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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-06-30] British Columbia. Supreme Court Jun 30, 1990

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 29337  Submissions by Mr. Grant  1 JUNE 30, 1990  2 VANCOUVER, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, Saturday, this 30th day of June, 1990.  6 Delgamuukw versus Her Majesty the Queen at bar, my  7 lord.  8 THE COURT:  Miss Thompson, I never thought you would say that.  9 Mr. Grant.  10 MR. GRANT: Good morning —  11 THE COURT:  Chief Justice Davis used to object to counsel saying  12 good morning.  Not that he was unfavorably disposed to  13 such pleasantries, but he thought they were  14 irrelevant.  15 THE COURT:  Mr. Grant.  Where were you —  16 MR. GRANT:  I believe I had Miss Thompson put an insert into the  17 material, and I think I am on page 10 of Section 6.  18 THE COURT:  Page 10.  Yes, thank you.  19 MR. GRANT:  Which I basically reiterate in paragraph 15 the  20 plaintiffs' position of the ownership of specific  21 territories.  22 I would like to go to page 11 now, my lord.  And I  23 may say, my lord, that I am not, of course, going to  24 read seriatim through this, but it's not to suggest  25 that what I don't read I don't ask that your lordship  26 look at.  I adopt the entire argument of course.  27 MR. PLANT:  And in that respect I haven't seen — with the  28 exception of the five or six pages that my friend's  29 about to start with, the balance of what my friend's  30 going to speak to this morning, which is about three  31 inches of material, I haven't had a chance to see, so  32 there may be some reservation of rights or objections  33 there.  34 THE COURT:  Yes, all right.  Well, I dare say I will hear from  35 you when the occasion requires it.  36 MR. GRANT:  I hope it requires it rarely, so we can get through  37 this.  38 My lord, the provincial defendants in paragraph 17  39 suggest that if the aboriginal title or ownership of  40 the territory is held communally, "then it is  41 necessary to identify the community in which title  42 could vest".  Mr. Plant went so far to say that the  43 group "must be identifiable as of the date that  44 sovereignty was asserted and if the claim is to  45 continue in title then the group must be identifiable  46 today".  47 By a comparison of certain names provided in the 2933?  Submissions by Mr. Grant  1 early historical record, and I am here referring, my  2 lord, to Niikyap, Gwoimt and Tsabux that William Brown  3 referred to, the name set out in the oral histories,  4 an example is Yal, Y-A-L, who is referred to in the  5 Kispiox history that Mr. Johnson gave.  6 The genealogical evidence and the extensive  7 evidence of the plaintiffs' themselves as to their  8 predecessors, there is overwhelming evidence in this  9 case that those persons who claim aboriginal title  10 today as Gitksan and Wet'suwet'en Houses are  11 descendants of former Gitksan and Wet'suwet'en who  12 held title to the territory and exercised jurisdiction  13 at the time sovereignty was asserted.  14 And I may say as an aside here, my lord, and a  15 reference to it later in the argument, Dr. Robinson,  16 the defendant's principal witness on these issues, had  17 no comment on that.  She did not know.  18 Now, Supreme Court of Canada in Simon held that a  19 person who is a member of a band occupying traditional  20 territory shall be deemed to be a descendant.  21 The provincial defendant has endeavoured to  22 distinguish that case on the basis that it was a  23 treaty hunting right rather than an aboriginal right  24 to ownership over territory, which was the issue in  25 the case.  26 With respect, my lord, that makes no difference.  27 In this case there's been extensive evidence  28 demonstrating that, on the balance of probabilities,  29 the plaintiffs' houses are the proper successors to  30 the communal rights of ownership to the territory.  31 Now, your lordship raised a question of how to  32 deal with differences between the description of  33 members in the interrogatories as opposed to  34 genealogical evidence.  The membership lists in the  35 interrogatories were prepared prior to the completion  36 of the genealogical research.  Each Gitksan and  37 Wet'suwet'en plaintiff who gave direct evidence  38 identified the geneaology as representing the members  39 of their houses.  They were subject to  40 cross-examination on the geneaologies, and the  41 contrasts between genealogical evidence and  42 interrogatories was often put to them and explained by  43 them.  44 And I refer there to the evidence also of Miss  45 Harris on that point.  She was cross-examined on those  46 distinctions as well as witnesses.  47 Now, I refer you to dealing with the process of 29339  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR.  THE  MR.  THE  MR.  MR.  GRANT  COURT  GRANT  COURT  PLANT  GRANT  Miss Harris's work, and I just want to -- paragraph 22  refers to Section 7A, that's at Tab 2 of this binder,  pages 4 and 5, and Section F, which is at Tab 6 of  this binder, pages 28 and 29, where Miss Harris's  research methodology is considered.  Now, what's interesting here, my lord, is the  provincial defendant looked to the Bear Island  decision in support of their proposition that there  must be racial integrity.  And Mr. Plant in his  argument initially referred to Bear Island, and then  stopped reading the reference.  Well, the Court in  Bear Island rejected the argument that the registered  Indian band must bring the action.  In fact, the Court  stated:  "And yet there is a group recognized by the  native society as being aboriginal, there must  be a remedy and a means of asserting those  rights ...  In my opinion to be entitled to share in  aboriginal rights, a person must be recognized  by a Band as an Indian but need not be a  registered Indian as defined in the Act."  In other words, the Court in Bear Island rejected  "racial integrity" as a foundation for a determination  of rights.  The basis for the determination of rights  is that "a person must be recognized by a Band as an  Indian".  In other words, the aboriginal group must  have its own internal method of recognizing  membership.  Furthermore --  :  Of course that gives aboriginal rights to anyone the  band choses to admit into its group, doesn't it?  Well, theoretically, yes.  You are a member of the house --  Well, that was described as an honourific, my lord.  We'll leave you out of it.  Please don't.  I'm sure Mr. Plant was waiting for that.  No, but  the point of it is when you look at it, and my friend  makes much -- and out of some level of discretion, not  referring to me, but to Miss Harris herself, and I  point to that.  He says well, Miss Harris who was not  born Gitksan, not Gitksan by blood, but let us look at  the rules within the society.  Why is Miss Harris  adopted?  She's adopted because of her children.  Now, 29340  Submissions by Mr. Grant  1  2  3  4  5  6  7  THE  COURT  8  9  10  11  12  MR.  GRANT  13  THE  COURT  14  MR.  GRANT  15  THE  COURT  16  17  18  19  MR.  GRANT  20  THE  COURT  21  22  MR.  GRANT  23  24  25  26  THE  COURT  27  28  29  MR.  GRANT  30  31  32  33  THE  COURT  34  MR.  GRANT  35  THE  COURT  36  37  38  39  MR.  GRANT  40  41  42  43  44  45  46  47  my friend conceded that a half-blood, because of the  Metis definition would be Gitksan.  The rights that  they are Gitksan are concerned with in adopting Miss  Harris or Art Mathews' wife, who is a Tsimshian, the  rights they are concerned with is the children, and  those children are members.  Well, that avoids the question now.  Let's take an  unusual case that Miss Harris is alleged to have  breached some regulation, and she wants to defend it  on the ground that she is exercising aboriginal right.  She's not a Gitksan person.  By birth.  By birth or by blood.  Right.  And you say that by adoption she acquires the  defence of aboriginal right that isn't available to  any other occupant of the province in the same class  or status as herself, not having been adopted.  Well —  It seems to me that it isn't necessary to protect  the issue, her issue to give her aboriginal rights.  I mean -- this is a dilemna that whatever way you  look at membership, you face this, because my friend's  raise the question of membership under the Indian  Act —  It doesn't arise if you grant aboriginal rights to  people, to nations, to identifiable social  organizations.  Well, that's right.  It's a communal or a collective  right, and that's the question, is that the communal  organization has to have some ability to determine its  membership.  But --  I don't think anyone questions that.  Right.  Simply a question of who is entitled to the  aboriginal rights claimed in this action, and your  friends have pointed out what amounts to a relatively  miniscule exception to the rule of logic.  And what they do, though, they go from that to  another option, and they say, "Well, you should go to  the Indian band", and of course that's equally  felicitous because of the 12(1)(B) provisions in which  non-Indian women marrying Indian men were deemed to be  members of the band, and in fact later in their  argument I refer to it, they go directly to that, they  say that's how you define it.  There is a dilemna.  And on page 14 I refer directly to what Mr. Plant 29341  Submissions by Mr. Grant  1 conceded when asked this question by the court,  2 because he says the question comes where the line has  3 to be drawn between half-blood and no blood.  So let  4 us put Miss Harris's situation.  So we have her  5 children who are half Gitksan by blood recognized  6 within the system, and then one of them marries a  7 non-Indian, and that's a -- the question is, as  8 Justice Steel found, my lord, is that the only way --  9 and Justice Steel was quite clear that it's not an  10 easy -- it's not necessarily easy to determine the  11 membership, but the person must be recognized by the  12 community as a member for sure.  13 Now, it may well be that Miss Harris's situation  14 is closer to that of myself of an honorific rather  15 than --  16 MR. PLANT:  That's not her contention though —  17 MR. GRANT:  For the purposes of the recognition of the  18 collective right, not for the purposes of her role  19 within the feast.  But what I say is that racial  20 integrity can't be the foundation.  And that's wholly  21 what the Court rejected in Simon, where of course it  22 was dealing with many more hundreds of years of  23 inter-connection between Indian and white people in  24 the case of the Micmac.  25 What's interesting, my lord, is that Mr. Plant  26 combined the reference to Miss Harris -- I am on page  27 14, paragraph 28 -- who is not Gitksan by birth,  28 having been adopted into a house, and the proposition  29 that a woman from outside a house may be adopted into  30 a house for the purpose of re-populating the house  31 through her descendants.  32 Now, what I say my friend conveniently ignores is  33 the extensive evidence of Miss Harris I cited and lay  34 witnesses, and as shown on the geneaologies as well,  35 that in almost every case of adoption of a woman into  36 a house for re-population, that woman would be from a  37 chiefly lineage and would be a Gitksan person by  38 blood.  39 And the obvious example is Mrs. Lottie Muldoe, the  4 0 mother of the former and present Delgamuukw, who  41 herself was from a chiefly lineage.  42 THE COURT:  I must say I would be more comfortable if I were to  43 deal not with status, but rather with lifestyle.  Mrs.  44 Lottie Muldoe has lived an aboriginal life in the  45 broadest terms.  Perhaps Miss Harris has too.  I'm not  46 sure I can say the same about you Mr. Grant.  47 MR. GRANT: The last three years you know where I have been. 29342  Submissions by Mr. Grant  1  THE  COURT  2  3  4  5  MR.  GRANT  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  34  MR.  GRANT  35  THE  COURT  36  MR.  GRANT  37  THE  COURT  38  MR.  PLANT  39  40  THE  COURT  41  MR.  PLANT  42  43  THE  COURT  44  MR.  GRANT  45  46  47  :  It seems to me -- I think you should carry on.  I'm  not sure this is an important enough question.  We all  know the difficulties that arise from this area, and  it will have to be a matter of some accommodation.  :  That's right.  And I think just to point that out,  is what if we have an elder today who because of  marriage 70 years ago and even earlier than that,  maybe a quarter of Gitksan by blood, but has lived  within the community been Gitksan or Wet'suwet'en.  I  don't think there is not even a challenge by the  defendants that that person would be recognized as  Gitksan or Wet'suwet'en.  Now, the plaintiffs adopt the proposition that you  suggested.  I'm on page 15, my lord.  That if there  was a house occupying an area at a time when  sovereignty was claimed in a social organization, and:  "If there is a house today still connected with  that land, some of the members of whom were  descended from the original group and some were  not, why could not those who are descendants  not claim the aboriginal right and enjoy it  according to their society, which might mean  sharing with some who were not members at the  time of the claim for sovereignty?"  And that was a question you raised.  And we say  that that is a correct formulation, and we say that  they should be able to share with persons who are not  members at the time of the claim for sovereignty.  :  I would rather have the view that anyone can claim  aboriginal rights and succeed in that endeavour is  entitled to share with whoever he wishes.  Yes.  I would think they could, but I'm not sure yet.  Well, that's our position as well, my lord.  All right.  Just to observe the difference between sharing and  alienation.  Yes.  Is going to be a problem for your lordship, sorting  out where that proposition falls.  Yes.  Now, in the plaintiffs' submission, and I'm at 32,  this is a full answer to the argument of the defendant  that racial integrity and shared ethnicity must be  proven for all members. 29343  Submissions by Mr. Grant  1 Now, I respond in paragraph 33 to 34 to a  2 mischaracterization of Mr. Brody's evidence, and I am  3 not going to read that.  4 Also mischaracterization in 35 of Miss Harris's  5 evidence.  6 Now, I would like to go to page 17, paragraph 40  7 or 39, my lord.  In summary, my lord, the house groups  8 are the fundamental unit of social organization for  9 the Gitksan and the Wet'suwet'en.  A house may have  10 more than one lineage, but this does not lessen its  11 significance as a social unit.  All Gitksan and  12 Wet'suwet'en belong to a house.  All houses, except  13 the Kitwancool, are represented in this action.  14 In summary, the plaintiffs know who they are and  15 have proven who they are to this court.  The named  16 houses in the final Amended Statement of Claim are  17 clear and depict the houses of the Gitksan and  18 Wet'suet'en, which together have the aboriginal title,  19 ownership of the jurisdiction over all of the Gitksan  20 and the Wet'suwet'en territory which is the subject of  21 the action.  And that, I say, answers the question of  22 the proper parties.  23 I would like to go now to Section VII, which is a  24 reply to the defendants' argument on admissibility and  25 weight of the plaintiffs' evidence.  And what I have  26 done, my lord, there is an index, but Tab 1 is Section  27 A of this, and it goes through to Tab 8, and then  28 there is a source that I will come to, which is the  29 last part of the binder.  30 My lord, the provincial defendant has argued that  31 oral evidence of historical matters is inadmissible.  32 The first issue is reputation evidence, and they  33 argued that this case is distinguished from the Bear  34 Island decision, and I set out what they say, and I  35 refer your lordship to the Sparrow decision at which,  36 of course, Ms. Mandell spoke to yesterday.  37 Going to page 2 at the end of the first paragraph  38 I say:  Oral history is important in determining the  39 context of the plaintiffs' aboriginal rights.  As the  40 Supreme Court of Canada stated in Sparrow, the  41 interpretation if those aboriginal rights must be  42 flexible "so as to permit their evolution over time".  43 This necessitates the hearing of oral histories and  44 satisfies Wigmore's first test of necessity.  45 Now, I refer you then to the question of the  4 6 honour of the Crown which the Supreme Court of Canada  47 referred to in Sparrow, and I have quoted that on page 29344  Submissions by Mr. Grant  1 3, and I know that that's been referred to you, and I  2 won't restate it, but it's in that context that you  3 should consider this argument.  4 Now, I refer you then to the question of paragraph  5 3 in Simon on page 4, my lord.  The province asks the  6 Court to distinguish between the Supreme Court of  7 Canada decision in Simon and the case at bar on the  8 basis that:  9  10 "Considerations which apply to cases where an  11 accused raises a treaty right in his defence do  12 not apply to cases where ownership and  13 jurisdiction over some 22,000 square miles of  14 British Columbia are an issue."  15  16 In Simon, the Supreme Court was concerned that the  17 aboriginal right of the appellant, and other Micmac  18 Indians, to hunt as recognized by the treaty should  19 not be rendered negatory because of an impossible  20 burden of proof.  The province argues for an  21 impossible burden.  Here, and I dare say so does the  22 federal argument when someone analyzes their argument,  23 which seems somewhat less strenuous, but has the same  24 effect.  The provincial defendants suggest that the  25 aboriginal rights of the plaintiffs to their territory  26 should be rendered negatory by the imposition of an  27 impossible burden of proof of their oral history.  The  28 principles of Simon have equal application to this  29 case.  And of course they were recognized as having  30 had application in Sioui.  Then refer you to the  31 overwhelming evidence not only of the oral history,  32 the descent of chiefly names and houses and  33 genealogical evidence, of continuity with the Gitksan  34 and Wet'suwet'en ancestors.  35 Now, on paragraph 5, my lord, the provincial  36 defendant raised an ancillary argument with respect to  37 the reputation evidence which was argued by Mr.  38 Mackenzie on the basis of a summary of argument  39 delivered after the completion of the plaintiffs'  40 argument.  It is respectfully submitted that the test  41 and the application of the law with respect to the  42 reputation evidence of territory is accurately set out  43 in the plaintiffs' argument.  And I have given you the  44 reference that's in the last volume of our argument,  45 but Mr. Mackenzie in his oral argument conceded that  46 he was suggesting an extension of the principles of  47 Phipson and with Wigmore, and that the declaration 29345  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR. GRANT  THE COURT  MR. GRANT  must be made before the controversy arise.  MACKENZIE:  I have to say that's an improper  characterization of the argument at that point.  Well, I have given the citation, my lord.  I'll put a question mark on it.  You can look at it.  I stand by what I say.  I  looked at it too.  The provincial defendant relies on the Berkeley  Peerage case which states:  "The declaration to be receivable in evidence,  as I have always understood ... must have been  the natural effusions of the mind of the party  making them, and must have been made on  occasion when his mind stood in an even  position, without any temptation to exceed or  fall short of the truth."  I think that's an important principle that you  have to juxtapose with the reality that my friend then  goes on to argue.  Mr. Mackenzie argued that Moses Stevens, while  travelling on the territory of Gwininitxw, this would  be up in the Blackwater area, and raising his  grandsons on this territory, did not have his mind in  an even position.  You can you take out "stood".  THE COURT:  Yes.  MR. GRANT:  How preposterous, my lord, to suggest that Moses  Stevens would be describing the boundaries of the  territory to his grandson in the mid-1920's when he  was way out on the territory in anticipation that 65  years later his grandson would be using that knowledge  against the federal or provincial government's denial  of aboriginal rights of the Gitksan chiefs.  My lord, I say this is not only a novel, but an  incredible attempt to apply an evidentiary test  considered appropriate when a peer, presumed to know  the English legal system, made a declaration which  would effect the legal rights of his son, to the  situation of a Gitksan chief travelling on a territory  and teaching his grandson the boundaries of that  territory.  And I say it should be rejected.  The only effect of your recognition of this novel  approach to the evidentiary principle of reputation  would be to deny aboriginal peoples the right to bring  forward reputation evidence.  The principle upon which  the denial would be made is that the provincial 29346  Submissions by Mr. Grant  1 defendant acknowledged the federal defendant have  2 denied the aboriginal rights to them, and refused to  3 recognize those aboriginal rights.  