunanoot  36 where his mother's father had assigned territory to  37 his mother to use during her lifetime with her  38 children.  But after her death, "the old man said to  39 David and his brothers, you boys are not to go there."  40 David's mother felt justified in using this mountain  41 for the rest of her lifetime, David said, because she  42 had looked after her father's funeral expenses, and  43 her father's nephew and heir, had not.  So this is  44 really an extension into the next generation.  45 The example of cross-cousin is reflected in the  4 6 example provided for the Wet'suwet'en.  And this is  47 the relationship between the Namox House of the Tsayu 25104  Submissions by Ms. Mandell  1 clan and the Hagwilnegh and Wah Tah K'eght Houses of  2 the Laksilyu.  So you have John and Pat Namox of the  3 House of Wah Tah Kwets, Laksilyu, were raised on the  4 Sam Goosly territory of the House of Namox by their  5 father.  So they are there by negeldeld'es.  But  6 sometimes they would go on their own House land west  7 of Telkwa in the Dennis Lake area.  8 And on the other hand, you've got Emma Michell of  9 the House of Namox whose mother's brother was Alfred  10 Namox, was raised in the area west of Telkwa on the  11 Laksilyu territory call Kilwoneetz, the territory of  12 her father, Jimmy Mitchell.  13 And so you've got the -- you've got these two  14 territories, Goosly and Telkwa, which were used and  15 owned in such a manner that their respective owners  16 tended to spend more time on their spouse's land than  17 on their own.  In other words, Alfred Namox's Laksilyu  18 sons grew up on Alfred and Emma's Tsayu territory,  19 while Emma spent much of her working life on the  20 Laksilyu land adjacent to the territory belonging to  21 Alfred Namox's Laksilyu sons.  22 And Dr. Daly looked at these examples and said  23 that despite this apparent switch of access rights to  24 territories, formal title to the two areas remained  25 clear and has been retained in the customary manner.  26 And this ownership has been acknowledged in the feast  27 and by the appropriate elders of both sides.  28 Dr. Daly was of the opinion that rights of access  29 more often terminate among the Gitksan after one  30 generation, while among the Wet'suwet'en they can be  31 prolonged for subsequent generations by means of  32 strategic cross-cousin marriages or adoptions such  33 that the children of temporary users become members of  34 strategic cousin marriages or adoptions such that  35 children of temporary users become members of the  36 House of the owner, and hence part of the proprietary  37 group.  38 And I can just refer your lordship on that second  39 point to the example which we had of Andrew and  40 Leonard George:  Andrew George being negeldeld'es on  41 Gisdaywa's territory.  But you may recall that the  42 former Gisdaywa, Thomas George, adopted Andrew's son  43 and wife into the house of Gisdaywa.  So it's -- so  44 they would have rights to Gisdaywa's territory through  45 the spousal side.  And it's an example of what Richard  46 Daly is talking about here, where sometimes temporary  47 users become part of the owning House through 25105  Submissions by Ms. Mandell  1 strategic either cross-cousin marriages or, in the  2 case of the House of Kaiyexweniits, it would be in the  3 case of adoption.  We'll talk about adoption under  4 jurisdiction in more depth.  5 My lord, the next section which is from page 164  6 to 171 is a discussion of common property rights.  7 There are a number of areas within both the  8 Gitksan and the Wet'suwet'en House territories that  9 are seen as common property to others of the Gitksan  10 and Wet'suwet'en nations to access.  And the -- what  11 we are here demonstrating is that it's another kind of  12 access right.  It doesn't derogate from the right of  13 the owner and, in fact, overall, the right of the  14 owner maintains jurisdiction with respect to the areas  15 which are part of the common property rights.  16 I'm not going to go into all of them, but I will  17 stress the main points, and that is, that the common  18 areas are known -- become common areas, according to  19 Alfred Joseph, because they are exceptionally  20 productive areas for certain animals and plants upon  21 which the people rely for food, shelter and clothing.  22 And they can include berry grounds, salmon sites,  23 places of specialty plants, alpine regions, goat  24 hunting areas, or areas where there is certain  25 minerals, and also areas where the reserves are  26 located.  27 If I could just deal with the issue of reserves,  28 I'll turn you to page 166.  The evidence which was  29 before you was that Hagwilget is located in the  30 territory of Spookw.  Because of the historical  31 circumstances leading to the creation of that village,  32 it's understood that this territory is not lost to the  33 Gitksan -- it's not lost by the Gitksan to the  34 Wet'suwet'en.  And you heard evidence that everyone  35 understood that Hagwilget is in Spookw's territory,  36 even though there is a village there which is  37 primarily populated by now Wet'suwet'en people.  38 Similarly, it's understood that although  39 Moricetown is located on Wah Tah K'eght's territory,  40 all the chiefs of Moricetown have authority within the  41 community.  There is a large amount of evidence with  42 respect to the exercise of that authority by the  43 chiefs.  And I should say, but nevertheless, Wah Tah  44 K'eght is specifically consulted about issues which  45 will affect the area in and around Moricetown and it's  46 understood by those that he is the chief within whose  47 territory the reserve is located. 25106  Submissions by Ms. Mandell  1 On the question of berry grounds, Alfred Joseph  2 gave evidence that certain berry grounds are common  3 areas.  Both Alfred, Johnny David and Madeline  4 described that those territories -- those berry  5 grounds are found on Wah Tah K'eght's territory around  6 Moricetown.  And you will probably recall that some of  7 these berry patches were identified in the sketch map  8 provided by Henry Alfred.  9 Johnny David mentioned the Babine people would  10 come to use the berry sites around Moricetown.  11 Similarly, Olive Ryan, in her evidence, gave  12 evidence that there are certain berry grounds on  13 Hanamuxw's territory that were available to others,  14 although at the same time the village recognized  15 Hanamuxw's ownership of them.  16 In terms of specialty plants, Madeline identified  17 a place on Wah Tah K'eght's territory where devil's  18 club grows around the village, and all the people who  19 live in Moricetown, as she put it, "are allowed to go  20 and pick devil's club from the hills around  21 Moricetown".  22 There were two Wet'suwet'en alpine regions that  23 were identified as common hunting grounds.  One is --  24 both were identified by Alfred Joseph.  One is at the  25 head of Driftwood Creek and he said that it's "one  26 area that is used by all Wet'suwet'en people."  I  27 guess that's Cronin Mountain, and it was used and is  28 used for the hunting of ground hog.  29 And the second area that is a common hunting area  30 is a mountain north of Morice Lake, and there the  31 people hunt goat and they did hunt caribou.  32 Alfred identified that these common areas -- and  33 there is a Wet'suwet'en name for them, and I'm on page  34 169 -- are available for use on a first-come,  35 first-serve basis.  The harvesting of resources from  36 common areas are subject to Wet'suwet'en laws of  37 management.  And he said:  38  39 ...one thing was made known to the people that  40 went there, the first one that went that got  41 there was in charge of the hunt.  The first  42 hunter.  43  44 ...he would see that a person did not get more  45 than he could pack, which would mean that he  46 would have to leave some behind, and if he does  47 get more, he would have to give part of his 25107  Submissions by Ms. Mandell  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  catch to someone who never got enough.  And Alfred Joseph identifies that whoever intends  to use the common area informs the surrounding chiefs  of the surrounding territories and gets permission to  cross over their land.  Now, on -- there are certain areas in  Wet'suwet'en -- in the Wet'suwet'en territories which  are common for the taking of minerals.  And Alfred  Joseph testified that east of Houston there is a site  where the Wet'suwet'en get arrowheads.  And they named  the creek after the rock called Buu'lai and it's a  common place accessible to all Wet'suwet'en, and as  Mr. Alfred said, located in Smogelgem's territory.  And there is also a place common to the  Wet'suwet'en where they get flint, and this is an area  southeast of Nadina Mountain on Knedebeas' territory.  And there is another area where they get red  ochre, it's, "east of Evelyn Mountain and west of  Hudson Bay", and that's where they get red ochre.  And Dr. Daly identified that the Wet'suwet'en  gather a special fungus and mix it and spread the red  ochre and they create pigment for wall paintings -- or  rock paintings.  MR. WILLMS:  My lord, I wonder if my friend could help.  Is the  law of the common areas, is this a general law or is  it site or resource specific?  The laws that my friend  has been going through are general laws, as I  understand it, of the Wet'suwet'en and of the Gitksan.  And then in this discussion of common areas, there are  examples of common area, but I just wonder if my  friend can help.  Is the law of the common area  general or is it site and resource specific?  MS. MANDELL:  My lord, if my friend can wait, we take on this  whole issue under the section in jurisdiction under  harvesting and managing reserve resources, and it will  be addressed in time.  THE COURT:  All right.  Wasn't there some evidence of a common  area at Kisgagas?  MS. MANDELL:  Yeah.  The hunting area, yeah.  THE COURT:  You are coming to that?  MS. MANDELL:  Yeah — no, I'm not, actually.  THE COURT:  Oh.  There was another area, though?  MS. MANDELL:  This was the chiefs of the village —  THE COURT:  Yes.  MS. MANDELL:  -- getting together and creating a hunting reserve  around that, and it's still in place and that is  another example. 2510?  Submissions by Ms. Mandell  1 THE COURT:  All right.  Thank you.  2 MS. MANDELL:  I believe that was in the testimony of James  3 Morrison.  4 THE COURT:  Yes, I think so.  5 MS. MANDELL:  A different kind of access right other than those  6 which we've already mentioned, involve the granting of  7 temporary access rights to non-House members by the  8 House chiefs, and we've entitled this simply "Short  9 Term Access Rights".  And I wanted to here mention  10 that on the whole, those who were granted short-term  11 access rights are not part of the kinship group.  It's  12 outside the father's house/spouse side.  And I also  13 wanted to here address the question that you raised,  14 my lord, to Mr. Jackson, about whether or not the  15 rights being inalienable but to the Crown, would  16 preclude there being leases or licences or other forms  17 of interest granted by the Gitksan and Wet'suwet'en to  18 third parties.  And the answer that Mr. Jackson gave  19 you is right, that is to third parties, there is an  20 inhibition on the ability to alienate.  21 THE COURT:  Prohibition.  22 MS. MANDELL:  Pardon?  23 THE COURT:  A prohibition?  24 MS. MANDELL:  Prohibition.  25 THE COURT:  Yes.  Right.  26 MS. MANDELL:  However, internally, the granting of access rights  27 is something which is and does happen on a short-term  28 and on a longer term within the system.  29 Martha Brown said:  30  31 It's Indian law to invite their friends  32 whenever they have something to eat.  33 Whenever Granny goes up to Kispiox, he  34 invites his friends.  They fish under the  35 ice and they fish a lot of steelhead.  This  36 was the law of our Indian people a long time  37 ago.  We never sold this.  38  39 And the question is:  40  41 Q.  Without an invitation are the friends  42 able to fish there under Indian law?  43 A.  No they have to tell before they go up  44 and if permission is given then they go  45 ahead.  46  47 And this is -- this business of granting access 25109  Submissions by Ms. Mandell  1 rights to friends and relatives to harvest from the  2 territory on a short-term or a one-term basis was the  3 subject of much evidence, and I didn't attempt to  4 bring it all together in one place.  But I did want to  5 point out that as with the granting of access rights  6 on a longer-term base, at the heart of it is the  7 reciprocity within the system and the chiefs and the  8 House's ability to use the territory and the sharing  9 of the territory to increase the dax gyet of the  10 House.  11 And I thought that Art Matthews, again, referred  12 to that quite nicely at the bottom of page 172 where  13 he was talking about permission given to Stanley  14 Williams to use the resources of Tenimgyet's House.  15 And he says this is because of Stanley's father's  16 contribution to Tenimgyet's House.  Eli Turner, the  17 brother of Yal, an elderly chief, was allowed to use  18 the resources from the territory as well.  He was  19 given permission as described by Art Matthews.  And he  20 is talking about the Wilson Creek and the Cedar River:  21  22 ...area were always known as An T'ookxw.  23  24 And this is the part I emphasize:  25  2 6 And it simply means a banquet table where you  27 have to welcome people and grant permission to  28 them to come and use it, use your territory.  29 That is a law that's been handed down that we  30 do even today.  31  32 And I thought he really nicely expressed the  33 ability of the kinship and other relationships to stay  34 strong and to use the territory, as he put it, as a  35 banquet table to welcome hosts, which is a part of the  36 Gitksan system.  37 The only other example I wanted to draw to your  38 attention on the short-term assets rights issue is at  39 the bottom of page 173.  And this is a case where  40 Henry Alfred is talking about his having gone goat  41 hunting at the east end of the territory with Victor  42 Jim and Chester Williams from the House of Haalus, who  43 is married to Henry's sister, Darlene Alfred.  44 In return, Henry was given fish by Chester.  45 Chester is married to Henry's sister.  And we say that  46 the marriage is significant -- I think the word  47 strategic is probably better, because you here see 25110  Submissions by Ms. Mandell  1 that the Gitksan territory which is rich in resources  2 not available to the Wet'suwet'en in this case, the  3 plentiful supply of fish, is made available to the  4 Wet'suwet'en House of Wah Tah K'eght because of the  5 access back and forth which can be done on a temporary  6 basis or on a more prolonged basis.  But in this case,  7 he makes reference to that strategic marriage, and I  8 emphasize that it relates to access to the resources.  9 The next section which I wanted to deal with is  10 the question of long-term access rights, and this is  11 separate from any of the other headings that we've  12 already identified and it relates very much to the  13 issue of specialists.  And I'm going to draw to your  14 attention the example of Alfred Mitchell again, who  15 was a well-known, strong, hunter and trapper and very  16 gifted as one who could teach his skill to others.  17 And you will remember that Alfred Mitchell was from a  18 Gitksan House with a Wet'suwet'en father and was  19 raised primarily on his Wet'suwet'en father's side and  20 spent his life there.  21 Now, he, Alfred, was -- you see what should have  22 happened, his father died, his father passed away, and  23 Alfred would normally have returned to his Gitksan  24 House.  But he had already exhibited his skill and his  25 strength of being a man of the land within the  26 Wet'suwet'en territories, and he was living among  27 them.  And other than the House of Namox, which is the  28 only House that he should have been granted extended  29 access rights to, he was also granted extended access  30 rights, for example, to the territory of Knedebeas.  31 And this was because he was a skilled hunter and  32 trapper.  And Christine Holland had the good sense to  33 continue to bring him into the territory as a matter  34 of right, to train her children and grandchildren.  35 And Alfred Mitchell speaks about the very children  36 that he trains.  37 And I liked Exhibit 183, which I mention on page  38 175, which is a photograph of Roger Michell and Kenney  39 Michell skinning beaver which was taken by Alfred  40 Mitchell at the Morice River at Knedebeas' territory  41 when he was teaching Roger how to hunt and trap beaver  42 in 1980.  And I mentioned that because, as I said, he  43 was skilled.  44 Christine Holland extended to Alfred a right of  45 access for his lifetime to use the territory and this  46 invitation was announced at the feast.  And this was  47 testified to by both Alfred and Dan Michell. 25111  Submissions by Ms. Mandell  1 Now, the -- and I might mention as well, you will  2 recall that when Sarah Layton testified about her  3 receiving the name Knedebeas following the death of  4 Christine Holland, she reiterated what Christine  5 Holland had said about Alfred Mitchell's rights to  6 continue to use the Knedebeas territory.  7 The next section is "Payment to the Chief for the  8 Privilege of access rights to the House Territory".  9 And the point here is that the owner -- the owners and  10 the Houses -- the House -- the House's owner and chief  11 steward are recognized by those who have been granted  12 access rights from outside the House for the privilege  13 of using the House territory.  And oftentimes this is  14 affirmed both inside and outside the feast hall by  15 payment by the user to the host House or to the host  16 chief.  And there were many examples provided in the  17 evidence of which I've summarized, only some of the  18 non-House users extending payment to the host House  19 chief or the House at the feast for the privilege of  20 using the territory.  21 And I'll just draw your attention to the example  22 provided by Mary McKenzie, for example, on page 177.  23 And you will recall that Marion Jack, who was a  24 skilled trapper and was also a caretaker from the  25 House of Gyolugyet on her territory, took care of the  26 land until she died in 1959.  And Mary testified that  27 when Marion Jack had a good year beaver trapping she  28 came to Mary's mother and gave her marten pelts.  29 And Alfred Joseph similarly testified that he  30 receives meat and fish from the territory provided by  31 Andy and Leonard George, who Alfred permits access  32 rights by negeldeld'es.  33 And similarly, he, Alfred, points to Willie  34 Boucher who is trapping on Gisdaywa's territory and  35 says that "whenever he makes a catch he brings a  36 portion of it to us in Hagwilget."  37 I liked Alfred Mitchell who was trapping on  38 Namox's territory and sent a bear by train back to  39 Alfred Namox in recognition of his use of the  40 territory.  41 Sarah Layton says that she goes to Moricetown  42 every summer to smoke salmon for herself and she is  43 given salmon by others of her clan.  44 And Dora Wilson-Kenni said that there is a berry  45 ground on Spookw's territory at Blue Lake which the  46 Wet'suwet'en women would go to pick berries.  And that  47 she knows that her mother, from the House of Spookw, 25112  Submissions by Ms. Mandell  1 was given berries when the women returned, in  2 recognition that they were picking berries off of her  3 territory.  4 Now, I think I already adequately dealt with the  5 fact that where users are from outside the House it's  6 announced at the feast.  The only point that I think I  7 haven't adequately stressed is found at page 181 and  8 182, and it's a point made by Solomon.  And we've --  9 he mentioned that where users -- and he mentions also  10 caretakers who may be users.  And in this case, the  11 example might, for example, be Alfred Mitchell -- you  12 will recall that Dan Michell's evidence was that  13 Alfred and his brother Billy would use and caretake  14 the southern portion of the Namox territory.  Now,  15 they are outside the House, they are users, they are  16 not owners, and they are also caretakers.  And what  17 Solomon Marsden confirmed, that where you've got users  18 who are also caretakers, the fact that they are  19 caretakers are also announced at the -- by the chiefs  20 at the feast.  He, Solomon, testified that for the  21 Gitksan, this is done at major feasts which relate to  22 territories such as headstone and pole-raising feasts.  23 He says:  24  25 A.  The head chief could do this, but only  26 at the time the pole is being raised.  This  27 is when the chief will give out territories,  28 and he will give these people power to look  29 after the territories.  30  31 And he confirmed that when Hanamuxw raises her  32 pole, that is the time that she would announce if  33 there were any new caretakers for her fishing sites.  34 As Solomon says, this is the law.  35 My lord, the last section which I can and will  36 complete on ownership, which will complete the section  37 on ownership before lunch, is the proposition that the  38 recording, registering and legitimizing the transfer  39 of and succession to rights of ownership is maintained  40 through the feast, the oral histories and crests and  41 poles.  42 And I just wanted to here, before I begin, remind  43 your Lordship of two things:  One is that Dr. Daly and  44 his cross-cultural definition of ownership says that  45 ownership involves the owner in obligations to a  46 society which recognizes and validates his or her  47 proprietorship.  And he here mentioned that in our 25113  Submissions by Ms. Mandell  1 society, that we fulfil those obligations through the  2 payment of taxes.  And this, in the Gitksan society  3 is, in our submission, recognized through the  4 obligations at the feast and the reciprocal  5 arrangements which are carried out at the feast.  6 And I also wanted to remind your lordship that Mr.  7 Grant, in the section of organized society, dealt with  8 the feast and I am not going to reiterate many of the  9 aspects of the feast which pertain to ownership, and  10 the confirming and the registering and the  11 legitimizing of the transfer, but I would like to  12 highlight three aspects of the feast which, in my  13 submission, underscore the point that it's at the  14 feast that the transfer of the territory and  15 succession of rights is legitimized.  16 This essential element of the system of  17 ownership, which, in the context of the property law  18 of the larger society, takes the form of deeds of  19 conveyances, wills, and land and estate registries, in  20 the Gitksan and Wet'suwet'en system is performed by  21 crests, poles and oral histories in the context of  22 public witnessing and the validation at the feast.  23 The public and ceremonial announcement of changes  24 and reaffirmations of matters pertaining to property  25 is common in societies without a written culture.  The  26 Gitksan and Wet'suwet'en, like other oral cultures,  27 utilize mneumonic or memory devices.  The  28 configuration of crests on the chiefly belongings of  29 each House comprise a mneumonic text which can be read  30 by certain other historically and regionally linked  31 chiefs, all of whom have been taught by their elders a  32 portion of the history of their neighbours and of the  33 boundaries of their territories.  The crests are like  34 a map, and their existence on blankets and house  35 fronts and elsewhere call up the history, the  36 ownership and the authority of the chief and his or  37 her House.  In a similar fashion, the crest poles or  38 totem-poles stand as a form of legitimacy of rights to  39 the territory and fishing sites.  Properly understood,  40 they provide both metaphorically and physically the  41 root of title to the claims of the House.  42 Paralleling the crests and crest poles, the oral  43 histories, adaawk and kungax trace the origins of  44 rights to ancient territories, the course of  45 migrations to new territories, and any subsequent  46 major shifts or changes in the territories or fortunes  47 of the House group. 25114  Submissions by Ms. Mandell  1 In any system which includes rights of exclusive  2 possession, there must be a widely dispersed knowledge  3 of the persons or groups in whom those rights of  4 possession reside and of the boundaries of the  5 territories.  Among the Gitksan and the Wet'suwet'en  6 this announcement of rights and boundaries is carried  7 out, above all else, in the feast hall.  It is one of  8 the principal responsibilities of the Gitksan and  9 Wet'suwet'en hereditary chiefs when they are invited  10 to the feasts of other Houses and clans to perform the  11 essential role of witnesses and validators to the  12 claims of chiefly names and titles to territories made  13 by other chiefs and Houses.  14 And I just wanted to remind you that again, that  15 the role of the witnesses also relates to the fact  16 that there is always an opposing -- or there is a  17 counterpoint in every feast where the owning House who  18 is transferring territory is being witnessed by  19 non-owning House units such as the spouse's side and  20 the father's side, all of whom will have knowledge of  21 the territories because of access rights granted or  22 through other kinship relations or by having heard it  23 and had it witnessed in a feast, or by being  24 neighbours.  So there is a counterpoint that is always  25 present when the owning House passes territory, as to  26 whether or not those who don't have an interest in  27 House territory expressly will agree that that's the  28 territory and the boundaries and the description of  29 which, the adaawk, is being properly passed.  30 And I think that -- I liked the way that Alfred  31 Joseph described the word for public witnessing.  He  32 says it means "presence, or in the midst of an  33 assembly."  And I like the way he said it because it's  34 there that the collective presence of all the clans  35 and Houses are brought to bear to see whether or not  36 those that are passing territory are doing it  37 properly.  38 THE COURT:  Audi altem partum.  39 MS. MANDELL:  Pardon?  4 0 THE COURT:  Audi altem partum.  41 MS. MANDELL:  Yeah.  42 THE COURT:  Maybe not quite.  43 MS. MANDELL:  I don't know if we can properly apply the Latin  44 phrase here.  45 THE COURT:  I'm not sure.  46 MS. MANDELL:  Mr. Grant has already referred you to the way that  47 Alfred Joseph described the witnessing.  He says it's 25115  Submissions by Ms. Mandell  1 like glue.  And I'm not going to ask you to -- or  2 repeat the same quote.  3 And I mention that in order for the chiefs to  4 perform their role in this distinctive form of public  5 acknowledgement of land title, they are trained by  6 their predecessors of the boundaries of their own  7 House territories and the boundaries of the  8 territories of their neighbours and those with whom  9 they are socially related by kinship and history.  At  10 a feast, particularly one at which a high chief  11 succeeds to the name and with it the territory of his  12 or her House, it is expected that one of the senior  13 members of the House would publicly announce the  14 history of the name, the crests and the boundaries of  15 the territories of the House.  16 And you will recall that Mr. Grant referred you to  17 occasions where this is the time where if things are  18 wrong you better correct it.  And there has been  19 times, which were exhibited in the evidence, where  20 different boundaries or adaawks were corrected by the  21 witnessing body.  22 This public proclamation of the entitlements of  23 the House will be emphasized by announcing from which  24 of the House territories the food has come which is  25 given to the chiefs who are there as witnesses.  26 And I wanted -- Mr. Grant didn't refer you to this  27 quote and I do want to refer it to you.  It's the  28 quote of Art Matthews and it's -- something is very  29 interesting in how he puts it.  He says:  30  31 These territorial place names were announced in  32 various ways.  They were announced as an adaawk  33 and they were announced when you bring in your  34 soup, your tea, your bread, whatever, they are  35 announced and this so and so this meat comes  36 from, and they specify each mountain or its  37 territory where it comes from.  Each creek is  38 mentioned.  So in our rule and laws we say that  39 if you eat and digest the words it's in your  40 very soul.  That's why they do these things.  41  42 And it was in the way he said it that I understood  43 better the communion which is involved with the  44 bringing of food from the territory, the announcing of  45 where the territory comes, and then the eating of the  46 food, and those that eat it know from whose territory  47 it comes and they also know from which kinship 25116  Submissions by Ms. Mandell  1 relationship the food is brought into the feast.  And  2 it's the way he said it, that it's the communion of  3 all of these forces brought together in the eating and  4 the announcing that really underscores the ownership  5 from which the food -- from the territories springs.  6 Now, the next part of the feast which is also  7 related to the owner and has to happen is the payment  8 for the territory.  And I wanted to pause here and  9 remind your lordship that there is two payments:  One  10 is the pot; that is the payment which the chief will  11 make out of his -- the new chief, the incumbent, will  12 make out of his or her own personal contribution,  13 which is a payment for the territory which he receives  14 when he or she receives the name.  15 The other is the perpetual payment, the constant  16 payment which the House makes every time there is a  17 feast.  And that's when Stanley Williams said and Mr.  18 Grant referred you to it, "We do this to protect our  19 land."  There is payment over and over and over again  20 for the territory as each feast happens and different  21 businesses of the Houses are transacted.  22 And Johnny David likened the process of receiving  23 his name at a feast to receiving a deed of land.  And  24 he said:  25  26 At the death of Old Sam when the feast happened  27 he (Jim Michell) mentioned that I would get the  28 territory and all the other Chiefs in the feast  29 hall were there to witness it.  30  31 ....  32  33 ...All the hereditary Chiefs from the other  34 clans would call my name... around the feast  35 hall.  36  37 There is a system in Wet'suwet'en which is  38 [called] Niggiyotsi and it is where all the  39 high Chiefs are called around the hall.  They  4 0                     mention your name and say something about your  41 crest.  It is only the high Chiefs that are  42 called to do this.  When the high Chiefs holler  43 out the names they are given some money for  44 witnessing --  45  46 And Johnny says:  47 25117  Submissions by Ms. Mandell  1 -- and it's like signing your name on a piece  2 of document.  3  4 ...The ones that holler out the names are given  5 money and for all the other people in the feast  6 hall food is distributed to them.  7  8 And we say that this whole process of the feast is  9 there and that the transfer of the territory is  10 recorded and registered and legitimized and ownership  11 will then pass to the next incumbent who, as steward  12 of the land, will be responsible for the territory for  13 the benefit of himself or herself and their House.  14 THE COURT:  Thank you, Ms. Mandell.  Will there be an index for  15 this in due course?  16 MS. MANDELL:  Yes, there will be an index and I will correct all  17 my spelling mistakes.  18 THE COURT:  All right.  Well, it's within five minutes or so of  19 adjournment.  I can't see the clock and I think my  20 watch may be a little fast, but I think we should  21 adjourn now unless anyone has a better suggestion.  22 All right.  Two o'clock.  Thank you.  23 THE REGISTRAR:  Order in court.  Court stands adjourned until  24 two o'clock.  25  2 6 (PROCEEDINGS ADJOURNED AT 12:25 P.M.)  27  28  29 I hereby certify the foregoing to be  30 a true and accurate transcript of the  31 proceedings herein transcribed to the  32 best of my skill and ability.  33  34  35  3 6    37 Toni Kerekes, O.R.  38 United Reporting Service Ltd.  39  40  41  42  43  44  45  46  47 2511?  Submissions by Mr. Jackson  1 PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  2  3 THE COURT:  Does this go at the back of volume five?  4 MS. MANDELL:  Yes.  My lord, I am going to commence the section  5 on jurisdiction.  Mr. Jackson will introduce the  6 section and then I will proceed.  And, again, as with  7 ownership, we propose to be speakers and Mr. Grant  8 will follow upon the sections which I give.  9 THE COURT:  Thanks you.  Mr. Jackson?  10 MR. JACKSON:  My lord, this will be but a very brief interlude.  11 Yesterday, my lord, you raised a point with me  12 regarding the apparent reference to the Crown's  13 underlying interest as a title and the Indian interest  14 as a right and whether your lordship was to draw any  15 implications from that language as to the relative  16 relationship, the one to the other.  And I submitted  17 that that was not intended as a relationship which the  18 plaintiffs draw and that the Indian interest has been  19 variously described in the cases as title.  And what I  20 have done, my lord, is I have put together a number of  21 references in the cases where the Indian interest has  22 been referred to as title, and I am not suggesting  23 that this is an exhaustive list but it is a reference  24 to previous cases which I have referred to and I have  25 set out the page number in volume three of the  26 plaintiffs' arguments where your lordship can find  27 those.  