With all due  4 respect, this is completely contrary to the principles  5 set out in Sparrow, which held the Court should make  6 every effort to uphold the honour of the Crown.  7 Now, the federal government has mounted a somewhat  8 different argument on the basis of reputation  9 evidence, and it's set out in Tab 11.  I do not, from  10 my recollection, believe they spoke to it.  That's Tab  11 11 of their argument, my lord.  12 They have focused on the fact there is no  13 necessity of evidence of oral history or reputation  14 with respect to territory because of the written  15 record.  16 Now, my lord, you have heard scholars who have  17 analyzed extensive written records.  It is obvious  18 that written records cannot be taken at face value in  19 all cases.  This is particularly true when those  20 written records relate to aboriginal peoples in  21 British Columbia which, in the early stages of the  22 colony, were considered a potential threat because of  23 their large numbers in comparison to white settlers.  24 Now, the Federal Crown then goes on to suggest  25 that -- that should be "reputation", not  26 "recognition", my lord -- is questionable for a number  27 of reasons.  And I have listed those reasons 1 to 5.  28 Firstly I'll go to to paragraph 11.  29 With respect to the non-recitation of boundaries  30 within the feast hall, there was extensive evidence  31 that the description of the boundaries is taught to  32 members of the house and wilnat'ahl and clan.  33 Wilnat'ahl for the Gitksan and clan for Wet'suwet'en.  34 And here I would just refer you, for example, my lord,  35 to the evidence of Art Mathews, Pete Muldoe, Alfred  36 Joseph and Alfred Mitchell.  37 It was explained that there were trained  38 specialists in the boundaries, and many women  39 travelled on their husband's territory.  And this is  4 0 obviously why Moses Stevens, former Dawamuxw, who was  41 knowledgeable about the Gwininitxw territory, because  42 he was the person working that territory for his  43 wife's family.  44 Now, the federal defendant in challenging the  45 extensive knowledge of Alfred Joseph and Stanley  46 Williams, this is the second arm of their position or  47 the third position, because they were involved in land 29347  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. PLANT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  claims processes, refuses to accept the fact that  these persons were very knowledgeable about the  territorial boundaries and subjected to extensive  cross-examination.  Now, my lord, I may say this knowledge clearly  pre-dated this litigation.  Stanley Williams didn't  start going out on the territories in 1984 or even in  1975, but much earlier, as did the others.  Furthermore, my lord, the federal defendant does  not allude to the over 65 affidavit witnesses who also  attested to the territorial boundaries in this part of  their argument.  Many of these persons were clearly  not directly involved with the tribal council or in  any form of the "land claims research".  For the  validity of the witnesses evidence to depend on his  involvement and concern with his own people, is to set  up an arbitrary test for aboriginal people which would  never, my lord, in my submission, apply to any other  litigant.  We have already dealt with the mapping that my  friends challenge, and I refer to that in paragraph 14  and 15.  Now, my lord, the federal government does not  refer to the most illustrative way of describing the  territorial boundaries.  The court and representatives  of all parties had an opportunity of seeing how the  chiefs, when they were on the land, could accurately  depict and show the boundaries of their territories.  Of course, for the Gitksan and the Wet'suwet'en, the  true test of knowledge of territories is not whether  one can map the territory, but whether one can show a  person the boundaries and describe to a person where  they can and cannot go on the territory.  We say the  plaintiffs have overwhelmingly demonstrated that they  can show this test on the ground.  Is that a view, my lord?  That is with reference to the viewing.  Its only  observation of what they appear to know.  It's not  proof of the specific boundaries or what they said,  but you had an opportunity of seeing that.  But I only had that demonstrated if it was  admissible at all by, I think, five chiefs.  Yes, that only by -- that's right, in the course of  that time.  I think your friends' murmurings indicate their  understanding that what was said on the view is not  evidence. 29348  Submissions by Mr. Grant  1  MR.  GRANT  2  3  4  5  6  MR.  PLANT  7  8  MR.  GRANT  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  34  MR.  GRANT  35  THE  COURT  36  MR.  GRANT  37  38  39  40  41  THE  COURT  42  43  MR.  GRANT  44  THE  COURT  45  46  MR.  GRANT  47  What was said in the specifics was not evidence, but  you saw the land, and you heard people describe the  land and express knowledge of it.  It's not a question  of the detail of that knowledge, but you observe the  people as well as the land is all I am saying.  My friend's drawing a distinction which I am unable  to perceive and which I object to.  I am not going to spend more time on it, my lord.  Although appearing to be more moderate than the  provincial defendant in their argument, at paragraph  18 the federal defendant -- the result of the federal  argument is that reputation evidence cannot be  utilized to prove use of a territory.  The second arm  of the federal argument on this point is that the  plaintiffs must prove continued use of a territory.  Therefore, even if the plaintiffs cannot prove the use  of the territory, say, between 1940 and 1960, on the  argument of the federal defendant, the plaintiffs or  that house group would lose because the rights of that  territory would be extinguished or deemed, that should  be deemed, to have been abandoned.  Therefore their  argument on admissibility of reputation evidence  effectively leads to a denial of proof of the rights  on the test that they establish.  Now, this attempt to  use evidentiary rules to exclude evidence and thereby  deny the claims of aboriginal groups before the Court  on that basis is exactly what the Supreme Court of  Canada has rejected in Simon.  In summary on this point, my lord, the plaintiffs  submit that this --  Surely that's an overly generalized statement.  In  Simon you had a written document, and you had present  day conducts that you could compare the two.  Well, of course, in Simon --  Surely Simon goes no further than that.  The point in Simon, my lord, of course, was yes  there was -- the treaty question, but the point in  Simon that I am referring to is the acceptance of the  geneaology.  The Court in Simon said that they made  that —  They made an assumption that a member of a band now  is a descendant of one of the contracting parties.  And the reason --  That doesn't get you anywhere beyond the  genealogical problem.  But, my lord, the reason they made that assumption  is they said if you do not do that, then the rights 29349  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  protected, as treaty rights, are gone because there  cannot be proof, evidentiary proof.  Now what we say  is there is reputation evidence, and we have argued  that and it is valid, but my friend focuses,  particularly Mr. Mackenzie, on the province's side on  the Berkley Peerage case, but I think there should be  no shying away from the impact of this argument, which  is not merely an evidentiary argument, and when you  combine the two arms of the federal argument they say  the same thing, is it's a denial of the rights on the  basis of this evidentiary principle.  And when you  look at the evidentiary principle they are trying to  establish, I say it's novel, because, as I say,  because applying, for example, Berkley Peerage, which  is totally different on the facts to Moses Stevens, it  just doesn't fit.  THE COURT:  While we are on the question of geneaology, and  before you go somewhere else, have you been able to  locate any evidence of numbers, population numbers of  Gitksan and Wet'suwet'en?  I asked for it, and I have  forgotten about it.  MR. GRANT:  You asked for it, and I didn't forget about it, and  I discussed -- Mr. Rush and I have discussed it, and I  am trying locate that.  I have not located it.  As I  recall, it was in the range -- Gitksan and  Wet'suwet'en together was 8,000, and I think it was in  either Mr. Sterritt's evidence or in documents  tendered during his evidence.  Was there a breakdown of the -- between the Gitskan  and Wet'suwet'en?  I thought there was seven and there  was four and three.  There was a breakdown, as I recall, and I am going  to -- I will endeavour to respond to you before the  end of the day on that.  All right.  Thank you.  Perhaps Ms. Sigurdson has it  in her computer.  GRANT:  I'm afraid it might be in a document,  PLANT:  I can give your lordship a couple of references, if  you are wanting to make a note.  COURT:  Yes, I do.  PLANT:  This is from page 8369 of the transcript, Volume  135?  COURT:  Yes.  GRANT:  And it's around there that Mr. Sterritt estimates  the population of both Gitksan and Wet'suwet'en, that  is the collective population at 5,000, but says that  he thinks it's larger.  I don't have the line  THE COURT  MR. GRANT  THE COURT  MR.  MR.  THE  MR.  THE  MR. 29350  Submissions by Mr. Grant  1 reference for that.  2 Another reference is from transcript 174, page  3 11078.  This is Mr. Goldie's cross-examination of  4 Heather Harris, and during that cross-examination  5 there is a reference to Ralph Michell's estimate of  6 the population of the Gitksan-Carrier Tribal Council  7 and membership as 4,500.  And she, Miss Harris, was  8 asked, and of course she is the expert on this subject  9 for the Gitksan, whether she had counted up the  10 number, and she said she had not.  Those are the only  11 references.  And her answer is on that same page.  12 THE COURT:  All right.  Thank you.  If you can find something  13 else, Mr. Grant, I will be obliged.  14 MR. GRANT:  Thank you, my lord.  15 Now, I want to complete this section and say that  16 in summary we submit the Court should reject the  17 restrictive scope of reputation evidence as argued by  18 the federal and provincial defendants.  We say, my  19 lord, that you should recognize these arguments as  20 novel, arguments which have a specific focus of  21 denying ability of aboriginal peoples to prove the  22 claim to aboriginal rights.  The acceptance of such a  23 restriction on the admissibilty of evidence by a  24 narrow view of reputation evidence has been rejected  25 by this court -- I'm sorry, by the court in  26 Milirripum, and I said with respect to geneaologies at  27 least the Supreme Court in Simon.  To accede to the  28 argument of the federal and provincial Crown would be  29 to dishonour the Crown by allowing them to argue  30 defacto extinguishment by reliance on evidentiary  31 rules with respect to reputation.  Neither Justice  32 Blackburn nor other judges since Milirripum have  33 accepted this approach with respect to aboriginal  34 title cases .  35 Section B deals with identity, geneaology and  36 descent, my lord, and I refer in the first two  37 paragraphs to the provincial argument and the  38 reference to Simadeeks and the Eagles, and I recommend  39 them to you, but I am not going to read them.  40 As your lordship pointed out during the  41 defendants' argument, many witnesses describe  42 amalgamation and splitting of houses.  The merging and  43 separation of houses to maintain the system is  44 consistent with the Gitksan and Wet'suwet'en system,  45 and does not prevent the houses from bringing an  46 action in this court.  47 MR. PLANT:  And, my lord, your lordship will recall that Mr. 29351  Submissions by Mr. Grant  1 Grant did speak at considerable length about this in  2 his final argument.  I don't have the reference now,  3 but some of this appears to me just to be re-argument.  4 MR. GRANT:  Well, I will respond to the provincial argument,  5 Section IV, sub 2, my lord, and to specific comments  6 made by your lordship during the provincial argument.  7 As I say, in response to the Provincial Argument that  8 the evidence of House membership is "uncertain and  9 incomplete", Ms. Harris described in her opinion  10 report the methodology which she employed.  And I  11 refer to the principle proposition of Mr. Plant, and I  12 have already explained that in some sense, so I am not  13 going to go back to that.  14 Now, on paragraph 6 the province alleges that the  15 historic evidence shows that there weren't any house,  16 meaning house groups at the time of contact, and  17 therefore such groups cannot have had ownership and  18 jurisdiction.  19 They allege that Brown and Professor Ray both used  20 house lineage and family interchangeably, as well as  21 tribe and band.  It omits to mention that Professor  22 Ray was reminded on re-examination that Brown used the  23 terms clan on one occasion.  24 While it is true that Brown did not undertake an  25 anthropological study of Gitksan or Wet'suwet'en, and  26 used various terms to describe their kinship  27 groupings, the plaintiffs' submit that Brown's records  28 and Professor Ray's evidence make it quite clear that  29 the unit of ownership and jurisdiction was an extended  30 family kinship group which other evidence identifies  31 as the house headed by a chief, and that there were  32 also larger kin groups which other evidence identifies  33 as the clan.  There is simply no basis on our argument  34 for the province's attempt to turn Brown  35 terminological inexactitude into an absence of  36 evidence of the existence of houses.  37 My lord, there is an issue that you raised by  38 house references, and I am going to come back to that,  39 and I'll come to that in a few moments.  40 Now, I go onto page 4, my lord.  Mr. Plant makes a  41 point about if you add up collectively the tops of all  42 the pyramids, this is for the geneaologies for the  43 mid-19th century, you get a very small group of  44 people.  We say this does not suggest all of the  45 houses are descended from a group of nuclear families.  46 The suggestion is nonsensical in our submission.  In  47 fact, it demonstrates that the genealogical research 29352  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. PLANT  MR. GRANT  MR. PLANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  and the process of analyzing geneaologies both in the  past and through the youngest generations is an  ongoing process.  The geneaologies demonstrated the  systems of social organization through the descendancy  of chiefly names.  They were never intended to prove  all members of houses going back several thousand  years.  This would obviously be impossible.  However,  they do show descendancy of chiefly names.  As one  goes further back, and it is more difficult to  determine all members, it is apparent that the  geneaologies focus on the names of the high chiefs.  Now, Miss Harris explained her research  methodology, and I am not going to refer -- read that,  but I ask you to refer to that, and also in the  context of the challenge to experts that my friend  makes.  That's paragraphs 8 and 9.  And 10 I respond  to the computer assistance analysis argument of my  friends, and I would like to go over to paragraph 12.  Well, I have to just make one comment.  The bottom  of page 4 I don't understand the reference to the line  or the reference there, the suggestion which must have  been my suggestion.  If that was my suggestion, I  retract it, because it's clearly clear that Miss  Harris never at any time had a clear and precise list  of what houses existed.  The citation is there.  I say she did not.  That's what this says, doesn't it?  That's what it says.  My friend said he didn't  suggest that she did, and I put a reference in there,  and if my friend says that's not what he meant, then  that's fine.  The problem is with the contrary, yes.  Thank you.  There is no need to spend time on that point, if my  friend is correct in it.  Paragraph 12.  The province  argues that the genealogical charts are rife with  obvious error.  Of course the provincial defendant  does not take the Court through each and every error.  It is obvious that the types of errors that she  referred to included no dot in the figure to represent  a person has died.  In some cases no slash to show a  person has been adopted.  Different last names  signifying a woman who has changed her name after  marriage.  For example, on her house she might be with  her maiden name, and in her husband's house she may  have his name.  Persons not being shown as married but  their children being shown in any event.  And former 29353  Submissions by Mr. Grant  1 holders of chiefly names have not been connected to  2 the geneaology.  All of these first four points are  3 minor, but the last point my friends make much of.  4 The province endeavors to make a broad statement based  5 on Miss Harris's statement there was no systematic  6 reason for it.  Miss Harris was not there referring to  7 inclusion or exclusion of pieces of information  8 generally, but had to make an inference from the  9 thousands of pieces of data which she had gathered as  10 to which genealogy a particular person should be  11 represented on.  This was particularly difficult where  12 she could not connect these persons to part of the  13 lineage.  It was demonstrative of the ongoing process  14 of research with respect to the geneaologies.  15 And I am going to -- and the reference to that  16 point, my lord, is in the province's argument at 42,  17 and they have cited the reference that should be  18 there.  I'll get that for your lordship to note.  19 Careful review of her methodology, Miss Harris's  20 methodology, demonstrates she was very systematic in  21 her interview methods, collection and accumulation of  22 data by house groups and organization of data, the  23 meticulous development of draft geneaologies and the  24 accumulation of further information on them.  The  25 decision to put persons on a genealogical chart after  26 the accumulation of a certain amount of data.  The  27 method of accurately showing that persons were not  28 connected to a lineage where she could not establish  29 the lineage connection.  30 Now, the evidence on paragraph 16, my lord, the  31 evidence as to the status of amalgamation and  32 splitting of houses between the time of sovereignty  33 and today may indicate that the house groups varied.  34 However, based on genealogical, anthropological and  35 historical evidence the plaintiffs have established on  36 the balance of probabilities that the present  37 plaintiffs are the descendants of the holders of  38 territories at the time sovereignty was asserted.  In  39 other words, my lord, in 1846 the ancestors of the  40 Gitksan people were in possession of the territory  41 which is the subject matter of the Gitksan claim, and  42 the Wet'suet'en were in possession of territory  43 subject to the Wet'suwet'en claim.  And that's our  44 argument based on the evidence.  45 Now, I don't want to spend much time on this, but  46 the province makes much of four persons who took on  47 hereditary chiefs' names without being adopted.  This 29354  Submissions by Mr. Grant  1 is Thomas Clark, Edward Clark, Steve Robinson and  2 Charles Smith.  3 MR. PLANT:  And Mr. Grant spent some time with this in Smithers,  4 those four individuals in his argument.  5 MR. GRANT:  That's right.  And I cite that, my lord.  I  6 appreciate my friend anticipating my point.  We deal  7 with it at page 87 and 91 of our argument.  The reason  8 I referred to them again is because my friend comes  9 back to them in a number of different contexts, but  10 only to those ones.  11 Now, I would like to just briefly go to paragraph  12 20.  This is a question of persons -- first of all, my  13 lord, I deal with the two propositions my friend  14 relies on.  One is Solomon Marsden, and I have given  15 you the citation there on paragraph 19, where my  16 friend argues that Mr. Marsden suggested that persons  17 don't have to, for birth, don't have to be in a house,  18 or they can be Gitksan without being a member of a  19 house.  When you look at his evidence in total, and  20 Mr. Macaulay's cross-examination, he is talking about  21 Gitksan who moved to the Nass, you may recall.  Mr.  22 Morrison stated:  23  24 "We cannot say they do not belong to this house.  25 It is always their house and we are always  2 6 expecting them to come back."  27  28 Now, another big point, and the only point my  29 friends seem to be able to drive this on was a  30 response by Mr. Sterritt during cross-examination.  He  31 clearly referred to identification by Gitksan, and I  32 am quoting "by birth and build an identity within the  33 community depending on the house you are a member of,  34 or if -- you know, in my submission, become adopted  35 into a house."  Now, this goes to the point of Mr.  36 Sterritt saying that his father was a Gitksan and his  37 mother was not, and he considered himself Gitksan.  