28 If your lordship could put this after page eight  29 of the section on ownership, and I would just bring  30 your lordship's attention to the fact that if you look  31 at that supplementary page, for example, in Symonds,  32 the references to native title appear throughout those  33 pages noted.  And in Guerin also the terminology used  34 by Chief Justice Dickson and Madam Justice Wilson  35 throughout their opinions in referring to the Indian  36 interest is by reference to it being an Indian or  37 aboriginal title.  38 THE COURT:  Well, I read the two phrases just from looking at  39 the list of authorities you had cited, which seemed to  40 fall into two categories, these overlap?  41 MR. JACKSON:  Yes.  And your lordship can perhaps best see that  42 if you look at page seven of the ownership material.  43 THE COURT:  Ownership?  4 4 MR. JACKSON:  Yes.  45 THE COURT:  Is that in this volume?  46 MR. JACKSON:  Yes, my lord, page seven, the very beginning.  And  47 if you go down to the citation from Lord Waterson in 25119  Submissions by Mr. Jackson  1 St. Catherines Milling, where he, in describing the  2 Crown title, does so by reference to the Indian title  3 being one which overlies the underlying Crown title.  4 So we say, my lord, that nothing turns on the  5 references to title in relation to any priority as  6 between the underlying title of the Crown and the  7 Indian title.  8 THE COURT:  Is it, in your view, a useful or a dangerous  9 distinction to use those two terms for the purposes of  10 identifying a right or title or interest, and so to  11 possibly provide some precision of thought or  12 language?  Is there any harm or danger in using that  13 distinction?  14 MR. JACKSON:  The danger has come, my lord, from the way in  15 which some cases have latched on to the definition of  16 title and ultimate fee as referring to something which  17 is greater than the Indian interest.  18 THE COURT:  But it is a greater interest.  It doesn't have the  19 limitations that the Indian interest has.  20 MR. JACKSON:  It's a greater interest and a lesser interest in  21 this way, my lord:  We say the underlying title does  22 not give rise to a beneficial, right to beneficial use  23 of the territory in the sense that the underlying  24 title of the Crown is one which may permit the Crown  25 to make grants.  It does not, however, given the right  26 to the beneficial possession of the territory until  27 the Indian interest has been extinguished or in some  28 other way, terminated, we say with consent.  29 THE COURT:  You're talking about the underlying radical title?  3 0 MR. JACKSON:  Yes, my lord.  31 THE COURT:  I am drawing the distinction between the fee and the  32 aboriginal right or interest.  33 MR. JACKSON: In that sense, yes, my lord, the aboriginal title  34 is one which has certain limitations which the fee  35 simple does not have.  36 THE COURT:  Well, as in all these matters, it's sometimes useful  37 just to enhance levels of awareness of a problem.  38 MR. JACKSON:  I would like now, my lord, to give a very brief  39 introduction to the plaintiffs' right to jurisdiction,  40 and it is our submission that the right of Indian  41 nations and, of course, including the rights of the  42 plaintiffs in this case to jurisdiction or internal  43 self-government is recognized by the common-law as an  44 inherent pre-existing aboriginal right.  And what I  45 have done, my lord, on the first page and part of page  46 2, in a way paralleling what we have done for  47 ownership, is to give your lordship some references 25120  Submissions by Mr. Jackson  1 previously made to the jurisprudence and how the  2 judiciary has sought to characterize the nature of the  3 jurisdictional right, the right to self-government.  4 And that, again, is meant to be a shorthand reference  5 for your lordship to passages which appear in greater  6 amplitude later in volume three of the plaintiffs'  7 arguments.  And I don't intend to take your lordship  8 through them again, save and except to say that your  9 lordship has the Worcester and Georgia citations and  10 then some subsequent citations on page 2, to what we  11 refer to the more modern cases on what the Americans  12 call "inherent tribal jurisdiction", but what we said  13 was not a distinctive or peculiar American doctrine,  14 but rather a reflection of common-law principles,  15 principles which we say are referenced and affirmed in  16 the many treaties which were signed in the 17th, 18th  17 and 19th Centuries.  And I will be returning to the  18 argument that the principle of aboriginal jurisdiction  19 as a principle of the common-law, is reflected in the  20 Royal Proclamation in treaties made in Canadian  21 jurisdiction.  And I will be addressing that after Mr.  22 Grant and Ms. Mandell have dealt with the details and  23 the analysis of the plaintiffs' particular  24 jurisdictional system.  25 My lord, the second heading is the concept of  26 jurisdiction, and you will see that there are some  27 references to begin with to some of the dictionary  28 definitions.  And I should say, my lord, that these  29 definitions from the dictionary are taken from the  30 defendants' submissions.  It may be that the only  31 agreed facts in this case, my lord, that these  32 dictionary definitions do appear in the three  33 citations set out there.  And in our argument we have  34 set out one of those dictionary definitions and they  35 are there for your lordship's use.  We say, however,  36 that beyond looking at a dictionary, a definition of  37 jurisdiction, as it is used in the plaintiffs'  38 statement of claim, as a legal concept, a legal  39 concept in the context of the doctrine of aboriginal  40 rights, is one which we have set out at the top of  41 page 3, a system of authority exercised within a set  42 of institutions and laws in the context of an  43 organized society extending over a defined territory.  44 And your lordship will readily see in that some of  45 the tests which we have previously set out in dealing  46 with the concept of aboriginal rights in its  47 proprietory aspect as an interest in land.  The idea 25121  Submissions by Mr. Jackson  1 and the necessity for an organized society traced back  2 by Mr. Justice Mahoney to Worcester and Georgia and to  3 statements made by Mr. Justice Judson in the Calder  4 case.  5 It is our further submission, my lord, that the  6 plaintiffs' jurisdiction, like their ownership, is,  7 tracing the words of Chief Justice Dickson in Guerin,  8 sui generis.  And we say that in the same way that the  9 Privy Council in Amodu Tijani has warned against the  10 tendency to analyze aboriginal title over land  11 resources in terms appropriate to systems which have  12 grown up in English law, so also in analyzing Gitksan  13 and Wet'suwet'en jurisdiction, the tendency to  14 conceptualize in terms appropriate to federal and  15 provincial heads of power, Section 91 and Section 92  16 of the Constitutional Act of 1867, should also be kept  17 in check.  But at the same time, again to use the  18 words in Re Southern Rhodesia, Gitksan and  19 Wet'suwet'en jurisdiction, though differntly  20 developed, are hardly less precise than our own, when  21 once they have been studied and understood, they are  22 no less enforceable than rights arising under English  23 law.  24 And the third section of --  25 THE COURT: Just stopping there, it's almost Alice in Wonderland-  26 like, isn't it, to say that one should be careful to  27 avoid the tendency to conceptualize in the terms of  28 Section 91 and 92, because are you, in contending that  29 there are these common-law jurisdictions, not yourself  30 conceptualizing something that isn't in Section 91 and  31 92?  32 MR. JACKSON:  My lord, my point was not to say that  33 conceptualization is something which is to be avoided.  34 My point was that in seeking to construct and to  35 analyze the Gitksan and Wet'suwet'en system, as a  36 system as a system of jurisdiction, the court should  37 not have, as it were, the references of Section 91 and  38 92, and unless the plaintiffs' jurisdiction matches,  39 as it were, head for head, 91, 92, say that that is  40 not -- whatever it is, it's not jurisdiction.  There  41 is an important point, my lord, and it's one to which  42 I will come back, and it's a point which is raised by  43 the defendants, that 91 and 92 is the complete source  44 of jurisdictional authority in the Canadian  45 Confederation and, therefore, there is no room for  46 anything else.  That is a different point, my lord,  47 and it's a point which I will be coming back to 25122  Submissions by Mr. Jackson  1 tomorrow.  The point I am trying to make here is that  2 in understanding whether the plaintiffs are correct  3 and are justified in using the concept of jurisdiction  4 for what is about to be described to your lordship,  5 the test of whether it is jurisdiction, the litmus  6 test, is not can we fit into every box, as it were, of  7 Section 91, 92, equivalent Gitksan and Wet'suwet'en  power  9  9    THE COURT:  I would have thought that it would be phrased  10 perhaps differently.  But, perhaps not.  I would have  11 thought the discussion would be whether there was room  12 outside the delegation of or the assignment of matters  13 relating to Indians to the federal government and the  14 residual power to the federal government, room outside  15 those, for some further jurisdictions.  16 MR. JACKSON:  It is our submission, my lord, that there is.  I  17 was attempting to characterize what I understand my  18 friend's argument to be, which is that 91, 92 is the  19 complete allocation of jurisdiction in the Canadian  20 scheme of Confederation and, therefore, there is  21 nothing -- there is no room left as a matter of  22 constitutional law, or as a matter of the common-law,  23 for anything called Indian jurisdiction.  24 THE COURT:  I haven't put it very well.  What I would be  25 troubled by, if I put myself in your position for a  26 moment -- which is a dangerous thing to do -- but it  27 would be whether, whatever there is, falls within the  28 assignment of jurisdiction of Indians to the federal  29 government, that if there is something outside 91, 92?  30 Of course that's circular, it's caught by, is it  31 91(24)?  32 MR. JACKSON:  91(24).  There are a variety of routes, my lord,  33 that one could take and are open to your lordship to  34 find Indian jurisdiction within the concept of  35 Canadian Confederation and, as I say, it is something  36 which I will come back more specifically to.  And the  37 reason, my lord, I have made the point that it's --  38 the litmus test is not to see if we can check off, as  39 it were, all the categories of 91 and 92 and find a  40 Gitksan and Wet'suwet'en equivalent, is in part and  41 principally reference to the points Ms. Mandell and  42 Mr. Grant have made to you in their previous  43 submissions, that in analyzing the concept of  44 jurisdiction from the plaintiffs' perspective, in  45 terms of their own system, their own organized system,  46 it is a kinship system and, therefore, we do not have  47 the same set of institutions designated political, 25123  Submissions by Mr. Jackson  1 judicial, executive, with compartmentalized  2 jurisdictions with allocated responsibilities which we  3 are used to dealing with, and it is the need to  4 realize that which gives rise to the caveat, we say,  5 which was a caveat the Privy Council said is so  6 important in understanding the proprietory interests  7 in indigenous peoples in the same way their interests  8 do not break down in concepts of estates in land, so  9 their institutions do not necessarily break down into  10 executive, political, judicial, spiritual,  11 institutions may simultaneously fulfill those elements  12 at one and the same time.  And that's a point which  13 your lordship has already heard my friends on.  14 THE COURT:  I suppose you say at least that 91(24) gets you out  15 of civil rights within the province; is that right?  16 MR. JACKSON:  Yes, my lord, it goes certainly so far as that.  17 THE COURT:  I would have thought — never mind.  It's all right.  18 MR. JACKSON:  And section C, my lord, is a very abbreviated  19 setting out of the overview of the plaintiffs'  20 jurisdiction, and it's a matter which Ms. Mandell will  21 address you on at greater length.  22 And what pages three to five are meant to give  23 your lordship, in the same way as the parallel section  24 in ownership is, as it were, a thumbnail sketch of the  25 jurisdictional component.  And the large volume of  26 material we have placed in the back of the binder, my  27 lord, is the specific and detailed content of that.  28 And at that point, my lord, Ms. Mandell will take  2 9 over.  30 THE COURT:  All right.  Thank you.  31 MS. MANDELL:  My lord, Mr. Jackson set out the definition of  32 jurisdiction which the plaintiffs are endeavouring to  33 prove to you as being an aspect of the organized  34 society.  And in the statement of claim, it's  35 referred, we refer to jurisdiction as a system of  36 authority exercised within a set of institutions and  37 laws in the context of the organized society.  And I  38 want to make the point at the outset that we say the  39 house is the primary institution through which, or the  40 primary unit of decision-making, which functions both  41 independently and together with other houses, and that  42 the functioning with other houses will occur in the  43 grouping of the clan or the wilnat'ahl, the  44 wiltsiwitxw and Nii Dil for the Gitksan, and finally  45 at the feast.  And in order for the second point to be  46 demonstrated, that is, that it functions within a set  47 of laws, I would like to also state at the outset that 25124  Submissions by Ms. Mandell  1 it is our submission, and we have also referred to it  2 earlier in organized society, that there are a set of  3 general laws which are pervasive among the system and  4 as will be demonstrated throughout, we say that the  5 laws are taught and, by and large, enforced, through  6 the oral history as it operates at the house level,  7 and then enforced through the institutions of the  8 houses acting together and in groupings.  9 And, finally, we say that a very important aspect  10 of the jurisdictional system is a balance between the  11 authority of the house to make decisions with respect  12 to what fits within their particular jurisdiction and,  13 basically, that has to do with the well-being of the  14 house members and the territory, together with a  15 balance of the collective authority of the house,  16 where in acting together at feasts, the chiefs, as  17 representatives of their house, make decisions with  18 respect to issues common to all of them.  19 And I am going to now turn to the house as both  20 the primary unit of decision-making and also a unit  21 which exercises its jurisdiction within the balance of  22 the collective authority.  And I would like to turn to  23 the first section, which is entitled Hosting and  24 Attending Feasts.  Really the section boils down to  25 two major points, and they are both used to both state  26 the jurisdiction, as we understand it, as it was  27 revealed by the evidence, and also to reveal the  28 balance between the authority of the house to make  29 decisions and the collective authority acting  30 together.  And here I identify two separate areas:  31 One is the actual hosting and attending of the feast,  32 which must occur by the house's initiative, and  33 without it occurring, the collective jurisdiction is  34 inhibited; and, secondly, the choosing of a successor,  35 which also is within the ambit of the house to  36 recommend and to train.  But it's within, and only  37 within, the collective authority of the chiefs acting  38 together, that both the successor will be confirmed  39 and also the jurisdiction which the successor will  40 ultimately perform with respect to the other houses,  41 where will be at the feast exercised there.  42 So, if I can begin first with the question of the  43 hosting and attending of feasts.  44 THE COURT:  Ms. Mandell, I am sorry to interrupt, but I am in  45 the same position as Mr. Willms this morning, I am not  46 sure I understand what you are saying here and to get  47 a handle on it, and therefore to better understand 25125  Submissions by Ms. Mandell  1 your submission, it seems to me I have to ask you if  2 you can assist me by telling me what is it you're  3 saying?  When you say that the -- that you want to  4 have the right to deal with such things as supervise  5 the internal affairs of the house, just looking at  6 random at the top of page five, well, are you  7 suggesting that there is some law that -- some  8 Canadian law, non-Indian law, that prevents them from  9 supervising the internal affairs of the house?  10 MS. MANDELL:  I would like to answer that question by reference  11 to the second item on the list.  I think I can --  12 THE COURT:  Resolve disputes within the house or between houses?  13 The second thing on the list.  14 MS. MANDELL:  You are just randomly going down the list?  15 THE COURT:  I started on E but I could go back to B, to  16 determine citizenship and maintain the integrity of  17 the house.  Is there anything that prevents the  18 Gitksan from determining citizenship and maintaining  19 the integrity of the house?  I take it you mean  20 citizenship within the Gitksan family?  21 MS. MANDELL:  That's right.  22 THE COURT:  I am not aware of any prohibition or legal conflict  23 there.  24 MS. MANDELL:  I think that I only chose that example because it  25 may be easier to illustrate than others, or perhaps  26 the third, conduct family law relationships.  There  27 are certain faces to the jurisdiction which the chiefs  28 exercise, which are inhibited or prohibited by  29 countervailing provincial law, in some cases,  30 countervailing federal law.  But this case isn't  31 really here trying to go toe to toe with the conflict  32 between federal law and Indian law.  But at least with  33 respect to provincial law, say in the Family Law  34 field, there are provincial laws which do stand in the  35 way of and which define the world differently than how  36 the Indian people themselves do it according to their  37 own systems.  And so, for example, in the area of  38 Family Law, what is a legal adoption is different than  39 how the Gitksan will define legal adoption, or the  40 Indian-Gitksan laws with respect to marriage are  41 certainly not either understood, authorized or  42 enforced or, for that matter, there are laws which  43 could be seen from the province to be interpreted as  44 standing against the Gitksan marriage law and  45 incorporating the rules of their system.  So there are  46 a certain body of laws which actually butt toe to toe  47 with the exercise of authority by the Gitksan and 25126  Submissions by Ms. Mandell  1 Wet'suwet'en hereditary chiefs.  2 THE COURT:  But surely I have no jurisdiction to deal with those  3 matters in this case?  4 MS. MANDELL:  Laws that are inconsistent?  5 THE COURT:  Has notice been given under the Constitution setting  6 out the specific laws that you are stating?  7 MS. MANDELL:  Notice has been given — yes, it has.  8 MR. WILLMS:  Looks like the index from the Revised Statutes of  9 1979, my lord.  10 THE COURT:  I may have seen it.  I don't remember.  I have no  11 difficulty with your D, except it seems to me that  12 it -- I would take D to seek to exclude provincial --  13 MS. MANDELL:  That's right.  14 THE COURT:  — but not federal.  15 MS. MANDELL:  That's right, the case isn't about federal —  16 going toe to toe with federal law.  But I must say  17 here that in some of the areas which your lordship  18 will appreciate, there is no express law prohibiting  19 the hosting and attending feasts of the house.  While  20 there once was, there is no longer.  But the choice of  21 a successor, in order to validate the title of the  22 land which the Indian people pass, is something which  23 not only is not recognized but the ability of the  24 Gitksan and Wet'suwet'en chiefs to validate their  25 successors and the transfer of territories, as they do  26 in the feasts is, both directly and indirectly,  27 prohibited by the lack of recognition of their laws  28 within the general framework of the provincial legal  29 system.  So we end up in this case challenging whether  30 or not the successor, properly appointed, has the --  31 has rights in ownership to the territory which was  32 passed to him or her, plus rights of jurisdiction with  33 respect to it.  And I think that it's not -- well,  34 while some of these laws, as I say, will match up toe  35 to toe and you will recognize it, others of the areas  36 of jurisdiction which the Gitksan and Wet'suwet'en  37 exercise their rights, are not recognized, and if they  38 were recognized, the consequences we say which would  39 follow would be that to the extent provincial law is  40 inconsistent with that, that there would be a  41 reckoning of that under Section 52 of the Constitution  42 Act.  43 THE COURT:  Well, I am left with the uneasy feeling that you're  44 setting up a poor old man of straw and knocking him  45 down when you talk about conduct feasts and feast  46 obligations to determine citizenship and integrity of  47 houses, to supervise internal affairs of houses, to 25127  Submissions by Ms. Mandell  1 resolve disputes in houses.  I don't know about  2 conducting international relations.  I suppose you  3 could conduct international relations if you want.  I  4 don't know if you can or not.  I regard I. as in the  5 category that is to maintain and protect institutions,  6 is a man of straw.  What law would prevent you from  7 doing so?  8 MS. MANDELL:  Well, there had been previously law which had  9 prevented the people from doing that, that had been  10 the prohibition against the feast.  But --  11 THE COURT: Well, any law that -- any law that should be proposed  12 now that was in that category, could be challenged and  13 you would have something to fight about.  But I have  14 some difficulty seeing what you have got to fight  15 about in many of these things.  16 MS. MANDELL:  Well, maybe I would like to try one more time at  17 talking to you and then perhaps I can get the  18 assistance of my friends who also feel they want to  19 say something.  2 0    THE COURT:  Oh, you go ahead.  I want to make sure I understand  21 what you're saying.  But it doesn't seem to me there  22 is anybody to fight with on much of this.  23 MS. MANDELL:  Well, this is what we say, and I think there is a  24 fight.  It's taken a long time.  25 What we are seeking to describe for you is the way  26 in which the Gitksan and Wet'suwet'en exercise  27 jurisdiction under their system.  And in the exercise  28 of the jurisdiction, as they see it, and in performing  29 the functions that they perform, through the exercise  30 of jurisdiction, you get a big ball of wax, what you  31 get is the way that they see their ownership and their  32 jurisdiction over the territories.  When Mr. Jackson  33 was explaining to you that we don't go toe to toe with  34 all the heads of authority that are designed under 91  35 and 92, he is quite right, and there is not  36 necessarily a toe to toe, that is a direct conflict,  37 between hosting and attending the feasts of the house  38 and choosing a successor on one hand and a provincial  39 law against which we abut.  But on the other hand,  40 when all of the areas of jurisdiction are taken  41 together, including hosting and attending a feast, and  42 choosing a successor, and maintaining the house for  43 certain purposes, and maintaining the family law  44 relations within the house for the purposes of  45 interacting at the feast, and harvesting, managing and  46 conserving the territories within the framework of  47 that over-arching system, and granting access rights 2512?  Submissions by Ms. Mandell  1 and preventing trespass within that over-arching  2 system, and resolving disputes, when all the areas of  3 jurisdiction are taken together, what you have is  4 the abutment of one system of jurisdiction against  5 that of the province, where very crucial decisions  6 with respect to who manages, who harvests, who  7 decides --  8 THE COURT: When you're talking about the land you are leaning on  9 an open door; I have no difficulty with that.  It's  10 these other areas that I find it to be metaphysical.  11 MS. MANDELL:  Well —  12 THE COURT:  I don't find a lis, I don't find anyone for you to  13 fight with.  14 MS. MANDELL:  I would take comfort then in collapsing list and  15 trying then to describe for you the system of  16 jurisdiction as it operates because the decisions with  17 respect to the land, they don't operate in a vacuum,  18 they are part and parcel of an organized society, who  19 exercises jurisdiction with respect to the maintenance  20 of its institutions and the promulgation of its laws  21 and the sanctions for things which it finds offensive,  22 and all of that reflects on how it is that the land is  23 ultimately managed, harvested and controlled.  And if  24 we were to scale down the list to only those parts of  25 it which directly abut against the provincial  26 jurisdiction to harvest and manage, then I say that  27 the net effect would be that the list would  28 effectively collapse.  But the same arguments would  2 9 have to be made.  30 THE COURT:  I didn't say list, I said lis.  31 MS. MANDELL: Lis.  Oh.  The list remains the same.  I think it's  32 a question of trying to order it for purposes of  33 convenience.  And you will recall that early in the  34 day Mr. Jackson explained that the Gitksan and  35 Wet'suwet'en concepts of ownership and management are  36 very inter-mingled.  We have already seen in  37 evidence --  38 THE COURT:  You can mix things up and make them as complicated  39 and intricate and difuse as you want, but when you  40 come back to it, it seems to me that there are certain  41 things that can be dealt with and certain things that  42 can't.  It's almost as if, under the land registry  43 system, they purported to tell you how you could  44 decorate your living room.  Now, that's an analogy I  45 could see, if there was a problem, you say yes, you  46 have an argument about the land, but if in addition if  47 there was some other law that said when you have the 25129  Submissions by Ms. Mandell  1 land, then you have got to use it this way.  I can see  2 that because it's -- that is to use, then it's a  3 zoning matter or something including zoning, but when  4 you say we want to have these unincorporated, well,  5 unincorporated social organizations that we recognize  6 amongst ourselves, then it seems to me that unless  7 somebody says you can't have those kinds of  8 organizations, then what is there to fight about?  It  9 may be that they impinge upon or are affected by your  10 land interests, which is a very live issue in this  11 lawsuit.  But I really have very serious difficulty  12 seeing where these other ones are.  13 I think now that we have had that dialogue, and we  14 know what we are having difficulty with, I think you  15 should carry on with your argument, and I will try and  16 see if I can find something upon which I could  17 pronounce a judgment.  I have serious misgivings about  18 how I could give a judgment on some of these issues.  19 But you persuade me.  2 0    MS. MANDELL:  All right.  Excuse me for just one moment.  21 All right.  We will just try to persuade you.  22 THE COURT:  What page are you on?  23 MS. MANDELL:  I am going to start at page 3.  24 The first section is to illustrate primarily the  25 houses as a primary unit of decision-making or  26 jurisdiction, and I might remind your lordship that we  27 also have the house as the primary unit of ownership  28 and that the decisions which will be made with respect  29 to the harvesting of the territory and the granting of  30 the access rights to the territory, are primarily made  31 at the house level.  However, there is a balance  32 between the authority of the house and the collective  33 authority, and we begin by talking about the  34 obligation of the house to host a feast.  35 Now, Alfred Joseph testified that when he received  36 his name jurisdiction passed to him in respect of the  37 conduct of the feast and carrying out of the feast  38 obligations.  And this a repeat of the proposition you  39 have heard now stated by Mr. Grant, that when somebody  40 passes away there is an obligation on the house to  41 host a feast and to conduct a proper burial.  And he  42 says:  43  44 "And I have to make sure that -- proper  45 procedures are followed according to  46 Wet'suwet'en law, when there is a feast for  47 funerals, feast for stones, feast for marriages 25130  Submissions by Ms. Mandell  1 and see that proper people are there to perform  2 duties and there -- are times when some of our  3 house members are not in the area and that  4 happen to be in accident or death, and it takes  5 quite a bit of work to bring them home.  And  6 also the responsibility are to see that the  7 younger people follow all our laws and  8 conditions."  9  10  11 And Glen Williams stated that:  12  13 "The authority is in that particular house  14 group, that is, the main host of that feast,  15 and is primarily the hereditary chief of that  16 house who is the major decision maker along  17 with his house members.  They are the ones who  18 are in main control of the feast."  19  20 And I will ask you to look at Joan Ryan's  21 statement where she stated that with the passing of  22 the chief's name passed to her the responsibilities  23 and jurisdictions to host the feast and also to be a  24 part of the witnessing body:  25  26 "It gives me the right to be invited to memorial  27 feasts of other clans.  It gives me have the  28 right to attend pole raising feasts of other  29 clans.  It gives me the right to pass judgment  30 on whether Gitksan laws are fulfilled when a  31 name is transferred to a new candidate or a new  32 chief.  It gives me veto power if I feel that  33 certain regulations and laws are not being  34 fulfilled.  It gives me the right to  35 participate in all ventures, all ventures that  36 the chiefs would like to undertake."  37  38  39 And what here the chiefs are describing is that  40 they form one of a very essential -- one link in a  41 very essential chain which weaves together the  42 collective authority of the houses acting together at  43 feasts.  And Joan Ryan is particularly describing her  44 role there as part of the collective who gathers.  45 Part of the obligation of the house, too, is  46 specific training of house members and feast laws and  47 procedures.  And here the house is responsible for 25131  Submissions by Ms. Mandell  1 teaching those who will then operate properly, we say  2 legally, within the collective jurisdiction which will  3 be so exercised.  And at page six, Mary McKenzie  4 identified that one way that the house does that  5 internally is to begin by teaching the children how to  6 serve food.  And she says that -- she explained that  7 the children are taught that the head chief of the  8 table must be served first, then the wings, then the  9 nieces and nephews, the serving has to be done very  10 carefully:  11  12 "they have to be treated as Head Chiefs.  They  13 are honoured that way."  14  15 And so in the course of the house hosting feasts  16 as they are obligated to do, witnessing feasts, as  17 they are obligated to do, teaching the children as  18 they are obligated to do, the chiefs are trained into  19 the -- how it is that when they will participate as  20 members of the feast, in a jurisdictional role, they  21 will have been taught the proper way in which the  22 collective jurisdiction is exercised.  23 And I ask your lordship to refer to Glen Williams'  24 statement here, a young chief who described the feast  25 as an educational process for him and other Gitksan.  26  27 "The feast, when it's held, is an educational  28 process in itself, whereby how the different  29 chiefs are seated according to the rank.  30 That's and education process.  The identity,  31 that you have to know the different ranks of  32 different chiefs how they sit is educational.  33 The procedures that happen at a feast is an  34 educational process.  The names given at the  35 feast is an educational process.  How it is  36 given and who christens individuals is a  37 process of education.  And different statements  38 that are made at the feast are philosophies of  39 the chiefs, and it's based  on our value  40 system.  That's educational.  And when you sit  41 at a table, I explained a bit earlier the  42 private discussions, that's educational.  And  43 the other part of it is the land ownership, the  44 different areas that the particular chief owns,  45 who is the host, that's  educational.  And the  46 verification of the high chiefs at the end of  47 the feast, whether they agree or disagree with 25132  Submissions by Ms. Mandell  1 the statements and the business that's  2 conducted is an educational process."  3  4 And he says and this is really the part of the  5 feast which is most important with respect to  6 territories:  7  8 "The feast is mainly demonstrating who has  9 ownership to particular territories, who has  10 access to those territories or the fishing  11 sites, and there are certain laws regarding  12 access, regarding use of the territories or the  13 sites, and who has a right to be on there and  14 who is an authority over it."  15  16  17 Mary McKenzie testified that this oral history or  18 the training into the law of the feast occurs both  19 formally and informally, and she testified in the next  20 passage that one of the ways that the chiefs will  21 teach the people of the house is to continuously  22 remain sensitive to those who have a readiness to  23 learn in greater detail.  