38 Now, Mr. Sterritt was describing his own peculiar  39 circumstance where he considered himself to be Gitksan  40 because he had certain rights through his father.  Of  41 course, my lord, this was very theoretical, in that  42 when he gave this evidence, Mr. Sterritt had been  43 adopted into a Gitksan house and was properly  44 considered Gitksan.  45 Now, I go back to paragraph 34, where the province  46 comes back to the example of Steve Robinson as Spookw.  47 And the point I make here is the province continues to 29355  Submissions by Mr. Grant  1 use the same example over and over again.  In this  2 case I say the reliance on one particular exception  3 demonstrates how rare such an occurrence is.  And I  4 say the Province makes a comment that the chiefs, they  5 can select chiefs whenever the chiefs can agree.   I  6 say that that is, with respect, a slur on the  7 plaintiffs and the integrity of the system that the  8 province suggests a challenge when they can agree.  9 There is extensive evidence of the methods of  10 decision-making and consensus among the Gitksan and  11 Wet'suwet'en.  Just because consensus decision-making  12 is unfamiliar to the Provincial Defendant, does not  13 justify challenging the chiefs' ability to come to  14 decisions by consensus.  15 Now, my friend then makes an argument about clan  16 membership, and I just want to comment on paragraph  17 23.  I have referred in 22 to my friend's argument.  18 Clans are larger levels of integration among the  19 Gitksan and Wet'suwet'en.  The clan is one of the  20 units of social organization.  There has been no  21 suggestion that clan membership is the central unit of  22 Gitksan and Wet'suwet'en social organization.  The  23 province continually referred to in Mrs. McKenzie's  24 initial reference to three clans and to the exclusion  25 of the Eagles.  Of course, when she was discussing the  26 systems in Kispiox or Kuldoe, she will not necessarily  27 make reference to the Eagles.  However, if she was in  28 the context of a feast on the Nass River, she would  29 describe all the Gitksan clans.  This is no different  30 than persons considering themselves Vancouverites,  31 however, if they are in England they would refer to  32 themselves as Canadian.  The identification when one  33 is in Prince George of a Vancouverite does not lessen  34 one's identification as a Canadian.  35 MR. PLANT:  I think there is one point I have to take issue  36 with, that illustrates the difficulty of reply, but in  37 paragraph 23, line seven or eight when Mr. Grant says:  38 "Of course when she was discussioning the systems in  39 Kispiox or Kuldo", I ask your lordship to find the  40 reference.  It's in the first few pages of Mrs.  41 McKenzie's evidence when she was asked about the  42 number of Gitksan clans, and there is not a whisper of  43 a suggestion that she was describing only the systems  44 in Kispiox or Kuldoe.  She was being tendered as an  45 expert in effects on the Gitksan social organization.  46 It was not at that point testifying about  47 peculiarities unique either to Kispiox or Kuldoe. 29356  Submissions by Mr. Grant  1 MR. GRANT:  Well, my friend — that's dealt with in my friend's  2 argument paragraph, and it's cited.  The reason I  3 didn't cite it is because it's cited in 4, 2,  4 paragraph 36 and thereabouts where that reference is,  5 and I leave that for your lordship.  6 THE COURT:  I suppose there is the possibility she just forgot.  7 MR. GRANT:  Yes, I think there is.  8 MR. PLANT:  And the point of my argument, my lord, was that I am  9 prepared to acknowledge her having forgotten -- I was  10 trying to give an explanation for why she might have  11 forgotten.  That was really as far as I was taking it.  12 In the adaawk it made 20 or 30 times they were  13 supposed to have referred to it --  14 MR. GRANT:  Going to the Wet'suwet'en, my lord.  This is still  15 on identity, geneaology and descent.  In response  16 to -- first of all my friend makes some suggestion  17 that the term Wet'suwet'en wasn't used before.  Well,  18 Dr. Robinson discounted the reference in Jenness to  19 "Hsitowetenne", as it's spelled there.  Madam Reporter  20 has a different spelling.  I pronounce it the same way  21 because I think that's the way it is pronounced, but  22 it was based on his research in the 1920's.  Just  23 because the spelling is different, Dr. Robinson seemed  24 to discount their identification of the Wet'suwet'en  25 as a distinctive group in this early ethnographic  26 work.  27 Now, in response to paragraph IV, 2, paragraph 40,  28 linguistic evidence tendered by the plaintiffs  29 demonstrate Babine Lake and Wet'suwet'en are very  30 close linguistically.  There is not a dispute that the  31 Wet'suwet'en and the Athabascan neighbours have  32 cultural similarities.  So do Canadians and Americans.  33 I respond on paragraph 26 to Rita George, Sophie  34 Ogen and Fred Charlie, all of which is raised by my  35 friends as to ambiguity.  They are on all -- on the  36 geneaologies, my lord.  Rita George and Sophie Ogen as  37 I recall on the Spookw geneaology.  There is no  38 ambiguity about these three individuals being  39 plaintiffs in the action.  Once again, my friends use  40 their characterization of themselves to suggest some  41 ambiguity and confusion, and it clouds the issue  42 rather than clarifies.  They make much of Freddy  43 Charlie describing himself as a member of the Lake  44 Babine Band, the Carrier-Sekani Tribal Council, while  45 being a member of the House of Wah Tah Keg'ht, and a  46 plaintiff in the action.  Mr. Charlie is not confused  47 about his identity.  He is all of those things.  The 29357  Submissions by Mr. Grant  1 provincial defendant wishes to co-relate the named  2 plaintiffs with certain bands under the Indian Act.  3 This is exactly what the federal government has  4 endeavoured to do with respect to band membership for  5 over a hundred years.  Quite simply, it has not worked  6 for the plaintiffs.  That's why this action is brought  7 in the frame that it is.  8 Now, I would like to go to -- I referred to the  9 Yerbury and the Wet'suwet'en geneaologies, but I would  10 like to go to paragraph 29 and the Wet'suwet'en clan  11 houses dichotomy my friend raises.  The provincial  12 defendant makes a strong argument the house group is  13 not the proper unit.  A careful review of the evidence  14 of Dr. Mills demonstrates the distinction between clan  15 and house among the Wet'suwet'en and Gitksan.  And  16 when I read this, my lord, I would like you to keep in  17 mind how the Gitksan deal with house and clan.  18 Dr. Mills concluded that among the Wet'suwet'en,  19 and I quote:  20  21 "All the members of a clan are thought to be  22 related through their mother's side.  There is  23 the assumption that all clan members are  24 descendants of a common ancestor in the past,  25 although the Wet'suwet'en do not name or  26 specify apical or common ancestor."  27  28 And that's how they define clan.  Now,  29 Wet'suwet'en is a smaller group than the Gitksan, and  30 that parallels some of the larger Gitksan houses.  But  31 with respect to the houses among the Wet'suwet'en, Dr.  32 Mills concludes:  33  34 "Each of the Wet'suwet'en clans listed above is  35 made up of distinct matrilines.  There are  36 three such subdivisions for most of the clans.  37 The Wet'suwet'en word for these subdivisions is  38 yax which means house ... in terms of kinship,  39 a house is a matrilineage of people so closely  40 related that the members know how they are  41 related."  42  43 Now, in considering Dr. Mills' description of a  44 clan among the Wet'suwet'en, and Ms. Harris's  45 description of a house among the Gitksan, the  46 similarities are apparent.  For example, among the  47 Gitksan the common lineage is presumed within the 2935?  Submissions by Mr. Grant  1 house.  This is so within the clan among the  2 Wet'suwet'en.  3 Now, as a result of this proximity between the  4 Wet'suwet'en house within a clan, there is a greater  5 sharing of house territories between the different  6 houses of the same clan.  None of this in our  7 submission, my lord, none of this takes away from the  8 concepts of house ownership of territories.  In  9 support of the proposition that the Wet'suwet'en  10 geneaologies are unreliable, the defendants refer to a  11 short extract from the cross-examination of Mrs.  12 Bazil.  And I just cited there where she went through  13 that same geneaology in detail in direct evidence.  14 That has to be looked at in the context of the  15 defendant's argument.  16 The next theory that I would like to take on is  17 the village versus house theory.  18 Now, both difficulties have suggested in argument  19 that the best way to make sense of these people, that  20 is the plaintiffs, is in terms of villages.  I am  21 quoting from the provincial argument there -- and I am  22 quoting from the provincial argument, but the federal  23 government in their oral argument and written  24 submissions made a similar point about villages and  25 bands.  The defendants argue there is no proof of  26 organization above the village level, other than with  27 respect to such joint action as is occurred either in  28 keeping with the administration of the Department of  29 Indians Affairs or as part of the advancement of the  30 land claim which has led through this action.  31 The suggestion that there is no proof of  32 organization above the village level is a complete  33 denial and blindness to a large body of evidence, my  34 lord.  And what I am doing is responding to your  35 lordship's question as well in part.  First, the  36 geneaologies and passage of hereditary chiefs' names.  37 The second is the reference in oral history to the  38 names of hereditary chiefs.  Third, to the totem poles  39 of the Gitksan in which Barbeau refers to the crests  40 of particular house groups.  41 Now, my lord, if you can just put something there  42 and go to the tab after Tab 8.  I would just like to  43 refer you to some of these.  44 First I have taken an extract from "Totem Poles of  45 the Gitksan", Barbeau's work, and on page 152 he  46 refers to clan, and I go to page 153.  And look at  47 what he says about families.  I am going to come to 29359  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  terminology in a few moments, but he says:  "Families.  The families are the subdivisions of  the clan; their nature is the same.  Their  members are close relatives, who reside within  one tribe in the same house or several houses  usually in the same part of the village.  Conclusion.  The tribes are nothing but  casual geographic units.  The phratries are  political groups extending throughout several  nations on the Nort West Coast.  The clans and  the families are essentially founded on  kinship, independently of any fixed abode or  tribal affiliation."  Now, here he is talking, we say, about the houses.  Go to the next reference, which is 1957  pre-litigation Exhibit 448, "Histories, territories  and laws of the Kitwancool".  And if you go to page 12  there, my lord, Wilson Duff's work, and this is his  introduction, this isn't the writings of the chiefs  here, and the third full paragraph he says:  "The following previous outline of the social  structure of the Kitwancool will assist in  setting the accounts which follow into  context."  I haven't found that.  Third paragraph --  I have the first page as 11, the introduction.  Yes, all right.  I have it now.  Thank you.  "Essentially, the Kitwancool tribe is made up of  members of two matrilineal, exagamous  phratries - the Wolves and the Frogs.  Thjese  are called "clans" in the manuscript."  You see, in 1957 by that time the anthropological  world is beginning to make the --  : Whose manuscript is he talking about?  :  This is the "Histories, Territories and Laws", and  after this introduction he goes into the histories of  particular houses and clans.  So that's the  manuscript.  This is just introduction to it.  :  All right. 29360  Submissions by Mr. Grant  1  2 "Formerly a third phratry, the Fireweeds, was  3 weakly represented in the tribe, but its  4 members did not own any of the tribal  5 territories.  The Wolves consist of three  6 groups which have separate histories and own  7 separate territories.  In native terminology  8 these groups are called "houses."  They have no  9 names other than the names of their chiefs.  10 These segments of the Wolf phratry in order of  11 their rank are: Wee-kha, Gwass-lam,  12 Wee-skin-sim, eta. Mah-ley, Neas-la-ga-naws,  13 Ak-gwen dasqu, etc., Hai-zimsqu."  14  15 Now that's Duff's reference.  16  17 "The first of these was the largest group; in  18 fact, it was subdivided by further to give two  19 more 'houses', those of Wee'lezqu an  20 Tka-waaku."  21  22 Tka-waaku you may remember with a different  23 spelling.  Tka-waaku was a witness, James Morrison.  24  25 "The third is regarded by some as part of the  26 second."  27  28 And that's what Mr. Morrison described Tka-waaku  29 and Wee-lezqu.  And he goes to the Frog Clan.  Again  30 he says:  31  32 "Here again a number of 'houses' is a matter of  33 interpretation.  F 1, for example, was  34 originally one, but in later times split to  35 form two.  36 There is no single chief of the tribe; each  37 'house' acts under its own chief."  38  39 This is what Wilson Duff was writing in 1957 about  40 this.  And I ask you, my lord, to note the balance of  41 that page and the other page, the end of the first  42 paragraph where he continues his discussion of houses,  43 but I won't read it to you.  44 Now, my fifth tab, and these tabs are in the order  45 of paragraph 35, is an extract from Exhibit 1188.  46 It's the Gitksan Potlatch.  The paragraph just from  47 the bottom -- 29361  Submissions by Mr. Grant  THE COURT  MR. GRANT  MR. PLANT  MR. GRANT  Who is the author of this?  John Adams' book.  A book not highly regarded by some of my friend's  experts.  Not highly regarded by myself either, but your  lordship wanted references to where house was referred  to, and at least he understood what houses were.  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  "These villages tracts of hunting territory are  subdivided into parts belonging to different  native 'Houses' which are matrilineally  organized corporate groups.  They own resources  in only one village.  Only the Houses which own  such tracts are said to 'belong' to the  village.  In addition to owning hunting  territory, each House owns berry grounds and  one or more fishing spots in or near the  village."  This is one of the principal sources of Dr.  Robinson for her conclusions.  And if you go over, my  lord, I have included there page 7, there is a chart,  and then on page 9 he continues on with the house  system at the bottom of page 9, in terms of traplines.  Page 23 he talks about wilnat'ahl.  I'm sorry, my  lord, this is Exhibit 1188-4, not 5.  And if you go to  page 24 you see how he in his chart provided a village  into two sides.  There is two crests he's got, and of  course these are clans, then he's got the wilnad'ahl,  which is a collection of houses, then he has the  houses.  THE COURT:  What does the "L" stand for at the bottom?  MR. MACAULAY:  Lineage, my lord.  THE COURT: Thank you. Mr. Grant, we are going to take a very  brief adjournment to give Madam Reporter a chance to  rest her fingers.  (PROCEEDINGS ADJOURNED)  (PROCEEDINGS RECONVENED)  THE COURT: I understand, Mr. Grant, that our reporters would  like to sit until quarter to 11, and then adjourn  until 11 o'clock, and then, I think, Miss Oxley, then  continue to 12:30, if that's convenient?  THE REPORTER:  That's fine, my lord.  MR. GRANT:  My lord, we can't go without them, so —  THE COURT:  No, we certainly can't. 29362  Submissions by Mr. Grant  1  MR.  GRANT  2  3  THE  COURT  4  MR.  GRANT  5  6  7  8  9  10  MR.  PLANT  11  12  MR.  GRANT  13  MR.  PLANT  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  THE  COURT  29  MR.  PLANT  30  MR.  GRANT  31  32  33  34  35  36  37  THE  COURT  38  39  MR.  GRANT  40  41  42  43  44  THE  COURT  45  46  MR.  GRANT  47  I was at Tab 6 of my inserts, and here I just wish  to refer you --  I'm sorry, you are at?  At Tab 6.  Yes.  This is again listed in paragraph  35 on page 16 of Tab 2, and it's an extract from the  William Beynon notebooks from the archives of the  Bureau of American Ethnology Smithsonian Institution,  which as I recall were cited in some of our experts'  reports.  I do have a comment or two to make about my friend's  reference to this, my lord.  This isn't an exhibit.  No, it's not an exhibit.  It's an unpublished manuscript of some length, 133  pages in the binder.  Your lordship will see that it's  entitled "Ethnical and Geographical Study of the Ts  msiyaen Nation".  Of course the burden of proof which  my friends assumed in commencing this action was the  ethnical and geographical incidents of the Tsimshian  nation, or that part of it, which is the Gitksan, so  we are basically re-hearing the heart of the  plaintiffs' case which was argued extensively in  Smithers, and we have here before us an unpublished  manuscript somewhat similar to -- in some ways perhaps  to the PhD thesis of Dr. Robinson, which my friend Mr.  Grant took such great exception to the marking of for  so many weeks and months.  Now we have a similar  document --  The argument didn't take more than an hour.  Each time.  In total, I think.  I understand my friend's  concern.  I can just advise your lordship this whole  set of tabs is in response to a question of your  lordship, which that question that your lordship asked  was:  "Has any earlier ethnographers referred to the  houses as houses?"  And what I did was I collected  those.  Well, if I didn't make myself clear, I certainly  intended to confine your searches to the evidence.  The point is that Beynon -- there is much material  of Beynon, and yes, we can go through the other  volumes and find it, but basically I will make one  reference on page 4 where Beynon makes reference to  the village sites.  This is the sixth line up.  It looks like the one by the argument.  You are just  going to refer to one of them -- 29363  Submissions by Mr. Grant  1 "Each tribe have their own village sites and  2 each individual group in the tribe house groups  3 have their own individual hunting, berry,  4 sealion rocks and salmon rights.  5  6 Again all I am saying here is he utilizes the  7 terminology of house group.  8 MR. PLANT:  Well, I think my friend —  9 MR. GRANT:  I am not going to make any further reference to it,  10 and I think you have the position, and that's all  11 that's -- with respect, I am sure my friend is going  12 to anticipate his concern about the next tab.  I am  13 only again referring to a reference on page 45.  14 MR. PLANT:  There again I have an additional comment, my lord,  15 because Mr. Cove has a somewhat different status.  He  16 was -- drew a report, a draft report for the  17 plaintiffs, and wasn't called as an expert.  Again  18 this is not a -- this book, "Shattered Images" --  19 MR. GRANT:  It is a publication —  20 MR. PLANT:  It is in publication.  The difficulty is there are  21 some very other interesting things said by Mr. Cove in  22 this book which might have -- but the book's not in  23 evidence, and I -- the difficulty with opening the  24 door, my friend's fairly modest request that you only  25 look at one paragraph on one page, is that I have no  26 idea whether he is taking that paragraph out of  27 context.  The book is a couple hundred pages long.  28 Its got all sorts of interesting things, including  29 many interesting passages about the personal  30 difficulties which Mr. Cove had in maintaining his  31 professional integrity in light of certain demands  32 made on him by the Gitksan-Wet'suwet'en Tribal  33 Council.  34 MR. GRANT:  I don't think this is a proper objection.  My friend  35 is saying it is not an exhibit --  36 THE COURT:  I think, Mr. Grant, that at some point there has to  37 be finality.  I don't think it is something that I  38 should -- you should impose on your friends at this  39 stage.  I think that -- my question may not have been  40 artistically framed, but I say -- I tell you now that  41 I do intend that you would furnish me with references  42 to the evidence, not to the wider literature.  43 MR. GRANT:  I'll go to the next tab, my lord, Tab 8.  And this  44 is an Exhibit 881(a) 12.  And it is referred to in my  45 source.  It's Delaguna, 1975, and she says on the  46 bottom of page 38, the extract --  47 THE COURT:  This is Exhibit 881(a) 29364  Submissions by Mr. Grant  1  MR.  GRANT  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  MR.  PLANT  20  21  22  THE  COURT  23  MR.  GRANT  24  25  26  27  28  29  30  31  32  33  34  THE  COURT  35  MR.  GRANT  36  THE  COURT  37  MR.  GRANT  38  THE  COURT  39  MR.  GRANT  40  THE  COURT  41  MR.  GRANT  42  43  44  45  46  47  12, my lord, which is the first page in on the  extract.  "Within each phratry, or ptex, are branches,  united by common myths and common crests.  Smaller subgroups are houses, or walps, named  for their chiefs.  Whereas the members may once  have lived in a single dwelling, these houses  may not be scattered in different villages and  even in different tribes.  Each house in turn  is made up of a number of lineages ..."  And she goes on.  So you see there is a reference  by Delaguna to the houses.  Drucker, "Cultures of the North Pacific Coast"  cited by -- referred to in the evidence of Dr.  Robinson, and also cited by the plaintiffs' witnesses.  I just refer you to page 119.  That's not an Exhibit, my lord.  The extract itself  is not, but parts of the book are, but these pages are  not.  Yes.  Well, okay.  Under the "Carrier Indians of the  Bulkley River", Exhibit 908, this is with respect to  the Wet'suwet'en.  If you look at page 484, again this  is Diamond Jenness writing in 1943, My Lord, but based  on research in the 1920's and the listing which you  have heard much about through Dr. Mills' evidence and  much other evidence, he refers to the houses of the  Wet'suwet'en.  And those houses, Dr. Mills compared  that listing with the listing of the plaintiffs'  houses of the Wet'suwet'en, and the references are  there.  I haven't found it yet.  I'm sorry, my lord, second page in, Tab 10.  On page 485?  484.  I have the phratries.  If you go back one page, 484.  Yes.  You see phratry, clan, title of chief.  Clans, you  see grizzly house, Kyas-ya', House in the Middle of  Many.  So you see here is the distinction between  terminology.  He calls it a clan, but when he refers  to it, it is the house.  And he means the house.  And if you look at the four lines right after that,  you see: 29365  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 interpretations of these clan names are in  some cases obscure.  The Grizzly, Sun or Moon,  Owl, and Beaver Houses derive their names from  their principal crests; and the House of Many  Eyes from an incident in the legend attached to  its crest.  House in the Middle of Many was  so-called because the house of its chief was  once erected in the middle of a village; and  House on Top of a Flat Rock because the house  of a former chief at Moricetown was built upon  a rock.  The meaning of the word Anskaski, the  origins of the names Birchbark House and  Twisted House, seemed unknown."  Now, you can see the title of the chief, for  example, Grizzly House is Waas, House in the Middle of  Many, Giste hwa, and going down you will recognize,  although the spelling different, the names of the  chiefs who are plaintiffs.  Now, the rest of that reference he talks about the  houses in the clans, and I am not going to take the  time to refer to you all of that, but it's all an  extract from the exhibit.  THE COURT:  Thank you.  MR. GRANT:  Alice Kasakoff in her unpublished dissertation,  Exhibit 860A.  I am sorry, the number is cut off.  THE COURT:  Mine shows 8 60A.  MR. GRANT:  860A-12.  Exhibits are all in paragraph 12, the  numbers.  And in paragraph 18, part 1 analysis of  data, she says -- and this is of course a  dissertation -- I'm sorry, it's 860A Tab 11.  She in  her dissertation, this was something relied upon by  the defendants in cross-examination of Miss Harris --  THE COURT:  What year is she writing?  MR. GRANT:  She is writing in April 1970.  She was — she's the  wife of John Adams, and was -- they were doing their  work together.  But she says:  "The Gitksan view their society as made up of  villages, which are composed of groups of  Houses."  Do you have that reference?  THE COURT:  Yes.  MR. GRANT: 29366  Submissions by Mr. Grant  1 "The number of Houses in each group is  2 approximately equal so that the groups are  3 theoretically balanced in size."  4  5 And of course that is commented on by Dr. Adams in  6 his work which we commented on, which he says that is  7 a theory that they had, in terms of equal size, but  8 the point is the references to houses.  9 THE COURT:  Thank you.  10 MR. GRANT:  Now, I can go back, my lord, to paragraph 36.  11 Now, in these sources, my lord, some of the  12 writers specifically referred to houses.  The earlier  13 ethnographers utilized different terminology but  14 describe the same unit as has been described in this  15 court case as a house.  For example, Barbeau, in 1929,  16 described -- and that should be families, not clan  17 there, my lord.  18 THE COURT:  Yes.  19 MR. GRANT:  He was obviously referring to what has been  20 described in this case as the house.  The reason for  21 this is that in earlier times ethnographers  22 endeavoured to describe Gitksan and Wet'suwet'en  23 social groupings according to anthropological  24 cross-cultural terminologies such as phratries, clans,  25 lineages, etc.  However, in more recent times,  26 ethnographers have begun to understand that they  27 should seriously utilize the societies own terms for  28 their basic groupings, e.g., house and clan as the  29 units of analysis.  This is apparent when one  30 considers Delaguna, Cove, Adams and Kasakoff who  31 utilized the terminology of house groups.  However,  32 the description given by Beynon, Barbeau and Drucker  33 all refer to the groupings which has been described in  34 the action as a house group.  The fact that they  35 utilized the different name for the groupings does not  36 diminish the fact that these earlier ethnographers  37 recognized the House as a central unit of Gitksan and  38 Wet'suwet'en social organization.  39 Now, paragraphs 37 through to 40 I deal with some  40 specific points raised by my friends, and I am not  41 going to take the time to read those to you, but ask  42 that you consider them.  43 In paragraph 41, my lord, I say in response to the  44 defendants' argument that the village is the central  45 unit for consideration, there is extensive evidence  46 that within the Gitksan territories, the village units  47 may have moved at specific time periods.  The 29367  Submissions by Mr. Grant  1 significant factor is that the villages moved within  2 the Gitksan territory and not outside of that  3 territory.  The defendants' suggestion that "those who  4 live on these reserves today comprise in large measure  5 the plaintiffs, named and unnamed in the present  6 action", is an unproven and inaccurate proposition.  7 Further, if the defendants' proposition is correct, it  8 suggests that those who move away from the reserves  9 lose their aboriginal rights.  Not even a provincial  10 defendant could argue such an extreme position in  11 light of Sparrow.  The utilization of the reserves and  12 the village for the definitio of membership does not  13 speak at all of the cchallenge to ethnicity.  And I  14 already referred you to that problem about the Indian  15 Act, my lord, and I am not going to repeat it.  16 I then go into the question of the feast seating,  17 and I would like to take you to paragraph 44 and the  18 eastern and western Gitksan distinction.  But  19 paragraph 44 I refer to something the provincial  2 0 defendant relied upon, which you may remember the  21 letter in which Simadeeks challenged the presence of  22 the Indian people from Kitsegukla at Andimaul.  Now,  23 what is significant in this, my lord, is if you refer  24 to Exhibit 646-9A, and the 446 series, the maps that  25 Mr. Williams tendered in evidence, Stanley Williams,  26 what is significant is that Andimaul is located within  27 the Eagle territory of Sakhum Higookw and Simadiiks.  28 In other words, he was defending his own house  29 territories.  Therefore it is quite consistent that  30 Simadeeks would dispute the presence of other people  31 on his territory and on his fishing grounds at  32 Andimaul  33 We say, my lord, that there is no substantive  34 basis given by the defendant for this court not to  35 find that the plaintiffs are organized by houses and  36 have been so organized since pre-contact times.  The  37 early historical records corroborate the oral  38 histories.  There is a substantial body of evidence to  39 support the finding of this court, and the Gitksan and  40 Wet'suwet'en peoples are distinct peoples and have  41 been since pre-contact times.  42 The present Gitksan and Wet'suwet'en are  43 descendants of the former occupiers of the Gitksan and  44 Wet'suwet'en territory.  45 The houses are the central unit of social  46 organization and are the owners of dinstinct  47 territories, and the Gitksan together and the 2936?  Submissions by Mr. Grant  1 Wet'suwet'en together are distinct societies.  2 Now, as part of this identification I would like  3 to deal with the federal government regarding the  4 wills.  And this is -- what they have done, of course,  5 and I say is one of the most remarkable features of  6 this wills argument, is that there are only 133  7 members of various Indian bands in the claim area who  8 made wills.  It is important to realize that not all  9 of these persons are plaintiffs in this action.  The  10 federal defendant did not tender as part of their case  11 the bands list of band members of individual bands.  12 Such lists are in their possession, and if they wished  13 to argue on the basis of which of the plaintiffs were  14 members of the bands, I say it was incumbent on them  15 to lead evidence in support of that argument.  16 MR. MACAULAY:  Mr. Grant objected violently to our band lists —  17 THE COURT:  Did he?  I don't remember that.  18 MR. GRANT:  My lord, that relieves me, because I am sure I  19 probably objected to a lot of things in the last three  20 years, but I can't recall your lordship making a  21 ruling that my friend could not do it.  Certainly at  22 the time of the interrogatories there was a challenge  23 on that.  That was before -- at the time of the  24 provincial --  25 THE COURT:  Well, I believe everything counsel tell me.  Mr.  26 Macaulay says that he did not -- sorry, he tells me  27 that he tried to put them in, and you objected.  28 MR. GRANT:  Well, I don't recall a ruling on the point.  Maybe  29 he withdrew, but --  30 THE COURT:  It could have been made out of court, so I'm vague  31 towards accepting Mr. Macaulay's statement or treating  32 it as a --  33 MR. MACAULAY:  An example is when I tried to lead evidence  34 through Mr. Mclntyre on band membership.  35 MR. GRANT:  Well, there is -- at this point I am not going to  36 dispute or spend time on that point, but I am saying  37 that when they come to argument, they made a point of  38 the significance of band membership.  39 Now, the federal defendant talks about 99 wills.  40 This is in Mr. Macaulay's oral submissions on -- or  41 the summary of the wills argument for inheritance of  42 house and lands on reserves.  I am not going to deal  43 with that, because I say that that was dealt with in  44 the early evidence that it was not house or crest  45 property, but what's more germane is paragraph 5.  46 The federal government suggests that 43 of those  47 who made wills "bequeathed traplines and hunting 29369  Submissions by Mr. Grant  1 grounds to their heirs".  With respect to a number of  2 the early wills in which the witnesses marked the will  3 with an "x", there is no evidence as to the will  4 having been translated.  And I refer to Jimmy  5 Blackwater and Albert Brown's will.  And I ask you to  6 look at this in the context of the wills argument, but  7 I am not going to read it to you now, my lord,  8 paragraph six, seven, eight and nine.  Nine it should  9 read the federal defendant.  It mistakenly says the  10 provincial defendant.  This is all the federal  11 defendants' argument.  12 Now, the federal defendant in paragraph nine  13 suggested of the 43 testators who made mention of  14 traplines or hunting grounds in their wills, only two  15 disposed of the traplines in terms and left it to the  16 successor, as head head chief of the house to  17 determine who should use the trapline.  18 Now, my lord, the evidence of both Gitksan and  19 Wet'suwet'en witnesses has demonstrated that persons  20 other than hereditary chiefs may be responsible for  21 particular parts of territory.  And combine that with  22 the restriction, my lord, that if the provincial  23 government has broken up a territory into more than  24 one registered trapline under their provincial  25 regulations only -- a person can only hold one  26 trapline.  27 I say that the succession in the ten cases, even  28 on the federal defendants' argument, is that -- was  29 passed within the house.  But after extensive analysis  30 and cross-referencing by the federal defendants of  31 geneaologies and wills made within the territories, by  32 plaintiffs and non-plaintiffs, the federal defendant,  33 my lord, was only able to find 24 cases in which  34 traplines and hunting grounds were transferred to  35 persons outside of the house.  As I have already  36 indicated, two of the cases, Mathew Sam and David  37 Tibbits -- I just want to refer you -- Matthew Sam and  38 David Tibbits who are referred to, my lord, as in my  39 friends' argument at Tab 108 on the wills submission  40 is Matthew Sam and 24 is David Tibbits.  David  41 Tibbits, by the way, my friends identify as not a  42 plaintiff.  David Tibbits was Gitumskinitx (?), I  43 think Mr. Joseph gave that evidence.  44 Now, as already indicated, two of the cases make  45 no reference to their trapline or hunting ground and  46 are therefore mistakenly included.  47 In view of the large number of plaintiffs living 29370  Submissions by Mr. Grant  1 and deceased whose names are reflected in the  2 geneaologies, the location of only 133 wills for any  3 Indian person in the territory and the fact that only  4 24 of those reflect the transfer of traplines or  5 hunting grounds to persons outside of a house, I say,  6 demonstrates the strength and endurance of the system  7 of matrilineal descent for traditional territory, not  8 withstanding the implementation of patrilinial descent  9 provisions through the Indian Act for over one hundred  10 years.  11 MR. MACAULAY: One of those cases, my lord, the exhibit shows in  12 the form of letter from Mrs. Matthew Sam that it was  13 intended that the trapline should go to the person --  14 MR. GRANT:  A letter from somebody other than the testator.  15 MR. MACAULAY: It was the testator's wife.  16 MR. GRANT:  I would like to go now which my friends rely on.  17 Now, my lord, it appears that the computer --  I will  18 just deal with the first argument because of that.  19 The federal argument regarding employment history was  20 an analysis delivered less than two weeks ago in which  21 they purported to summarize the activities including  22 traditional activities of several of the witnesses.  23 These summaries, we say, my lord, cannot be relied  24 upon as they are misleading within a deliberate  25 timeframe between delivery of summaries and reply, a  26 selective analysis of the employment history  27 demonstrates the errors.  Consideration of a number of  28 witnesses can show this.  29 I refer you first to Dora Wilson-Kenni.  The  30 federal summary states with respect to Mrs.  31 Wilson-Kenni, this is under their traditional  32 activities:  33  34 " She makes no mention of traditional  35 activities".  36  37 That's it.  Mrs. Wilson-Kenni, in fact, my lord,  38 gave extensive evidence of the utilization of moose  39 hides right up to modern times.  In fact she was  4 0 involved in programmes involving Wet'suwet'en women  41 from Hagwilget and Gitksan in the preparation of moose  42 hides.  I give you the cite.  She also described in  43 her evidence the utilization of berries from the  44 territory.  Mrs. Wilson described the use of  45 soapberries and trade of soapberries as well as hides  46 and skin.  She confirmed the trade of these interior  47 products still goes on today.  And she was talking 29371  Submissions by Mr. Grant  1 about her family and her house group, my lord.  2 Ms. Wilson-Kenni described the harvest and  3 utilization of berry resources when she was young and  4 the fact this it still continues to go on.  5 These are only a few examples of extensive  6 evidence of Mrs. will Wilson-Kenni with respect to her  7 own involvement in traditional activities.  In view of  8 her relatively young age, as contrasted with some of  9 the elders, it sharply contrasts with the federal  10 argument that implies younger people are no longer  11 engaged in traditional activities.  12 I now go to Stanley Williams.  The federal  13 government argues in their summary with respect to Mr.  14 Williams' hunting, trapping, gathering and food  15 fishing activity:  16  17 "He does his food fishing while working as a  18 commercial fisherman at the coast".  19  20 They indicated, when Mr. Jackson raised this,  21 there was not very significant hunting or trapping by  22 Mr. Williams.  23 Mr. Williams testified in his evidence to having  24 travelled over 25 territories.  He attested to the  25 fact that he has hunted or trapped or been with his  26 father or the chief of the house or another person  27 while they were hunting or trapping on each and every  28 one of those territories.  As he described it, he did  29 not wish to describe any territory he had not walked  30 on.  31 Notwithstanding this overwhelming evidence of Mr.  32 Williams' hunting activities, which continued until a  33 few years ago when he killed a grizzly bear near the  34 village of Gitwangak, the federal government said his  35 hunting activity was insignificant.  36 And that was in response to Mr. Jackson, and I  37 will provide you with the reference to that or note  38 for that, my lord.  39 In the case of Henry Alfred, the federal crown  40 concedes he obtained salmon from Buddy Williams. The  41 trade relationship between the Wet'suwet'en and the  42 western Gitksan which has existed since pre-contact  43 times according to the oral histories and the evidence  44 of trading trails, is still,maintained today.  45 I point out that the federal defendant did not  46 refer to the evidence of Dr. Steciw that he leraned  47 the good guiding trails on the territory from Henry 29372  Submissions by Mr. Grant  1 Alfred.  Even if the federal defendant was not  2 impressed with Mr. Alfred's hunting skills, Dr. Steciw  3 was.  4 Martha Brown then acquired that guiding territory  5 after Henry Alfred showed him the trails.  6 Martha Brown -- I will go to Martha Brown and  7 Johnny David -- was over 85 when she gave evidence in  8 1986.  Nevertheless, she described in her evidence how  9 Paddy Wesley and other persons hunted for her and  10 provided her with moose meat.  She described how she  11 herself had to get back though her smoke house and  12 smoke salmon caught for her.  She continued to smoke  13 salmon right up to her death.  The importance of game  14 and fish and her continued access to them through  15 other house members and members of the wilnat'ahl is  16 ignored by the federal defendant in their summary.  17 Johnny David was in his 90's when he testified by  18 commission evidence.  He did state, as my friends  19 refer in their summary, that he was not hunting or  20 trapping now because he was too old and could not walk  21 well.  However, he testified to a long history of  22 being on the territories.  Furthermore, he continues  23 to utilize the fish and live mainly from fish and game  24 provided to him by the extended house group.  25 Now, my lord, on the federal government's  26 argument, and my understanding is this employment  27 history goes to the question of extinguishment and  28 abandonment, Mr. David's aboriginal rights were  29 extinguished because he was now too old to walk on the  30 territory.  On this theory, a Gitksan or Wet'suwet'en  31 who can't travel on the territory because of age when  32 they are 70 years old will lose their aboriginal right  33 if they live past the age of 90 years.  That shows, in  34 my submission, my lord, how facetious that argument  35 is.  36 In conclusion, my lord, I refer to a few other  37 witnesses and ask you to look at them, but in  38 conclusion a careful review and analysis of the two  39 volumes of documents tendered by the Federal Crown in  40 the last week of their argument would lead to many  41 more incidents in which the summary of the employment  42 history is misleading.  It is important for your  43 lordship to be very careful in dealing with these  44 summary histories, and to realize that firstly they do  45 not reflect the whole evidence even with respect to  46 the particular individuals.  Furthermore, secondly,  47 they do not reflect the involvement in the harvest and 29373  Submissions by Mr. Grant  1 management of resources in the territory by the  2 extended the house group.  Thirdly, by focus on  3 individual witnesses only, the Federal Crown has  4 denied the relevance of the house group.  Furthermore,  5 in several significant cases, such as Mr. Williams,  6 the Federal Crown considers his hunting activities as  7 insignificant in view of the fact that he travelled on  8 several hundred territories this is somewhat  9 surprising.  Several hundred miles, my lord, not  10 several hundred territories.  11 Now, the reason I say about the second point or  12 the third point is that in Mr. Hyzim's evidence my  13 friend accurately reflects he was only cross-examined  14 that he doesn't talk about his traditional trapping.  15 He wasn't cross-examined on it or fishing.  But what  16 they do not point out is that Mrs. Ryan in her  17 evidence talks about Mr. Hyzim's continued use of his  18 fishing sites.  