And she says:  24  25 "In the feasting these people are taught in  26 Gitksan law.  We always say we have the feeling  27 everyone has an old feeling about it, so that  28 when you attend these things, you caught on  29 with the feeling too that it encourages you  30 more when you attend it and be there."  31  32  33 Now, the passage of the chiefly name at the feast  34 is one of the areas of jurisdiction which rests with  35 the house to make decisions regarding who will be a  36 successor, the name though is passed at the feast and  37 the collective jurisdiction with respect to the  38 territory, and confirming that territorial rights is  39 dependent upon both the house operating as a unit,  40 training and choosing a successor and, finally,  41 hosting the feast that will bring the chiefs together  42 and where the successor will ultimately be confirmed.  43 Now, the passage of the chiefly name is, or begins,  44 really with the head chief, who is responsible to  45 recognize the merits in the young house member and  46 pass names of the house to those who are being taught  47 and those who are able to assume greater 25133  Submissions by Ms. Mandell  1 responsibility.  And Mary McKenzie testified that a  2 chief has jurisdiction and the obligation to pass out  3 names to house members beginning with babies.  In the  4 course of having names passed at a feast, a child will  5 be trained into the responsibilities of the high  6 chief.  And she states, in the middle of page nine:  7  8 "Starting from a child is born, they're given  9 the name, and a piercing of ears and puberty,  10 and then a second name is given to a child.  11 When they reach the age of adult there's a name  12 given for this person, and if he or she is in  13 line of becoming a chief a name is given to  14 that person, and it shows in the feasting house  15 just who the people that are in line of  16 becoming a chief by doing -- giving a feasting  17 and given an extra name of this person, and of  18 course in the feasting house this person will  19 sit in front of the head chief.  This is the  20 old seating of the feasting house.  They didn't  21 use tables at that time, all seated around the  22 feast house."  23  24  25 And at page ten she identifies that it's with the  26 passing of the names and progressively higher ranking  27 chiefs' names by the high chiefs at the feast that  28 it's a way of training the oral history and of  29 promoting and recording the development of desirable  30 chiefly qualities.  She says:  31  32 "The history of the house is learned through the  33 names.  The adaawk goes with the name, this is  34 how the Gitksan people know the adaawk of each  35 name they hold."  36  37  38 And Alfred Joseph testifies that higher names will  39 be passed on by the chiefs to people who gain a  40 readiness to take on responsibility.  And he referred  41 to the feast held in October of 1986 where sub-chiefs  42 were given names, this is in his clan, and he stated  43 what these sub-chiefs were told as they were passed  44 their higher ranking chiefly names:  45  46 "They are told that they are now taking the  47 first step into taking a higher name in the 25134  Submissions by Ms. Mandell  1 future and that they should conduct themselves  2 the way the high chiefs do, and that they in  3 the future will be depended on by people and  4 that is always advice given at a feast.  5 Mention is made of the territories by the  6 witnessing chiefs.  The guests always give the  7 same advice to them and they are told that the  8 clan whichever clan is speaking agrees with  9 what's being done, and that it is the proper  10 way to conduct business and what they're always  11 reminded of the past of how the territory was  12 used by the house chiefs and that they should  13 do the same thing, that they should take care  14 of the land, take care of whatever territory  15 they are going to use.  The territory is always  16 mentioned and the responsibilities of the young  17 person is always emphasized and the use of the  18 'territory is always discussed and  19 conservation.'  And they are told that if they  20 have never been on a territory, that the  21 previous owners or the father if they happen to  22 be on their father's territory, and they are  23 moving to a new area, they are told that they  24 should ask for advice from whichever clan is  25 speaking if they know the territory."  26  27  28 Now, this is all, although witnessed at the feast,  29 this aspect of choosing a successor and promoting and  30 teaching and mentioning the territories and  31 encouraging them to tap into the knowledge of those  32 other persons within their clan or father's side who  33 would know the territory, all of this is happening  34 internal to the house while witnessed at the feast.  35 Also internal to the house is the exercise of the  36 chief's jurisdiction to -- instead of choose it really  37 is to recommend a successor, because as we say, at the  38 bottom of page 11, the final authority to affirm a  39 successor rests in the collective jurisdiction of the  40 chiefs exercised at the feast.  41 THE COURT:  I never have understood what that was really  42 supposed to mean in actual operation, whether it's the  43 collective jurisdiction of the chiefs of the clan or  44 all the chiefs of the Gitksan?  45 MS. MANDELL:  Well, there is —  46 THE COURT:  I heard it described in different ways and I have  47 never been sure what it was that it was intended to 25135  Submissions by Ms. Mandell  1 be.  2 MS. MANDELL:  In name passing feasts, the headstone feasts or  3 the pole raising feast, it's chiefs of all of the  4 Gitksan or all of the Wet'suwet'en.  But as I will --  5 I will state, for certain decisions, it will be the  6 clan that will be brought in to make those decisions.  7 That's part of the houses acting together.  But the  8 collective jurisdiction in its fullest form, is  9 exercised by all the chiefs of the houses representing  10 all of the houses at feasts where territory is passed  11 or affirmed, which is headstone or pole raising  12 feasts.  13 THE COURT:  So name or territory passing is all Gitksan chiefs?  14 MS. MANDELL:  Or Wet'suwet'en, yes.  15 THE COURT:  Name or territory?  16 MS. MANDELL:  Yes.  Well, high chief's name where territory  17 passes.  18 THE COURT:  All right.  19 MR. WILLMS:  Is that Gitksan and Wet'suwet'en or just Gitksan  20 and just Wet'suwet'en?  21 THE COURT:   All Gitksan chiefs for Gitksan lands and names and  22 all Wet'suwet'en chiefs, I understand.  23 MR. WILLMS:  What about the boundary of territories?  Does that  24 apply to the boundary too?  I just don't know.  25 THE COURT:  I don't know either.  26 MR. WILLMS:  Between the Gitksan and Wet'suwet'en.  27 THE COURT:  Where there is a common boundary.  28 MR. WILLMS:  Where there is a common boundary, what happens  29 there?  30 MS. MANDELL:  We can explain it more.  Mr. Grant's going to be  31 dealing with that when he deals with Gitksan and  32 Wet'suwet'en relations.  33 THE COURT:  All right.  34 MS. MANDELL:  Mr. Joseph testified to the consultative process  35 among the houses and clans in choosing a successor.  36 And this may relate in part to your question, my lord,  37 and that is who are these combinations, and as we have  38 earlier mentioned and which I will now illustrate, the  39 jurisdiction is exercised by the house, in combination  40 with several kinship units, depending on the scope of  41 the issue.  When it comes to the issue of choosing a  42 successor, Alfred Joseph testified:  43  44 "First by the clans themselves, the house, the  45 house that the chief is from, that house will  46 meet and from there they will take it to the  47 clan and they are told about this choice and 25136  Submissions by Ms. Mandell  1 there is an agreement from the whole clan and  2 then it is taken to the house on the father's  3 side, they are also told what the decision is.  4 The house on the father's side must be  5 consulted.  These informal consultations occur  6 before a feast."  7  8  9 And your lordship will appreciate the requirement  10 to in interact with the father's side and too often  11 the spouses side, in the choice of a successor,  12 because you're aware from this morning's discussion  13 that members of the father's side or the spouse's side  14 who will have access rights to the territory will have  15 a very strong interest in who the successor may be.  16 And this is all part of the way in which the houses  17 collectively operate.  18 Now, at the bottom of page 12, if a high chief has  19 chosen a successor, this may be announced at a feast.  20 But I mention here and the example that Alfred Joseph  21 gave was Kanoots, that the announcement by a living  22 chief as to who he wishes to be his successor is not  23 determinative of the issue.  It certainly does tell  24 the assembled chiefs collectively the preference of  25 the chief that's now holding the name, but it's not  26 until there has been a final feast affirming the  27 choice that this is or this choice of the successor by  28 the former chief may or may not be put into effect.  29 And we say at page 13, while the wishes of the former  30 chief will be given great weight in the choice of a  31 successor, the jurisdiction ultimately rests with the  32 chiefs within the house and at the clan and at the  33 feast.  34 And Alfred Joseph, and this is at the bottom of  35 page 13, testified that although he had been chosen by  36 the former Gisdaywa to succeed to the name, he was  37 also chosen by the three senior chiefs in his clan and  38 this decision was confirmed at a feast.  And  39 similarly, Henry Alfred, who you will recall was  40 chosen by Peter Bazil, was taken up to the territory,  41 had his trapline -- had his territory explained to  42 him.  He lived with Peter Bazil, got instruction from  43 him, while he was chosen to be a successor, all three  44 chiefs in the houses in the Laksilyu clan were  45 consulted.  And Henry said:  46  47 "When a chief's name like Wah Tah K'eght is 25137  Submissions by Ms. Mandell  1 passed on, all three houses within the Laksilyu  2 clan will consult with one another and they  3 would agree on it before the name was passed."  4  5  6 Now, Henry also said that chiefs from other clans  7 are consulted, and he said that in his case, and you  8 will recall that he was actually chosen by the former  9 Gisdaywa, he says Smogelgem was consulted and Caspit  10 was consulted:  11  12 "All the chiefs are consulted and when they give  13 their approval, that's when the name is taken."  14  15  16 And I draw your attention at the bottom of page 14  17 in discussion who would have the final authority to  18 make the decision regarding the name Hadah K'umah,  19 this is Basil Michell's name, Henry Alfred said:  20  21 "I myself would make that recommendation and at  22 the feast the chiefs that are witnessing the  23 chiefs from there will make the final decision  24 whether they agree or disagree."  25  26 And in describing the process:  27  28 "There is always meetings as to what is to take  29 place and recommendations are made to the feast  30 hall and the chiefs there either confirm or  31 disagree with these recommendations."  32  33  34 Now, on page 16 and 17 there is further examples,  35 many of which now are Gitksan examples, where  36 basically the same decision-making process is  37 demonstrated through the taking of the name by Mary  38 McKenzie and by Antgulilbix, and I just wanted to draw  39 to your attention a typical example, which is on page  40 17, and it's in the case of Joan Ryan, the former  41 Hanmuxw chose her, Olive, said her mum, if the other  42 chiefs had not agreed, "that's the time when they talk  43 to themselves in a house and talk it over, and they  44 choose someone to get the name."  45 After Jeffrey Johnson died, she said the other  46 chiefs she says, "ratified his choice."  47 Art Mathews testified to the participation of the 2513?  Submissions by Ms. Mandell  father's and the spouse's side in the meeting to  choose a successor before the feast and he was  testifying to a meeting where his father and George  Turner attended to decide on the successor to the name  Axtii Hiikw, after Jeffery Morgan's death.  Both Art  Mathews Sr. and George married into the House of  Tenimgyet.  Art Mathews described their roles:  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  "They were there as a father, as advisers.  Not  to say they were going to pull over someone  else, they are there and say:  This is right,  you guys are doing right and this is the way to  go.  And then after that meeting then we went  to the feast hall with this and the meeting and  that's how we presented it to the feast."  THE COURT:  Are you finished that section?  MS. MANDELL:  I could be.  THE COURT:  All right.  We will take the afternoon adjournment  then.  (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter 25139  Submissions by Ms. Mandell  1  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Ms. Mandell.  4 MS. MANDELL:  Thank you.  We are in the middle of chosing a  5 successor, my lord.  And on page 18 I had earlier  6 mentioned that the successor might be selected while  7 the high chief is alive.  And I want to draw to your  8 attention that still for the Wet'suwet'en, and this is  9 at the middle of the page, the Wet'suwet'en successor  10 seated at the feast in front of the head chief, and  11 this identifies him to others as the likely successor,  12 and also provides an easy path of communication and  13 instruction between the high chief and the successor  14 where events of the feast can be explained.  And this  15 was referred to by Alfred Joseph, and Johnny David  16 said that he started to sit in front of Old Sam  17 Maxlaxlex when he was a small boy.  18 Dan Michell sits in front of the seat indicating  19 that he is a successor to the name of Namox.  There  20 were many chiefs that identified themselves as having  21 been selected by the former chief, and I draw to your  22 lordship's attention those examples which are found  23 between pages 19 to 20, and Dr. Mills' analysis as to  24 the fact that this occurs.  25 I wanted to simply pause here and say that the  26 disk that carried this argument got mutilated, or the  27 data in it got mutilated coming through the scanner at  28 the airport, and when we do give you your final copy,  29 the pagination will be right.  That may affect the  30 pages, and you should indicate if you care about that.  31 At page 22 the house is the primary unit of  32 decision-making and management which functions both  33 independently and also together with other houses in  34 the clan, wilnadahl, wilsiwitxw, the nii dil at the  35 feast.  The jurisdiction which the chiefs together  36 exercise at the feast is dependent upon the proper  37 functioning of the house as decision-making units.  An  38 example of this has been revealed in the way that the  39 successor to the high chief's name is chosen.  The  40 jurisdiction rests with the house to make the  41 decisions regarding who will be a successor.  However,  42 the name will pass at a feast where the chiefs  43 together affirm or dispute the choice of successor  44 proposed by the house.  45 And I might here remind your lordship that you  46 heard evidence of at least one of the chiefs for the  47 name Tsibassa among the Wet'suwet'en.  There was a 25140  Submissions by Ms. Mandell  1 person proposed, and the chiefs didn't agree with it,  2 and there was discussion, and another chief finally  3 was proposed.  4 The collective jurisdiction in respect to the  5 territories is dependent upon the houses chosing a  6 successor and having the choice validated at the  7 feast.  8 Now, we see the application of this general rule  9 when a house cannot decide on its successor, and I  10 have provided two examples which I want to use to  11 illustrate the point that the jurisdiction is  12 exercised by the house in combination with several  13 kinship units depending upon the scope.  14 Mary MacKenzie provided an example in the exercise  15 of jurisdiction in resolving the disputes in  16 Miluulak's House over who will succeed to the name of  17 Miluulak, and if I could just identify the way she put  18 it.  19  20 "One of the head chiefs of Giskaast, Miluulak  21 dies, and she is Miriam Russell, and of course  22 they had to have a person to take her name.  23 Alice Jeffery and Robert Jackson (contesting  24 for her name) there was the two of them.  They  25 both felt that they would be the person to take  26 the name of Miluulak so at the funeral day it  27 wasn't settled yet amongst the Miluulak's  28 house.  There was still a family pulling for  29 one and the other half for another one, so they  30 couldn't settle it amongst themselves.  The  31 House of Miluulak couldn't have it settled  32 because half was pulling for the other person  33 and half for the other."  34  35 This is now outside the clan, which is a fairly  36 unusual process, as described by the earlier  37 witnesses.  38  39 "This is when the chiefs of the different clans  40 like the Frog and the Fireweed, we were called  41 to Freddy Starr's House to have a family  42 meeting of the head chiefs.  My husband (Frog)  43 and I (Wolf) were there and Eli Turner  44 (Fireweed) was there I remember and just the  45 three of us would make - or even if there was  46 half a dozen of us --"  47 25141  Submissions by Ms. Mandell  1 And she was asked about the different clans.  We  2 were told that they were debating on, and so they  3 asked the chiefs to see how they can settle this.  So  4 after a lengthy discussion we settled that Alice  5 Jeffrey would get the name Miluulak.  She would sit in  6 the Miluulak's seat at the feasting, but Robert  7 Jackson would have the authority of looking after the  8 territory.  And she states later in the quote:  9  10 "...all this had to be told in a Feasting of how  11 the family disagreed and how it couldn't be  12 settled so they called on the chiefs of the  13 different clans to settle it for them and --  14 that they had agreed, the family of Miluulak's,  15 and the wilnat'ahl had to agree with that.  16 This was all settled in the feasting house.  17 ...And at that feasting everything was settled  18 at the burial feasting, so there was no  19 dispute, it just went on smoothly with the  2 0 family."  21  22 Now, several points may be taken from this.  First  23 it illustrates the involvement of the collective  24 jurisdiction of chiefs and its expanding kinship  25 groupings to ensure that the territories will be  26 protected and managed by a knowledgeable person.  And  27 I might say here that the fact that the chiefs  28 together from all of the clans insisted or at least  29 arrived at a solution which required that the  30 successor -- that the solution provide that there be a  31 knowledgeable person managing the territory, is a  32 significant part of the illustration of the various  33 roles and concerns which the chiefs acting in chosing  34 a successor will bring to bear on the problem.  35 Secondly, as the house could not settle this  36 dispute internally, it empowered the kinship network  37 to assist in settling the issue.  Finally, it was not  38 an option for the house to fail to recommend a  39 successor.  The name had to be maintained; a solution  4 0 was sought and found.  41 Now, the testimony of Florence Hall provides a  42 second example where the exercise of jurisdiction to  43 chose a successor in a case of a contended candidate  44 was resolved through the kinship groupings and with  45 the imposition of influence by the father's side and  46 through the clans.  47 Florence Hall spoke of this in her evidence.  Her 25142  Submissions by Ms. Mandell  1 situation began with her mother's death, Emily Dennis,  2 who had originally designated Alex, her brother,  3 Florence's brother as a successor.  Following the  4 death of Emily, Alex declined and suggested that  5 Florence take the name.  Florence had a discussion  6 with Alex to this effect after the death of their  7 mother, but before the smoke feast was held to decide  8 a successor.  And then she mentions the various chiefs  9 that were present at the smoke feast, which  10 represented all of the clans.  11 Florence testified that the Tsayu chiefs will have  12 a more formal say in the choice of successor as  13 against the chiefs of other clans because, as she put  14 it:  15  16 "the name belongs to them."  17  18 And then she mentioned that during the smoke feast  19 there was no decision, and she says:  20  21 "They were pulling away from me."  22  23 And then she testified that the Laksilyu chiefs  24 "were leaning towards Joshua Holland", even though the  25 chiefs were silent at the time, they talked about it  26 outside of the feast hall.  27 Florence began to prepare for the funeral feast,  2 8 and:  29  30 "The clan members gathered food stuff and  31 material which there were lots of.  They all  32 helped gather things for the funeral feast."  33  34 And this is a kind of window into which the  35 successor's going to be one which is supported by the  36 house, and the successor can't do it alone.  37 The Laksamshu and Tsayu clan worked together to  38 prepare for the feast.  And she said that at the  39 funeral feast the hall was packed, and she personally  40 contributed about $3,000, but still nobody announced  41 that she would be the successor.  42 After the funeral feast she prepared for the  43 headstone feast.  And there was another smoke feast to  44 prepare for the headstone feast, and her father's clan  45 were hired.  I'm sorry, the father's clan of her  46 mother, Emily Dennis, was hired to prepare for the  47 headstone feast.  And she talked about the fact that 25143  Submissions by Ms. Mandell  1 there was inviting, and she meanwhile went out and  2 gathered berries and prepared meat, as she put it, "we  3 worked hard at it all summer long".  Meat came from  4 her husband's territory.  She announced that -- she  5 said that it was announced, and she said that even at  6 the headstone feast the tendency was still there that  7 she wouldn't be Kweese at the time.  There were no  8 speeches made debating who should be the proper  9 successor, but:  10  11 "there was private conversations taking place  12 elsewhere amongst the chiefs themselves."  13  14 According to Florence's assessment, there were  15 three clans leaning towards Joshua Holland, and she  16 mentions them.  17 Mary George, Tsabasaa spoke in favour of Florence  18 taking the name, and finally Dominick West spoke out.  19 She said:  20  21 "at that time it seemed like they didn't want me  22 to take the name and that is when Dominick West  23 jumped in and addressed chiefs and told them  24 she is in line ..."  25  26 And she explains that Domonick was a big chief  27 from the Babine area, and was a chief on her father's  28 side from the Gitdumden clan, which is her mother's  29 father's clan.  He had a particular influence among  30 the chiefs in this decision because of the fact that  31 he was from her mother's clan.  As she put it, "that  32 is why they listened to him."  33 After Domonick spoke, she said there was silence,  34 which indicated consensus.  She was passed the  35 blanket, the rattle, the drum, and as she put it, her  36 chief's name was legally passed.  The closing remarks,  37 they express how they feel, how they agree with the  38 way the system is, and they also speak of how much  39 money had changed hands and spent.  It is only  40 tradition and custom that the spending of money takes  41 place the way it is.  The chiefs all agreed that  42 everything went according to feast system and  43 tradition.  44 Now, we say that what this illustrates first of  45 all is the collective jurisdiction of the chiefs is  46 exercised to both chose a successor and also to  47 resolve disputes to ensure that the proper successor 25144  Submissions by Ms. Mandell  1 is had; that it's important for the collective  2 jurisdiction that a successor be chosen; the chiefs  3 must function as witnesses to the transfer of  4 territory.  5 I want to further stress, my lord, that when  6 you're analyzing the role of the chief as the steward  7 of the land, the person who makes decisions, finally  8 the ultimate responsibility with respect to the  9 harvesting, managing and conserving of the resources  10 of the territory, I want you to keep in mind the very  11 important consensus that has to be arrived at among  12 all the chiefs of many clans in order to ensure that  13 the successor is well trained and approved for the job  14 which he or she is being mandated to take on.  That  15 it's not simply a case of a successor managing the  16 territory in isolation of the training and the  17 collective approval of those who are looking to see  18 whether or not the proper steward will be chosen.  19 This is a function of the collective jurisdiction  20 because of the very many ways in which the harvesting  21 of the resources of the territory will impact on  22 access rights and rights in the territory to both the  23 spouse and to the father's side.  24 THE COURT:  Well, do you seek a judgment spelling out, and as it  25 were, authenticating Gitksan and Wet'suwet'en house  26 lands, such as how to chose a new chief in all these  27 various circumstances, and a procedure to be followed?  28 MS. MANDELL:  Well, I don't think that we would be seeking a  29 judgment in that level of detail, no, but, I mean, the  30 primary judgment that we are seeking in this respect  31 has to do with the control of the territory, who owns  32 it.  33 THE COURT:  That's where I am having so much trouble with your  34 submission.  I mean, I follow everything you're  35 saying, and I have heard it a number of times.  I have  36 heard lots of evidence about it, and I haven't heard a  37 word of dispute about it, and that's why I am having  38 difficulty in following how I am to deal with the  39 material that you are now laying before me.  40 MS. MANDELL:  Well, I think that the best way to describe it is  41 in reference to the claim of ownership and  42 jurisdiction, and if I could --  43 THE COURT:  Ownership and jurisdiction over land, I have no  44 difficulty with that, but when you are going into this  45 enormous detail over the possibilities and the various  46 ideas of choices and problems that can arise, and you  47 are asking me in the opening, as it were, to deal with 25145  Submissions by Ms. Mandell  1 the jurisdiction of the Gitksan and Wet'suwet'en  2 people in these areas, I am at a loss to know what it  3 is that you are going to be asking me to decide.  And  4 you say now that you are not seeking a judgment that  5 would, as it were, authenticate this process that you  6 have just so thoroughly described to me.  You are not  7 seeking that.  8 MS. MANDELL:  The process doesn't of itself require a judgment  9 from you.  I think you have made that clear at the  10 beginning.  But the process is --  11 THE COURT:  No, I haven't made that clear.  I am struggling with  12 it, because I thought that's what you were asking me  13 to do a moment ago.  14 MS. MANDELL:  This process is part of the system of organized  15 society which authenticates the collective  16 jurisdiction of the chiefs acting together through  17 which territory is passed and laws are enforced with  18 respect to the management of the territories, and  19 I'm --  20 THE COURT:  Surely I can't do more.  Assuming you were  21 successful on all issues, and declare that house "x"  22 is entitled to some real property interest in certain  23 lands, and possibly to declare the extent of that  24 interest, that is to say that the Forestry Act doesn't  25 apply to it, the Mining Act doesn't apply to it, the  26 Hydro lines, the Expropriation Act doesn't apply to  27 it, things of that kind that I can get my hands on, I  28 can struggle with that.  I am really puzzled about how  29 I am going to make any use, except a very general use  30 of what you're saying now.  31 MS. MANDELL:  Well, I think that you have to under — what we  32 are urging upon you is to understand how the  33 jurisdiction of the chiefs is exercised, and how the  34 ownership is held within the houses.  If, for example,  35 as we are about to get into, the house is the  36 ownership unit, then we say it's very important for  37 you to know who in fact is a member of the mouse, how  38 that membership is created, and how it's enforced, and  39 how the chief or the chiefs acting together maintain  40 the unit through which ownership is held.  41 THE COURT:  Then I come back and ask you.  Are you asking for a  42 declaration or some kind of a judgment that would fix  43 the method by which house membership is determined or  44 verified or authenticated or otherwise established?  45 MS. MANDELL:  Well, I think the general answer to that is no.  I  46 think the specific answer --  47 THE COURT:  I thought that was your answer.  That's why I am 25146  Submissions by Ms. Mandell  1 having trouble with your submission.  2 MS. MANDELL:  The specific answer, though, is what we have been  3 attempting to urge upon your lordship, and that is  4 that you can't look at the nub of the conflict between  5 the plaintiffs and the province over who harvests --  6 who has the right to own, harvest, manage and conserve  7 the resources.  8 THE COURT:  I understand that, but I don't understand the  9 province to be raising a single scintilla of  10 opposition to the material you are laying before me  11 now.  Maybe I am missing --  12 MS. MANDELL:  Actually they do.  13 THE COURT:  Well, I don't know where it is, but I am not going  14 to put anybody on the spot to make a concession at  15 this moment.  But I don't see that argument, nor have  16 I received any intimation of it in the conduct of the  17 defence, but perhaps I haven't been as sensitive in  18 what they were doing as I should have been.  But I  19 don't understand that.  2 0 MS. MANDELL:  Well, maybe my friends could answer that then.  21 MR. WILLMS:  My lord, I can answer the passing of the names.  I  22 am unaware of any law that inhibits the passing of  23 chiefly names.  24 THE COURT:  Nor am I.  25 MR. WILLMS:  And if my friend knows one, she should tell me, but  26 I don't think there is one.  27 MS. MANDELL:  Well, my friend — I just read a substantial  28 amount of material in their argument where they  29 dispute the house system at all.  They say that all  30 the village, and the houses aren't the unit of  31 anything, and that whatever laws may hold the house  32 together, such as gaats, the law prohibiting gaats'  33 marriage, all of that is vague and informal and is  34 broken down, and it's actually the village and not the  35 house at all which has anything to do with ownership  36 or jurisdiction.  37 THE COURT:  Well, all right.  Let me put it this way then.  Can  38 you at the end of your submission, and I don't mean  39 immediately, but at some time, give me a list of the  40 enactments, chapter and section numbers that you say I  41 would have to declare inoperative, I suppose, as to  42 Gitksan and/or Wet'suwet'en, and without which you  43 would then say that this system, I guess I have to say  44 if it exists, because of what you said about the  45 defence, could operate the way you say you would like  46 it to function, because when the time comes for me to  47 finally pronounce in this case, I have to do it in 25147  Submissions by Ms. Mandell  1 justiciable terms, and at the moment I am unable to  2 conceptualize, if I can use that word, the form of an  3 order that could be prepared, assuming that I accepted  4 all your submissions.  What would the Court say?  The  5 house system exists and functions in the following  6 way.  Then it seems to me it had to spell it out.  I  7 don't think you indicated you don't want me to do  8 that.  9 MS. MANDELL:  Well, to the extent that there is disputed facts  10 which underpin the claim, we would be urging upon you  11 to find facts which support the claim of ownership and  12 jurisdiction which we are urging upon you.  But in the  13 second level, that is to the extent that there is an  14 intent on our part to challenge the operation of  15 certain provincial laws, that too can be provided.  16 THE COURT:  You see, I have in my naivety assumed that at the  17 end of the day what I would say, if I accepted all  18 your submissions, would be that the plaintiffs are  19 entitled to judgment, that they have an interest in  20 the following lands, followed by a description of them  21 in some way, like one might say as outlined in Exhibit  22 649 is it?  That would suffice.  And that the form of  23 such interest is as follows, and it would say it's an  24 a right to enjoy and possess and to manage and harvest  25 its fruits and benefits.  I don't know, but it seems  26 to me that that's the form of order that would be the  27 most you could expect to receive on this case, and  28 that's why I am having serious difficulty with this  29 question of jurisdiction.  30 I know what you mean when you talk about  31 jurisdiction over the land, but what you are talking  32 about is jurisdiction over the people.  And I don't  33 know that I am going to be very happy, and I'm not  34 sure that a lot of people would be very happy if --  35 considering the form of this action, I was to make  36 some judgment that committed them to a social  37 organization which up to now has been one that has  38 survived, if it has survived, as the plaintiffs say,  39 on the voluntary subscription of its members.  