19 MS. RUSSELL: That is correct, we confined our summaries to the  20 evidence of the witnesses themselves.  21 MR. GRANT:  Therein lies the problem, my lord, because it's the  22 whole evidence that is important, and that's why I say  23 it's misleading when you look at that evidence, not  24 the whole evidence.  25 MR. GRANT:  Now, this raises another interesting point with  2 6 respect to the federal government's employment  27 history.  By testing actual hunting, trapping and  28 fishing of particular individuals, who are witnesses,  2 9 the federal government gives no credence or weight to  30 the significance of the extended house groups and the  31 provision of food by other members of the house.  This  32 is obviously important for elders such as Martha  33 Brown, Johnny David and David Gunanoot.  34 Finally, a consideration of the federal -- well, I  35 have raised the final point.  Let's call it the  36 geriatric theory of abandonment.  A person that lives  37 too long after they can't walk on the territory lose  38 their rights.  39 MR. MACAULAY:  That wasn't our submission.  40 MR. GRANT:  I stand on the position my friends have made their  41 argument, and I think you can compare them.  42 Now, at Tab 3, my lord, I go to the organized  43 society in the Charter of Rights.  44 Now, this, my lord, is one of the most extreme  45 arguments raised by either of the defendants.  Here  46 the provincial defendants suggested that the  47 aboriginal system of the Gitksan and Wet'suwet'en is 29374  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  PLANT  GRANT  discriminatory.  If this argument is acceded to, my  lord, there can never be any recognition of collective  rights of a kinship society in this country.  Surely  the intents of Section 25 of the Charter to protect  collective aboriginal rights of aboriginal peoples of  Canada was drafted specifically to avoid challenges to  collective rights by disgruntled individuals.  On the  other hand, both defendants argue that the plaintiffs  have no rights because they have accepted the band  council system.  No matter what the plaintiffs have  done or do, they lost.  Now, Dr. Daly explained in his evidence the checks  and balances, and I refer you over to the next page of  paragraph 3.  The overwhelming evidence of the anthropolgists as  well as lay witnesses demonstrated over and over again  there are checks and balances within the house system.  There are lineages within houses where authority  transfers back and forth.  You saw that, my lord, for  example, in the case of Gisdayway's house and  Tenimgyet's house, just as two examples.  Most  important, no one chief of the village can take  control over the village or all of the houses in the  village.  I refer you there even to some of the house  references that I referred you to earlier that are in  evidence which reflects that.  In fact no one chief in the clan has overriding  controlling over the other houses.  Now, these checks and balances within the kinship  system in itself protect the members of the society  there from arbitrary and high-handed conduct on the  part of individuals.  Such conduct will not, and as  Dr. Daly said, cannot be tolerated in the long run.  Now, I refer you then to Dr. Robinson's suggestion  of the caste society, which there is nobody but her in  this case has ever suggested any of the northwest  coast societies are caste societies and no source for  that.  But paragraph 9, my lord, on page 3, the  defendants -- provincial defendant suggest that  matrilineal devolution is sexually discriminatory.  In  fact, matrilineal devolution allows an important role  for women in terms of their function within the house  system.  Women are highly valued within the house as  the successors, and the strength of the house depends  on their children.  :  That proposition is not denied, my lord.  :  Furthermore, the majority of cases of succession go 29375  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  through to the woman's side to a male successor.  Where, my lord, is the discrimination here?  In fact,  I say, my lord, this is less discriminatory than the  patrilineal and patriacal system that we have.  MR. PLANT:  Is my friend suggesting that Euro-Canadian society  on the evidence is a patrilineal society?  I  understood there was a lot of discussion about that as  a particular term within anthropology.  I don't  understand that reference that my friend makes there.  MR. GRANT:  Patrilineal descent is descent through the father's  side as is set up in the Indian Act.  THE COURT:  Is it accurate to say we have either system?  MR. PLANT:  There's a term bilateral or —  THE COURT: On intestacy it goes neutrally, does it not, husband  to wife, wife to wife, and certain proportions to  children it is neither, isn't it?  That's correct, yes, in that sense.  But in terms --  for example, if you look at the Royal Family, if you  look at the descent there, you go on the patrilineal  side in terms of descent.  But that's with respect to one family in a  particularly unique historical constitutional  convention.  I doubt if the Royal Family's an example.  Might emulate in some parts of the country, but not  one that is typical of Canadian society.  But your succession of names, the succession of  royalty in our system.  I mean as a parallel.  That's  all I mean.  I think, Mr. Grant, we'll bring this to an end so  you can save time for more important matters, and  we've reached that stage where we will adjourn -- take  the morning adjournment now.  THE REGISTRAR:  Order in court.  Court stands adjourned for a  short recess.  MR. GRANT  THE COURT  MR. GRANT  THE COURT 29376  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. 29377  Submissions by Mr. Grant  1 (PROCEEDINGS RECONVENED AT 11:00 A.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MS. RUSSELL:  My lord, before my friend begins, I wish to  6 correct some misapprehension perhaps on the plaintiffs  7 part.  The material filed by the Federal Government  8 relating to employment and income history was that  9 alone, employment and income history.  It did not  10 purport to set out incidental participation in  11 traditional activities, only employment and income  12 material.  13 THE COURT:  Thank you.  14 MS. RUSSELL:  Thank you.  15 MR. GRANT:  Of course what we were dealing with is the  16 utilization of -- the purport, as I understand, on the  17 argument of Mr. Jackson, will respond to an  18 abandonment of what the Federal Government -- why they  19 did that.  That's, of course, the focus of our  2 0 argument.  21 THE COURT:  Yes.  22 MR. GRANT:  Now, my lord, I was at page 4 and I just would  23 conclude this section and I -- again on the Charter.  24 My friends refer to the Magna Carta and the odious  25 conduct.  But then on paragraph 15 I conclude that  26 we -- we ask your lordship to expressly dismiss this  27 argument on the Charter and make it clear that such an  28 argument founded on differences between traditional  29 systems -- and I say aboriginal peoples but I mean  30 kinship societies which operate in a different way --  31 and the governmental or state society system, should  32 not be accepted as a basis for denial of aboriginal  33 rights.  34 Going into the next section, my lord, which is  35 oral history and the admissibility, I refer your  36 lordship first of all that the Province argues against  37 the oral histories on the thesis that there is an  38 absence of trustworthiness.  And although I focus here  39 on the Province's arguement, the Federal Government,  40 as I already referred to on reputation, does make a  41 challenge on the oral histories in Part 11 of their  42 summary.  43 MR. PLANT:  My lord, I just had a brief look at some of this.  44 Very little of it, in my submission, is proper reply.  45 For example, in paragraph 2, to make a comment about  46 what we didn't refer to in our argument, it's just to  47 re-argue something that the plaintiffs had the burden 2937?  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  of proving, and assume that burden in arguing about  the admissibility of oral history in their main  argument.  I'm not going to stand up and object to every  single instance of improper reply, but I thought I  should make that general observation with respect to  this section of my friend's argument.  :  Well, there is a major argument about the  trustworthiness of the oral histories, my lord, in the  Provincial argument, and that they should not be  admitted on the basis of trustworthiness.  :  Well, it is unusual -- it would be unusual in reply  to suggest that counsel had not said something, but it  is not unusual in reply to refer to something not  mentioned by counsel in support of a proper reply.  And I think I will have to -- I will have to give you  the benefit of the doubt that you fall into the second  category, Mr. Grant, and allow you to proceed.  I  think there could well be substance in what your  friend says and I can't really respond to that or  reach that conclusion until I hear what your  submission is and compare it with what you said before  and all the other things that go into this equation.  So I have noted what Mr. Plant has said and I will try  and take into account some way that will keep the  scales in balance, though I don't really have much  expectation in that endeavour.  Go ahead.  :  Well, maybe might -- in relevance of saying the  Provincial defendant ignored the comments.  But of  course what I'm putting the quote in from Drucker is,  is in support of a proposition as to trustworthiness.  And that where he stated that:  In connection with these traditions, it must be  pointed out that while the Indians had no  written records and had to rely on oral  transmission of their clan and family  histories, the traditions of all the groups  from Vancouver Island northward are so specific  and consistent - insofar as they can be  checked, so correct - that there is little  doubt that for the most part they are  historically accurate.  Now, I would like to refer you --and again, of  course, I'm asking that you read the entire reply on  these points but I will go to paragraph 5 where there 29379  Submissions by Mr. Grant  1 was a reference to Mr. Brody in the verification.  2 The proposition by the Provincial defendant that  3 the adaawk and the Kungax according to Mr. Brody are  4 true "because the Gitksan and Wet'suwet'en say they  5 are" or "the adaawk and Kungax are true to the Gitksan  6 and Wet'suwet'en, but because they are radically  7 different epistemologies, they are admittedly not true  8 to Euro-Canadian, is a complete mischaracterization of  9 the tenor of Mr. Brody's evidence.  Mr. Brody was  10 there comparing the western scientific method of  11 debating theories within the field with the method of  12 confirmation of territories that occurs within the  13 feast among the Gitksan and Wet'suwet'en.  14 And I go on to continue in the next paragraph --  15 to discuss and explain that.  16 Going to paragraph 7, my lord.  The Province  17 relies on the:  18  19 ...lapse of time between the repetition of  20 official tellings, the fact that repetitions  21 may occur only a few times in the life of each  22 hearer, if at all, thus the opportunities for  23 verification are few and far between.  24  25 And again, I'm saying in support of our position,  26 I say the provincial defendant ignores -- but it's in  27 support of our position, that the extent -- the  28 evidence -- extensive evidence of training and  29 education within the House group between public  30 statements of the adaawk, and that the adaawk is  31 repeated outside of the feast.  And I go on to refer  32 to that and give you citations from a large number of  33 witnesses with respect to that very point.  34 In response to the allegation, paragraph 9, my  35 lord, that the "community of verifiers" is extremely  36 small because only Chiefs are entitled to stand up and  37 disagree with what has been said, the evidence  38 contradicts this allegation.  39 First, more than one House may hold the same  4 0                        adaawk.  41 Second, the adaawk is taught to members of  42 the House or Houses.  43 Third, just as there are specialists within  44 our society, so there are those specially  45 trained with respect to the adaawk.  46 Fourth, it is not only the Head Chiefs of  47 the House that speak at the feast, but in 29380  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  many circumstances, the sub-Chiefs speak  too.  Now, my lord -- and I just say this is an  assumption based on the evidence that there is a  various number of sub-Chiefs within a House.  Assume  an average of five sub-Chiefs within a House, there  are 15 -- that should be 45 Gitksan Houses and 13  Wet'suwet'en Houses.  In other words, the active  participants are a minimum number of 250 people among  the Gitksan and 65 persons among the Wet'suwet'en.  Of  course, there are many more people -- there are many  more people -- that should be 25 in that -- that  proposition.  And it's my hypothesis there, my lord --  Sorry, the 15 should be 25?  Yes, my lord.  It was a typographical.  I haven't counted.  There are 25 Gitksan Houses, are  there, except for the Kitwancool?  There are forty as I recall.  Forty.  Well, what number do you want to appear in  the text?  Forty.  But I'm using this as a proposition, my  lord.  The active participants are a minimum number of  250 people among the Gitksan and 65 persons among the  Wet'suwet'en.  Of course, there are many more persons  in addition to those who attend the feast.  The  community of the reputation is much broader than the  250 Gitksan and the 65 Wet'suwet'en chiefs and include  all those who witnessed the adaawk and the Kungax in  the feast.  Now -- then there is a correction in adaawk which  was not referred to which was -- which supports our  argument.  Now, in response to paragraph 36, the defendant  says the oral history should be discounted as  "political rhetoric".  We say this is specious.  This  makes a mockery of the scholarship of Philip Drucker,  Wilson Duff, George MacDonald, William Beynon,  Marjorie Halpin and Diamond Jenness.  It fails to take  into account the detailed and extensive recording  between 1915 and 1955 of these oral histories by  Beynon.  And it completely disregards the recognition  of the importance of oral histories by all experts who  have studied Northwest Coast society including  Barbeau, Jenness, Drucker and Duff.  There is a  complete disregard of the recognition of the  significance of oral histories for archeological work  by such scholars who are otherwise relied upon by the 29381  Submissions by Mr. Grant  1 Defendants, including Ames, Coupland and MacDonald.  2 It fails to take into account the evidence given in  3 this case by Doctors Daly, Ms. Albright -- I believe  4 she is now Dr. Albright but she was Ms. Albright  5 giving evidence -- Dr. Mills and Ms. Marsden which  6 stood up to extensive cross-examination.  And finally,  7 my lord, it completely disregards the peoples'  8 description of their own oral histories and denigrates  9 these histories to "mere beliefs" which give rise to  10 no rights.  11 Now, I refer then to the analysis my friend does  12 of the utilizing some of the adaawk and the Kungax and  13 respond to them.  14 MR. PLANT:  Well, I have to say, my lord, that the first  15 sentence in paragraph 12 -- I'm not sure where my  16 friend is going to -- is transparently false.  The  17 entire argument of Mr. Willms and the thrust of his  18 cross-examination of the plaintiffs' experts was  19 directed in some measure, at least, towards an  20 understanding and where the Gitksan may have been.  21 MR. GRANT:  I'm going to come back to that point.  Paragraph 18  22 on page 10, Dr. Daly described in his evidence the  23 checks and balances through the detailed system of  24 education and training and relating the events to  25 successors and the witnessing of these descriptions by  26 "others who have overlapping knowledge in the feast  27 hall.  So there are a certain number of checks and  28 balances that the system provides."  Not only Dr. Daly  29 and Ms. Marsden, but also such other persons in the  30 field -- and I recite them -- have been overwhelmed by  31 the ability to repeat the oral history over a long  32 period of time between generations and over a wide  33 space between communities.  It is only the provincial  34 defendant and their advocate-archaeologist, Dr.  35 Robinson, who suggest that these adaawk are recent  36 histories notwithstanding the 50 years -- that should  37 be 50 years not 30 years -- of research since  38 Barbeau's early predictions.  That's referring to  39 1929, my lord, when he wrote Totem Poles of the  40 Gitksan.  Of course, Dr. Robinson relied on Barbeau's  41 interpretations of the oral history, even though she  42 knew those interpretations have been discredited.  In  43 terms of the oral histories, the principle oral  44 history that she had read was The Men of Mediik.  She  45 disregarded the extensive renderings from Gitksan and  46 Coastal Tsimshian witnesses of the adaawk told to  47 William Beynon.  Therefore, any opinion she gives with 29382  Submissions by Mr. Grant  1 respect to oral history should be given very little  2 weight.  And I've given the references there, my lord.  3 Going to page 12, paragraph 20.  I just wanted to  4 point out that the Province has challenged the  5 validity of the oral histories in two diametrically  6 opposed ways.  Firstly, the validity is challenged on  7 the basis of the Bear Lake events described by Mr.  8 Brody demonstrates there is a dispute as to who was  9 the Miluulak.  You may remember that that -- in that  10 meeting that Mr. Brody testified to there was a  11 question as to who the Miluulak was that was in the  12 adaawk.  But after completing that argument, saying  13 that this challenges the validity, the Province  14 then -- provincial defendant turned around to argue  15 that the oral histories are not valid because "errors"  16 rarely occur.  This circular logic is a foundation to  17 attack the validity of the oral history no matter  18 whether there were any disputes with respect to  19 certain factors or there are no disputes.  It does not  20 matter whether the plaintiffs show there are very few  21 errors or there are many errors.  Both circumstances  22 are used by the Province to challenge the validity of  23 the oral history.  The Provincial defendant suggests  24 that disagreement over the adaawk makes the  25 verification of the adaawk questionable.  They turn  26 around and argue that the few occasions in which  27 errors are corrected in the feast suggest that there  28 is no verification.  29 And I would like to now -- I've referred to  30 specific points in argument of the defendants and I  31 would like to go now to paragraph 15 -- or sorry, 25  32 my lord, page 15, just briefly, to refer you to  33 Finley.  This is the writer about the Greeks.  34 In respect to paragraph 58 in which the  35 provincial defendant relies on a work by M.I. Finley  36 entitled Myth, Memory and History, this article was  37 never put to any of the plaintiffs' experts.  In fact,  38 the first time any reference was made to this work was  39 on the 338th day of trial when it was introduced by  4 0 the defendant in their argument.  41 MR. PLANT:  Oh, but you win there, Mr. Grant, with the Beynon  42 material.  43 MR. GRANT:  As with much of the Provincial defendant argument,  44 they focus on generalities which were not made with  45 respect to the Northwest Coast.  Now Mr. Finley may  46 well have illustrative comments regarding the  47 "development of historical consciousness in ancient 29383  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  Greece".  The Provincial defendant does not adopt -- I  say refuses -- does not adopt the works of Drucker,  Levi Strauss, Duff, Beynon and Barbeau, with respect  to the validity of the oral history of Northwest Coast  cultures.  Professor Finley's work must be read in the  context of ancient Greece.  No witness, not even the  defendant's own generalist, Sheila Robinson, nor any  expert in the field, has suggested that Finley's works  and thoughts are applicable to the complex oral  histories of the Gitksan and Wet'suwet'en.  Now, Doctor --  :  Mr. Jackson argued the Odyssey with great enthusiasm  in the summer of 1987 regarding the admissibility of  evidence and quoted Ulysses extensively, as I recall.  :  I'll tell you, my lord, I could refer you -- and I  don't think I put it in the rim reply -- but in  challenging the question of the archaeology and the  use of oral history for that is -- the parallel is the  walls of Jericho, that everybody knows the walls of  Jericho came down, and that's been proven  archaeologically.  Nobody can prove, archaeologically,  that there were angels on top of the walls.  :  All right.  :  But finally, the scholar Finley is focusing on  the -- on Greece, and that's -- that's the point I'm  making and I agree.  I don't want to disabuse my  friend from his lines on the Odyssey or different  point.  Now, Dr. Daly's conclusion with respect to oral  history bears stating as it deals directly with the  Gitksan and Wet'suwet'en oral history as opposed to  that of ancient Greece:  The oral tradition is a worthy historical  source material when it is treated as a whole,  a corpus of linked and overlapping records of  events that have been reiterated down through  the generations.  Individual tellings of one  Chief's history must be compared with one  another, and then with the accounts of the same  or related events from the viewpoint of other  Chiefs.  When this is done carefully the oral  tradition can be treated as a valid historical  source.  Now, the defendants, both the provincial and  federal defendants, suggest that Ms. Marsden, Dr. 29384  Submissions by Mr. Grant  1 Mills and Dr. Daly have ignored the cautions with  2 respect to oral history as suggested by Trigger, which  3 is not so, but also -- this also would apply to Duff,  4 Cove, MacDonald, McNair, and the others that I've  5 referred to.  6 The Provincial defendant conceded that they did  7 not cross-examine on the adaawk and the Kungax.  We  8 say this is their fundamental mistake and they attempt  9 to defend this by stating -- and that's what they  10 stated in argument.  11 Now on this basis, my lord, all the historical  12 record of Loring would be inadmissible as would be  13 many of the other historical records.  The  14 investigation of the circumstances of the telling is a  15 significant way of testing the truth of the  16 statements.  The Provincial defendant declined to do  17 that with respect to the adaawk as they wished to  18 dismiss the oral histories without the necessity of  19 such cross-examination.  We say the defendant is wrong  20 in stating that there was "no means of testing the  21 truth of the proposition".  This statement could  22 equally be applicable to much of the "written"  23 history.  For example, La Verendrye's account of his  24 exploration is equally not susceptible to cross-  25 examination.  Now, one obvious method would be the  26 analysis of a comparison of the tellings over a long  27 period of time.  This, I say, Ms. Marsden has done  28 exactly this, that is particularly applicable to the  29 adaawk and Kungax in view of the careful recording  30 over the period of 40 years by Beynon of the adaawk  31 over a large geography as well as a large time span,  32 and the recording of the many Kungax by Jenness.  33 That's in the exhibit which is filed, my lord,  34 Jenness' Histories and Myths.  35 Now, I would like to go on to paragraph 30.  The  36 provincial defendant went on to say:  37  38 That the test of admissibility is not whether  39 oral tradition counts as evidence among the  40 community of scholars who practice history  41 today.  The test is whether it amounts to  42 evidence at law.  43  44 Now, my lord, this seemingly sensible argument is  45 nonsensical.  It would apply to all pre-memory  46 accounts.  Now, the scholars within the field of  47 anthropology who utilize oral history are among those 29385  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  MR. PLANT  THE COURT  MR. GRANT  best able to assist the court in determining the  validity of the oral history.  This is no different  than the Court relying on a scientist to determine the  chemical composition of a product.  The evidence  relied on by that scientist is a foundation for the  evidence to be accepted at law.  Now, I would like to go to the utilization of  oral history by expert witnesses.  And in view of the  time, what I would like to do, my lord, is just to  refer you to that and to Lavallee because your  lordship during the Provincial defendant's argument  asked whether or not you would be entitled to utilize  the oral history "when it's used by others such as Ms.  Albright, or is she notionally deemed to have excluded  it, if I find that I should exclude it?"  Now, I refer to Mr. Justice Sopinka's decision in  the recent decision of Lavallee in the Supreme Court  of Canada, in which he deals with Abbey and the  admissibility of expert evidence and I've highlighted  it.  This isn't Sopinka, is it?  I don't believe so, my lord.  It was a separate concurrent judgment but he was --  a judgment not concurred in by anyone else.  It just  dealt with the narrow issue.  Yes, all right.  He concurred in the majority and then he commented  further on this aspect.  Now I say, my lord, after referring to those highlighted points of Justice Sopinka's decision, that in  in order for the court to conclude that the opinion  evidence of Dr. Daly, Dr. Mills, Mr. Brody and Dr.  Albright is entirely based on "a source that is  inherently suspect....", the Court will have to reject  not only the opinion evidence of these witnesses, but  also all of the other scholars to which I have  referred there.  The Court would also have to reject  any weight to be given to the tremendous collection of  oral histories recorded by Beynon between 1915 and  1955.  And I say in the context of the Lavallee  decision, this approach has been clearly rejected by  the Supreme Court of Canada.  And I would like to state briefly to the  considerations going to the weight of the oral  history, I focused on the Province's argument of  abmissibility previously.  Now, they have -- they rely on Dr. McLellan and, 29386  Submissions by Mr. Grant  1 of course, this is who Dr. Robinson relied upon.  And,  2 of course, contrary to Dr. McLellan's general  3 discussion, the evidence before this Court is that the  4 Gitksan and the Wet'suwet'en quite clearly know the  5 distinction between oral histories and stories.  And I  6 refer to you Mrs. McKenzie's evidence.  7 The provincial defendant states that the Gitksan  8 and Wet'suwet'en oral histories "are myths and legends  9 as we understand myths and legends".  Now, my lord,  10 this proposition is as simplistic and unhelpful as the  11 evidence of Dr. Robinson.  The provincial defendant  12 does not describe who "we" are.  It appears to suggest  13 that all non-Indians have a uniform understanding of  14 "myths and legends" and that understanding is the  15 correct meaning for oral histories.  I say this is  16 quite contrary to the extensive evidence of the  17 distinctions among the Gitksan and Wet'suwet'en of the  18 stories and oral histories.  It's unfounded in the  19 context of the distinction.  It is important to note  20 that Dr. McLellan was considering the oral histories  21 of the Tlingit and not the oral histories of the  22 Gitksan and the Wet'suwet'en.  Now, the defendants  23 rely on Bishop and Ray's statement:  24  25 Even when employed carefully, memory  26 ethnography can only provide totally accurate  27 information for relatively short time spans,  28 usually 100 years at the very most.  29  30 Now you recall, my lord, they were talking about  31 the east side of the Arctic, the east side of the  32 Rockies.  And the long term -- where there was large  33 proto-contact periods of indirect contact.  34 Now, this exact quote was put to Dr. Daly who  35 explained what Bishop and Ray were talking about,  36 referring to the cultures they were dealing with:  37  38 So what they are talking about here is --  39 especially when you've got a culture which  40 is -- is rather tattered and there are only a  41 few speakers left to remember the past.  This  42 is what's usually called salvage anthropology  43 and it's a key informant process where you've  44 got to rely on the knowledge and authority of  45 just a few people who are remembering the past,  46 and in those conditions these (strictures) are  47 very much applicable. 29387  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. PLANT  THE COURT  MR. GRANT  Now, not even the defendants or Dr. Robinson has  suggested that salvage anthropology is necessary with  respect to the Gitksan and Wet'suwet'en.  Now, I then refer you to Dr. Trigger and I don't  wish to read -- I had intended to read paragraph 38  but I refer you to Dr. Daly's explanation of Sapir and  the oral history there.  It's very important for this  question of the weight of oral history.  Now, I go to page 24, paragraph 39.  Although Dr.  Robinson did not rely on oral history directly, she  used many ethnographers, all of whom did rely on oral  history.  MacDonald relied on oral histories and  contemporary Indian informants' descriptions for his  interpretation of the Kitwanga Fort.  And this is  recognized even by Dr. Robinson as a legitimate means  of interpretation of archaeological data.  And Dr. MacDonald relied on the Men of Mediik and  the Wars of Mediik to conclude that "warfare is  recorded in epic oral histories that, by conservative  estimates, span three or four centuries prior to  European contact."  This conclusion from one of the  main sources of Dr. Robinson is consistent with the  analysis of the oral histories of Ms. Marsden, the  archaeological finds of Ms. Albright at Gitangaat and  Coupland's thesis.  Now, I would like to go to just on the bottom  point is that Dr. Robinson relied extensively on  Barbeau's own historical interpretation.  She was  aware and in her report, my lord, she did not refer to  Duff's critique of Barbeau's Aging of the Totem Poles.  And she -- furthermore, she was completely unaware of  Drucker's critique.  :  My lord, we have heard my friend and his colleagues  on Dr. Robinson for a long time and I think that we  have gone beyond what is possibly contemplated by  reply.  And I am further handicapped by the fact that  we are getting all sorts of statements about what Dr.  Robinson is supposed to have said without really  having any opportunity to check whether, indeed, she  said that or whether my friend has taken her evidence  out of context and so on.  It's -- I think, with great  respect to my friend, that we have heard enough from  the plaintiffs on Dr. Robinson's evidence.  :  Perhaps there aren't any more references.  :  Unfortunately, there are, but not in this part.  I  am dealing with Ms. Marsden's evidence.  The challenge  to -- in the plaintiffs' argument, my lord -- and I 293?  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  don't want to spend a lot of time on this -- but in  the plaintiffs' argument, a lot of focus was not  directed to the credibility of Dr. Robinson or of the  plaintiffs' witnesses.  The credibility of the expert  witnesses; the defendants, a centrepiece of their  argument has -- is exactly that.  MR. PLANT:  Well, I have got a reference here to pages of  discussions and submissions about Dr. Robinson in  Volume 327 from April 23rd, and my friend opened his  argument in Smithers with reliance upon Ms. Marsden.  We've heard my friend at great length about Ms.  Marsden's evidence, too.  :  I think the scales are swinging against you on this,  Mr. Grant.  This is sounding increasingly like  argument rather than reply.  :  Okay.  I'll bear in mind what your lordship is  saying and given the time parameters probably the  culmination of the two will assist both of us.  :  Well, it leaves your friend at a great disadvantage  because I am left with this text which I am  undoubtedly going to be looking at, and I don't know  what -- how to balance the scales if it turns out that  this is argument that should have been made in chief,  or was made and is being repeated.  I don't know how  to bring fairness into that.  But it may be that I  will have to give your friend leave to point out the  areas -- or point out any significant parts of this  that -- and to comment on it.  I am not sure what I  will do with it but I think that that's -- seems to me  that that might be a possibility.  But I see no  alternative but doing as you say and that is to press  on.  GRANT:  I am mindful of your lordship's comments too.  PLANT:  My colleague, Ms. Sigurdson, informs me that there  are incorrect references here in this material, and I  was living with the feint aspiration that at four  o'clock this afternoon this case would be over.  If  this text, as it stands, is left with your lordship,  then from my point of view it isn't, because I have to  go back and I have to check and make sure that your  lordship is not being led down alleys which you ought  not to be led down.  I don't have an easy out for your  lordship.  COURT:  No, I don't either.  PLANT:  But this is an extremely difficult position to be  put in at this late stage.  MR. GRANT:  Well, the whole -- this question is -- the question  MR.  MR.  THE  MR. 29389  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  PLANT  COURT  GRANT  MR. PLANT  THE COURT  MR. GRANT  THE  MR.  COURT  GRANT  is the weight to be given to the oral history which  was directly --  That's the burden of my friend's case.  That's your burden.  Yes.  And we are responding to the reasons why my  friend in argument didn't deal with that.  I wish  to -- I will refer you, without going through, to  Section 4 in which I say, when you look at the work  that is done by Ms. Marsden, paragraphs 42 through to  46 is a response to the challenge to the -- to the  weight.  Now, on paragraph 47 -- or sorry, 48, my lord --  Just to interrupt for a second, I'm not sure where  we are at because this is -- I am not sure where we  are at in terms of procedure here.  This is a pretty  good example of the problem.  My friend knew from the  moment that he stopped his examination on  qualifications and credentials of Ms. Marsden,  whatever year that was, that there was an issue with  respect to those.  And what I see, when I just cast my  eye over paragraphs 42 to 46, is a spirited defence of  her qualifications and credentials.  And with respect,  that's an issue which fell to my friends to argue in  their argument in chief, and I'm not sure, practically  speaking, whether I'm now in a position where I have  to go and see if their references are right and what  they've left out or what the situation is.  I think that the whole section starting on page 25,  iv, "Weight of Ms. Marsden's Evidence Re: Oral  History" is of doubtful admissibility as reply.  I  think, Mr. Grant, that you should leave it with me.  I  think I must give your friend an opportunity to point  out in writing which parts of it are objectionable,  and I think I will then have to rule by informing  counsel which parts of it I think are proper reply and  which parts are not proper reply.  I see no  alternative.  I think the point, my lord, would be paragraph 42 to  46.  And I think I'll show you in 46, although there  isn't a new heading, that it directly deals with  certain points raised by my friend in their argument.  Starting at paragraph 47, the Province --  Well, you see, you start 46, "In summary, Ms.  Marsden's careful --"  Sorry, my lord, 47.  Forty-seven is where I go to  the provincial argument on specific points of  challenge and I would like to refer you to paragraph 29390  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  49.  I am not going to go through each of these  points, but paragraph 49:  The Province relied on the "little ice age".  But  I point out to you, my lord, the evidence of Dr.  Mathewes in which he described the "little ice age":  Is a geological term which refers to a period  beginning around 5,000 to 6,000 years ago, well  after the main ice age had ended, when there is  evidence in various parts of western North  America of glacial activity starting again in  the higher mountain areas.  He explained that there is no clear consensus on  how the term, "the little ice age", should be applied,  but it relates:  ...to relatively recent, in the order of a few  thousand years, resurgence of glacial activity,  particularly in North America.  THE COURT:  Well, I think — I think I have to deal with this  problem.  I think the ruling I made a moment ago  should apply to paragraphs 42 to 48 inclusive for the  moment.  And I think Mr. Plant should let me have a  submission by July 15th and I will deal with it as  quick as I can.  MR. GRANT:  I would ask that it -- well, I haven't referred you  to paragraph 48 but I'm referring directly there to  the Province's evidence argument about the reliance on  the bow and arrow, my lord.  I ask that that be not  part of it.  THE COURT:  Is the bow and arrow on page 48?  MR. GRANT:  Yes.  Bow and arrow starts on 48.  I just wasn't  going to read each one of the individual challenges,  but that's one of the challenges I respond to.  THE COURT:  All right.  Forty-two to forty-seven.  MR. GRANT:  Okay  Going to 51, my lord.  The Province relied on the  suggestion of Dr. Mathewes in his initial proposal to  challenge Ms. Marsden's evidence.  Now what they refer  to was a literature survey in his -- this is his  initial proposal in which he talks about the year  without a summer identified as 1816 in eastern Canada.  He said:  I have considerable data in my files regarding 29391  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  some of these historical events, and they may  be of value to you.  And this is the important point not raised in my  friend's argument:  Although no one has, to my knowledge,  documented the 1816 event in the west, although  the possibility clearly exists.  Now, neither Dr. Mathewes nor any witness  investigated this and it did not form part of any  expert opinion report.  Nevertheless, the Province  relies on his proposal for potential research as a  foundation to challenge Ms. Marsden.  And then the  Province never even put this suggestion to Dr.  Mathewes in their cross-examination of him.  Now, then I refer to the Carnaby debris flow of  Dr. Gottesfeld.  And the Province argued that Ms.  Marsden failed to rely on the debris flow described by  Dr. Gottesfeld as massive.  And I say that Dr.  Gottesfeld's conclusion was that this massive debris  flow "was likely in excess of 1,000 or 2,000 years; in  other words, it had incipient soil formation on it."  And I go on to explain that -- refer to that evidence  in that paragraph.  Again, the provincial defendants suggested that  "Ms. Marsden has to ignore the evidence of Dr. Rigsby  that the proto" -- paragraph 54, my lord.  :  Yes.  :  -- "Tsimshian homeland is on the Coast with a time  depth between 500 years and the guesstimate of it at  2,000 years."  However, the careful examination of  what they rely on clarifies what Dr. Rigsby actually  stated.  He says:  Time depth involved in the split between the  two Interior Tsimshian languages and Coast  Tsimshian is certainly greater than 500 years.  But given that there was continuing and regular  interaction among the speakers of the several  languages over time, it could go back to more  than two millennia.  However, I hasten to say  that this is strictly a "guesstimate" based on  my knowledge of change in other language  families.  In other words, Dr. Rigsby was making a 29392  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  guesstimate based on other language families.  Even  his guesstimate estimated that the split could go back  "more than two millennia".  Notwithstanding the  suggestion made to Ms. Marsden that this "evidence"  contradicted her opinions, I say there is no such  contradiction.  In fact, there is no evidence.  The provincial defendant suggested to Ms. Marsden  that the Athabascans "migrated south from the  proto-Athabascan homeland about 2,500 years ago"  according to Dr. Kari.  They rely on this in argument.  They ignored Dr. Kari's evidence that the Babine-  Wet'suwet'en territory may be part of the proto-  Athabascan homeland.  However, this is a factor that  would require archaeological analysis because it would  be a 6,000 to 10,000 year time depth.  And then I go  on to quote what Dr. Kari actually said, that  proto-Athabascan homeland "could have been occupied  10,000 years ago.  That is now fairly safely  established.  And it stayed as a unit until possibly  about 2,000 [sic] years ago."  In cross-examination,  Dr. Kari stated that it is "a very likely possibility"  that Babine-Wet'suwet'en is in the proto-Athabascan  homeland.  :  Did you intend to change that 2,500 to 2,000 years?  It says 2,500 but you read 2,000.  :  No, I didn't, my lord, I'm sorry.  In paragraph 57 the provincial defendant refers  to the reliance by Barbeau on the historic volcanic  eruption on the Nass, and I refer to that at the top  of page 33.  The defendant does not refer the court to  the explanation given by Ms. Marsden why she disputes  Barbeau's findings.  She not only refers to the  internal flow of the adaawk, but also -- and I  emphasize this, my lord -- also to the research done  since Barbeau's time on the Prince Rupert Harbour  archaeology which demonstrates that there was intense  occupation in Metlakatla Pass as far back as 2,500  years ago.  And then she goes on to rely on the  internal chronolgy of the Men of Mediik and the Wars  of Mediik.  Neither of these were available to Barbeau  at the time that he was writing his interpretations.  And, of course, I say that it's important for your  lordship to remember that she was never -- Ms.  Marsden's explanation of the process, her goal to  co-relate the adaawk:  That was my goal, but I was never  I had to 29393  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  PLANT  GRANT  THE COURT  MR.  MR.  PLANT  GRANT  THE COURT  MR.  THE  MR.  GRANT  COURT  GRANT  do the process in order to become convinced  that it was possible.  And then she summarizes that.  