And it  40 survived -- it survived, nourished or thrived as a  41 culture, and not as a legal organization.  42 As I say, I am here to be persuaded, but I think  43 it's only fair to you and to me that you are aware of  44 the difficulties I am having in finding a category of  45 law in which to place your argument.  Please forgive  46 the intrusion, and by all means carry on.  You are on  47 page? 2514?  Submissions by Ms. Mandell  1 MS. MANDELL:  I was on page 31.  2 THE COURT:  Page 31.  Thank you.  I should add that if you're  3 giving me this information in making your submission  4 for the purpose of persuading me that the Gitksan and  5 the Wet'suwet'en respectively are organized societies,  6 at least at this time, or at the time these witnesses  7 are speaking, then of course I have no difficulty with  8 your submission.  It's this difficult, weird  9 jurisdiction that is causing me the difficulty.  I  10 have no difficulty, as I say, in relating your  11 submission to the question of social organization, and  12 whether it exists or doesn't exist, and the nature of  13 it and its -- and you are going into very substantial  14 detail, but that's a matter of strategy on your part.  15 I have no difficulty with your submission on it, if it  16 relates to that issue.  It's the question of what else  17 it relates to that I am trying to get a handle on, and  18 to trace it -- track it down and get a hold of.  19 MS. MANDELL:  You know, I would like to respond with some  20 benefit of thinking about it, but I do want to raise  21 with you one part of the problem which you are  22 raising, which I am not yet sure whether or not we are  23 meeting eye to eye on it.  And that is that even if  24 you were to make the declarations which you are  25 seeking, that is with respect to each of these house  26 territories, certain territories have proved an  27 interest in land or have proved certain rights which  28 you then -- you will then seek to describe.  The point  29 which has been illustrated in the succession of names  30 and the passing of names is that while there is a  31 jurisdiction which we say is exercisable in the hands  32 of the house, whose the owning unit with respect to  33 the house territories, there is also a collective  34 jurisdiction which is exercisable in the hands of all  35 of the chiefs.  With respect to the two decisions that  36 affect that house territory, and the difficulty which  37 I hear from your formulation, which we don't know  38 whether or not we meet eye to eye on at this point, is  39 whether or not in your analysis of the house  40 territories and the jurisdiction which may or the  41 ownership which may, according to your framework, vest  42 there, is there to the formulation, as we are arguing  43 for it, that there is to a collective jurisdiction,  44 among all of the Gitksan over the Gitksan territories  45 and among all the Wet'suwet'en over the Wet'suwet'en  46 territories, which is responsible for certain very  47 major and crucial elements of decision-making which 25149  Submissions by Ms. Mandell  1 affect those house territories.  2 And I can tell your lordship that, for example,  3 what I am about to address you on is the problem where  4 a successor is not chosen, and what do you do or what  5 does the system do in order to protect the territory  6 where there may not be a successor at that particular  7 moment in time.  And it's a case where together the  8 chiefs will exercise their jurisdiction within the  9 institution of the feast, according to laws which they  10 have accepted, to protect that territory and to manage  11 it in the absence of there being a successor on the  12 ground.  And this is a factor which we are arguing for  13 at this point, and which I am not clear whether or not  14 your lordship is considering in the formulation as you  15 have proposed it.  16 THE COURT: I can only answer it this way, to say that if your  17 submissions are directed to the identity of the  18 correct plaintiff, I have no difficulty with that.  If  19 you're going further, as I think you have just said,  20 and urging some larger collective entitlement, I am  21 not sure you're saying that, and I'm not sure it's  22 plead, but I'll wait to hear from your friends on  23 that.  But it seems to me that what your argument  24 could relate to is the identity of the plaintiffs as  25 the rightful owners.  But how they got to be the  26 rightful owners seems to me not to be in issue, but  27 I'm not sure about that.  I have not understood the  28 defence to be that yes, the chiefs own the territory,  29 but these aren't the right chiefs.  I don't think they  30 can say that.  I think they have been advancing their  31 argument directly, rather than in that collateral way,  32 and not going behind the present chiefs.  And that's  33 what it seems to me, that what you're saying is that  34 these chiefs that are plaintiffs got here by this  35 process.  I don't think that's -- I don't think that's  36 contested.  I may be surprised when I hear your  37 learned friends.  And so I won't stop you on that.  38 But I have that difficulty with what you have just  39 said.  But let's hear what you have got to say about  4 0 it anyway --  41 MS. MANDELL:  All right.  Let's carry on, and I'm sure we'll —  42 THE COURT:  -- in due course.  There may be some great opening  43 in the skies, and the light will shine through it.  44 MS. MANDELL:  I am speaking about the collective jurisdiction of  45 the chiefs to maintain or caretake a high chief's name  46 if no successor has been chosen.  47 Mary MacKenzie testified that the seat in the 25150  Submissions by Ms. Mandell  1 feast hall remains, and she made reference to the  2 chief's name Laak', which has not been passed on  3 following the death of Bob Skawil.  With respect to  4 his seat she says "we have a place for it."   And this  5 concept was explained by Dr. Mills in her explanation  6 that the feast names have a power and a persona  7 independent of the individual holder.  A chief assumes  8 the jurisdiction to protect the names of all of the  9 head chiefs.  10 And you will recall that on a much lesser -- a  11 less serious but still very important instance where a  12 chief is not present, their seat at a feast.  This is  13 not the case.  This is a case where a chief is not  14 present, there will still be food put and goods put in  15 front of that chief, as the seat represents the  16 obligations of the host's side to that chief, and  17 those obligations will be fufilled whether the chief  18 is there or not.  Both the Gitksan and Wet'suwet'en  19 have laws and exercise their jurisdiction to maintain  20 the continuity of chiefly names.  21 And Mary MacKenzie gave the example of herself  22 when she received the name of Gwamoon when she was  23 still young, and she said that while she was too young  24 to take the name, she was passed it, and she said  25 instead of burying the name with Gwamoon, that's a  26 process she described earlier where the name can be  27 buried and then brought back up when there is a proper  28 successor, they, that's the people of her house, took  29 Sam Green, one of our wilnadahl to hold on to the  3 0 name.  31  32 "And I was not old enough, and that I have  33 knowledge of being a chief.  So that was held  34 by Sam Green, he was old at that time, but  35 that's another law of the Gitksan, that an  36 older person would have to hold the name until  37 a selected person."  38  39 And that happened around 1935.  And in 1942 they  40 had a feasting, there was no death, but in the  41 feasting she was given the name.  She took full  42 responsibility for the name.  As she said she accepted  43 it.  44 At page 33, and you've heard reference to this  45 before, that Dora Wilson-Kenni testified that since  46 1973 Steven Robinson has been taking care of Spookw's  47 name until another member of the House of Spookw are 25151  Submissions by Ms. Mandell  1 ready to take it.  2 And if I could finally draw your attention at page  3 34 to the testimony of Alfred Joseph.  And he was  4 testifying to the fact that the jurisdiction regarding  5 the continuity of names also applies to shorter  6 periods of time when the chiefs name will be vacant.  7 And he says:  8  9 "There is a period of time between the funeral  10 and headstone feasts among the Wet'suwet'en  11 only when a high chief's name will be unfilled.  12 According to Wet'suwet'en law the sub-chiefs of  13 the house are responsible in the interim to  14 manage the territories."  15  16 Now, I just wanted to refer you back to page 1 and  17 2 before I move into the next section, which I had  18 neglected to draw to your attention.  Joan Ryan, when  19 she was passed the high chief's name Hanamuxw,  20 testified that she was passed the authority to  21 supervise the internal affairs of the house, and she  22 explained that this means the right to use the  23 authority of the chief, provide leadership for the  24 chief, training young members, and teaching the  25 familiar the traditions and the customs and the  26 rituals of the house.  In a sense she defined herself  27 as a teacher, a counsellor and a spiritual leader.  28 And it is in the chief's role as the teacher of the  29 laws that the laws of the Gitksan and the Wet'suwet'en  30 people are permeated into the house level.  She says  31 that she's aided by those in her house.  32 And Dr. Daly observed that through its chief, if  33 the internal affairs of the house are properly  34 managed, the house is an institution of support,  35 prosperity and cultural vitality for its members, and  36 with the benefits, spillovers to the other houses.  37 And he says that:  38  39 "Technical, organizational and management skills  40 are attained cumulatively from childhood  41 through tutored experience on the land, along  42 the rivers and lakes, and through strict  43 instruction of the young by their elders,  44 particularly those the older people considered  45 to be likely candidates for leadership.  These  46 candidates learn gradually about House and clan  47 history, and the distinctive personalities of 25152  Submissions by Ms. Mandell  1 the ancestors who are born again and again.  2 In each generation the task to renew House  3 authority over property goes with the chiefly  4 name.  The revitalization of House heritage is  5 realized through the many-sided activities  6 which the chiefs and their advisors are  7 expected to carry out.  The chiefly activitives  8 of one person have repercussions among the  9 various Houses to which he or she is linked.  10 The actions of one energetic House affect the  11 lives of many other Houses."  12  13 And if I could return your attention to the  14 discussion of the morning, and remind your lordship  15 that the reverse is also true.  If the proper  16 successor is not chosen, one who can manage the  17 affairs of the house and the territory of the house  18 well, that the house can cease to be in a position to  19 perform its obligations under the feast, and the  20 territory could be taken over by another house for  21 failure to pay funeral expenses.  So the overall  22 jurisdiction of the chiefs to ensure that the right  23 successor be put in place rebounds throughout the  24 system.  If there is a well functioning house with the  25 territory productive, the whole feast system operates.  26 If there is the reverse in place, then it can function  27 to the detriment not just of the house, but also to  28 the kinship units upon whose territory the access  29 rights to those people could ordinarily be expected to  3 0 come.  31 All right.  I would like to move into the next  32 area.  And this is in response to your lordship's  33 questions.  This may be another area to which you are  34 going to have problems.  I might here though advise  35 that, as we have mentioned earlier, we say that the  36 house is the central unit of institution among the  37 Gitksan and the Wet'suwet'en, and we say that laws are  38 enforced through the house and the houses acting  39 together, and we say that the house is the ownership  40 unit.  And this is the way in which the Gitksan and  41 the Wet'suwet'en people determine who will be a member  42 of a house and maintain the strength of the house in  43 order to maintain the overall strength of the system.  44 MR. WILLMS:  My lord, I just rise to say that provincial laws  45 couldn't have any application here.  This is the  46 Indian Act, who is and who is not a member of the  47 band. 25153  Submissions by Ms. Mandell  1 THE COURT:  They are not talking about bands.  They are talking  2 about houses.  3 MR. WILLMS:  I know that, my lord, but whatever, I don't think  4 that this has got anything to do with the province at  5 all.  6 THE COURT:  Well, again it seems to me that it could go to the  7 issue -- at least the two issues I mentioned a moment  8 ago, the social organization of the people, and the  9 identity of the plaintiffs, and perhaps other matters  10 of that kind.  I'm not aware of any law that would  11 preclude the Gitksan and the Wet'suwet'en people from  12 deciding on their own who are members of these houses.  13 It would be different if they were attacking federal  14 jurisdiction relating to the membership of bands, but  15 that is not the issue before me.  I don't think that  16 this heading describes a justiciable issue, but it may  17 have some value at least for the purpose I mentioned,  18 and may be others that might later be uncovered.  So I  19 will look forward to hearing what you have to say  2 0 about it.  Ms. Mandell.  21 MS. MANDELL:  The chiefs exercise jurisdiction to determine who  22 is a house member, and the law which has been stated  23 by the witnesses is that a person who is a member of  24 the house, according to the law, is a citizen of the  25 society.  And citizenship is determined by membership  26 in a house, by birth or by adoption.  27 Mary MacKenzie testified all Gitksan people belong  28 to a house and clan.  29 And Mrs. Harris described that membership in a  30 house defines the unit within which a Gitksan person  31 is identified, and is related to all other Gitksan  32 people.  33  34 "The house is the essential unit in Gitksan  35 society ... It is also the essential unit  36 within which a person is socially defined.  His  37 position is defined with the Houses (...one of  38 the Wings, have a young man's position) and his  39 relation to others outside the house is defined  40 by his house and his position in it.  The house  41 is the unit an individual consider his family:  42 'family' and 'House' are often used  43 interchangeably by the Gitksan."  44  45 And Alfred Joseph identified that the same law is  46 true for the Wet'suwet'en.  47 And I won't take you into the quotes on page 36 25154  Submissions by Ms. Mandell  1 and 37, because Mr. Grant did that -- made this point  2 when he was explaining the difference between villages  3 and houses, and the quotes are all there to  4 demonstrate the way in which the Gitksan and  5 Wet'suwet'en identify their membership in terms of  6 membership in the house.  7 At page 37, matrilineality alone may not always  8 produce the optimum number or gender of people in a  9 house at any one time to ensure either a stable,  10 healthy or productive house unit capable of managing  11 the territory or performing the house's obligations at  12 the feast.  And Heather Harris pointed out in her  13 testimony that there is a certain optimum number of  14 people which demographers at least believe that  15 non-agricultural societies need to survive, and that  16 if the house would reduce beyond that number, that  17 they would be forced to take steps to increase its  18 population either by natural increase or adoption.  I  19 don't really know how you do it naturally, except I  20 guess you just carry on through adoption.  21 The chiefs exercise their jurisdiction to adopt  22 members, to merge or divide houses to ensure the  23 continual survival of their houses.  24 And I just wanted to here stress that it's in the  25 interest of all of the chiefs collectively that each  26 of the houses remain strong, because again you see  27 that with respect to the hegemony over the territory,  28 it's in the interest of the chiefs collectively that  29 there not be any territory whose house has so dwindled  30 in size or strength that the respective obligation  31 within the society cannot be maintained and the  32 territory can't be managed.  33 I'm on page 38.  The jurisdiction in this area is  34 exercised by the consent of the house chiefs involved  35 in any decision affecting their house.  All decisions  36 which add to or transfer house members from one house  37 to another or into a house are affirmed at the feast.  38 And I say that this is another example of the  39 collective exercise of jurisdiction, not in just in  40 the chosing of successor, but in the making  41 arrangements with respect to adoptions to maintain  42 house strength.  43 All chiefs have an interest in such adoptions,  44 even if the decision primarily affects the population  45 of one or two houses.  If one house becomes  46 dysfunctional, the conflicts posed in the system  47 become manifest as obligation at the feast to the 25155  Submissions by Ms. Mandell  1 father's side and spouse's side, and on the land  2 cannot be fufilled.  3 We mentioned here that adoptions in the Gitksan  4 system are used in a broader sense than adoptions  5 under Canadian law, which were introduced after the  6 turn of the century to contend primarily with the  7 problems of placing dispossessed children within a  8 healthy nuclear family.  Heather Harris explained that  9 there is several senses in which adoption is used by  10 the Gitksan.  11 One is to raise a child born to another person,  12 and that's more commonly the expression of the  13 Provincial Adoption Act, and the second occurs when  14 someone is taken into a house as a new member and is  15 at that time brought in to bolster the population of  16 the house or designed to accommodate the needs of  17 others in the house.  And she mentions as well a  18 honourary type of adoption, but altogether related to  19 enhancing the strength or the size of house.  20 Now, the importance of an adoption and adoption  21 laws to all the Gitksan was described by Mary  22 MacKenzie.  She said:  23  24 "...so the chiefs and the Gitksan people have to  25 look into these matters, that no house just  26 falls apart with no chiefs there left  27 anymore....we want that house to be alive all  28 the time the Gitksan people are alive ... so  29 this is how we take these adoptions very  30 seriously.  And it has to be done in the way  31 that both houses will agree and they both see  32 why the adoption had to take place it is  33 bringing up the house of the chiefs."  34  35 And as with the example of the selection of  36 successor, adoptions too are concluded by agreement,  37 which do involve the expanding kinship units, and are  38 finally witnessed and confirmed at the feast.  39 I'll draw to your attention just a small part of  40 the quote by Mary MacKenzie, whose describing the  41 procedure followed in Gyolugyet's House in the  42 adoption of the late Wii Elaast.  And she was  43 explaining that the house had dwindled, and there was  44 no one in the house to be the successor, and the  45 paragraph at the bottom of page 41.  46  47 "So discussions were amongst the Elaast's House 25156  Submissions by Ms. Mandell  1 and Gyolugyet's House, so they called onto the  2 other Lax Gibuus and they had a meeting and  3 this was put towards the other Kliiyem lax haa  4 and Niist on the Lax Gibuu that this adoption  5 they wanted it to come through.  So the Lax  6 Gibuu all agreed that they seen -- old Elaast's  7 view of when he dies he'll have no one to take  8 over his chief name.  So they agreed right away  9 and they say there will be adoption, so he  10 mentioned these two people and Alice  11 Williams -- she had children ..."  12  13 And so on.  And so she said that the family agreed  14 that they would take these two and only two from the  15 Kuldoe people.  And then she explains later:  16  17 "So after all the arrangements were made  18 feasting was given."  19  20 And I won't take you into the rest of the quotes  21 at this point.  I make reference to the point later.  22 She stresses the importance of announcing these events  23 at a feast, because all these people, all those chiefs  24 have to know what is taking place, and whose on whose  25 table and the seats and how they are seating, because  26 in the next -- in another feasting where we'll be  27 guests they'll have to put these people in the right  28 places that's ready for them.  29 A further example was provided by Mary MacKenzie  30 in her testimony concerning the adoption of Lottie  31 Muldoe into the Lax See'l clan from the Lax Gibuu  32 clan.  And she in this quote describes how through the  33 process of the two houses talking, and finally  34 affirming it at a feast, Lottie Muldoe was adopted  35 into Delgamuukw's House.  And she summarized that an  36 adoption will not occur without the consent of both  37 chiefs and all acknowledged at the feast.  38  39 "So this is how we take these adoptions very  40 seriously.  And it has to be done in a way that  41 both Houses would agree and they both see why  42 the adoption had to take place, is bringing up  43 the house of a chief ..."  44  45 And she was asked if adoptions were all  46 acknowledged in the feast.  She says:  47 25157  Submissions by Ms. Mandell  1 "Yes, that goes in the adaawk again of those two  2 Houses, how the adoption went an about, how the  3 adaawk was when that lady still in another  4 chief's house and how it was adopted into  5 another.  These goes on the adaawk of how these  6 children of the adopted mother, so that has to  7 go towards the people in the feasting house,  8 and you understand the adaawk that goes with  9 the adaawk of the chief."  10  11 And Dora Wilson-Kenni also testified to the  12 decision-making process when there is an adoption.  13 The two chiefs, usually the members, are usually  14 asked, and they talk amongst themselves about it.  15 Like they have a little meeting on it before the  16 feast, and if the decision is made, then that's what  17 happens at the feast.  And Stanley Williams stressed  18 the importance, and I'll urge you to read his quote.  19 Now, adoptions have occurred to maintain house  20 size and strength, to resolve conflicts caused by  21 marriages to non-Gitksan and Wet'suwet'en people,  22 to strengthen clans and strengthen family ties, and  23 each of these situations will be discussed below.  24 And I just wanted to here, before I get into some  25 of the details of some of the adoptions, stress that  26 there was many, many, many adoptions referred to in  27 the evidence.  This doesn't by any means assemble them  28 all.  And the vitality of the house system to survive  29 and to maintain itself in our view is strengthened by  30 the very many adoptions, all of which occurred within  31 the context and the confines of the law that adoptions  32 can occur in order to maintain house size and  33 strength, and also within the institutions of the  34 house and the houses operating together at the feast.  35 The question of adoptions to maintain house size  36 and strength was testified to by a number of  37 witnesses, one of whom was Solomon Marsden.  And at  38 the bottom of page 46 he explained that to resolve  39 problems in house size, chiefs can adopt a woman into  40 their house to increase the membership of their house.  41 And he recalled an example of a chief who adopted his  42 own daughter into his house to increase the  43 membership.  And he testified to that happening, and  44 it was with respect to Sakum Higookw at Gitwangax.  45 Her dad adopted Doris when Doris was just a baby, and  46 she was adopted because she was the producer of the  47 house members, and if the family and the house members 2515?  Submissions by Ms. Mandell  1 wanted her to be the head chief, she could have done  2 this.  And now her children are members of the house  3 today.  4 A second such example was one which had already  5 been referred to your lordship of Lottie Muldoe.  6 There the two chiefs agreed to the adoption because  7 there would not have been anyone left in Delgamuukw's  8 House after the death of Willie and Albert Tait.  9 According to Mary MacKenzie, Luus agreed to give  10 one of the young women from his house into another  11 house from another clan because Luus was concerned  12 overall for the maintenance of the house.  13 And she testified:  14  15 "Well, Luus wanted to see that Delgamuukw's  16 House have a female, because there was only  17 Albert Tait and his brother ..."  18  19 She explained the adoption of Lottie, and in so  20 doing testified that it falls to all the chiefs to  21 exercise their collective jurisdiction to maintain the  22 strength of the system, and adoptions are one way of  23 achieving this goal.  24 In discussing the importance she said:  25  26 "Maybe (a chief has) brothers but no sisters,  27 so - the House wouldn't be there anymore when  28 the Chief dies, so they have to adopt a lady or  29 girl from another house, so the chiefs and the  30 people, Gitksan people, have to look into these  31 matters, that no house just falls apart with no  32 chiefs there left there anymore, they -- we  33 want that house to be alive all the time the  34 Gitksan people are alive."  35  36 And very many witnesses testified to adoptions to  37 improve the strength or the size of their house.  38 Steven Morrison and his mother were adopted from  39 Luus House to Wii Elaast's House.  As Mary says:  40  41 "Because they are all wil'nat'ahl and everyone  42 wants to see these houses built up."  43  44 Pete Muldoe testified that new people were adopted  45 into the House of Gitludahl because Moses Morrison was  46 the last male in the house.  47 Olive Ryan testified: 25159  Submissions by Ms. Mandell  1  2 "Some people were adopted into Hak'w's House  3 from the House of Hanamuxw because there was  4 nobody to take the name A'layst, after the  5 previous A'layst deceased."  6  7 David Wells adopted Doris Morrison because:  8  9 "There is only David Wells in the Eagle clan  10 that time and they adopted his daughter to his  11 house.  It is therefore correct in Gitksan law  12 for her to hold the name."  13  14 And Mary MacKenzie testified that if the house  15 doesn't have a successor, the chief can adopt.  And  16 she gives the example in the case of the late Wii  17 Elaast, who had no brother and no sister, and he was  18 by himself and there was an adoption.  19 Adoptions are also instituted and occur to resolve  20 conflicts of marriage to a non-Gitksan or Wet'suwet'en  21 person.  And Alfred Joseph -- this is a fairly new  22 application of the old adoption law, as it was stated  23 by more than one witness, that the adoption of  24 non-Indian people into the system is a relatively new  25 phenomena.  Alfred Joseph identified the problem  26 caused by the marriage of non-Wet'suwet'en people to a  27 Wet'suwet'en, and it's that:  28  29 "The non-Indian people from the territory are  30 not included in the feasts."  31  32 And according to the law children born of a  33 non-Gitksan or non-Wet'suwet'en mother are not members  34 of the house.  35 And there are potential problems and conflicts  36 which may arise in the system where Gitksan and  37 Wet'suwet'en men marry non-Gitksan and Wet'suwet'en  38 women and produce children, and these are resolved  39 through the exercise of the chiefs together in their  40 jurisdiction to adopt.  Mary MacKenzie described  41 adoptions which will occur to ensure that a child is  42 Gitksan in a case where the child had a non-Gitksan  43 mother.  And I just urge you to read how Mary  44 MacKenzie put it.  45 Adoptions will also occur to include the  46 non-Indian spouse in the society whether the children  47 are involved or not.  Solomon Marsden explained that 25160  Submissions by Ms. Mandell  1 if a Gitksan married a non-Gitksan whether that person  2 was Nishga, Tsimshian or non-Indian, that person  3 usually will be adopted by the Gitksan, and as Solomon  4 put it:  5  6 "to save embarrassment for both the wife of that  7 person and that person himself, so as when  8 there is a feast he has a place to sit and he  9 won't be standing at the door."  10  11 And I might refer your lordship at this point to  12 Sarah Layton, whose second husband was a  13 non-Wet'suwet'en man, and he was adopted, and she  14 describes the adoption at the Gitdumden feast.  Glen  15 Williams gave an example of the adoption of his wife  16 and children into the house of Haalus, which both  17 served the purpose of assisting a house with a low  18 population and also bringing a non-Gitksan person into  19 the house.  He said:  20  21 "Haalus was my close relation and there wasn't  22 too many of those Gitwangak Frogs around, so he  23 wanted to make his house a bit stronger, and I  24 was related to him by blood-wise, and that was  25 probably the reason why he adopted them.  Plus  26 we have children, we had especially girls who  27 would be future bearers of Gitwangak Frogs.  28 And if you see one of the names, Noxs Haalus,  29 that means, they've always talked to us about  30 how the little one Melissa would be the bearer  31 of chiefs, and that's what we discussed with  32 him."  33  34 So we say that adoptions are occurring today as  35 they occurred in the past.  Their occurrence and  36 frequency are a measure of the prevailing sense of  37 vitality of the houses and clans, and in the  38 maintenance of Gitksan and Wet'suwet'en chiefs  39 jurisdiction in this area.  40 THE COURT: I think we should take -- I'm sorry, you are finished  41 that section, are you not?  42 MS. MANDELL:  Yes.  43 THE COURT:  Yes.  We'll take a short adjournment.  44 THE REGISTRAR:  Order in court.  45  46  47 25161  Proceedings  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  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 25162  Submissions by Ms. Mandell  1 (PROCEEDINGS RECONVENED AT 4:30 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Ms. Mandell.  5 MS. MANDELL:  Thank you.  6 My lord, I was in the middle of adopting, and I  7 wanted to -- before we get into the next section --  8 draw to your lordship's attention to Stanley Williams'  9 testimony, that while it may be that a Gitksan person  10 is adopted into another Indian nation -- and he used  11 the example of Herbert Movin who was adopted by the  12 Nishga -- that he, according to Gitksan law, could not  13 take with him any territory or any of the crests of  14 the Gitksan.  15 The adoptions also occur not just because of the  16 fact that Houses are reduced in size, but also  17 adoptions do occur between closely-related Houses.  18 And this is an effort to strengthen the Houses which  19 are historically closely related.  But the fact that  20 they are within the same clan, while one might be  21 Gitksan and one might be Wet'suwet'en, as in the case  22 of Spookw and Alfred Joseph's House -- I just for a  23 second couldn't pronounce the name -- is an example of  24 these two Houses of different nations but of the same  25 clan, adopting back and forth at a fairly intense  26 frequency in order to assist the various problems  27 posed by one or the other of the Houses.  28 And I've listed on pages 53 and 54 the very many  29 adoptions which have passed in the last while,  30 according to the testimony of Dora Kenni and of Alfred  31 Joseph, to those people who have been adopted into the  32 House of Kaiyexweniits who at the present time is  33 relatively low in number.  34 And I might just turn to the adoption of Rita  35 George on page 54, and there refer your lordship to  36 the evidence of this morning where Andy George, who is  37 Mrs. George's husband, is on the territory of  38 Kaiyexweniits by way of negeldeld'es.  And she, Rita  39 George, had been adopted into the House by the former  40 Gisdaywa, and that's reflected in the evidence of Dora  41 Kenni.  42 And Alfred Joseph testified to the -- to these  43 adoptions and says --  44 THE COURT:  Well, is Kaiyexweniits Mr. Alfred Joseph's House?  45 MS. MANDELL:  Yes.  4 6    THE COURT:  And that's a Wet'suwet'en House?  47    MS. MANDELL:  Yes. 25163  Submissions by Ms. Mandell  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:  Spookw's House is a Gitksan House?  MS. MANDELL:  Gitksan, that's right.  Both Wolf clan.  THE COURT:  Yes, all right.  Thank you.  MS. MANDELL:  Alfred testified:  ...because the House was getting low in numbers  and the present House members were very  young --  And that's another factor which hasn't arisen yet.  -- and Gisdayway saw that the ones that were  going up at the time needed direction so he  adopted people to act as advisors to see that  Kaiyexweniits' House remained strong.  There are definite rules which have developed as  to when there is an adoption, what will occur with the  children.  And Dora Wilson-Kenni explained that:  When people are adopted like that or given  names like that in another House, there are  usually conditions mentioned, and they will say  whether the children are also going to be  members.  And she talked about her case.  Mary McKenzie said that it is assumed that the  children will remain in their original House and clan  of birth unless the children are also adopted.  And  she says that:  ...if the women from Gyolugyet's House is  adopted into another clan the children that she  has in Gyolugyet's House still remain  Gyolugyet's property but the children that she  has after she's adopted then it goes into the  [adoptive] clan.  