I emphasize to your lordship that the paragraph  58, the reference to Drucker and Duff's Exhibit 901-29  and 901-30 is something that your lordship should look  at carefully in the context of Barbeau, because they  very carefully, in a scholarly way, express their  concerns of his findings.  In paragraph 60 through to 63 I deal with the  Province's argument that Ms. Marsden ignored obvious  historic clues within oral histories such as copper  shields.  Now, I point out to your lordship that  although Dr. Robinson commented on this she ignored  Dr. George MacDonald's finds of copper ornaments at  grave sites in Prince Rupert Harbour dated at 3500  B.P. to 1500 years before present.  And that's Exhibit  1042-25 at pages 45 and 46, my lord.  So that there  was native copper in the area.  In terms of paragraph 63, my lord, there was a  challenge that Ms. Marsden ignored genetic  characteristics and, once again, I say that the  defendant mischaracterized the evidence.  This was a  reference to a Himas adaawk.  Sorry, who is Keithahn?  Keithahn is an uncited author referred to by Dr.  Robinson.  It's not cited in her report.  How is an uncited author who is not cited in the  report identified?  That's what gave rise to my question, my lord.  Well, as you may recall Dr. Robinson's evidence, the  majority of her sources in cross-examination were  never cited in her report and this is one of them.  She -- when the question was put to her, she pulled  somebody else out of the hat.  His work had actually  been written after she did her report.  You say it's an uncited author mentioned by her but  not mentioned in evidence -- but not mentioned in her  report?  Not her report, that's right.  Thank you.  Now, the Province then attacks, as with copper, that  Ms. Marsden ignored genetic characteristics, and I say  they mischaracterized the evidence.  Ms. Marsden  explained the Himas adaawk which the Province was  referring to and this is in Mr. Willms' argument, 29394  Submissions by Mr. Grant  1 which refers to red hair is of relative recent origin  2 and referred to the more recent warrior period.  When  3 you look at the reference that I have given you there,  4 my lord, she actually explained that before Mr. Willms  5 pointed out to her in cross-examination the red hair  6 reference.  She explained that Himas came in certainly  7 the proto-contact or -- well, in the Coast, probably  8 the contact period.  9 Now, Mr. Willms suggested an argument that she  10 ignored references to soap referred to in the adaawk.  11 Again, it's a mischaracterization.  The adaawk clearly  12 described an historic event and the reference to soap  13 was actually a description of one of the first trade  14 goods, and Ms. Marsden explains that in the citation I  15 give you.  I suggest that the provincial defendant  16 tries to suggest that Ms. Marsden ignored historical  17 references, and in this way mischaracterized her  18 evidence.  19 I go on to explain where she refers to more than  20 the Chicago Creek landslide in paragraph 66, although  21 the Province argues that that's all she did.  And I  22 come to my conclusion on this point in paragraph 70  23 and 71, and I am not going to refer to the other  24 references in oral argument, my lord.  25 Briefly, in Part 5, Part E of my argument, I deal  26 with time depth and continuity which is section IV, 1  27 of the Provincial defendant's argument.  And they say  28 that there is a "fundamental contradiction" in the  29 description of the landslide at Seeley Creek and the  30 grizzly bear adaawk.  Now, as has been reiterated to  31 your lordship, it's not necessary for your lordship to  32 determine whether or not it was a giant landslide or a  33 giant grizzly bear.  But what is significant for your  34 lordship is that 3,500 years ago was the most massive  35 cataclysmic event that occurred in the geological  36 history of the area around Seeley Lake.  That event is  37 consistent with the oral history's description of the  38 Mediik adaawk.  In that sense, there is independent  39 corroboration of the adaawk.  But the significant  40 factor for your lordship is to find that the ancestors  41 of the plaintiffs lived at Temlaxamid within the  42 Gitksan territory 3,500 years ago.  43 Now, my friends talk about a continuity of  44 boundaries and refer to Solomon Marsden and Stanley  45 Williams' evidence that the boundaries don't change.  46 And then they set up the Daniel Skawil, the former  47 Skiik'm Lax Ha transfer to Djogaslee, Willie Wilson, 29395  Submissions by Mr. Grant  1 as saying this contradicts what they say.  Well, what  2 I set out in paragraph 3, my lord, the circumstances  3 surrounding that, and that, in fact, what's very  4 important is that in Djogaslee's present affidavit, he  5 actually -- paragraph 8 refers to the fact that this  6 particular territory was acquired recently.  And there  7 is no, I say, contradiction in that, in that it was an  8 internal transfer within the House for the purposes of  9 a feast -- assistance by the former Djogaslee in a  10 feast.  And I refer you to that.  11 Now in paragraph 6, my lord, I say the continuity  12 of territories is corroborated by William Brown in his  13 first trip into the Gitksan territory in which he  14 identifies distinct territories of Gwoimt, Niigyap and  15 Tsabux.  His description places these territories in  16 the same geographical location as they are today on  17 646-9A and B.  The reference there should be Part IV  18 page 14.  19 THE COURT:  Yes, it's been filled in.  20 Well, we are going to go to 12:30 but we've been  21 going pretty fast and I think we should take a very  22 short adjournment.  23 MR. GRANT:  Certainly, my lord.  24 THE REGISTRAR:  Order in court.  Court stands adjourned for a  25 brief adjournment.  26  27 (PROCEEDINGS ADJOURNED AT 11:45 A.M.)  28 (PROCEEDINGS RECONVENED AT 11:50 A.M.)  29  30 THE REGISTRAR:  Order in court.  31 MR. PLANT:  My lord, before my friend continues, unless your  32 lordship had --  33 THE COURT:  No, no.  34 MR. PLANT:  Something that my friend has said at the end of --  35 well, I suppose it's this Section number 5 which deals  36 with -- is supposed to deal with time depth and  37 continuity.  Paragraph 3, which is on the third page,  38 where my friend says "As can be seen from," and then  39 there is an exhibit reference, "any such exceptions  40 are reflected in the affidavits," and so on.  Now,  41 apart from the fact that my friend has taken this  42 reference from my argument completely out of context,  43 the point that I want to make with your lordship is my  44 understanding is that by particulars, the plaintiffs  45 have suggested that there are two territories of  46 recent transfer or acquisition.  These are territories  47 of Kliiyem lax haa and Niist.  And as I read what my 29396  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  friend is saying in this part of his argument, he  seems to be saying that this is a third territory  here. So either he is retroactively amending his  particulars or he is doing something else. But I  don't quite follow how this argument sits with the  particulars.  MR. GRANT:  I'll answer it quickly, my lord.  Paragraph 4 on  page 3 -- you have a reference there, my lord?  THE COURT:  Yes.  MR. GRANT:  The significant issue here is the Province is not  suggesting this territory was transferred from a  non-Gitksan to a Gitksan.  The particulars were in  response to the question where -- which territories  after contact -- or assertion of sovereignty, I should  say, which territories were transferred from non-  Gitksan to Gitksan?  This is an internal Gitksan  situation.  Now, in terms of the time frame that I have left,  my lord, I am not going -- I would like to refer you  to tab 6.  And if you go to -- after page 72, you will  see a section of reply on archaeology.  The balance of  it deals with the --  THE COURT:  Sorry, page 72?  MR. GRANT:  Tab 6.  THE COURT:  Yes?  MR. GRANT:  And if you go after page 72.  THE COURT:  All right.  MR. GRANT:  Of the first — there is actually two parts to it,  so it's the first -- end of the first part, my lord.  MR. PLANT:  Will someone else be speaking to that?  Because it's  all objectionable.  None of it is reply.  The first 72  pages -- in fact, everything that I have got at this  tab repeats and re-makes arguments over and over again  that were the part -- were the burden of my  plaintiffs -- I am sorry, the burden of my friends in  their argument in Smithers, and it's really nothing  more than revisiting the issue of all of their experts  and Dr. Robinson at inordinate length.  MR. GRANT:  Okay.  I'll deal with that in this way, my lord:  I  think the way to handle that is if my friend has  specific objections he can deal with it.  But, in  your --  MR. PLANT:  I have a specific objection to all of this section.  MR. GRANT:  I understand that.  But it can be dealt with not  today so that we can complete.  But what I ask your  lordship to take into account and where I introduce it  is that in Volume 341 on those pages, Mr. Willms 29397  Submissions by Mr. Grant  1 starts with -- he starts this whole area by  2 transporting into his argument Dr. Robinson's opinion.  3 And in fact, throughout this, wherever it says "Dr.  4 Robinson says", it could equally be "the Provincial  5 defendant argues".  But there he sets out the central  6 theory and this is a response to that.  We say it's  7 responsive.  I think the best way to deal with it  8 is -- in light of my friend's view, is that -- to deal  9 with it as you suggested with Ms. Marsden.  10 MR. PLANT:  Well, it's one thing to have five paragraphs, my  11 lord, but -- and just one further point for your  12 lordship to bear in mind, and that is that my friends  13 had our argument before they stood up in Smithers.  14 MR. GRANT:  We had it two days before, my lord.  15 MR. PLANT:  Well, that's — I think it may have been a little  16 bit more than two days.  17 MR. GRANT:  It was not more than two days.  18 THE COURT:  Well, all right.  There is no way I can deal with  19 this in a proper way.  Seventy-two pages is a  20 substantial volume of material.  I think, Mr. Grant,  21 that I'm going to take pages 1 to 72 out and I am  22 going to give them back to you.  I am going to give  23 you leave to reconsider them and if you are satisfied  24 that they are proper reply then you will have to re-  25 submit them to your friend and myself and we will have  26 to have another revisit of this problem.  I see no  27 other way to handle it.  If your friend objects to the  28 whole thing it's too much material to just leave here  29 in an uncertain state.  And I think in the time  30 available you should not be trying to justify that  31 volume of material and I think you should have an  32 opportunity to justify it but in a more measured way  33 than is available today.  34 So I will give it back to you with my apologies  35 for the moment, but I will merely say pages 1 to 72  36 objected, and I will look forward to hearing something  37 else or have something in its place by July 15th.  38 MR. GRANT:  I will deal with it in that way, my lord.  39 THE COURT:  And I wanted to say, Mr. Grant, that I thought we  40 would adjourn for lunch from 12:30 to quarter to two,  41 if that's of assistance to you.  42 MR. GRANT:  Thank you, my lord.  43 Now, going to page -- the reply on archaeology,  4 4              my lord.  4 5 THE COURT:  Yes.  46 MR. GRANT:  In the reply on archaeology, the Province defendant,  47 as in the first 72 pages, deals with the anthropology 2939?  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  and the oral history -- or not the anthro -- the  anthropology and the history, I should say, on page  72 -- or the next set starting at page 1 deals with  the provincial argument on archaeological opinions,  and each paragraph is tied directly to the paragraph  of my friend's argument.  What I would like to do is take you directly to  one of the key issues -- and of course all of this is  part of our reply and we say it's proper reply -- but  I would like to take you to paragraph 23 on page 11.  And I am only shortening this not because of what my  friend is saying but because of the time constraints  on us in oral argument.  Here the Province argues that there is  archaeological evidence of prehistoric occupation only  at Moricetown, Hagwilget, Gitwangak and Kitselas.  This is simply wrong.  Paragraph 24.  At Gitangat, north of Doreen on the  Skeena River, a large house depression was excavated  and a sample of carbon-stained soil within it was  carbon dated to 1730 plus or minus 60 B.P. indicating  ancient occupation of this cultural zone.  Now, my  lord, the point of this is this:  Nowhere in the  Province's argument do they ever grapple with the 1730  B.P. date.  They can't answer that and that puts the  lie to the Barbeau theory.  It puts the lie to the  theory of the people coming into the area late.  There  is no real answer to that except an answer of a liquor  bottle, and I would like to take you to that which is  dealt with at page -- in paragraph 89.  Page 89 or paragraph?  Paragraph 89, my lord.  Yes.  This also deals with the Province's attack on the  Moricetown finds and the Chinlac coin but I'm just  going to focus on one point here.  It's page -- paragraph 88, page 40, my lord.  Now, this is after they refer to Gitangasx, and  the Province repeats this argument in respect of  Gitangat where again it is suggested because of the  presence of beer and liquor bottles in a single cache  at the site, Ms. Albright misconcluded the location to  be prehistoric.  The Province's argument is blind to  the reality that it was both prehistoric and historic.  The absurdity of the Province's argument that the  cultural depressions found at the Gitangat cache pit  area were historical is readily seen by reference to 29399  Submissions by Mr. Grant  1 Figure 8 in the Albright report.  This places the  2 bottle cache at the north end of a huge area over  3 which the cache pits were scattered close to the  4 Skeena River.  5 The area was 800 metres long by 300 metres wide.  6 The cache pits were located on a series of irregular  7 terraces.  There were 106 circular cultural  8 depressions.  There was one cache of bottles at the  9 north end of the site which was obviously a garbage  10 dump related to the mining activity at Lome Creek.  11 Then 90 describes the size of the pits.  12 Now, my lord, it was the second of the three  13 sites, not the site where the bottle was found, at the  14 Gitangat area where the large house depression with  15 the radio carbon dating of 1730 plus or minus 60 B.P.  16 for the occupation of the cultural zone was  17 determined.  18 About the cultural pits, Ms. Albright stated:  19  20 They were quite -- quite distinct, had quite  21 distinct characteristics of cache pits used in  22 prehistoric times given the nature of the rims  23 and the characteristics of the features.  24  25 Now, my lord, the isolated location of the bottle  26 dump was historic and separated from the rest of the  27 large areas of the cache pits which were prehistoric.  28 Now, I would like to go to the conclusion of this  29 section.  30 It is the convenient -- paragraph 99 on page 44,  31 my lord.  It is convenient for the defendant Province  32 to ignore the primary and direct archaeological  33 research done in respect of the Gitksan and  34 Wet'suwet'en people which, when seen in its  35 inter-relationship with linguistics, anthropology and  36 history, and testified to by Ms. Albright, Dr. Kari,  37 Dr. Rigsby, Dr. Daly, Ms. Harris and Dr. Mills, that  38 the inhabitants of the territory were the ancestors of  39 the present-day Gitksan and Wet'suwet'en people and  40 they have lived there for millennia.  41 Now, Dr. Daly in his opinion -- and this is not as  42 an archaeologist but as an anthropologist -- says:  43  44 The diverse hunting economy in Europe was  45 marked by a stone, wood and bone technology  46 with flexible, multi-purpose tools side by side  47 with the development of task-specific tools. 29400  Submissions by Mr. Grant  1 This technology and its organization appear to  2 have led to stable, quite sedentary social  3 life, with a degree of social ranking otherwise  4 found only among agricultural kingship  5 societies.  It appears that this stability and  6 incipient social ranking began to appear along  7 the coast of northern Europe...  8  9 And he describes it.  10  11 This same process occurred, according to the  12 archaeological record in post-glacial Namu on  13 the central British Columbia coast - See Ames  14 and Coupland - suggests the same types of  15 technological and social developments appeared  16 at the confluence of the Skeena and Bulkley  17 Rivers and in the Kitselas Canyon 5,000 years  18 ago.  19  20  21  22 In sum, first, the British Columbia  23 archaeological record provides corroboration  24 for the proposition that the predecessors of  25 modern Gitksan and Wet'suwet'en possessed a  26 wide variety of techniques, based upon a stone  27 and bone-antler technology, which enabled them  28 to fashion part of their material needs from  29 the forest vegetation, and the rest from the  30 fish, fowl and game that made up the changing,  31 post-glacial ecological system.  32  33 And then I refer you to the second and his third  34 points on page 46.  35 Now, my lord, with respect to the territorial  36 evidence, this is a response to one aspect of the  37 territorial evidence which is the highlighted areas  38 referred to in the original argument of my friends.  39 Now, I just want to point out to you paragraph 15  40 and following in that section.  And of course I refer  41 you to all of it, my lord, but --  42 MR. MACKENZIE:  Excuse me, my lord, but my friend says he refers  43 your lordship to all of this.  I have paragraphs 1 to  44 15 prior to this point at which my friend is starting,  45 and it is my submission that all those paragraphs are  46 not proper reply.  My friend is not referring to them  47 now in oral argument, but they are all repetitious. 29401  Submissions by Mr. Grant  1 They deal with the territories referred to in the  2 Province's argument Section 5(G), the detailed  3 analysis, and that was the subject of detailed  4 discussion in Mr. Grant's oral argument.  So on that  5 part, that's completely repetitious and not proper  6 reply.  7 MR. GRANT:  Well, I'll just respond briefly, my lord, that I  8 refer you to the first paragraph in which I refer to  9 Mr. Willms' house-of-cards quote; the house of  10 territories, when you pull out one card and they all  11 fall.  And then I refer to your lordship's comments.  12 And the provincial defendant in oral argument  13 subsequent to the plaintiffs' argument referred to  14 five specific territories, and my reply is to that  15 aspect of the oral argument focusing on those five.  I  16 refer for the most part, and I don't argue this out  17 except to refer your lordship back to the plaintiffs'  18 argument where this -- that aspect was dealt with in  19 respect of these.  And what I say, my lord, is it's  20 like two passing trains on separate tracks.  21 Notwithstanding the plaintiffs' arguments on those  22 five territories, there is no meeting between the  23 plaintiffs and the defendant.  The defendant did  24 not -- did not respond to the plaintiffs' explanations  25 in their written argument.  And I don't need to go  26 into it in any more detail.  27 THE COURT:  Well, it seems to me, Mr. Mackenzie, that the  28 response to those five examples would be proper.  29 MR. MACKENZIE:  Not at all, my lord, because in my submission,  30 those five examples were dealt with in detail in the  31 written argument and in Mr. Grant's detailed response  32 to those five examples set out in the written  33 argument.  There was nothing new in my oral argument  34 and, in fact, I just summarize in the briefest way  35 what was included in the written argument to which Mr.  36 Grant had responded in great detail.  37 MR. GRANT:  Well, in fact, there was new material put in  38 regarding those five summaries.  39 MR. MACKENZIE:  I disagree with that, my lord.  40 THE COURT:  Well, it's -- I can see some merit in both positions  41 but I think in the circumstances I should allow Mr.  42 Grant to reply to the five specific cases.  It may be  43 that that is, in part, repetitious or a repetition of  44 what was urged initially, but I think little harm  45 would be done by allowing a response to the more  46 specific answer advanced by the Province.  47 Where do you want me to go to, paragraph 15? 29402  Submissions by Mr. Grant  1 MR. GRANT:  Those five territories are dealt with in paragraphs  2 1 to 14 and then I refer in paragraph 15 to the nice  3 chart that my friends put together regarding 70  4 territories and their subsequent argument.  5 And paragraph 16 refers to the Federal argument  6 and we'll deal with -- on use and occupancy of  7 territories.  That is not dealt with in this section,  8 it will be dealt with in another piece that we will  9 present later today.  10 But paragraph 17, my lord, sets out the columns of  11 Mr. Mackenzie's chart.  And then what I do is I -- and  12 I am not going to repeat it, I think it's clear -- is  13 I go through and show you what he's actually referring  14 to there in a compendious way and the fact of how --  15 of where the responses are to each of those -- those  16 issues.  