Solomon Marsden testified to adoptions which  actually sound more like the kind of adoptions which  are governed under our adoption law, though they're  still linked to kinship.  And this is the example he  gives of the adoption of one of his daughters,  Loretta, by a close friend and relative, Shirley Gray,  who was childless and a member of the same House as  his wife.  Loretta was adopted under Gitksan law and 25164  Submissions by Ms. Mandell  1 the adoption was announced.  And when asked why she  2 was adopted:  3  4 She... Shirley was related to Kathleen and they  5 were from the same house and they were just  6 like sisters and Shirley did not have any  7 children and she asked Kathleen if she could  8 adopt Loretta.  9  10 And this is not so much to deal with the size and  11 strength of the House, but to do more so with kinship  12 relations internally.  13 Adoption, then, is one of the ways in which  14 Houses maintain themselves and the chiefs exercise  15 their jurisdiction in that respect.  16 The second is with respect to the division and  17 amalgamation of Houses.  And you will recall the  18 evidence of Dr. Mills and Emma Michell and also  19 Florence Hall who spoke about the merger of the  20 Wet'suwet'en Owl and Sun House, the Tsayu and  21 Laksamshu following the decrease in population after  22 the European diseases.  Emma testified that the reason  23 that the Tsayu and Laksamshu have merged and today  24 work together in the feast was that:  25  2 6 ...The Tsayu had dwindled in numbers and the  27 Laksamshu had a lot of people in their clan.  28  29 And she, Emma, does not anticipate that the  30 Houses will remain merged indefinitely:  31  32 ...Our numbers would probably increase.  Our  33 grandchildren are still young yet and the off-  34 springs from them will increase the Tsayu  35 number... because of all my girls the Tsayu will  36 increase in numbers.  I have seen girls --  37  38 It should be:  39  40 I have seven girls I have lost two.  41  42 The merging of these Houses is, in the case of  43 the Laksamshu and Tsayu, gives rise to apparent fine  44 points within the law of matriline.  45 Emma Michell testified that while it is wrong  46 according to Wet'suwet'en law to marry someone in the  47 same clan, Laksamshu and Tsayu are a little different. 25165  Submissions by Ms. Mandell  1 And this is because they came in as two Houses and  2 merged.  3 Mrs. Harris testified that throughout Gitksan  4 history, Houses have divided and merged, and she  5 referred to examples from the adaawk where divisions  6 and amalgamations of the Houses have taken place in  7 the past.  And I'm not going to read her quote to you  8 but I also would ask you to read it and also her  9 reference to the Barbeau-Beynon material which also  10 speaks about House divisions which were recorded by  11 Barbeau in the adaawk.  12 We had evidence of the relationships in the  13 ancient past with Houses which today are separate.  14 And Mary McKenzie, for example, testified that  15 Gyologyet, Kwamoon, Madeek and Hlo'oxs share the same  16 adaawk and also have different ones.  And she related  17 that to the fact that these Houses were related in an  18 ancient connection, they lived together.  They at one  19 point held the same adaawk and history but then they  20 split off, and they've now both then got the same  21 adaawk and different ones.  22 Mary Johnson testified that in ancient times the  23 House of Antgulilbix split off from Hax Bagwootwx and  24 today the two Houses have some of the same crests and  2 5 names.  26 And Heather Harris mentions that such divisions  27 were and are undertaken to avoid crisis situations,  28 such as the impending extinction of the House.  29 And I'm going to ask you to read the conclusion  30 of Mrs. Harris.  It's a fairly interesting passage  31 where she explains that the pace of House divisions  32 among the Gitksan haven't been consistent over time.  33 That the division and amalgamation of Houses were  34 probably rare in the pre-contact times.  The process  35 after amalgamation accelerated with the population  36 declines during the last century.  And then during the  37 time of the initial European contact and through the  38 second half of the last century there was increased  39 amalgamations and increased divisions.  40 And she is of the opinion that there was a period  41 at the turn of the century where amalgamations became  42 quite common.  There has been a slowing down of that  43 process combined with an increasing of Gitksan  44 population in recent times.  And it's her view that  45 it's likely that there will be again divisions  46 occurring because only now the Gitksan population has  47 risen to what it was in the pre-contact societies. 25166  Submissions by Ms. Mandell  1 And this is part -- part of the ebb and flow of  2 history as it relates to the survival of the Houses,  3 and also part of what Mr. Grant was urging upon you at  4 the end of organized society; that we don't have a  5 fixed and inflexible and unchanging society, but the  6 mechanisms to maintain survival are ones which,  7 according to the law, will reflect different Houses in  8 different combinations at different sizes, with  9 different House populations, taking advantage of the  10 strength of their numbers in order to survive  11 collectively over the millennium.  12 We repeat on page 60 and 61 the requirement of  13 any organized society is that of determining the  14 membership.  That the Gitksan and Wet'suwet'en  15 regulate their membership by law, and we state again  16 what the law is.  And we stress that the jurisdiction  17 to regulate the membership has continued since  18 pre-contact times and is exercised by the House at the  19 feast.  2 0 THE COURT:  My next page number is 29.  21 MS. MANDELL:  You should have page 62.  22 THE COURT:  All right.  My next page is 62.  23 MS. MANDELL:  That's good.  24 THE COURT:  Yes, I have two, 29s.  Yes.  25 MS. MANDELL:  I'm sure it means that somebody has no 29, but I  26 won't get into that right now.  27 THE COURT:  Well, if anybody wants my 29, they are welcome to  28 it.  29 MS. MANDELL:  Thanks.  30 The next section which is really a compendium --  31 or the other half of the egg which we've just been  32 describing, is the relation of family matters.  And  33 the -- I might -- before I get into this section --  34 and it's one which I hope I can finish before the  35 break -- here we are illustrating again the fact that  36 the jurisdiction is in the House, that it's a  37 jurisdiction which is connected to that of other  38 Houses, and that it functions within the overarching  39 jurisdiction of the Gitksan, Wet'suwet'en.  40 And as with the jurisdiction with respect to the  41 maintenance of the Houses itself, this jurisdiction to  42 regulate family relations also feeds into the  43 decisions which are made by the head chiefs and within  44 the society of land resources, who has the rights to  45 maintain and who has the rights to own the territories  46 which are the subject of the House's property.  The  47 regulation of family affairs is very important in this 25167  Submissions by Ms. Mandell  1 respect.  It not only maintains the internal workings  2 of the House, but it also maintains the relationships  3 necessary to contribute to the feasting arrangements  4 to maintain a proper father's side and a spouse's side  5 and to keep the society therein, balanced.  6 The overarching law was testified to by Tonia  7 Mills and Heather Harris and was referred to before by  8 Mr. Grant, that the Gitksan and Wet'suwet'en is born  9 into the House of his or her mother, and remains in  10 that house for life unless adopted.  11 And the corollary is that one cannot marry within  12 one's House and clan.  And while there are exceptions  13 to this, they are being described in the evidence as  14 incorrect marriages.  15 And your lordship asked if we live in a perfect  16 world, and the answer to that is no.  There are  17 incorrect marriages and Dan Michell, for example,  18 testified that his father and his father's mother were  19 from the same clan, the Laksilyu clan, and he said  20 this was an example of someone not observing the law.  21 Martha Brown explained that you cannot marry into  22 the same clan because if you have a child, your own  23 family can't arrange for the burial.  24 And we've already talked about the very important  25 ways that the father's side is a component of the  26 balances and counter-balances within the system.  27 The exercise of jurisdiction by the chiefs to  28 enforce the prohibition against improper marriages has  29 its roots in ancient times.  Heather Harris pointed  30 out that adaawk deal with the consequences of such an  31 act which might be dealt with by banishment from the  32 community.  33 And I believe Mr. Grant referred you to that  34 adaawk, I believe it was one in the House of  35 Tenimgyet.  36 The chiefs exercise their jurisdiction to enforce  37 this law.  The chiefs enforce the law against gaats  38 marriages today -- and "gaats" is a Gitksan term, and  39 I think I'll refer to them as "improper marriages"  40 hereafter -- by exerting community pressure and  41 criticism on those who may be considering such a  42 marriage, in exercising their jurisdiction at the  43 feast to adopt one of the people into another clan.  44 And I want to remind your lordship of what was  45 said with respect to the trespass laws, and that is  46 that while the sanctions are not your usual police  47 force, law courts and jail, there is a very definite 2516?  Submissions by Ms. Mandell  1 way in which sanctions for breaches of the law are  2 imposed within the institutions of the House and  3 through the feast.  And the most commonly expressed  4 sanction is that of community pressure, and this is  5 another example of how the community pressure is  6 exercised.  7 Mary McKenzie testified that in the event that a  8 person is considering marrying within their clan  9 contrary to the law, the chiefs will attempt to  10 influence those who may be considering such a  11 marriage.  She says:  12  13 When this happens, we, as the older people,  14 have to let these young people know that they  15 are doing something against the Gitksan law.  16 We have to repeat it to them.  17  18 Mary described the procedure followed by her clan  19 with respect to the son of Fred Wale and a young girl  20 when he wished to marry.  Their grandmothers were  21 sisters and they were in the same clan and House:  22  23 Now, the family talked to both of them and they  24 wanted more people to talk to these two people,  25 so again I was involved in that one.  A head  26 Chief was called to a meeting that we had to  27 talk to these young people about it because  28 they had intentions of getting married and they  29 were very close in the House, same House; and  30 being grandmother's, sisters, so it's quite an  31 embarrassing thing for the chiefs to have the  32 young people.  So I was involved -- I was asked  33 to this meeting.  So we talked to these young  34 people and we explained to them how it was and  35 how it will be after awhile if they got  36 married, and luckily they seen it our way.  37  38 This event happened three years ago.  39  40 And Madeline Alfred testified to a similar  41 approach followed by the Wet'suwet'en chiefs:  42  43 Yes, you would explain to them that they are of  44 the same clan and that you are not to marry in  45 your own clan, because -- it would be just like  46 marrying your relative... Talk to and instruct  47 our children the same way they would have in 25169  Submissions by Ms. Mandell  1 the past.  2  3 Mary McKenzie and Heather Harris both pointed out  4 that -- this is another case like the trespass laws  5 where the consequences of the breach of the law has  6 been softened over time.  Earlier, as Mary McKenzie  7 testified:  8  9 ...people used to be disowned from marrying in  10 their clan, this term is passing away but  11 people still try to talk them out of it and  12 sometimes they succeed and sometimes they  13 don't.  14  15 Heather Harris pointed out that one of the  16 sanctions is that it's very unlikely that somebody in  17 a gaats marriage could expect to receive a high  18 chief's name.  And she says that if they do, the clan  19 show their disapproval by contributing far less than  20 usual at the feast.  21 She concluded:  22  23 Children of gaats relationships are the only  24 ones in Gitksan society who could be considered  25 to approach the Canadian idea of  26 "illegitimacy".  A taint stays with a person  27 throughout life.  The idea that a child is  28 illegitimate because his parents were not  29 married is foreign to the Gitksan.  If the  30 father was the husband of another woman or the  31 relationship was short term and superficial,  32 the relationship might be seen as illegitimate;  33 but the fact of the child's existence would not  34 be seen as illegitimate.  35  36 In analysing the genealogies, it was Mrs. Harris'  37 opinion that:  38  39 Gaats marriages occur far less often than would  40 be expected by chance, indicating that marriage  41 laws in the Gitksan social system are still  42 strong.  43  44 Now, I -- from the evidence it would appear that  45 it's a fairly recent solution that one of the ways to  46 circumscribe the problems arising from a gaats  47 marriage is the use of adoption.  And the reason I say 25170  Submissions by Ms. Mandell  1 it seems recent is that from the examples in the  2 evidence -- and I haven't been exhaustive with them --  3 it all appears to be a fairly recent use of the  4 adoption laws.  5 Mary McKenzie testified that should marriage  6 within the House or clan occur:  7  8 one of the solutions is that one person could  9 be adopted out of the clan by another clan.  10  11 And she explained that in greater detail.  12 To effect such an adoption, the consent of the  13 Houses and clans involved in the transfer of the  14 person must be obtained.  A feast must occur, the  15 chiefs together must agree to and witness the  16 adoption.  And she testified:  17  18 And it has to be done in the way that both  19 Houses will agree and they both see why the  20 adoption had to take place it is bringing up  21 the House of the Chiefs.  22  23 We say that in this context, the collective  24 exercise of authority of the chiefs at the feast both  25 enforces the family law and resolves a conflict within  26 the system presented by the violation of the law.  27 MR. WILLMS:  My lord, I wonder if the plaintiffs still assert  28 that banishment is part of the law, if that's still  29 asserted?  30 MS. MANDELL:  Well, the only example which we've raised where  31 banishment was discussed was in the issue of trespass.  32 And you will recall that the chiefs testified that one  33 of the possibilities in contending for a solution to  34 trespass is, as a sanction, is ostracism which could  35 result in forms of banishment.  The Roddy Good example  36 is banishment in the sense that a chief's name is  37 taken from him.  Tonia Mills provides the example of  38 banishment in the sense of banishment from the feast  39 hall, and Johnny David refers to the ostracism which  40 could ultimately be imposed as banishing the person  41 from the community.  42 THE COURT:  Well, banishment is mentioned on page 63.  No, it's  43 just mentioned.  44 MR. WILLMS:  My question is quite simple: is it still part of  45 the law or is it not?  That was my question.  46 THE COURT:  Perhaps Exhibit 854 pae 42, 43 — well, I'm sorry, I  47 think that's -- I think that's a genealogy but I'm not 25171  Submissions by Ms. Mandell  1 sure.  2 MS. MANDELL:  This was an adaawk that I'm referring to there.  3 THE COURT:  854 is an adaawk?  4 MS. MANDELL:  Sixty-three.  5 THE COURT:  Well, it says Heather Harris.  6 MS. MANDELL:  She is pointing out that the adaawk deals with the  7 consequences of such an act.  8 THE COURT:  I see.  9 MS. MANDELL:  Which might be dealt with by banishment within the  10 community.  11 THE COURT:  Well, are you able to answer Mr. Willms question or  12 do you want to take it as noticed?  13 MS. MANDELL:  Well, we've only made reference to ostracism and I  14 know that the adaawk refers to banishment, but that  15 isn't something which the witnesses, in the modern  16 context, have spoken about.  17 MR. WILLMS:  Well, I just want to know what they are seeking to  18 say what your lordship should say the law is.  Does  19 the law include banishment or not?  20 THE COURT:  Well, I can tell you right now I am not going to say  21 one way or the other.  22 MS. MANDELL:  It's not relevant from our point of view.  23 THE COURT:  I don't think it's a justiciable issue.  It's as if  24 I was being asked to decide a lawsuit between a  25 Catholic church and the Crown, and I was asked in the  26 course of that judgment to declare ex-communication,  27 the practice of ex-communication to be valid or  28 invalid.  It's not -- I don't think it's a justiciable  29 issue.  30 MR. WILLMS:  It has been, my lord.  The Manitoba Court of Queens  31 Bench dealt with it in a Hutterite case, and that's  32 why I asked because there is a case on it and I want  33 to know whether my friends assert that as part of the  34 law.  35 THE COURT:  Was it a -- found to be an issue in relation to an  36 action concerning status or was it in relation to  37 land?  38 MR. WILLMS:  It was all encompassing.  The individual was  39 banished from the community and lost his property --  4 0 THE COURT:  Well, I can see where he could have —  41 MR. WILLMS:  — as well.  42 THE COURT:  You could have a right to sue for the loss of his  43 property and perhaps -- and even if a Gitksan person  44 were to sue the chiefs saying, "I have been deprived  45 of my status as a chief -- or as a chief or as a  46 Gitksan," it may be that that would raise a  47 justiciable issue, but I doubt if it would be raised 25172  Submissions by Ms. Mandell  1 in this way collaterally.  2 MS. MANDELL:  We are not seeking a declaration that banishment  3 is part of the law, if that is what my friend is  4 asking.  5 THE COURT:  Well —  6 MR. WILLMS:  Well that helps, my lord.  It does help because it  7 is one less thing that we know about.  8 THE COURT:  Well, that raises again the problem that I have with  9 the nature of this particular part of the plaintiffs'  10 case.  11 MS. MANDELL:  I hear your concerns sharply and the plaintiffs  12 are going to address you on that as soon as we have  13 some time out of court.  14 THE COURT:  Yes, all right.  Thank you.  15 MS. MANDELL:  Thank you.  16 THE COURT:  But I must say, I see a great similarity between  17 this and --  18 MS. MANDELL:  Between organized society?  19 THE COURT:  Between organized society and between the existence  20 of churches and voluntary associations and other  21 societies within the larger society.  And these things  22 exist throughout all civilizations, that there are  23 different layers of social organization and they all  24 seem to exist pretty well together.  Every once in a  25 while there is a lawsuit, but -- the Catholic church  26 has been, the Anglican church, most churches have  27 their rules about marriage.  The Anglicans have their  28 degrees of affinity and consanguinity as do the Roman  29 Catholics.  And there is all sorts of organizations  30 have all sorts of rules that they -- that apply within  31 a group.  So that's the problem I'm having with this  32 part of the case, but --  33 MS. MANDELL:  My lord, if I could just address that before I  34 proceed.  The plaintiffs are not a church and they are  35 not a society or they are not a corporation or they  36 are not an interest group within Canada.  The lawsuit  37 is about the fact that they were here before the  38 non-Indian people came, organized in their societies,  39 and they claim the right to continue to be so today.  40 And the nature of their organized societies relates to  41 the fact that their pre-existing rights to the land  42 are what's called an issue, and it's not the same as a  43 church or some interest group that may exist within  44 certain guidelines, either interrupted or not, within  45 the framework of Canadian law.  It's peoples, a  46 nation, a separate nation of peoples.  And the word  47 "nation" is probably problematic, but it's a separate 25173  Submissions by Ms. Mandell  1 peoples who were here first, as described by them,  2 over time, claiming the land that was their homeland.  3 And I think that we've got a much -- while it may  4 be true that most peoples as well as others define  5 their membership, the fact that the membership here is  6 defined by them, protected and preserved and is  7 incorporated into their system of land holding, and is  8 reflected in the way that they manage themselves and  9 govern themselves before the white people were here,  10 those become issues in the law case -- the lawsuit,  11 where I don't think that we would see membership in  12 the Anglican church being raised as an issue except  13 possibly with respect to a Charter right.  14 So I just wanted to stress that while there may be  15 similarities, there is a big difference in terms of  16 the contending parties for the jurisdiction and the  17 ownership being claimed here.  18 THE COURT:  Well, I would have a lot better understanding of  19 that if you were making the same claim against Canada  20 as you are against British Columbia.  21 MS. MANDELL:  Well, British Columbia is possessing the land  22 right now.  23 THE COURT:  Well, that's why I say, I have no difficulty with  24 your submission insofar as it relates to land.  It's  25 when you get away from land that I have -- that I'm at  26 sea.  27 MS. MANDELL:  Well, we want you to be on land.  2 8    THE COURT:  All right.  Go ahead.  29 MS. MANDELL:  Okay.  30 The next section of the argument deals with  31 marriage preference.  32 We've talked about the law and there is a  33 difference, and I wanted to underscore that, between  34 the law which is enforced with respect to gaats  35 marriages and marriage preferences which operate more  36 as policy, but also as part of the way that the House  37 influences its House members in certain strategic  38 marriages.  39 And you already heard evidence about cross-cousin  40 marriages and I refer you to both Heather Harris and  41 Dr. Daly.  And your comments this morning indicate the  42 point that you've taken from this, which is what we  43 are urging upon you, and that is that cross-cultural  44 marriages are strategic and they provide long-term  45 links perpetuated between two Houses or two clans over  46 respective territories "feeding each other's children"  47 in alternative generations.  And we say that this 25174  Submissions by Ms. Mandell  1 system of enduring reciprocal relations knits the  2 respective kinship social units together, and also  3 ties different Houses and clans to specific lands over  4 a long period of time.  5 The second marriage preference as stated on page  6 69, and that's that the chiefs marry within their  7 rank.  And this is actually a preference which relates  8 very much to the issue of education and the role that  9 a chief has as somebody who has a place in the feast  10 hall and also who is trained to know the laws and to  11 represent the House on the land and at the feast.  12 Olive Ryan said that chiefs should marry chiefs  13 because they are trained.  14 And Heather Harris reviewed the genealogy and  15 concluded that marriage according to rank is  16 demonstrated in the genealogies and that House chiefs  17 are almost always married to other high-ranking  18 chiefs.  19 A third preference is -- I've never once have  20 pronounced this right -- liverate and sorarate.  The  21 practice of when a man or a woman passes away -- I'm  22 sorry, when a woman passes away, the man will marry  23 her sister or, similarly, if a man passes away she  24 might marry the man's brother.  And I hadn't really  25 fully appreciated the significance of this practice  26 among the Gitksan and Wet'suwet'en until I realized  27 how strategic marriages were with respect to the land.  28 And Alfred Mitchell, for example, testified that  29 his first wife passed away and he married his deceased  30 wife's sister.  And this practice reflects the fact  31 that the marriage unions do become relationships which  32 are founded in the land and founded in the feast  33 obligations, and that once the relationship has been  34 established between a spouse or the spouse's Houses,  35 and if it's a good one and a productive one, then the  36 tendency is to try and maintain it and to keep -- keep  37 the marriages within the families.  38 Mrs. Harris mentioned geography and she simply  39 talks about the tendency of marriages to occur within  40 certain geographic circles.  41 The chiefs exercise and maintain their  42 jurisdiction and authority to arrange and influence  43 marriages.  44 Mary McKenzie talked about the arranged marriage  45 in her lifetime and she said:  46  47 In the old days there was the House of the 25175  Submissions by Ms. Mandell  1 women chooses for her husband.  2  3 So it's not a choice between partners, it's a  4 choice between Houses, which again underscores the  5 strategic aspect of it from a point of view of  6 territory.  7  8 ...my family has to watch the men of the other  9 Houses, if they were capable of looking after a  10 family, their family when they are in need of  11 it, if that person be a good provider, like  12 doing their trapping and hunting.  Those are  13 the things that the people of the House would  14 look into.  And again a man of the Chief's  15 House, they have to look for a good wife who  16 would respect the family.  Then the two  17 families would get together and the man takes  18 goods to the wife's family and if all the  19 people in the House agree they will accept  20 these gifts.  21  22 And you will see that what the woman's side looks  23 for is a good provider, somebody who can hunt and trap  24 and assist the House and the House's strength.  And  25 what the man's side is looking for, is a wife who will  26 show the respect and carry out the matrilineality  27 within the family.  28 And Mrs. Harris pointed out that marriages are  29 not taken lightly.  She says:  30  31 [They are] not haphazard arrangements made by  32 two individuals but --  33  34 She described them as:  35  36 -- corporate arrangements made between groups  37 for political, economic and social reasons.  38 Marriages were made to benefit far more people,  39 including future generations, than the two most  40 immediately concerned.  It is not that the  41 couple had no influence on the decision but  42 they were likely to perceive what was good for  43 the two families as also good for themselves.  44  45 Mary McKenzie -- I am not going to read you the  46 whole passage, but she went into a very interesting  47 discussion of the political forces which operated to 25176  Submissions by Ms. Mandell  1 settle her marriage with her husband.  And I again  2 stress the fact that there was many -- much done to  3 try and ensure that her husband would be a good  4 provider and she -- he was required to assist the  5 family and provide gifts for them, and eventually the  6 gifts were accepted and they were married.  7 Stanley Williams described how arranged marriages  8 occur.  The parents of the young man went and talked  9 to the parents of the young woman.  The parents of the  10 daughter gave permission for the girl to be married.  11 He described there was a large feast for marriages in  12 old times.  The relatives of the young man hosted the  13 chiefs and the relatives of the young woman.  And a  14 marriage feast has a name.  15 There was several marriages which were arranged  16 marriages talked about in the evidence.  Stanley and  17 his wife were an arranged marriage.  Johnny David -- I  18 liked how he talked about it.  He said:  19  20 I did many things for my in-laws.  I hunted for  21 them, gave them meat, and I was working I made  22 money I gave them money to my wife and my wife  23 gave it to her parents.  24  25 And it's again this ethic that the man should be a  26 provider not just to his immediate family but also to  27 his -- within his kinship obligations that Johnny  28 flexed his muscle and met.  29 As with the Gitksan, meetings took place between  30 the two families of the bride and groom.  And this is  31 again the strategic part of it and Johnny David  32 described it and so did Madeline Alfred who testified  33 to the meetings and exchange of gifts which occurred  34 before her wedding feast to Peter Alfred.  35 Among Madeline's children who have been married,  36 she testified that there has been consultation or  37 gathering between the families of the bride and groom  38 before the marriage, and she mentioned her son-in-law,  39 Victor Jim, and her daughter Georgina:  40  41 We all agreed before they got together.  Yes,  42 four of my daughters all got married in the  43 same fashion.  44  45 A feast is then held to recognize the marriages.  46 And this feast is -- in recent times was described by  47 Madeline and, of course, was in much earlier times, is 25177  Submissions by Ms. Mandell  1 described by Johnny David and his wife Miriam Dennis.  2 Olive Ryan and her husband had a wedding feast.  3 And as Martha Brown points out, the wedding feast is  4 recognized as an alliance giving rise to rights to the  5 territory.  Martha Brown testified that at wedding  6 feasts, the parents of persons to be married talk  7 about their hunting territories.  8 Now, the -- there is a much different way in  9 which adoptions are used.  We've referred to the  10 global way in which they are used for the maintenance  11 of House strength and size.  They are also used to  12 maintain the balances within the House, so that the  13 chief of the House has the support that he or she may  14 require in the House or at the feast, and this will  15 occur with the adoption of the chief's spouse.  16 The chiefs may exercise their jurisdiction to  17 adopt, to ensure that a spouse -- chief's spouse is  18 properly seated in the feast hall.  19 And evidence was given about a Wet'suwet'en woman  20 from Madeek's House, Doreen Angus, who was adopted  21 into the Gitksan Frog Clan by her father-in-law in Wii  22 minosik's House.  The adoption occurred to ensure that  23 the chief's wife had a chief's name and a seat in the  24 feast hall.  And he said:  25  26 Yes, because like the other adoption that was  27 like the Starr, Mrs. Starr, she -- Doreen is  28 from the Wet'suwet'en, and Wii elaast now is  29 Gitksan, so of course they live out in Kispiox,  30 so she has to be adopted and given a name and  31 to have a seat in the feasting house; and at  32 the same time she's a wife of the chief, she  33 has to have a name and a seat given to her in a  34 feasting house, so she's adopted by Wii  35 minosik's House in Kispiox.  36  37 Another example of such an adoption was that of  38 Nellie Starr, testified to by Mrs. McKenzie:  39  40 Joe Starr adopted Nellie Starr in Wiigyet's  41 House because her husband being a chief, she  42 had to have a name.  She couldn't have a name  43 until she was adopted.  This happened about 20  44 or 25 years ago.  45  46 And the children are now considered members of  47 Wiigyet's House. 2517?  Submissions by Ms. Mandell  1 There is also jurisdiction exercised collectively  2 by the chiefs to resolve family disputes and also to  3 record divorce.  This was the opinion of Dr. Mills  4 based on interviews with two chiefs.  She says that:  5  6 They use their judgment in each individual  7 case, knowing the situation and the  8 participants and their relatives thoroughly.  9 If they think it will really effect a  10 reconciliation then the feast will be held.  11  12 And this is to try to stop divorce.  But if  13 divorce is to be held there is a procedure which is  14 exercised by the chiefs to effect the divorce, and  15 there is a feast called the divorce feast.  And as  16 Mary Johnson testified, it's related to a shame feast:  17  18 the reason is when things happened like that  19 and those people that done you wrong put all  20 the filth on you, and they put shame on the  21 family crest, and -- when you go around, you  22 won't be able to lift your head up, you are so  23 ashamed of what happened, that's why the  24 divorce feast--  25  2 6 And she named the feast.  27 The -- it's quite -- it's quite understandable  28 why the jurisdiction will exist with respect to the  29 resolving of divorce when it's placed against the very  30 nature of the marriages which occur, which are  31 essentially marriages not between individuals alone  32 but also reflecting the House and the House's  33 interest.  34 And Mary Johnson spoke about the fact that there  35 is a name and a divorce song which she held which was  36 passed to her when she had her divorce in 1977, and  37 that the song speaks about the process of bringing a  38 closure to the marriage:  39  40 -- the song says -- that I left the old shoes  41 and my heart won't be the same again.  -- I  42 don't mind if the old shoe walk away, my heart  43 won't be the same.  44  45 And at the divorce feast, goods are exchanged  46 thereby mending social links which may have been  47 damaged by the divorce, while keeping the peace 25179  Submissions by Ms. Mandell  1 through a process of gift giving.  2 And I might just parallel that to the discussion  3 which we had, but it's on such a different level,  4 yesterday, of compensation territories, where even  5 though somebody may kill another person as justifiable  6 homicide for trespass, there is nevertheless the  7 divorce -- there is nevertheless a feast which must  8 occur where the social links are mended through gift  9 giving and the peace is brought to bear through a  10 process which is formalized and regularized through  11 the feast.  And this is very much a part of the way in  12 which the overall society enforces its laws and keeps  13 the kinship relationships viable.  14 Mary Johnson spoke about the merchandise that's  15 distributed at the feast and that each House, she  16 says, has a divorce song.  It's like in that sense,  17 the property of the House.  She -- a divorce feast has  18 to be witnessed.  Again, underscoring the fact that  19 not only is this dissolution of a marriage part of the  20 common concern of all of the chiefs, but also that  21 individuals don't operate alone in this society, they  22 are part of House units, collective units which  23 operate together and which are all part of the common  24 concern of the chiefs together.  And she talked about  25 in her divorce feast, the role played by her father's  26 side.  27 She used the occasion of her divorce feast to  28 pass out two names to her grandchildren, and she spoke  29 about a recent divorce feast hosted for her niece.  30 We say that while not all divorces end with  31 divorce feasts today, the chiefs maintain jurisdiction  32 to use the divorce feast to terminate marriages and to  33 settle the problems posed in their communities by  34 divorce.  35 Now, my lord, we are about to start another  36 section and I think it's an appropriate time to take  37 stock.  38 THE COURT:  Yes, all right.  Is seven o'clock convenient?  Well,  39 I'm sorry, Ms. Mandell.  40 MS. MANDELL:  I know.  41 THE COURT:  You people have brought this on us and we have to  42 put in the hours.  If you say you can't proceed, well  43 then of course we won't.  But maybe someone else could  44 with something else.  45 MS. MANDELL:  Maybe Mr. Jackson.  4 6    THE COURT:  Well, I just don't think we can use up this much  47 time with this much detail and then not pay the price. 25180  Submissions by Ms. Mandell  1 We have to put in the hours.  I feel very badly about  2 it.  I am not comfortable with that amount of time,  3 but I look forward to where we are and what we are  4 looking at, and it seems to me that we ought not to --  5 -- surely there is something else somebody can proceed  6 with.  You people can't be that lacking in resources  7 since your clients have been resourceful enough to  8 proceed all these years.  We have to proceed at seven  9 o'clock, but I hope it's someone else other than  10 yourself, Ms. Mandell.  You should preserve yourself  11 for tomorrow.  Seven o'clock.  12 THE REGISTRAR:  Order in court.  Court stands adjourned until  13 7:00 p.m.  14  15 (PROCEEDINGS ADJOURNED AT 5:15 P.M.)  16  17  18 I hereby certify the foregoing to be  19 a true and accurate transcript of the  20 proceedings herein transcribed to the  21 best of my skill and ability.  22  23  24  25 Toni Kerekes, O.R.  26 United Reporting Service Ltd.  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 25181  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  COURT  GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  (Proceedings resumed at 7:05 p.m.)  Mr. Grant?  Thank you, my lord.  My lord, you have 181, I am not  going to be referring to that this evening.  Yes, thank you.  Actually, we are reviewing just that page.  Ms.  Mandell is dealing with that tomorrow.  This is -- E. would be jurisdiction to supervise  internal affairs.  Yes.  E. is Jurisdiction to supervise internal  affairs of the house.  And I am not going to be  dealing with that this evening.  I am starting at  section F., the jurisdiction to resolve the disputes  within the house and between the houses.  What page would that be?  That would be page 182, my lord, the page following.  All right.  And firstly, my lord, I wish to comment that of  course, as you indicated in order to facilitate that  we would sit this evening, we are not in the order we  originally planned, and Ms. Mandell will come back to  the earlier sections tomorrow morning.  Now, my lord, I would like to, before commencing  this, introduce the reason why I am raising this issue  and this is, of course, one of the areas of  jurisdiction that was set out in the introduction.  The issue, my lord, of the jurisdiction, and why we  have these separate heads, is that we submit that  there is a collective jurisdiction of the Gitksan and  a collective jurisdiction of the Wet'suwet'en.  Now,  the number of the heads of jurisdiction, such as what  Ms. Mandell referred you to earlier, are illustrative  of a system of jurisdiction.  The plaintiffs agree  with your proposition that the central focus of the  lease between the plaintiffs and the provincial  defendants, the focus of it in the areas of  jurisdiction, is the plaintiffs' jurisdiction over the  resources and the defendants' asserted jurisdiction  over the land and resources.  I should say  jurisdiction over the land and resources.  But, my lord, what the defendants endeavour to do  is to strip bare the jurisdictional system of the  plaintiffs, so that all you are left with is the  plaintiffs' claim to the land and the plaintiffs'  using the land.  For example, the provincial defendant  here challenges the very integrity of the house 25182  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  system.  When Mr. Willms stood up this afternoon and  said "we don't challenge, the Indian Act isn't in  question here, we are not concerned with band  membership or whatever", the "or whatever" is the  house system, and that's what they are challenging.  And we appreciate that you must find, not just that  there is a house system which I dealt with under  organized society, but how do the houses interact, and  exercise authority over the territory?  What is their  power to exercise authority as set out in the  dictionary definition?  And it is in that sense that  we are canvassing their areas of jurisdiction.  And  that goes to the general areas of jurisdiction, all of  them.  This particular head of jurisdiction that I am  commencing here, my lord, it is my objective that you  see it deals with a number of the issues that you have  raised, it will demonstrate that the jurisdiction of  the houses is collective, it's a collective  jurisdiction and collective authority.  No house can  act as an island.  And the sum of the houses, all the  houses together is greater than the sum of them.  It also will deal with a concept that my friends  set up, I think, in their argument, the pristine  society, the noble savage of Rousseau, and this  society, as Ms. Mandell said yesterday, is a real  society with real people and it's not perfect.  But  most importantly, I hope to show you how the authority  of the houses and chiefs occurs with respect to the  resolution of disputes over the land and resources and  a model for how they can continue to do so when not  fettered by the provincial defendant.  :  Well, how do you classify or collate the concepts of  ownership with jurisdiction?  :  Well, they interconnect.  The house owns the  territory, as Ms. Mandell said, the chief is the  steward of the territory.  :  But if the house owns the territory why do you have  to prove anything about jurisdiction if you own the  territory?  Subject to the kind of ownership you have,  you can do what you want with it.  So why does it  matter whether you have this kind of society behind  that ownership?  :  Well, because you raised this afternoon a  declaration that a house would own a particular  territory, if you were looking at the kind of relief  that we are seeking, and what we are going do seek is  that at the end of the day your declaration will be 25183  Submissions by Mr. Grant  1 that the Gitksan houses together, the plaintiffs, own  2 the Gitksan territory; the Wet'suwet'en own the  3 Wet'suwet'en territory.  4 THE COURT:  Yes.  5 MR. GRANT:  That is the inter-connection of the houses in part.  6 My lord, section 23, as I remember, if I recall  7 rightly, of the Land Title Act demonstrates the many  8 ways in which ownership is constrained within our  9 system.  Ownership is constrained in any system.  You  10 can't do whatever you please.  And here you see in  11 terms of this area of authority, the exercise of  12 authority over the territory, the ownership is  13 constrained.  In other words, I fear that if we say,  14 if I accede to your suggestion now, well, why don't  15 you just focus, as I understand it, if you focus on  16 ownership, why do you need to worry about this or  17 worry me about it?  The province, the provincial  18 defendant says there is no system.  You give them  19 ownership, it's chaos, it's anarchy, it's all up in  20 the air.  There is nothing there.  21 THE COURT:  That's no defence to a claim of ownership.  That's  22 like saying you will be a bad owner if you succeed in  23 your action for specific performance or -- apart from  24 the need to show that you're ready, willing and able  25 to purchase, it's no defence to a vendor to show that  26 the defendant has no money.  He may borrow it.  It  27 seems to me that, as I say, I see the need for you to  28 show that there is a society, social organization, the  29 kind of social organization at least to the detail  30 you're embarked upon, seems to me to be, at present,  31 to be painting the lily and gilding refined gold.  32 MR. GRANT:  Well, I -- the section I have given you is two  33 parts, not just one.  And I appreciate and I  34 understand what you would like, that what you need, my  35 understanding from your comments today and on other  36 days, is the large concept and the evidentiary base  37 for that large concept at least in a sufficient  38 foundation.  39 THE COURT:  I don't like you to be taken to be saying that what  40 I think is of any particular importance at this stage.  41 It's just important that I understand what you're  42 doing and at the moment I made it pretty clear I do  43 not understand what you're doing.  I know what you're  44 doing but I don't understand why you're doing it.  I  45 am not stopping you from doing it.  46 MR. GRANT:  I appreciate that, my lord.  And I hope in this  47 section that you will see how it works.  But I go back 25184  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 Mr. Jackson's definition of jurisdiction as a  system of authority, exercised within a set of  institutions and laws in the context of an organized  society, extending over a defined territory.  THE COURT:  I don't have trouble with that as a definition of  jurisdiction.  I just say colloquially, so what?  MR. GRANT:  What I say is you can make a finding not about  whether the plaintiffs can adopt or the citizenship,  that's part of the components to establish the facts  that you need, but the plaintiffs have such a system  of authority over this defined territory.  Well, that seems to me to be clearly subsumed in  ownership, in some kind of an ownership interest.  And  if you have that, I don't think the other matters, but  we have been over this and --  It may be at the end of the day, my lord, it may be  that you say well, I see if this is what you mean by  jurisdiction, what has been defined for you this  morning or this afternoon, and I see that within  ownership, if that's within the context of what you  see, then it may be a question of semantics at that  point, but that's what we are seeking.  THE COURT:  As I say, I don't understand but I know what you're  doing.  MR. GRANT:  I hope that it will become clearer as the sun sets  this evening, my lord.  THE COURT:  It may not be until next summer sometime.  MR. GRANT:  As I say, I will commence now on page 182, and as I  say this also deals with your -- certain concerns you  have raised about the pristine nature or the purity of  the society, if I recall rightly, yesterday you  referred to a sort of overall impression.  But I think  it's a dangerous one.  I understand, I really  appreciate it when you raised it because I think it's  dangerous when you think that way of another society,  because as you say it becomes more and more  artificial, instead of real people, so that's why I  hope we can bring it down to earth.  As I set out in my initial proposition, my lord,  it's our submission -- and when I refer to  jurisdiction, I am referring to that definition --  that the head chiefs of the Gitksan and Wet'suwet'en  exercise collective jurisdiction to resolve disputes  within the house and between houses.  Ms. Ryan  testified to this in terms of the jurisdiction within  her house and clan.  It means going to other levels of  authority whenever you need to negotiate with them to 25185  Submissions by Mr. Grant  1 take care of the needs of the people, or it may mean  2 going to neighbouring nations and negotiating with  3 them issues that deal with Indian problems.  Or it may  4 mean offering suggestions of how these can be solved,  5 how the problems can be solved.  And the issue of  6 going to other levels of authority or neighbouring  7 nations will be amplified hereafter.  And Dr. Mills  8 referred to the Wet'suwet'en chiefs and she stated  9 that the Wet'suwet'en rely, and I am paraphrasing  10 here, on their kinship with other people and also the  11 role of the chiefs based on their respect for the  12 house chiefs and of course the selection process of  13 those chiefs, makes them effective mediators in  14 internal disputes, of which there are such disputes,  15 of course.  The Wet'suwet'en chiefs are in a position  16 to effectively in the sensitive area of marital  17 relations, territorial disputes, because they know the  18 nature of the participants thoroughly.  This gives  19 they a distinct advantage over outside adjudicators,  20 who must decide matters of divorce and separation  21 without personal knowledge of the participants and  22 with no way of knowing if reconciliation is possible  23 or advisable.  24 Now, I believe I recall, and I don't have the cite  25 here, I will check it and provide it to yourself and  26 my friends, that if I recall correctly, one of the  27 later Wet'suwet'en witnesses, it may have even been  28 Ms. Wilson-Kenni, who was a Gitksan, of course, but  29 describes the Wet'suwet'en, there was evidence, if I  30 recall rightly, of intervention in marital relations  31 where the chiefs would come in to resolve disputes  32 between couples.  And this occurs today.  Now, my  33 lord, to -- this is -- going back to those fundaments  34 or foundation stones of the society, when I referred  35 to Mr. Mathews' evidence that the settlement of  36 disputes may involve the wilnadahl,the clan, the  37 wilksiwitxw and the nii dil.  As Art Mathews says, the  38 law of the house will be the chief and the people who  39 are closely related around him.  He does not make  40 decisions all by himself, he must consult with these  41 nii dil, what they call his nii dil, that means people  42 closely related to the house, they could be the  43 wilksiwitxw.  44 There, my lord, you see what's happening is that  45 it's not just those that you are related to, in fact  46 in Art Mathews case his it is not the wilksiwitxw it's  47 not just those that you are closely related to.  You 25186  Submissions by Mr. Grant  1 remember his father is from a Kitwancool House and his  2 nii dil is Lelt, Fred Johnson's house from Kitwanga.  3 But those on the opposite side within the system that  4 you must connect with.  5 Now Ms. McKenzie explained the process used to  6 settle disputes.   Remember, she is a Kuldo wolf, and  7 she said, and I have highlighted what I think is  8 significant, although I think the whole quote is, but  9 particularly:  10  11 "I'd have to go to the Lax Gibuu, different  12 Houses."  13  14 This would be her own clan, of course.  15  16 "Like I'd have to go the Kliiyem lax haa because  17 he's the head chief of Kispiox."  18  19 That's a high chief of the Wolf Clan of Kispiox  20 that you saw on the seating chart.  21  22 "...and I have to go when Wii Elaast is there  23 with the Kliiyem lax haa..."  24  25 Wii Elaast, another high chief of Kispiox,  26  27 "...1 have to go the chief of Gitaanmax that  28 Spookw..."  29  30 Of course this is the Wolf chief,  31  32 "...because they are the head chiefs of the  33 villages and I have to explain to them the  34 disagreement of my house and see what they can  35 come up with to settle this for me and if we  36 don't have the settlement, we have to rely on  37 the head chiefs of the Lax See'l..."  38  39 That's the Frogs, and the Fireweed,  40  41 "...and the Giskaast and they're the ones that  42 would have it settled for us and we have to  43 agree with whatever it is."  44  45 Then she says:  46  47 "Now, in a Feasting House too if it's brought 25187  Submissions by Mr. Grant  into a Feasting House and the other chiefs, one  may disagree and that chief has to say what he  disagrees with the other chiefs, so this is  settled again in a Feasting House if there's a  dispute between two chiefs, one agrees, the  other doesn't."  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:  But that's the problem I have with all this, and I  got into all kinds of trouble when I pointed out to a  seminar one time that one of the problems with  alternate dispute resolution is that sometimes  somebody doesn't want to settle.  There is almost a  suggestion here that everyone is going to agree.  Mrs.  McKenzie says "we have to agree with it."  What  happens if somebody doesn't agree with it?  MR. GRANT:  That's the tricky part, I think that is the nub of  it.  Because, you see, it's a -- there is two sides,  as in any society, there is going to be disagreement,  and I am going to show you one example of one where  it's long outstanding.  And my friends rely on these  disputes to say there can't be agreement, because they  work through a consensus and you don't end up with a  decision in a day or in a week or in a year,  necessarily.  Because -- but there is other factors  than the parties being brought together.  Your house  and your clan, your kin relationships, bind you in a  way that you're going to get pressure put on you.  That's your major premise, but is it sound?  Is it  valid?  Is it a law?  I can't see how it can be a law.  It's a practice of the Gitksan.  Is systemic, if I may say that.  I don't like using  those words, but maybe that's the better way of  putting it.  What they say is we have to agree, we  have to come to a consensus.  It's frustrating  sometimes, my lord, from our perspective, where you  say, well, you know, you have 20 people, you have 15  vote one way and five against, the 15 win.  But when  you go into a consensus situation, you say, wait a  minute, everybody is talking around and talking  around, but then what happens is a consensus is worked  on, it may not be in that one day meeting or one day  argument or discussion, and you have heard evidence of  that kind of thing.  THE COURT:  All you are telling me is that they eventually bring  pressure on people to go along with the crowd.  But  that doesn't always happen.  When I was in the happy  THE COURT  MR. GRANT 251?  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  days at the bar, a woman who was regularly beat up by  her husband, well, when she finally walked out on him  the whole family descended on her, we don't have  divorce in our family, and she said no, I am not going  back.  Well, there was no law that said she had to go  back, and if she says she is not, that's the end of  it.  You can put up the pressure but you haven't got a  justiciable issue, you haven't got a law.  You have  got a community endeavour to bring about a result  which may or may not succeed.  Can you put it any  higher than that?  Yes, because in the situation you are describing, I  mean you describe maybe the other family or her  family --  Both families.  Both families put pressure on her.  Lean on her like crazy.  The woman was operating in a -- she was operating in  a -- not in a kinship society, where it's the larger  and larger circles that put that pressure on.  The  example -- I can give you the example, my lord, and my  friends make a big, big thing about this, my learned  friends are going -- you are going to hear all about  it in May.  Geel, there is a big piece in their  argument about Geel.  In October of 1984 Geel was not  a chief in the action.  Geel is a Kispiox Wolf chief.  Mr. Sterritt was cross-examined at length about this.  And it was suggested that Mr. Sterritt created that  Geel would come in.  Mr. Sterritt had no way of doing  that.  What happened was, is that the wilnadahl and  the wilksiwitxw and Geel, the chief, and his house  group, met and then they made that decision.  That's  what the evidence is, in our submission.  That's what  it is.  Now, why did that happen?  Geel himself says,  Geel one of the highest chiefs, great deal of respect  in Kispiox, for whatever reason he is not in the  action.  The other people in his kin relationships  would not -- they met, they discussed, they worked it  out, and Geel himself is presently in the action, his  territory is in the action, he was -- unfortunately he  had a stroke, he was all ready to be examined for  discovery, as my friends had requested, and he had a  stroke and could not speak.  This was subsequent, two  years subsequent to that.  Now what happened in that  situation is within the Gitksan system, one chief  can't just make decisions, very serious decisions  about his territory in isolation.  It's got to be 25189  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  brought together.  And if he does, then if he does  make those decisions alone, then it won't be  tolerated, even if he is one of the most powerful and  influential and with the largest territory and all of  those things, and has been recognized as the high  chief of the house, it can't be done.  Now, after  this, Mrs. McKenzie explained, a major dispute, that  you have already heard about, about Robert Jackson and  Alice Jefferies.  They brought in different sides.  And I think you are right to this extent, they bring  in larger circles, that's how the kinship society  works.  But ultimately the buck stops, ultimately it  gets resolved through this kind of pressure.  And what  I am worried about, my lord, is that -- that's why I  spent a great deal of time on the organized society,  is that it's not -- it may appear to us where we can  argue here on both sides of the table at the end of  the day you make your decision and that be the end of  it.  And that's the system under which we operate.  We  may say, well, this sounds sort of fuzzy, I think it's  a term used in another context.  But when you are in  it, when you are in it, when you see -- when you watch  a person, one person in the house system working in  the feast, and that person -- the implications on that  person and how everybody comes together and how they  impress upon that person the decision, it works very  systematically, as systematically as what we have.  :  I haven't the slightest doubt that the communal  pressure about which you speak would be successful 49  times out of 50.  I haven't any doubt about that.  But  where does that get you?  :  Well, what I say is that the system -- I think that  if you have 49 times out of 50, it's not too bad,  because I think that you have even within our -- for  example, our legal system, a 98 percent success of  resolution, is not that bad.  I think that you have  even within the legal system, I am sure you have seen  it, and I think I gave you an example yesterday, you  try to work it out through the courts but sometimes it  just doesn't work out through the courts. So that's  the proposition.  :  I don't think any system works in every situation  and that's why I don't see where this -- what this has  to do with a claim to aboriginal rights to land.  But  I digress or I cause you to digress.  :  I don't mind your interjection because I helps me to  attack it through different approaches. 25190  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  My lord, Mrs. McKenzie went on, on page 184 -- just  a moment.  Yes, on page 184 -- to deal with the  decisions made within the houses and clans which  effect a resolution of a dispute and they are  announced at the feasts.  And of course you heard all  about the feasts and the payment to witnesses, and the  witnessing chiefs may be called upon later to settle  future disputes as they arise.  Now, my lord, maybe I am giving you the 4 9th.  One  of the cases that was referred to, and in fact my  friends may rely upon, they certainly cross-examined  on it, is the incident relating to Gwoimt.  Gwoimt is  Kathleen Wale, a Wolf Chief from Hazelton.  And Malii,  who of course is a Kitwancool Wolf Chief, and in  exhibit -- I will just ask you to note this.  At page 184?  Yes, at page 184, yes.  It's an Exhibit 991, I  believe, the Brody report, at page -- I didn't notice  that -- page 184 of that report as well.  He states,  and he just -- I will just read for you the summary  and I am sure you will remember it:  "In 1927, the Indian aagent at Hazelton, a Mr.  Hyde, became involved in a territorial dispute  between Amos Williams of Cedarvale (Malii, Lax  Gibuu)..."  That would be the Kitwancool Malii,  "...and Philip Johnson of Hazelton (gwoimt, Lax  Gibuu).  According to one witness whose account  Hyde placed on record:  'The grandparents [Probable "ancestors";  in  Gitksan grandparent is always gender specific]  of Amos forfeited their hunting rights in  favour of Philip Johnson's grandparents on  account of the murder of one of his  grandparents.  Malu [Malii] agreed to hand over  his hunting ground to Philip's grandparents.  Kit-an-guelet (fish camp) is name of the  hunting ground and above, Mul-an-gist is a  river which runs into the Kispiox.'"  So we are talking about this territory over in the  east, it's bordering with the -- it's actually just -- 25191  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  that's not an exhibit, my lord, that's my copy.  It  would just be in this area here, up in this area in  here, my lord, where that dispute was.  And it relates  to a Kitwancool House, of course.  But -- and Exhibit 993-37, is the report of October  4th, 1932, of Mr. Perry relating to the same incident.  This is what Mr. Perry said, because what happened  is that Hyde was -- Hyde went up to resolve it in 1927  and he took a transcript of it.  But, four years --  five years after the "resolution" by Mr. Hyde, he  says, Mr. Perry, the assistant Indian commissioner  says :  "My experience as Indian Agent in the north  country for many years brought me into contact  with scores of similar cases, and I am afraid  it will take several years to break down the  resistance of the Northern Indians to the  statutes and regulations which challenge their  own vaunted claims to right of possession and  ownership of the country and its resources."  Then he says:  "The issue now under consideration is not  confined to the dispute between the families of  Amos Williams and Phillip Johnson, but goes  farther than this.  It revives the question of  the assumed aboriginal title which question has  been settled insofar as the Department my be  concerned by the adoption of the report of the  joint Parliamentary-Senate Committee, and any  attempt on the part of any Indian in British  Columbia to resurrect the issue should be put  down with a firm but tactful hand."  Now, what the point I am raising here with respect  to that, of course, Mr. Perry --  What exhibit number was that?  That's Exhibit 993-37, my lord.  Thank you.  The point I am raising here is that five years after  Hyde appears to believe there is a resolution, you  have Mr. Perry facing exactly the same situation.  The  problem is that -- yes, Hyde's last comment is  reported by Mr. Brody in a quote "as settled in a 25192  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  friendly way in 1927."  Now, the problem is that it's like -- that the  attempt by Hyde using his Game Act resolution to  resolve the dispute, was ineffectual, because it  couldn't be dealt with through the feast system any  more than than if you make an order binding somebody  in Romania, I don't think we have a Reciprocal  Enforcement of Judgments there yet, it doesn't mean  anything there.  And that's the same thing, although  geographically, Mr. Hyde was dealing with the same  place, that is, he was under the provincial, within  the province, as the chiefs.  And so you find that  kind of a dispute, and I think that's an example of  your -- of what you're saying, where you find these  kinds of disputes that go on for a number of years but  it continues to be worked through through the feast  and continues to be raised.  The other day I raised  the Johnny David question with Leonard George, the  present Smogelgem, and that whole thing is dealt with  through the feast.  THE COURT:  What you're saying is that disputes can sometimes be  resolved at different levels and sometimes they can't.  Sometimes only one level will work, other times  several levels will work.  MR. GRANT:  What I am saying, at the outside level, one side may  bring in the outside level to try to help resolve the  dispute but ultimately that doesn't work.  THE COURT:  You're not suggesting that the Indian agents over  the years haven't settled a number of disputes and  finally resolved them to their own satisfaction, are  you?  MR. GRANT: If you recall the evidence of Mr. Atkinson, for  example, with respect to estates, there are estates  that are over 50 years old that haven't been resolved.  This is estates, just the passage of estates.  THE COURT:  Are you suggesting that kinship pressure is the only  way that's ever successfully resolved a dispute  between houses or between chiefs or between members of  either of these people?  MR. GRANT:  My lord, to use that terminology, the only way ever,  I wouldn't say that.  I don't think that that would be  right.  But what I am saying is that -- I think in the  context of this case, I am trying to suggest the  trends, the trend for you, and I think it would be --  I don't want to take something to such an extreme  because I am sure there are situations that have been  resolved that way.  But what I am saying is that 25193  Submissions by Mr. Grant  1 ultimately, I would say that if there is evidence --  2 where there is evidence of that kind of resolution,  3 you will find a confirmation of that, somehow, through  4 the chiefs.  That will also happen.  5 THE COURT:  Just a minute, Mr. Grant.  I think Miss Oxley is  6 anxious to come and hear what you're saying.  7  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein to the best of my  12 skill and ability.  13  14  15  16  17 Wilf Roy  18 Official Reporter  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 25194  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  (CHANGE OF REPORTER)  THE COURT: Thank you, Mr. Grant.  MR. GRANT:  I will go to the bottom of page 184, my lord, and as  I said, there were many disputes that were settled  through collective jurisdiction, and I believe a few  examples will suffice.  First of all a settlement of a dispute over a  fishing site.  This relates to a site downstream from  Gitwangax at Boulder Creek, and I think we -- I am at  page 185, my lord.  THE COURT:  So am I.  MR. GRANT:  I believe you may recall, I think from commuting or  travelling the area, that there is two Boulder Creeks.  One known as Boulder Creek east, just north of  Moricetown, and that's the one that Ms. Mandell  referred you to earlier today.  THE COURT:  Yes.  MR. GRANT:  And then there is this Boulder Creek which is just  downstream on the highway side from Gitwangax.  Mr. Mathews talked about this dispute, and he  talked about the role of the 'Nii Dil and how the 'Nii  Dil was involved, and he said there was a -- he talked  about -- I'm sorry, the answer starting at the third  answer from the bottom:  "A  Q  A  The late -- just recent late Ax tii hiikw was  in a similar situation where the Ganeda was  trying to put on a chief's name on a  non-Indian.  Was this at a Ganeda feast?  A Ganeda feast, and Lelt was trying to put, and  then Lelt said to the people that this name  cannot go here, but it's up to our 'Nii Dil to  do something about this, and then my  grandfather Geoffrey, Ax tii hiikw, stood up  and he says, 'No, it cannot be held by this  person.', and it was then stopped.  So that's  the two recollections I have of actually the  'Nii Dil doing the work."  Now, here what you see is that somebody from the  Frogs wanted to put a name of a chief on a non-Indian,  and Lelt, Fred Johnson didn't want that to happen, but  he said he turned to Jeffery Morgan and said what, you  know, what you do, you say about this, and it was  stopped, the name wasn't put on. 25195  Submissions by Mr. Grant  1 The other example he gave is, and it isn't  2 highlighted.  It's in the first page, page 185, my  3 lord.  It's with respect to the Haluus' fishing site  4 at Boulder Creek.  And there is much correspondence of  5 this too by some other.  I believe there is  6 correspondence in the files relating to this that my  7 friends have introduced.  But what happened was that  8 Fanny Williams, Sinankxws is her name, was from the  9 House of Haluus.  That's of course the late Stanley  10 Williams' wife.  11  12 "And she came to me when there was a meeting  13 that was held in Hazelton regarding this area  14 and she spoke and mentioned that 'If I don't  15 believe me or don't want to take what I'm  16 saying, ask my 'Nii Dil'."  17  18 This was at the meeting of the chiefs.  19  20 "I then rose and said that what she was  21 trying -- the passage that was put across the  22 Boulder Creek area actually belonged to them  23 was true,"  24  25 Then he goes onto the next case of his grandfather  26 in the feast hall.  27 So in these two cases you can see the role of the  28 'Nii Dil, the opposite side, whether the father's side  29 or not, intervening in a dispute resolution.  30 I have already referred you to the settlement feast,  31 but here I'll just talk about it in the context of  32 settlement.  And these, of course, are feasts held for  33 the purpose of resolving disputes.  They can occur  34 both internally and internationally, and I am going to  35 come to international ones later.  36 Mary Johnson testified there was a Gitksan word  37 referring to feast which literally means that "person  38 is satisfied".  And I believe that Ms. Mandell  39 referred to that in another context earlier today.  40 And of course then Mrs. MacKenzie talked about the use  41 of Eagle down, as did Dr. Mills.  And Dr. Mills formed  42 an opinion with respect to the use of Eagle down, and  43 there is a reference to her report on pages 188, 189  4 4 and 190.  45 In other words, when you consider what I am going  46 to discuss in international relations, and that with  47 respect to the territory, I submit that the use of 25196  Submissions by Mr. Grant  1 Eagle down is an important component of that.  2 I conclude this section, this subsection on the  3 peace settlement, that by Mary Johnson's explanation  4 that these ancient songs are performed when the peace  5 is achieved and Eagle down is used.  And she said --  6 I'm at page 190, my lord:  7  8 "Yeah, that's when they sing their Xsinaahlxw,  9 their Breath song.  That's what they call  10                     Xsinaahlxw."  11  12 Then there is the issue as a resolution method,  13 the issue of compensation and the compensation for the  14 transfer of territories.  15 Solomon Marsden, who gave evidence on the laws,  16 and I emphasize Solomon Marsden gave detailed evidence  17 on the laws, and that his evidence should be accepted  18 with respect to the laws in total, because it was not  19 successfully challenged on cross-examination in my  20 view.  But I say that -- he said with respect to this  21 law that as the taking of a life is permanent, the  22 passage of a territory and compensation may also be  23 given permanently.  24 Now, you have already heard about some of this,  25 the specific territories, but I go down to part --  26 page 191 to see a clear resolution or statement of the  27 law by Mr. Marsden:  28  29 "A   It -- it is not the law, to -- to have the land  30 returned, but if the chief that is getting the  31 land makes a decision that one day he will  32 return the land, then that would happen.  The  33 head chief.  34 Q   And where -- how would he announce the return  35 of the land, if that chief who received it was  36 going to give it back?  37 A   They -- the always -- the chiefs always  38 announce their plans in the feast House, and  39 they will also announce it to when they are  40 giving this land back.  41 ...It is very serious when a life is gone, and  42 this is one of the biggest feasts we have, is  43 when -- when they are having a feast for --  44 when they are having a funeral feast."  45  46 The Gitksan chiefs testified to a settlement feast  47 in recent times where territory passed as settlement. 25197  Submissions by Mr. Grant  1 Solomon Marsden referred to the 1957 incident when  2 David Wells gave territory to Guxsan, you may  3 remember, because one of Ernest Hyzim's children in  4 Sakum Higookw's House accidentally shot Walter Wesley,  5 the brother of Guxsan.  And that was also attested to  6 by Olive Ryan.  7 There is another method of resolution, a dispute  8 resolution, and I say that's a good example of the  9 internal dispute resolution that shows how the land  10 and the territory's used, and it is part of the system  11 of authority over the territory.  12 Olive Ryan testified that peace settlements  13 sometimes entail a transfer or adoption of a young  14 person to the aggrieved house.  She was talking here  15 about:  16  17 "They tie the cedar bark on the waist and they  18 pull ... the others pulling the boy this way  19 and they pulling the girl on the other side.  20 The side which did the killing would give the  21 boy and the other side there is a girl."  22  23 Alfred Joseph talked of a similar situation in  24 which there was a trapline dispute settled by the  25 exchange of a boy or girl.  The family of a person who  26 was in the wrong gave that child who would be raised  27 as a member of the house who received the child. "It  28 was like an adoption in a way", he said.  29 Dr. Daly commented on this method of achieving  30 settlement and referred to Jenness.  He said:  31  32 "In this way, people would be married to members  33 of the victim House by way of compensation and  34 replacement of lost personnel.  Jessie Sterritt  35 told me that such marriages were for life, but  36 Jenness' informant in 1924, the Kispiox lady  37 who had been married to a Long Grass Sekani as  38 part of the xsiisxw which held to settle the  39 last of the northern wars, had been allowed to  40 return home in her old age, after her husband  41 had passed away."  42  43 There is another resolution method, and that is  44 the transfer of goods.  Emma Michell testified to a  45 dispute between the Gilserhyu and the Tsayu, which  46 ended with a peace settlement where goods were passed.  47 This happened when Emma was about seven. 2519?  Submissions by Mr. Grant  1  2 "It was Satsan's brother killed people with his  3 medicine power.  It was through his power that  4 he killed Dennis' father and that is why  5 Satsan's brother was shot...Satsan's brother  6 was shot by Mooseskin... the Gilserhyu started  7 shooting at the Tsayu House.  The women were in  8 a hole...when they came out of the hole the  9 Tsayu and Gilseryhu talked about it and the  10 Tsayu told the Gilseryhu they would compensate  11 the Gilseryhu for the killing and the name that  12 is given for the word compensation is  13 Taygeeyana Lagx."  14  15 And then she goes on to describe the exchange,  16 including the breaking of a copper in half, which was  17 an item of high value in that settlement.  18 And it was at that feast where Emma Michell, one of  19 the most elderly witnesses that you have heard, of  20 course it was by commission, where her own mother took  21 the name Gwasoks.  So this was a feast that occurred,  22 a resolution that occurred, I would say, certainly  23 after, obviously after contact, and most likely after  24 the prohibitions on feasts, such feasting.  25 The money is another method of resolution.  And  26 bringing things right up to the modern time, you see  27 that Stanley Williams gave evidence of a girl from  28 Kitwancool had been hit and killed by a car.  The  29 feast, the mother of the young man and his family put  30 up $2,000, and it was given to the mother of the young  31 girl.  This was over and above whatever else was  32 contributed in the normal process of the feast.  33 And then Stanley described that the accident should  34 never be mentioned again.  35 Dr. Mills noted in her explanation that the  36 resolution of disputes may take place within a long  37 process of resolution, or one which involves a process  38 of immediate satisfaction, but in either case the  39 resolution occurs at a feast.  40 Now, I don't -- I can leave that for you to read  41 that quote.  42 My lord, before going to the next section, what I  43 say is that it's evidence that I put before you that  44 demonstrates the power or the right to exercise  45 authority as defined, a definition of jurisdiction,  46 among the Gitksan and Wet'suwet'en in order to resolve  47 disputes.  And in particular disputes with respect to 25199  Submissions by Mr. Grant  1 land are the issues here, but it goes beyond that, and  2 it's important for you to have that context to realize  3 that it's not an ad hoc method of dispute resolution.  4 It's one which is well established.  I dare say longer  5 than our own many aspects of our own system.  6 By considering this evidence, my lord, I ask you  7 to find that there is a system of authority exercised  8 within a set of institutions and laws in the context  9 of the Gitksan and Wet'suwet'en organized societies  10 to which extends over the defined territory as shown  11 on Exhibit 646, 9A and B.  12 THE COURT:  Could you give me that again please.  There is an  13 authority, you said --  14 MR. GRANT:  There is a system of authority exercised within a  15 set of institutions and laws in the context of the  16 Gitksan and Wet'suwet'en societies extending over the  17 territories set out in Exhibit 646, 9A and B.  18 THE COURT:  Of course a lot of these disputes you just talked  19 about had nothing whatsoever to do with the land.  20 MR. GRANT:  It's interesting, though, that's true, but what  21 happens, you see, is this is where I find the Guxsan  22 one, because -- and I submit that it is -- shows that  23 there is an interconnection between the land.  In that  24 case it was an accidental -- the evidence it was an  25 accidental shooting, gun accidentally went off, and  2 6 they were out hunting or something and the man was  27 killed.  But the resolution involved the land.  And  28 what's really important for that to work is the  29 finding, not only that the Eagles in that case have  30 ownership of that land, but they have the authority to  31 utilize that land in that way, or, as you say, in any  32 way.  And if you -- you make findings of ownership  33 that was totally broad, then it would incorporate  34 this, of course.  35 My lord, I can't recall whether it was your intent  36 that we would go straight through.  37 THE COURT:  We'll take a break about at quarter past to change  38 reporters.  39 MR. GRANT:  Okay.  I would like to move into the next section  40 then, my lord, and that that is the jurisdiction to  41 conduct international relations.  And once again, my  42 lord, I submit that this is -- this focus is as well  43 on different aspects of the authority of the system of  44 authority or jurisdiction, but it also in particular  45 focuses on aspects that relate to land, which is  46 what's relevant for your lordship, which is  47 particularly relevant from what you are going to deal 25200  Submissions by Mr. Grant  1 with.  2 My lord, I submit that the evidence will  3 demonstrate or has demonstrated that the Gitksan and  4 Wet'suwet'en have engaged in relations with the  5 aboriginal neighbours over a very long period of time.  6 You have heard extensive evidence which demonstrates  7 time and again how the Gitksan and Wet'suwet'en  8 conducted international relations with those nations  9 or peoples bordering on their territories, with each  10 other, and, in due course, with the non-Indian  11 governments, ultimately the defendants.  12 In the course of considering whether or not the  13 Gitksan and Wet'suwet'en chiefs have jurisdiction with  14 respect to international relations, I submit you  15 should carefully consider the evidence of the chiefs'  16 abilities to negotiate settlements with their  17 neighbours, to settle conflicts, to come to the aid of  18 their neighbours in times of distress and agreements  19 to protect the Gitksan and Wet'suwet'en territories,  20 and to conduct lasting trading relations.  21 Now, this, my lord, is that the ability to conduct  22 lasting trading relations, for example, is one that  23 requires the territories.  The agreements, of course,  24 to protect the territories is one with respect to  25 land.  And to a certain degree the other aspects can  26 also be connected to the territory, but not always and  27 not necessarily.  28 What's fascinating about this aspect of the  29 evidence, my lord, is that these relationships are  30 influenced by ancient connections between the peoples.  31 They are apparent in the adaawk through intermarriage  32 and trading relations.  The formation of these old  33 relationships is an important component of the  34 jurisdiction exercised by the Gitksan chiefs and  35 Wet'suwet'en chiefs.  Generally, these relationships  36 are conducted on the basis of a recognition of each  37 other's authority to do so, and within the confines of  38 the laws, institutions and principles of ownership in  39 existence amongst the Gitskan and Wet'suwet'en.  40 And, my lord, I don't think, although my friends  41 may jump to the point as to where is all the evidence  42 of it, but I think that you can infer that there  43 certainly from these international relations, that  44 there is certainly many similar laws, not identical,  45 similar at least to the extent of their neighbours, so  46 they can connect with each other speaking, if I may  47 say, the same language of understanding. 25201  Submissions by Mr. Grant  1 A few weeks ago when I talked to you about or  2 raised the issue of the ancient history in my  3 argument, I referred you to the connections between  4 the Gitsalasxw people and Lelt coming down from the  5 Blackwater area.  6 Now, Art Mathews, and I referred you to Art  7 Mathews, another adaawk of his yesterday, but in the  8 Biis Hoon adaawk, which was the incident of the women  9 that went to the grizzly and came back, there is the  10 description of Lax an dek', an ancient village located  11 on Kitsum Kalum Lake.  I believe you recall where that  12 is, my lord.  That's outside of Terrace.  Now, Lax an  13 dek' is just outside the territory.  14 He goes on to -- he went on to say at the bottom  15 of page 197, my lord:  16  17 "Q   ... Well, what happened when they were living  18 at this Gix lax an dek' -- Lax an dek', one  19 year there was no fish came up the Kitsum Kalum  20 River, and what I'm saying -- just -- below it  21 going towards Terrace.  22 A   ...One year they didn't have any fish so they  23 sent scouts along this river to investigate  24 what happened, and the scouts went out and came  25 back and reported there had been a slide in one  26 of the ravines along this river.  There had  27 been a slide and it blocked off quite a bit of  28 this river so the fish could not get up.  So  29 some of these people that lived in this great  30 big village, Lax an dek', came down and --  31 unplugged.  You might say they started throwing  32 and clearing it out of the way.  And the name  33 of that person that was here, one of our  34 relatives from Git lax an dek', was 'Nii  35 Algyax. . .  36 A  And after they cleared this 'Nii Algyax seen it  37 was a good place so he then started a village  38 ... that's who we known today as Kutsum Kalum  39 Band.  40  41 A  And that's why we have relatives in Kitsum  42 Kalum Band.  And I cannot speak to them for  43 this so I'll just leave it at that."  44  45 Now, what's interesting there, my lord, because  46 some of the issues that the defendants raise as no  47 system or is so confusing you don't want to find any 25202  Submissions by Mr. Grant  1 system, you look at these connections and you realize  2 it.  3 If you remember the other day, we talked about  4 Charlie Smith who took the name Bii lax haa in  5 Tenimgyet's House.  Well, Charlie Smith was none other  6 than one of the chiefs in Kitsum Kalum.  That  7 connection -- that connection from the ancient adaawk  8 has been utilized by Tenimgyet's House within this  9 century in the last seventy years.  10 Similarly, a situation that you heard evidence of  11 occurred in the Luulak territory at Big Oliver Creek,  12 and this, of course, happened with respect to the  13 Little Oliver Creek that did not originally belong to  14 Luulak.  This is that southwestern most territory of  15 Luulak, my lord, and I believe you're familiar with  16 where it is.  17 THE COURT:  Yes.  18 MR. GRANT:  Stanley Williams summarized the adaawk which  19 explains Luulak's ownership of this territory, and  20 this is one of those places where, as I recall, the  21 dots reflect -- they don't reflect, I don't think, any  22 words, that is except a pause by the interpreter, but  23 basically this was effectively an uninterrupted  24 statement of Mr. Williams when he describes most of  25 the adaawk or the territory boundaries.  He went on  26 uninterrupted for a couple of pages.  But he points  27 out that:  28  29 "... (Little Oliver Creek) did not originally  30 belong to Luulak, this was thousands of years  31 ago ... their territory was Big Oliver.  They  32 had a house below Big Oliver... in the  33 springtime about this time of the year Luulak  34 and Dax Juxw...lived there.  At Little Oliver  35 Gubihl gan and his wife lived there."  36  37 He then goes on to describe how Gubihl gan got  38 sick.  And you probably recalled this, he died, Luulak  39 went down to visit him, as they were neighbours, one's  40 Kitsum Kalum, one's Gitwangax, and again they are the  41 same clan, and so what happens is you have this  42 connection between the two, this ancient connection  43 between the two, from their ancient adaawk.  44 He goes on to describe that after they buried the  45 heart and they burned him, they took his wife to  46 Gitwangax and held a feast and told what happened.  47 There is a public announcement, public reputation of 25203  Submissions by Mr. Grant  1 what happened.  Then they went back and took the wife  2 back to her own village, which is known as Gitsalasxw.  3 You can see in that, if I may stop here, my lord,  4 when you -- I talk to you about the kinship societies  5 and the importance of reciprocity and back and  6 forthing, if they hadn't done that, if they hadn't  7 feasted and announced it, there could have been some  8 allegation that there had been foul play there.  Bring  9 the wife back to Gitwangax and announcing it with her  10 there, peace was maintained all the way throughout,  11 and there was no chance, there was no opportunity  12 really to make allegations that this was a result that  13 Luulak was engaged in a war with Gubihl gan or  14 something like of that.  The wife, of course, was the  15 witness.  16 When they arrived in Kitselas they talked to the  17 wife of Gubihl gan, and she explained what had  18 happened.  What they did is they sat Luulak and they  19 held a feast.  After they finished eating at this  20 feast, the family of Gubihl gan made a plan, and they  21 told what they are going to do to Luulak and Dax Juxw.  22 This is when they gave the territory of Xsi Galdii Ess  23 to Luulak and Dax Juxw.  This has gone on for  24 thousands of years, and if the family of Gubihl gan  25 want this territory back, they will have to make  26 payments to Luulak before they take this territory  27 back, because what happens is every time you hold a  28 feast you spend so much at these feasts because of the  29 territory that is involved, and this is the reason why  30 Luulak still has this territory today.  31 Luulak, of course, in the feast, this is part of  32 the territory that Luulak recognizes and pays for at  33 the feast.  34 I say, my lord, on page 200, that this particular  35 adaawk is significant because it demonstrates to you  36 how at the outer edges of the Gitksan territory,  37 contacts and communication between differing  38 aboriginal nations formed a basis for the peaceful  39 transfer of territories in pre-contact times.  40 Now, in cross-examination Stanley Williams  41 restated how Luulak acquired the territory that had  42 formerly belonged to Gubihl gan.  He was  43 cross-examined by Mr. Plant.  He went on to say --  44 this is a territory that others have tried to claim.  45 He says:  46  47 "This is not right, because there has been a lot 25204  Submissions by Mr. Grant  1 of expenses on this lands, expenses with money,  2 ever since the name has been passed on from  3 generation to generation.  There have been a  4 lot of Luulak that have spent so much for this  5 territory and there must be millions of dollars  6 spent on this territory.  This is what the  7 Gitsilis people said last year, they said this  8 was Gubihl gan's territory so what I did, I  9 went to travel to Gitsilis and I told them that  10 this territory, I told them what had happened  11 and that this territory was given by Gubihl  12 gan's chief because of what Dax Joxw and Luulak  13 cremated the body of Gubihl gan.  That's all."  14  15 So here you see even where there is fuzziness or  16 alleged fuzziness on the border, it's a history of  17 acquisition.  It's a history of what's happened, and  18 the knowledge of that is crucial.  And of course  19 Stanley Williams was talking about the money and the  20 wealth, not before dollars were used, contributed in  21 the feast.  22 Now, I will point out the relationship in that  23 middle paragraph between Gubihl gan, Lelt and Luulak,  24 who all have the same ancient adaawk, and migrate the  25 together from the north.  26 This is consistent, this Tsimshian transfer of  27 territory is consistent with Gitksan law, and Fred  28 Johnson, the former Lelt, described that in his  29 evidence as well.  30 My lord, what you have to find, of course, is what  31 today -- the time the action was commenced, is the  32 territory of the Gitksan.  I say there is no  33 ambiguity, that Luulak's territory, as described on  34 646-9A, is Gitksan territory.  There is no suggestion  35 that it isn't.  There is no representation that it  36 isn't.  The Gitksan know it is, and my friends did not  37 call any evidence to contradict that, in the sense  38 they did not call any chiefs from Kitselas to give  39 evidence to say it wasn't, although they did a Rule 28  40 with respect to the Kitselas.  41 Now, the relations with the Nishga is another  42 situation.  Pete Muldoe in his evidence explained that  43 a woman from Blackwater had married a Nishga.  He  44 understood that the Nishga husband had moved into the  45 wife's territory, and that was a reason for confusion  46 with respect to the Nishga with respect to any claim  47 by the Nishga in the Blackwater territory.  And if I 25205  Submissions by Mr. Grant  1 remember correctly, that's the Damdochax's territory.  2 That's up in the upper centre regions of the territory  3 of the Gitksan.  4 THE COURT:  Yes.  5 MR. GRANT:  What you see there, my lord, the spousal rights, the  6 Nishga man moves in to his wife's -- the Gitksan  7 woman's territory, and perfectly consistent with  8 Gitksan law, presumably with Nishga law too, but of  9 course under Gitksan law that does not mean that he  10 and his children would have the rights on the  11 territory, but doesn't mean that other Nishga would  12 have rights there.  His children, of course, would be  13 Gitksan.  14 Art Mathews Junior -- just one moment, my lord.  15 Yes, my lord, this was explained during the  16 cross-examination by Ms. Koenigsberg, and it was  17 explained to the Nishga as well at the meetings.  18 Art Mathews Junior described how in the summer  19 of -- I believe that should be 1987, my lord, he was  20 on the Cedar River territory, and he met a Nishga who  21 were on his territory picking mushrooms.  Of course  22 this is quite close to the Nishga territory.  He asked  23 them -- these were pine mushrooms.  He asked them if  24 they knew they were on Tenimgyet's territory.  They  25 agreed that they had no permission to be there.  When  26 Art Mathews told them they had better go, the Nishgas  27 left.  They left the mushrooms that they had picked  28 behind them.  29 Now, this demonstrates the authority exercised by  30 Tenimgyet on his territory.  Of course it also  31 demonstrates the utilization of new resources by  32 Tenimgyet, to which Ms. Mandell will refer you  33 tomorrow in dealing with the resources.  34 Now, Art Mathews' grandfather, Wallace Morgan,  35 told in a recent adaawk, I say recent, relatively  36 recent, recent was in the last century, that is not in  37 this century, concerning one of the members of  38 Tenimgyet's House who travelled from Lax Lilbax to  39 visit 'Niis 'yook.  'Niis 'yook was a Nishga relative  40 on the Nass.  So there is these connections.  41 Apparently misfortune befelled this person because he  42 never returned.  When the people from Tenimgyet's  43 House went to look for him, they found him floating at  44 the head of Sand Lake, and the people were living at  45 that time from Tenimgyet's House at Lak Lilbak, the  46 island on Sand Land.  This is the western most point  47 at the Tenimgyet territory, I have explained that to 25206  Submissions by Mr. Grant  1 you.  2 Art Mathews described what his ancestors did at  3 that time.  4  5 "The chief spoke at that time and says that our  6 ancestor, the guy that he killed, bones, his  7 remains, are going to be buried on this Lax  8 Lilbak Island on Sand Lake.  And these bones  9 are going to be here to look after our  10 boundaries.  Therefore the Nishga would  11 appreciate our boundaries by killing this man  12 and throwing him back on our side."  13  14 Now, Art Mathews' grandfather explained to him  15 that it was significant that the Nishga put the  16 Gitksan person's body back on the side of the lake,  17 within Tenimgyet's territory.  And he was shown where  18 the body was found and when he travelled to Sand Lake.  19 And that Exhibit 351, photo 44, is that series of  20 photos you looked at yesterday, my lord, and it's  21 marked in that photo.  22 THE COURT:  Yes.  23 MR. GRANT:  Where he was buried.  24 These two incidents, my lord, I submit demonstrate  25 a jurisdiction, an authority, a system of authority  26 once again, exercise an international relations.  27 Firstly, when Art Mathews confronted the mushroom  28 pickers, they left the area, respected the authority  29 to Gitksan chief on his territory.  30 Secondly, on the earlier occasion when the body of  31 the Gitksan was transported by the Nishga back to  32 Gitksan territory, the Nishga, who presumably we don't  33 know, but presumably thought he was trespassing,  34 recognized the boundary and the authority of the  35 Gitksan chiefs to bury the deceased person.  36 My lord, if you intend to take a break, maybe it  37 will be now.  38 THE COURT:  Yes, we will take it now.  39 THE REGISTRAR:  Order in court.  Court stands adjourned.  40  41 (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS)  42  43  44  45  46  47 25207  Proceedings  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  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 2520?  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RECONVENED AT 8:30 P.M.)  THE  THE  MR.  THE  MR.  REGISTRAR  COURT  GRANT  COURT  GRANT  THE COURT  MR. GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  I was on page 203, my lord.  Order in court.  Mr. Grant.  Thank you, my lord.  Yes.  Now, this is a section on the Gitksan-Nishga feast.  And several witnesses described the series of feasts  that you -- with the Nishga and the Gitksan relating  to the territory, and this is moving things into a  more contemporary feature than with respect to the --  some of the other Xsiiw, the Tenimgyet territory  incident that happened with the trespass.  In considering the description of these feasts,  it's my submission that there is a modern jurisdiction  which is exercised by the chiefs with respect to their  territory and territory relations with the Nishga.  The Gitksan exercised their jurisdiction in a  responsible and yet forceful way and in keeping with  the Gitksan concepts of ownership and jurisdiction --  again, that definition that Mr. Jackson gave you --  over the land.  What do you mean by that, Mr. Grant?  They have a  dispute or a claim and they have some meetings about  it.  But is that what you mean, they've had a  responsible --  I'm going to refer you to it.  I think it's more  than that and that's what I -- maybe I can go to it,  because I think the demonstration of it is given by  Chief Gwis Gyen, Stanley Williams.  It's quite  remarkable as to how the procedure went ahead.  Just to give you the background, my lord, which  isn't written in this section, that -- oh, I think it  was in -- there was a meeting, I won't give the date,  it was a recent date.  There was a meeting in  Gitwangak at which the Nishga chiefs were invited.  Yes.  And you heard evidence of that.  And then later the  Nishga chiefs invited the Gitksan chiefs to Canyon  City.  Yes.  This is the reciprocal arrangement.  And Stanley  Williams describes the Canyon City meeting, also  referred to by Pete Muldoe and other chiefs.  He said:  There was people from Kincoolith, Greenville,  Aiyansh and I was there and Mary McKenzie was 25209  Submissions by Mr. Grant  1 there who is from Gitanmaax.  The reason why we  2 were called together, why we had this meeting  3 was there was the overlap of the territories.  4 As the people were entering the feast hall,  5 their names, their chief's names were called  6 out as they were entering.  7  8 Of course, this is the notorious overlap claim  9 that -- that term -- I say "notorious" because the  10 Province uses it at every opportunity.  But it's a  11 fact that the claim to the federal government made by  12 the different Indian peoples in British Columbia don't  13 mesh boundary for boundary.  And they are nothing more  14 than, of course, claims to the federal government for  15 the purposes of land claims negotiations, my lord, and  16 they shouldn't be elevated any more than that.  But  17 that's what he was referring to.  18 Now, Stanley Williams went on, my lord, and I  19 haven't described the whole quote, but he described  20 how the Nishga chiefs started by telling an  21 ant'imahlasxw.  As you recall, that's a child's story  22 as contrasted with an adaawk, and Mary McKenzie  23 explained that in her evidence.  But after they told  24 that, then -- for them to do that, my lord, to tell an  25 ant'imahlasxw when they were talking about the  26 territory, was nothing short of -- and Mr. Williams  27 alluded to it in any event -- was insulting to the  28 Gitksan chiefs who were called there, because it was  29 treating them like children.  30 But what did -- this is the amazing thing, is what  31 did Stanley Williams do?  He continued the story of  32 Txemsim.  And I won't go through the details, but it's  33 in the evidence in the cited part, and it's -- I say  34 it's a bawdy story or a lusty tail.  And he sent --  35 where Txemsim sent his sister to the swamp to get  36 medicine.  It was very humorous what he described.  In  37 fact, during the commission, Mr. Plant, Ms.  38 Koenigsberg, myself and others present laughed.  And  39 all the Gitksan and Nishga chiefs laughed as well.  40 After Stanley described that story, he then  41 explained to the Nishga why it was necessary for them  42 to meet together.  He discussed the laws that would  43 apply to the Nishga as well as the Gitksan chiefs, and  44 this is all described in full detail in Mr. Williams'  45 evidence.  He stressed -- and it should be "he"  46 stressed the fact that the jurisdiction exercised  47 between them was conducted according to Gitksan and 25210  Submissions by Mr. Grant  1 Nishga law.  Of course he didn't use the word  2 "jurisdiction", my lord.  What he used was that "the  3 meeting", "the resolution" had to be done according to  4 the Gitksan and Nishga law.  5 He then described the feast at which Dim Xsaan --  6 and Dim Xsaan there is, of course, a Gitksan -- or a  7 Nishga chief -- erected a pole.  And Dim Xsaan was the  8 name held by the late James Gosnell.  James Gosnell  9 presided at this meeting of Nishga chief.  Stanley  10 went on as follows, and this is what he says:  And the  11 whole extract is in that reference that I've put at  12 the bottom of the quote here.  13 But he said:  14  15 After he —  16  17 That's Dim Xsaan.  18  19 -- erected this pole...with the stone carving  20 on top, he held a feast, and at that feast he  21 said, "this is a serious... feast and we have a  22 boundary for the...Kitwancool and for the  23 Nishgas..."  nobody would trespass over this  24 boundary to the Kitwancool side, and nobody  25 from Kitwancool would trespass on the Nishga  26 side.  Dim Xsaan had his boundary, the boundary  27 between the Nishga and the Kitwancool, Dim  28 Xsaan has his boundary on the Nishga side and  29 on the Kitwancool side it's Luuxoon and  30 Ts'iiwa.  31  32 Two of the Kitwancool chiefs.  33  34 The creek that runs...as a boundary belongs to  35 Luuxoon and Ts'iiwa and the name of this creek  36 is Gins Xhoux.  And there is a lake there which  37 is known as T'aam Gins Xhoux.  This is where  38 the creek comes from.  The lake is close to the  39 mountain and this is where the water -- the  4 0 creek comes from, and it goes down and then at  41 the bottom this belongs to the Nishgas known as  42 Alice Arm.  43  44 Now, just pausing there, my lord.  To this  45 extent -- to this point in the feast between the  46 Gitksan and Nishga, what Gwis Gyen did, Stanley  47 Williams, is he turned around an insult -- that is the 25211  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  THE  COURT  32  33  MR.  GRANT  34  35  36  THE  COURT  37  MR.  GRANT  38  THE  COURT  39  MR.  GRANT  40  THE  COURT  41  MR.  GRANT  42  43  44  THE  COURT  45  MR.  GRANT  46  THE  COURT  47  MR.  GRANT  ant'imahlasxw -- he relaxed the Nishga hosts as well  as his Gitksan compatriots.  He then demonstrated  respect for the Nishga by first talking about Dim  Xsaan's pole and the boundary, and with deference --  of course that's the rock that was thrown off by a  Wet'suwet'en -- or dropped by a Wet'suwet'en, and  there was a reprisal.  And he then talks -- moves into  the boundaries and clearly demonstrates that he knows  the boundaries of the territory.  Now, he goes on and described the boundary between  the Gitksan and Kitwancool on the one hand and the  Nishga on the other hand.  And I may say, my lord,  that in his evidence, spontaneously, without any maps  or anything else, he did the same thing during his  commission.  He started here at this northern part of  Sand Lake and he just went along this boundary of the  territory all the way to here.  And then at a point  about here, he asked if the Kitwancool -- if we wanted  the Kitwancool boundary going up there, and we said,  "No", in the commission, and he just went along and he  described the boundary along these areas.  And when I  deal with the territories, I will have the reference  for you to that.  But it's a remarkable piece of  evidence.  And it's -- I can't believe -- I really  can't believe that my learned friends suggest, after  that piece of evidence, that the Gitksan don't know  their boundaries, because it was a spontaneous  statement of the evidence relating to that entire  boundary with the Nishga, and that's what he  reiterated in this description.  But of course --  Sorry, that's the boundary with the Kitwancool,  isn't it.  He goes -- I'm sorry.  He goes -- what I said is he  went here, this is -- this is the Nishga up here, my  lord.  Yes.  He went along here into here.  Yes.  That's the Nishga.  Yes.  Then he goes up -- I'm sorry, maybe here.  I'm going  from memory.  He goes up here in his description  with -- at the Nishga feast.  Up the west side of the Kitwancool territories?  Up the west side of the Kitwancool.  All right.  But in his evidence on commission he did the same 25212  Submissions by Mr. Grant  1 thing: asked if we wanted the Kitwancool included.  2 When "no", he just goes down here.  And it's a  3 remarkable piece of evidence because it demonstrates  4 that the method of training and the knowledge that the  5 Gitksan have been able to pass on.  And you've heard  6 the same thing with Gisdaywa, and his evidence we will  7 refer you to, went on to describe his.  But that's  8 what Stanley Williams did in this meeting with the  9 Nishga.  10 Now then on page 207, we move into a different  11 phase of -- of course it's all one meeting but a  12 different phase of this feast -- it was a feast,  13 actually, that -- the Nishga one was certainly a feast  14 as the way the chiefs were seated and that.  15 And what he said after he described this boundary  16 is he said:  17  18 ...then Frank Calder jumped up --  19  20 And what does Fran Calder say?  He said:  21  22 "All the waters that are... flowing from that  23 mountain into the Nass River, these are our  24 territories."  [Now] Frank Calder was sitting  25 about ten feet from where I was, and after he  26 had said this, I told him, I said --  27  28 This is Stanley Williams speaking:  29  30 "Frank, why are you talking about the Nishga  31 territories?  Your territory is in Kitsegukla,  32 you are in the House of Guxsan, this is where  33 your territory is."  I told him, if you want to  34 go on your territory then you would have to  35 come and talk to your House members and to your  36 chief in Kitsegukla.  Frank never answered  37 back, he...took off out through the door and he  38 never returned again.  39  40 Then Herbert Morvin jumped and I...was talking  41 about...the waters coming from Gwin Stimoon  42 and...this was Yal's territory.  43  44 And that's that northeastern lump where I was talking  45 about.  46  47 And Herbert Morvin jumped up and he said, "This 25213  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  man is talking about our territory."  And I  told Herbert, I said, "Herbert, your -- you  know that you and my wife are from the same  House and your territory is in Gitanmaax and  your House is Luutkudziiwus House."  [Now] Kutford Morvin was the uncle of Herbert  Morvin, and he used to have my wife [in his  house] and he told...my wife that he knows  where he is from. ...And he is from  Luutkudziiwus House in Gitanmaax.  Now I've referred to Luuxoon and Wixa are  Kitwancool chiefs.  And then I have explained the other evidence in  summary, that Fanny Williams, who is now -- was  adopted into Haalus' House, a Frog House, was born  into Luutkudziiwus' House.  Now Stanley's description of this meeting, my  lord, exemplified what I submit is a very  sophisticated method of gaining a diplomatic advantage  without having the discussions degenerate into threats  and counter threats.  This is how consensus -- this is  how these kinds of discussions occur at the highest  level, I would submit, my lord.  When he told the  Txemsim story he turned what appeared to be insult  into advantage.  When the Nishga, instead of referring  to adaawk, referred to ant'imahlasxw, they were  treating the Gitksan chiefs as children.  Stanley  gained the advantage on behalf of the Gitksan by  extending the ant'imahlasxw into the erotic story that  he told.  Once he had both the Gitksan and Nishgas  relaxed, he relied on his extensive knowledge and  training to explain and describe the boundary.  But he  didn't just describe the boundary between the Nishga  and the Gitksan.  He commenced by demonstrating his  own knowledge of the Nishga's exercise of their  authority.  By referring to the former Dim Xsaan's  pole raising, he was honouring historical events to  the credit of the Nishga.  He then turned that  description to his advantage by reiterating the  boundary that Dim Xsaan had established with the pole  raising.  But what does this all prove, Mr. Grant?  It's all  hearsay firstly.  Sorry?  Isn't it hearsay? 25214  Submissions by Mr. Grant  1  MR.  GRANT  2  THE  COURT  3  4  MR.  GRANT  5  6  7  THE  COURT  8  MR.  GRANT  9  10  11  THE  COURT  12  MR.  GRANT  13  THE  COURT  14  15  MR.  GRANT  16  17  18  19  20  THE  COURT  21  22  MR.  GRANT  23  24  25  26  27  28  29  30  THE  COURT  31  MR.  GRANT  32  THE  COURT  33  MR.  GRANT  34  35  THE  COURT  36  MR.  GRANT  37  THE  COURT  38  MR.  GRANT  39  40  41  THE  COURT  42  43  44  45  MR.  GRANT  46  47  Certainly isn't, my lord.  His conversations with these other people out of  court?  He -- well, he is just describing an event.  He is  saying what he said.  That -- what the other people  said to him is hearsay, yes.  What he said is hearsay as well.  He gave evidence.  He said -- he just told what he  had said, my lord.  It's an event, it's not the  question of the truth of it.  No.  All right, it's not the truth of it.  It's not the truth of what those people said.  What does it all prove?  He had negotiations, he  handled them skillfully.  What does it prove?  What it proves, my lord, is how -- this kind of --  this kind of -- I submit, my lord, that this kind of  system of working out a resolution of a dispute with a  neighbour isn't something that you get overnight and  it isn't something that just one person has.  How does it prove anything that's relevant in this  lawsuit?  It proves how the Gitksan -- you see the Gitksan --  and I'm sure my friends will rely on this -- the  Gitksan have not taken up arms in the last 50 years to  defend their boundaries.  But this is a defence of  their boundaries, just as strong and just as much -- I  dare say, my lord, if Canada did the same with the AB  line we wouldn't be in the pickle that we probably are  in.  But, in any event, this is --  Which one?  -- a defence of their territory.  Which line?  The AB line, my lord.  The line on the Dixon  entrance.  Oh.  All right.  That Canada --  I don't have to worry about that.  No, you don't have to worry about that. Not unless  you get a dispute related to the AB line, my lord. I  don't think it's in the courts yet, but --  It's all very interesting but I don't see where it  proves anything of any significance.  I mean Mr.  Stanley Williams is obviously a very competent and  intelligent and knowledgeable man.  But it's not just him.  He comes from a system that  trains people to be diplomats, trains people to  protect the territory. 25215  Submissions by Mr. Grant  1  THE  COURT  2  3  4  5  MR.  GRANT  6  7  8  THE  COURT  9  10  MR.  GRANT  11  12  13  THE  COURT  14  15  16  17  MR.  GRANT  18  19  20  21  22  THE  COURT  23  MR.  GRANT  24  25  THE  COURT  26  27  MR.  GRANT  28  29  30  31  32  33  34  35  36  37  38  THE  COURT  39  MR.  GRANT  40  41  42  43  44  45  46  47  THE  COURT  :  Good heavens.  Hitler negotiated marvellously at  Munich.  What does that prove?  He overwhelmed the  other members of the negotiating committee, but what  does it prove?  : My recollection, my lord, is that unlike this, he --  he engaged in temper tantrums in other matters and all  sorts of --  :  Oh, all sorts of theatrics.  But when you are  negotiating you are negotiating.  :  Well, my lord, my friends make much -- my friends  make much -- there is a whole series of elements here.  My friends make much of what these "overlaps" are.  :  Well, the overlaps are -- it seems to me they do  have some relevance when it comes to the question of a  reputation of title.  But how you conduct your  negotiations --  :  But my lord, those are -- what I'm saying is that  this is -- this is the meeting of the parties.  My  friends, if they thought they had evidence of -- of  another claim in this territory, then they should have  called that evidence.  :  Well, that —  : Not just filed some document by a third party to the  federal government.  : I know. But that might be your answer in reply, but  you are making your argument now first.  :  Well, what I'm saying, my lord, is that the system  of authority with respect to the territory, which is  an issue for you, is demonstrated in relations not  just with the Gitksan and Wet'suwet'en, just as each  House there on the map is not an island, my lord.  That entire territory is not an island.  And it's not  the artificial creation, as my friends imply and  suggest, of a few people.  That is the territory.  That is the territory that in face-to-face discussions  with those neighbours on the northwest, they are dealt  with.  That is the boundary and that is the territory.  :  Well, he said it was the boundary.  :  That's right, he said it was the boundary.  I say in  argument to you it is the boundary and it's not just  something that happened overnight.  But you say -- well, in understanding -- in  understanding once again, how can this society have  this territory, my lord?  I submit it's important for  you to appreciate the system of authority over the  land, and that's that --  :  I don't see where this proves any system of 25216  Submissions by Mr. Grant  1 authority over the land.  He went into negotiations  2 and he made --  3 MR. GRANT:  He didn't go —  4 THE COURT:  — he made a brilliant performance.  5 MR. GRANT:  And he didn't — he didn't go into — it didn't go  6 into -- it wasn't just negotiations, my lord, it was  7 meetings, chief to chief, on resolution of disputes.  8 It was part of the system of both peoples.  9 THE COURT:  Well, all right.  I am sorry, Mr. Grant, but you've  10 really lost me.  11 MR. GRANT:  I understand you and I don't want to spend my time  12 here -- what I'm trying to --  13 THE COURT:  All right.  14 MR. GRANT:  I'm trying to put it in the context that you can  15 appreciate.  16 THE COURT:  There are marvellous issues to litigate here but it  17 seems to me that we are really, really looking for not  18 even sparrows on the ground now compared to eagles in  19 the sky we could be shooting at.  20 MR. GRANT:  Well, my lord, the — the burden, if I may say, that  21 the plaintiffs took on was seeking declarations of  22 ownership and jurisdiction over the territory.  And  23 I -- that's -- that's what we are seeking.  And I  24 think that's been clear all the way along.  An issue  25 raised by my friends, an issue raised at times through  26 the trial --  27 THE COURT:  What would the difference be from this: if Mr.  28 Stanley Williams had taken out an ad in the Vancouver  29 Sun newspaper and said, "Here is our boundary."  It's  30 self-serving, and it's -- it's not proof of anything  31 except that that's what he said.  32 MR. GRANT:  Certainly not proof of a system of authority,  33 because it would be going -- going into the Vancouver  34 Sun with an ad doesn't do anything within the Gitksan  35 system.  But taking --  36 THE COURT:  But you are in the Supreme Court of British Columbia  37 and, you know, I'm look for -- if there is something  38 in what you are telling me that I am missing I would  39 like you to tell me what it is, because I don't think  40 this is evidence of anything except this is what he  41 said on that occasion in the absence of the  42 defendants.  43 MR. GRANT:  It's evidence of the system of authority of the  44 Gitksan chiefs and how they exercised that system of  45 authority with non-Gitksan, their aboriginal  46 neighbours.  And it's not just a question of -- it's  47 not just a question of ownership, because this isn't 25217  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  just sort of arbitrary.  These Houses and these chiefs  and these peoples coming to this court, it isn't just  an accident, my lord.  It's a situation where they are  an organized society, which I hope I have established  in your mind.  I've explained, it's a system where  they have a system of authority.  It's not a bunch of  autonomous units like a bunch of separate molecules  that happen to collide into each other and happen to  bump into the trees or the land.  This is a system of  authority and this is one aspect of the demonstration  of that.  I am not saying that of course -- and maybe you  are misled to this point.  I am not saying here that  you have to decide who would win that negotiation.  Of  course that's not the point of it.  But the point is  that the Nishga and the Gitksan engaged in these, and  it's not just a negotiation, it's not just a  bargaining, it isn't that at all.  It's founding  why -- why do the Gitksan own the territory?  When he  refers to Herbert Morvin and to Frank Calder and who  they really are, that's at the very root of the  question, my lord.  That is the issue of the  genealogies and of the Houses to which my friends say  there is no system -- they make little of the Houses  and say --  :  It proves only that Mr. Stanley Williams said that's  who they were.  Proves nothing else.  :  But what it goes to -- that's right.  It's not  necessary for you to find who they were.  But what it  goes to is the foundation of what he is saying as to  who his territory is, is the House.  That's what he  was going back to.  Where is your land?  Do you have a  history?  As that chief said in the 1920s, "If you  have no history, you are nobody."  And this land, this territory, is based on that,  my lord, and that's what I'm saying.  It's similarly, as I refer to on page 208, my  lord, it's not just one individual and its  demonstration of the system.  This is happening today.  It's not something that happened in the romantic  1880's when the federal defendants like to say things  were all nice then.  It's happening today, and that  training and skill has gone on.  But finally, my lord, the evidence indicates that  both nations, notwithstanding their dispute, respected  the assertion of ownership of the territories based on  matrilineal descent and by the ownership of adaawk. 2521?  Submissions by Mr. Grant  1 That's both the peoples understood that.  The  2 territories have fixed boundaries and accepted these  3 features of ownership in their discussion.  4 Now that's what I'm saying, is that the  5 foundation, the basis within the entire context of the  6 discussion was based on matrilineal descent, based on  7 adaawk, based on fixed boundaries.  There was no  8 suggestion that we have nodes and lines, as Dr.  9 Robinson suggested here, the Gitksan or the Nishga.  10 Now the next piece, my lord, relates to the  11 Tsetsaut and there is a description there, an oral  12 history and the adaawk of the Tsetsaut wars.  And Mr.  13 Williams once again in that case gave the description  14 of the Tsetsaut wars, that they -- that the Tsetsaut  15 raided -- and he described how they raided Gitan'yaaw.  16 And Solomon Marsden gave an even more detailed  17 explanation of this.  And they killed most of the men  18 and kidnapped the women and children.  The survivors  19 from Gitan'yaaw went to Gitwangak and they mobilized  20 the warriors and these warriors followed the Tsetsaut  21 past Meziadin Lake.  They imitated the wolves and ran  22 on the ice to spy on the Tsetsaut.  The Tsetsaut were  23 all killed.  And the reference to the Tsetsaut in this  24 adaawk is to what we would now consider as the Stikine  25 people.  And the description goes on.  26 Now the significance of this incident, my lord, is  27 that -- is the collective exercise of authority -- the  28 collective defence, I may say, of not just chiefs from  29 one village.  Gitan'yaaw, Gitwangak and Kitsegukla all  30 were involved.  And in fact, Sxuu, a chief from the  31 House of Guxsan at Kitsegukla Village, acquired  32 territory up on the Meziadin area.  33 And after this war with the Tsetsaut, and that --  34 that territory of Guxsan, my lord, would be in the  35 Kitwancool area and it's not a subject matter of this  36 action.  But then they describe the killing and that  37 Wilitsxw took over this territory.  38 On page 211, I summarize what the significance of  39 this is, that the joint action of the Gitksan to fight  40 the common enemy is an example of a joint exercise of  41 authority when faced with an external threat.  So that  42 you have the coming together and the collective  43 authority of the Gitksan.  You should look at the  44 collective authority of the people.  Same thing  45 happened in the Kweese raids with the Wet'suwet'en;  46 the houses come together, the clans come together.  47 Now, in the Tsetsaut Tsiisxw with Kliiyem lax 25219  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  haa, Martha Brown described this, and this is with  respect to the northern territory at the very top of  the map, my lord, of Kliiyem lax haa.  And there was a  settlement feast on the Kliiyem lax haa territory in  Kispiox described in detail.  And then she refers to the use of peace feathers  and the Stikine person who had a short gun in their  right hand and peace feathers in the left hand:  The person who carried the peace feathers stood  and started hollering and the Stikine chief  came.  He shouted out for everyone to hear that  Malii rose again and Malii is the ownership of  the territory.  Now Exhibit 854-A, which I believe I gave you,  it's in the organized society, it's the chart of the  wilnadaahl.  I just want you to note that of course  the separate -- today, the separate House of Malii,  that is the House of Kitwancool, is part of the  closely related Houses of Kliiyem lax haa.  And Malii  in this case -- Malii at this time, there was a named  chief Malii within Kliiyem lax haa's House.  And I  don't think the evidence establishes whether that --  that Malii was the one who later separated out, but  they certainly were closely related.  In any event,  Mrs. Brown, Kliiyem lax haa, concluded that after that  settlement, Kliiyem lax haa was the holder of the  land.  She also said that -- although there was  reference in her adaawk to a short gun -- that this  occurred long before the arrival of white men in the  territory.  So, my lord, it is our position that that  would have occurred in what we called the  protohistoric period.  It is pre-contact.  But -- and  when you think about it, because the Stikine are  closer to the coast and closer to the Russians, that  they could well have had guns up there and they came  down through that route.  My lord, I'm not sure what time you would want to  stop.  I think we'll go another 15 minutes.  I don't anticipate finishing this area.  No, you won't finish, but let's get some time in.  Now, as you know, the Carrier-Sekani territory at  Thutade Lake -- and I am talking here about the  Carrier-Sekani relations with the Gitksan.  I am going 25220  Submissions by Mr. Grant  1 to come back to the Wet'suwet'en relationships  2 later -- the Carrier-Sekani territory with the Gitksan  3 borders at Thutade Lake.  And of course there was a  4 meeting in Burns Lake in April 1987 with  5 Carrier-Sekani chiefs, and of course this also  6 involved the Wet'suwet'en and I'll come back to the  7 Wet'suwet'en aspect of this.  But James Morrison gave  8 evidence as to what occurred in that feast with  9 respect to the Gitksan and the Carrier-Sekani, and he  10 goes on -- he describes that:  11  12 Nii Kyap [David Gunanoot] the one that told,  13 spoken about the history and we sitting there,  14 all the chiefs from Gitksan people are sitting  15 there listening to these histories of Nii Kyap.  16 And we find it, these histories, we heard that  17 many years ago, when my father was still alive,  18 and this is how I understood this feast that  19 when he spoke about the history, of Nii Kyap's  20 territory and it comes back to my mind what  21 these people are talking about, they told about  22 the story of the history of Nii Kyap of  23 themselves.  24  25 And I've summarized part of this.  26 David Gunanoot wore his blanket and spoke in  27 Gitksan.  Mary McKenzie translated.  After telling his  28 adaawk, David showed the crest of the split bear on  29 his blanket.  James explained the meaning of the crest  30 for David.  James explained that the crest on the  31 blanket were related to the high elevation of the  32 territory, and this is where Xhaimaadimtxw, a chief in  33 Nii Kyap's House, was.  This is the area up at Thutade  34 Lake.  The snowflakes and the ptarmigan on the blanket  35 of Nii Kyap represent -- that should be represent the  36 land of Xhaimaadimtxw, a chief in Nii Kyap's House,  37 and they demonstrated his ownership in the territory  38 of Thutade.  39 Some confusion arose because some persons from  40 Nii Kyap's House actually lived in Burns Lake.  And  41 that's important again, my lord, to keep in mind, that  42 this is -- the basis of the claim is the case -- of  43 this case is on the House.  And the fact that House  44 members live in Burns Lake is a big thing for the  45 provincial defendant, because I say villages are  46 everything that counts, but that's not the point.  47 They are from the House of Nii Kyap so they have a 25221  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  right to be on Nii Kyap's territory.  But a number of  other Gitksan chiefs confirmed that Nii Kyap held the  territory at Thutade at the meeting.  Once again you  see the demonstration of how the chiefs exercised  their authority.  The differences between the two systems arose  because of the imposition of the registered trapline  system, Band membership and the genealogy of the owner  of the territory at Bear Lake.  Now here, my lord, is a place of -- of cross --  of the lease with the provincial defendant.  The  registered trapline system has certainly been one of  the aspects of the provincial system that has  undermined -- and I'm going to come back to this  later -- undermined in some severe ways the chiefs'  authority over the territory.  And here you have an  example because the registered trapline system begins  to get transferred patrilineally and they end up to be  two claimants where under the Wet'suwet'en and Gitksan  system there would only be one.  There is also the question of Band membership, the  impact of that, and the genealogy of the owner of the  territory of Bear Lake.  Now in this case, a member of  the Takla Lake Band, William Charlie, claimed hunting  grounds around Bear Lake.  And on that basis, my lord,  the provincial defendant will argue -- if their  argument is consistent with their summary -- that,  "Oh.  Well, it's a Takla Lake territory, it's not  Gitksan, it's Takla Lake."  Well, the point is, is  that William Charlie is actually Gitksan from the  House of Miluulak as demonstrated in the kinship  relationship.  Also, people from Nii Kyap's House use  the territory around Bear Lake.  This was given in  evidence by James Morrison.  MACKENZIE:  My lord, could I ask my friend for a reference  to this sentence, "his kinship relations confirmed  that he was actually Gitksan".  Well, that would have to be in the genealogy of the  House of Miluulak, would it not?  Yeah.  Is it there?  I don't have that genealogy with me.  When I  prepared this, my lord, I had and it should have been  referenced.  I'll reference it.  It will be there or  it will be in oral evidence.  I -- it may be in the  cross-examination of one or more of the affidavit --  of the witnesses on affidavits.  MR.  THE COURT  MR. GRANT  THE COURT  MR. GRANT 25222  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  MR.  THE  MR.  THE  MR.  THE  MR.  COURT:  Well, why don't you have a look at the genealogy,  Mr. Mackenzie.  If you don't see it speak to it again.  MACKENZIE:  Thank you, my lord.  GRANT:  Now, I'm just sorry, my lord, I'm just pausing  because I don't want to get -- oh, I see.  Okay.  I'll  try to explain this.  I think I know what happened  here, my lord.  Sorry.  This is one of the problems  that Ms. Mandell raised earlier today about some  problems with the disks.  The significance of the meeting was the Gitksan  use of crests and regalia to assert ownership and  jurisdiction over the territory.  Dr. Daly in his  report explained the significance of using the crests  to resolve the confusion.  And this is Dr. Daly's  report.  Now Dr. Daly was present, my lord, so he  observed this and this isn't -- "The late David  Gunanoot --"  Sorry, he was at the meeting at Bear Lake?  Burns Lake.  This is the Burns Lake meeting.  Oh, this is Burns Lake.  Yeah.  All right.  COURT  GRANT  COURT  GRANT  COURT  GRANT  The late David Gunanoot, the Lax Gibuu chief,  Nii Kyap, wore his blanket at the Burns Lake  feast while the Gitksan northern chiefs made  their presentation in the afternoon of April  4th, 1987.  Nii Kyap told the part of his  ada'ox which explained the original territory  of Nii Kyap in the head-waters of the Skeena,  near the Sustut River.  Having grown up, hunted  and fished on his father's Kisgagas  territories --  And that's independently proven through James  Morrison's own evidence.  -- James Morrison knows the land and history of  this region.  He received permission from David  Gunanoot to speak about the Nii Kyap crest and  land, and to explain it to the hosts of the  Burns Lake feast.  Now, my lord, the reference -- and I'll correct  this.  The reference at the top of page 215 to Dr.  Daly's report should be put in there.  And in fact,  what I then put in -- and I will correct this, this is 25223  Submissions by Mr. Grant  1  2  THE  COURT  3  4  MR.  GRANT  5  THE  COURT  6  MR.  GRANT  7  8  9  THE  COURT  10  MR.  GRANT  11  THE  COURT  12  MR.  GRANT  13  14  15  16  THE  COURT  17  MR.  GRANT  18  19  THE  COURT  20  MR.  GRANT  21  THE  COURT  22  23  MR.  GRANT  24  25  26  THE  COURT  27  MR.  GRANT  28  29  THE  COURT  30  MR.  GRANT  31  32  33  THE  COURT  34  MR.  GRANT  35  36  37  38  39  40  41  42  43  44  45  46  47  something that got --  Well, I do have a reference to Dr. Daly at the top  of page 215.  Yeah, I know.  You say it shouldn't?  It should be after the Burns Lake feast, because I  don't want my friends to get too excited about this,  that's why I wanted to --  Where do you say it should be?  On 214?  214, right after that full paragraph I just read.  Oh, I see.  All right.  Now, the next part of this is actually the reference  to David Gunanoot, Exhibit 72-A page 66.  I think it's  A.  But it's the reference to David Gunanoot's own  evidence.  And --  Starting, "You told us about the marten"?  Yes.  This is part of his commission evidence, my  lord.  David Gunanoot?  Yes.  All right.  And that's what he said at the Burns  Lake --  :  No, no.  That's why I wanted to -- that's what had  originally been in there, but it was -- it would be  Exhibit 72-A.  :  Capital A?  :  Yes.  Exhibit 72-A page 66.  I'm pretty sure and  I'll check that.  :  All right.  :  That's where this comes from -- or page 65 and 65-A,  that's what it is.  There was an inserted page at 65  of the transcript.  :  Sorry.  :  Anyway, he says:  You told us about the marten that 'Niikyap  found on the way up to fight the Stikine, and  the little marten.  Now, this is during his evidence.  He is  explaining the Suuwiigus, the Gutginuxw involvement in  the war and the acquisition of the crest.  David  Gunanoot answered "Yes."  You said it was Gutgwinuxs who was able to get  the marten out of the tree? 25224  Submissions by Mr. Grant  1 He's one get in down.  2  3 Before he was able to do that, did the others  4 of the fighters try to get the warriors down?  5 Or, the marten down?  They tried to but when  6 the marten bite them they let it go.  7  8 And I have -- I will, as I say, I will give you a  9 supplementary page or corrected page on that, my lord,  10 because what he does -- and what is not included in  11 here is David Gunanoot then goes on to explain how he  12 got the crest that he -- in his evidence he explained  13 how he got the crest up on that territory that he  14 is -- that is described by Dr. Daly as referred to at  15 the Burns Lake feast.  So in David Gunanoot's own  16 commission evidence he described the acquisition of  17 that crest up in the northern territory.  And I will  18 put that -- I'll insert that and provide supplementary  19 pages.  2 0 THE COURT:  All right.  21 MR. MACKENZIE:  My friend is saying "he", meaning Nii Kyap in  22 the adaawk; is that correct, my lord, not David  23 Gunanoot?  24 MR. GRANT:  I am saying David — I don't — the only Nii Kyap  25 that gave evidence in this chase, my lord -- no,  26 that's not true.  Jerry Gunanoot also gave evidence  27 because David had died.  Nii Kyap, David Gunanoot's  28 evidence --  2 9 THE COURT:  Nii Kyap.  30 MR. GRANT:  Yeah.  David Gunanoot, Nii Kyap, gave evidence of  31 his adaawk and that's what I put in there --  32 THE COURT:  All right.  33 MR. GRANT:  --instead of -- but it hasn't been completely put  34 in.  35 MR. MACKENZIE:  I'm sorry, my lord.  What I meant to say was the  36 person who got the crest, I take it, is the Nii Kyap  37 in the adaawk and not David Gunanoot.  I think that --  38 is that clear or have I misunderstood my friend?  39 THE COURT:  I think so.  That crest was obtained —  40 MR. GRANT:  David Gunanoot was quite old, my lord, but he  41 certainly wasn't as old as that crest.  42 THE COURT:  Yes.  43 MR. GRANT:  But he was the holder of that crest at the time of  44 the Burns Lake feast.  45 THE COURT:  But I thought Suuwiigus was a hero.  46 MR. GRANT:  He was from Gyologyet's.  47 THE COURT:  From Gyologyet's House. 25225  Submissions by Mr. Grant  1  MR.  GRANT  2  THE  COURT  3  MR.  GRANT  4  5  THE  COURT  6  MR.  GRANT  7  8  9  10  11  12  13  THE  COURT  14  15  MR.  GRANT  16  17  THE  COURT  18  MR.  GRANT  19  20  21  22  23  24  THE  COURT  25  26  27  28  29  MR.  GRANT  30  31  THE  COURT  32  33  MR.  GRANT  34  35  36  37  THE  COURT  38  39  40  MR.  GRANT  41  THE  COURT  42  MR.  GRANT  43  44  45  46  47  Yeah.  And I want to go back because --  Are Gyologyet and Nii Kyap from the same clan?  No -- wait.  Too late to ask me questions like that,  my lord.  All right.  Well I think -- are they --  Yes.  But what this particular crest -- what David  Gunanoot was talking about, he was talking -- he --  Nii Kyap was involved in the war, the Suuwiigus wars  as well as Gyologyet.  When I made reference to  Suuwiigus I wasn't suggesting it's the same House.  But Nii Kyap was talking here about how he acquired  certain of the crests during that war up in the north.  All right.  Have you finished down to the new  section on page 215?  If you've read it all, that's what you said to me  last time, then maybe I have, my lord.  Yes.  In any event, I think what I have -- what I'm  demonstrating here is the exercise of authority over  his territory by Nii Kyap in this situation includes  the use of his crests, the knowledge of his House  members, and the knowledge of his adaawk to establish  that he owns that territory.  Well, I don't know what settlement you are talking  about now.  Are you talking about Bear Lake or Burns  Lake?  Because I didn't understand there was any  settlement came out of either of those high-level  conferences.  No.  What I'm talking about is the authority of Nii  Kyap includes the authority to demonstrate his crest.  To use his crest in the course of his negotiations  or settlements?  It's not negotiations.  It's an establishment of his  ownership.  It's bringing his deed.  It's like me  bringing my property title to your lordship to say,  "Get this guy off my land."  That's what he is doing.  So what you are saying is that he showed his  authority to use his crests at his ex cathedra  pronouncement at which conference?  Burns Lake.  Burns like.  This is at the Burns Lake meeting.  And the other  point which we will come back to when I deal with  territories, my lord -- I would like to close off with  this though now -- is that my friends -- I know there  was much made of that territory up in the northeast of  Nii Kyap at Thutade in cross-examination of Mr. 25226  Submissions by Mr. Grant  1 Sterritt.  But there is no evidence, my lord, that  2 that was ever anything but Nii Kyap's territory.  3 There is evidence that Mr. Sterritt took it off the  4 map, off one version of the map, that's for sure.  But  5 that's not saying it was not Nii Kyap's territory and  6 that's the position we take regarding that.  7 THE COURT:  All right.  I think we will adjourn then and we are  8 going to reconvene at nine o'clock tomorrow morning.  9 THE REGISTRAR:  Order in court.  Court stands adjourned until  10 nine o'clock tomorrow morning.  11  12 (PROCEEDINGS ADJOURNED AT 9:10 P.M.)  13  14 I hereby certify the foregoing to be  15 a true and accurate transcript of the  16 proceedings herein transcribed to the  17 best of my skill and ability.  18  19  20  21  22 Toni Kerekes, O.R.  23 United Reporting Service Ltd.  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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