For example, he relies on the traplines and  17 that -- and I refer you to where that's dealt with in  18 our argument and that deals with the 70 territories.  19 And I -- and so I'm not going to refer to that in any  20 more detail.  21 Now, the final part of this section of argument,  22 my lord, Section H, deals with ownership and  23 jurisdiction.  And in this part of the argument or  24 reply, we respond to the Province's -- many of the  25 Province's issues that they talk about in terms of the  26 system.  I would like to just refer you briefly to  27 page 9, paragraph 30.  Once again, I am not abandoning  28 any part of the argument, but for time reasons I am  29 not going to read it all.  30 Now the Province here, I say in paragraph 29,  31 mounts a feeble attack against the feasts.  32 The first point is that the feast reflects the  33 practices of a society emersed in land claims.  34 It is true that land claims has been an issue in  35 the Gitksan and Wet'suwet'en public forum for over a  36 century.  This follows from the centrality of the  37 feast as an institution which deals with the  38 territories of the Gitksan and Wet'suwet'en.  However,  39 to elevate the land question as the motivation for the  40 feast, is to miscontrue the weight of the evidence  41 that the feast functions primarily as an institution,  42 convened at the deaths of house members, to pass  43 Chiefly names and to affirm publicly ownership and  44 access rights to the territories.  45 Now, what I point out in the next paragraphs is  46 that the provincial defendant relies on Tomlinson and  47 Loring and, in the bottom paragraph, for the 29403  Submissions by Mr. Grant  1 description of the feast.  Now, Tomlinson was  2 referring to a winter dance festival as explained by  3 Dr. Daly in cross-examination.  But Loring -- as I  4 say, the plaintiffs have emphasized that Mr. Loring  5 was a government agent in which the government was  6 opposed to the feast as a matter of policy.  Mr.  7 Loring wrote to his supervisors reporting on his best  8 efforts to eliminate the objectionable parts of the  9 feast in the land claims area.  He had every motive to  10 emphasize the changes to the feast to his supervisors.  11 Nevertheless, the feast system has survived.  The  12 provincial defendant's argument really amounts to a  13 "frozen rights" theory of jurisdiction.  And I say  14 that as the Supreme Court has said in Sparrow, changes  15 do not result in extinguishment.  16 But what I refer you to then, my lord, is a more  17 reliable historical view of the feast as provided by  18 the fur traders, who had no interest at all in  19 promoting a point of view in describing what they saw  20 at the feast, and it bears a remarkable similarity to  21 the plaintiffs' evidence.  And what I've then done in  22 paragraph 39 and following, and I've highlighted it  23 for you, these are direct extracts from Brown's  24 journal -- sorry, Harmon in 39 and Brown in 40.  And  25 when you read those extracts, my lord, you could be  26 hearing what the plaintiffs are saying today.  It's  27 remarkable to consider they were talking about  28 something a hundred and seventy-five years ago that is  29 so consistent with what we have today, in the feast  30 evidence that you have heard.  31 I would like to go to paragraph 55, my lord, on  32 the ownership and jurisdiction.  I say that the  33 Province's argument attacking the ownership and  34 jurisdictional system of the plaintiffs is a futile  35 attempt to level a mountain using a garden shovel.  36 The Gitksan and Wet'suwet'en have survived for  37 centuries on this land as a distinct people because  38 they had laws and strong institutions capable of  39 withstanding not only the test of time, but the test  40 of a stronger government's non-recognition of their  41 laws and direct attacks on their institutions through  42 Indian agents and missionaries.  And it's not a  43 question, again, of motive, but a question of that's  44 the historical facts.  45 Those are my submissions on this part, my lord,  4 6 in terms of oral argument.  4 7    THE COURT:  Thank you. 29404  Submissions by Ms. Mandell  1 MR. GRANT  2 THE COURT  3 MR. GRANT  Ms. Mandell will speak to you on the other.  That completes this book?  Yes, that completes that book, my lord.  4 MS. MANDELL:  Thank you.  My lord, I will try to be brief  5 without being too fast.  6 I am revisiting the Sparrow, Sioui and Horseman  7 cases to advance what we say they say about the test  8 of "clear and plain" extinguishment.  And I also, my  9 lord, if you can turn to the index, I also reply to  10 the Province's argument which is at Part VII, Section  11 5(C) which deals with the Province's view of the  12 extinguishment through the colonial period ordinances.  13 And I also reply to the Province's argument at five --  14 VII, Section 5 and 6 dealing with the plenary power  15 they argue of the colonial government and the  16 application of the Colonial Laws Validity Act.  I'm  17 only going to speak to A and B, and then I'm going to  18 do that in a highlighted way and ask your lordship, if  19 you will, to read the whole of the argument at your  20 leisure.  21 The tabs which follow are our best effort to,  22 within the time frame, set out the pages of quotes  23 which are going to, more or less, all have been  24 referred to in the body of the argument itself.  But  25 for your lordship's reference there, you can turn to  26 the quote and see it in its fullness of -- we created  27 some typographical errors or other reproductive  2 8 problems.  29 If I can begin with the "clear and plain".  You've  30 heard, my lord, that the Sparrow case has decided that  31 the sovereign intention to extinguish an aboriginal  32 title must be "clear and plain".  And we submit that  33 on a proper reading of Sparrow, Sioui and Horseman,  34 that the test is that there must be "clear and plain"  35 intention manifested by an Act of the Legislature.  36 And both the Province and the Federal defendants have  37 contended that on a reading of Sparrow and Sioui and  38 Horseman, that the sovereign intention need not be  39 manifested by an Act of the Legislature.  And it is  40 that point that I will be addressing to you at this  41 point.  42 If I could ask your lordship to look at the quote  43 at paragraph 1, the second paragraph of it, where the  44 court in Sparrow said when they began:  45  46 But Hall, J. in that case --  47 29405  Submissions by Ms. Mandell  1 And this is towards the middle of the paragraph.  2  3 -- stated (at page 404) that "the onus of  4 proving that the Sovereign intended to  5 extinguish the Indian title lies on the  6 respondent and that intention must be 'clear  7 and plain'."  The test of extinguishment to be  8 adopted, in our opinion, is that the  9 Sovereign's intention must be clear and plain  10 if it is to extinguish an aboriginal right.  11  12 Now, we wish to point out and we do first at  13 paragraphs 4 and 5, that the words actually used by  14 Mr. Justice Hall were that aboriginal title could be  15 extinguished "by specific legislation".  Later in the  16 judgment he provides the following example:  17  18 If the Colony had intended extinguishing the  19 aboriginal title to public lands...it could  20 easily have said 'aboriginal title to public  21 lands in the Colony is hereby extinguished'.  22 No such enactment or one with language to like  23 effect was ever passed.  24  25 And further, in the judgment, he makes the same  26 statement, that is, to look for express words  27 extinguishing aboriginal title.  28 If I could take you down to paragraph 7.  Your  29 lordship will recall that in the Sparrow case, the  30 court approved of and adopted the principles of  31 Nowegijick in the interpretation of Section 35.  32 And if I can ask you to turn to paragraph 10, I  33 explain to your lordship that in the Oneida case, the  34 Nowegijick principles have been rationalized as being  35 the foundation for the requirement of explicit  36 statutory language to extinguish aboriginal and treaty  37 rights as relating to the canons of construction  38 applicable to Indians.  And there in Oneida the court  39 says:  40  41 The canons of construction applicable in Indian  42 law are rooted in the unique trust relationship  43 between the United States and the Indians.  44 Thus, it is well established that treaties  45 should be construed as liberally in favour of  46 the Indians,... with ambiguous provisions  47 interpreted to their benefit,... 29406  Submissions by Ms. Mandell  1 And then later in the paragraph, the full of which I  2 have not set out in the tab:  3  4 'absent explicit statutory language,'... this  5 Court accordingly has refused to find that  6 congress has abrogated Indian treaty rights...  7  8 And so the court there married the rule of  9 construction set out in Nowegijick as being the  10 foundation reason for ruling that explicit statutory  11 language for clear and plain intention is required.  12 Now, my lord, if I could ask you to turn to tab 4  13 of the material which is the case of Paul v. C.P.  14 Limited, a decision of Mr. Justice La Forest.  And  15 this is between the time of Calder and before the  16 decision in Sparrow, and I'm reading from the third  17 paragraph, the second full paragraph beginning:  18  19 At the same time, it must be remembered that  20 the Indian title cannot compulsorily be  21 divested in the absence of a clear intention on  22 the part of the Legislature.  23  24 And then Mr. Justice Hall's judgment is quoted and  25 Mr. Justice La Forest says:  26  27 This appears to be a special application of the  28 general presumption that the Legislature does  29 not, in the absence of clear words, intend to  30 interfere with vested rights.  31  32 And you will see that the case of the Queen v.  33 New Brunswick and Estabrook was quoted.  And if I  34 could ask your lordship to turn to --  35 THE COURT:  But then he goes on and says:  36  37 In this case, I am prepared to hold that the  38 Legislature must have intended to displace the  39 Indian title so far as need be for the  40 construction and operation of the railway.  41  42 I take it that there was no specific statutory  43 language saying --  44 MS. MANDELL:  Ruling.  45 THE COURT:  -- saying the aboriginal title on the right-of-way  46 was extinguished, was there?  I don't think there was.  47 MS. MANDELL:  Well, there wasn't, but he does go on to say, and 29407  Submissions by Ms. Mandell  and I will -- unfortunately, the whole case isn't  here, but he expresses no opinion about the overall  question about extinguishment  COURT:  They dodge that question.  MANDELL:  That's right.  COURT:  But it seemed to me that what you have read must be  read in the light of what follows.  MANDELL:  Well, my lord, I am afraid that —  COURT:  I don't know what "displace" means either.  MANDELL:  And the full answer to it is in the facts of the  case and I can address your lordship on that too,  although I don't feel at this point that I can do it  justice.  But it has to do with the particular way in  which that reserve was set up and the type -- the  chain of title which is at issue with respect to the  railway.  But as to the main issue about  extinguishment, in that case there was -- those -- the  language which I've read to you and also in the end a  dodging of the -- by the Supreme Court of Canada of  the full impact of it.  PLANT:  My lord, if I could ask you to turn back to the  argument at paragraph 11, my lord.  You might want to  make a note that the judgment of the New Brunswick  Court of Appeal from which my friend has made  reference was overturned by the Supreme Court of  Canada.  MANDELL:  My lord, that's just not true.  COURT:  Sorry?  PLANT:  Well, I believe that the appeal was allowed.  Am I  wrong on something?  MANDELL:  Yes.  COURT:  Sorry, what tab were we at?  MANDELL:  We were trying to get through the reference by Mr.  Justice La Forest which was found at paragraph 5, tab  4.  COURT:  Yes.  MANDELL:  And my lord, my friend is right, that the case  went up to the Supreme Court of Canada.  He is wrong  that there was an overturning on this point.  PLANT:  Oh, I wasn't saying that.  I was saying that the  appeal was allowed.  COURT:  I'm sorry, this is from the Court of Appeal of New  Brunswick?  MANDELL:  That's right.  COURT:  Sorry.  I thought this was the Supreme Court of  Canada.  MANDELL:  No.  1  2  3  4  THE  5  MS.  6  THE  7  8  MS.  9  THE  10  MS.  11  12  13  14  15  16  17  18  19  20  21  MR.  22  23  24  25  26  27  MS.  28  THE  29  MR.  30  31  MS.  32  THE  33  MS.  34  35  36  THE  37  MS.  38  39  40  MR.  41  42  THE  43  44  MS.  45  THE  46  47  MS. 2940?  Submissions by Ms. Mandell  1 THE COURT:  All right.  And you are saying that this was not --  2 this point wasn't --  3 MS. MANDELL:  This particular point, the way that Mr. Justice La  4 Forest commented on the -- his understanding that Mr.  5 Justice Hall, when he was saying "clear and plain" was  6 dealing with the presumption that legislation does  7 not, in the absence of clear words, intend to  8 interfere with vested rights, that analysis was not  9 overturned by the Supreme Court of Canada.  10 THE COURT:  Whose language is this?  11 MS. MANDELL:  This is Mr. Justice La Forest speaking as he then  12 was.  13 THE COURT:  Oh, as he then was?  14 MS. MANDELL:  Yes, as he then was.  15 THE COURT:  Oh, all right.  16 MS. MANDELL:  And at the Supreme Court of Canada on this point,  17 the Supreme Court of Canada dodged the issue and they  18 said that they didn't have to deal with express or  19 implied.  But the way that Mr. Justice La Forest  20 understood Mr. Justice Hall is what I'm asking your  21 lordship to consider.  22 THE COURT:  I notice also at the bottom of that paragraph there  23 is another statement that seems to go perhaps the  24 other way:  25  26 So the interference with the Indians' interest  27 continued pursuant to the statutorily  28 authorized permission.  29  30 MS. MANDELL:  Yes, my lord.  31 THE COURT:  I don't know what that means either.  32 MS. MANDELL:  My lord, you really have to read the facts of the  33 case to catch the whole thing.  I was only, for the  34 purposes of this argument, drawing to your lordship's  35 attention how Mr. Justice La Forest interpreted Mr.  36 Justice Hall's statement on this point.  37 THE COURT:  All right.  Thank you.  38 MS. MANDELL:  If I could ask you to turn to paragraph 11, page  39 3.  This is a statement in the Estabrooks case which  40 Mr. Justice La Forest is referring to.  And I'll only,  41 at page 4, ask you to consider the presumption that  42 was being spoken about.  This is dealing with the  43 realization of the implications of parliamentary  44 supremacy.  And the underscored passages:  45  46 But the original foundations of our  47 governmental organization remained as a legacy 29409  Submissions by Ms. Mandell  1 in a number of presumptions designed, as  2 Driedger notes, "as protection against  3 interference by the state with the liberty or  4 property of the subject".  "Hence", he adds,  5 "it was presumed" in the absence of clear  6 indication in the statute to the contrary,  7 that Parliament did not intend to affect the  8 liberty or property of the subject".  9  10 And later:  11  12 One of these presumptions is that a statute  13 should not, in the absence of clear words, be  14 construed as taking the property of an  15 individual without compensation.  This, of  16 course, frequently arises in expropriation  17 cases but it is not limited to these.  18  19 ...The principle I have described is  20 fundamental.  It is a constitutional principle  21 in the British sense.  22  23 And the explanation for the presumption was  24 explained by Mr. Justice La Forest, as he then was:  25  26 ...But what these presumptions ensure is that a  27 law that appears to trangress our basic  28 political understandings should be clearly  29 expressed as to invite the debate which is the  30 life blood of parliamentary democracy.  31  32 And we say that the principle that aboriginal  33 rights may only be extinguished by the clearest,  34 unequivocal expression of legislative intent is  35 designed to ensure that there is vigorous public  36 debate on the compelling circumstances which would  37 justify a dispossession for the Indian Nations of  38 fundamental rights to their land which they have  39 possessed since time immemorial, and where the  40 protection of such right involves the honour of the  41 Crown.  42 And we say that the expression in a statute of an  43 intention to extinguish provides to the Indian people  44 whose rights are affected, or to be affected, the  45 notice which we say should be required as part of the  46 honour of the Crown if there is an intention to  47 extinguish aboriginal title.  And in fact, the 29410  Submissions by Ms. Mandell  1 parliamentary process was designed to debate and  2 record the sovereign intention.  3 Now, Canada argues -- and these are the arguments  4 which your lordship was asked to consider -- that a  5 proper reading of Sparrow, Horseman and Sioui permit  6 the interpretation that the extinguishment of  7 aboriginal rights could be effected by implication.  8 I am not going to take you back through the two  9 main arguments in Sparrow which expressly rejected  10 extinguishment by implication, I referred to them  11 earlier, but for convenience I've set them out again  12 at paragraphs 17 to 21.  And I just remind your  13 lordship that they rejected the implication argument  14 which was the basis for the decision of Mr. Justice  15 Judson, that a combination of legislation manifested  16 an intention to extinguish title by the opening up of  17 the lands for settlement.  And secondly, the argument  18 in Sparrow provided for by the respondent's counsel  19 that by manifesting through regulations a sovereign  20 intention over a long period of time to suppress the  21 exercise of aboriginal title, that the title could be  22 extinguished.  23 Now, Mr. -- the Province has urged your lordship  24 to consider the case of C.P. v. Paul, and that was the  25 Supreme Court of Canada's ruling to the decision that  26 I had earlier referred you to consider Mr. Justice La  27 Forest's reasoning.  And they say that the -- there is  28 some support from the fact that Sparrow does not  29 purport to disapprove of the obiter in C.P. v. Paul.  30 And at paragraph 22 I set out the passage that the  31 Province relies upon.  32 However, I add at paragraph 23 that the obiter  33 expressly does not resolve the debate whether  34 extinguishment need be express or could be implied.  35 In fact, the Court in Paul kept the debate  36 deliberately open since the test for extinguishment  37 was not necessary to decide the case.  38 And I'll just read you the last full sentence of  39 their decision.  They raise this question of intention  40 expressed or implied:  41  42 Fortunately, we do not have to answer this  43 difficult question because it is enough for  44 purposes of this appeal to find CP has a valid  45 easement or right-of-way...  46  47 And so on it goes from there. 29411  Submissions by Ms. Mandell  1 At paragraphs 24 to 25, I cite the Lipan Apache  2 case which was relied upon by both defendants to  3 support the submission that extinguishment could be  4 implied.  I am not going to read it to your lordship,  5 but ask you to consider the bold print at page 8 when  6 you do consider this, which is the parts of the  7 passage referred to by the defendant; the first and  8 the last sentences which weren't read into the record  9 by them.  And we also stress that a close reading of  10 the Lipan Apache case which was dealt with by the  11 plaintiffs, and so I won't repeat it.  In it the Court  12 refused to imply extinguishment, ruling against the  13 several alternative arguments presented by the State  14 of Texas.  15 Canada relies upon Horseman.  And I say about  16 Horseman, my lord, and I set it out at pages 9 and 10,  17 that Horseman was dealing with constitutional facts  18 considerably different than those which present itself  19 to your lordship.  20 I underscore at paragraph 27 the terms of the  21 treaty where there the rights of hunting, trapping and  22 fishing were described to be in the treaty:  23  24 ...subject to such regulations as may from time  25 to time be made by the Government of the  26 country...  27  2 8 And so on.  29 So there is a provision of the treaty which is at  30 issue.  There is a provision of the transfer  31 agreement, which sets out in very clear language what  32 rights the Indian people are to expect with respect to  33 the hunting of game.  And there is also a provision in  34 the Constitution Act which sets out the fact that the  35 transfer agreement is to have the force of law, and  36 then the key words:  "Notwithstanding anything in the  37 Constitution Act [of] 1867".  And of course this is  38 the exact opposite of the Terms of Union which makes  39 the Terms of Union to be read alongside with and  40 consistent with the Constitution Act, 1987.  41 Finally, I give you the passage in Cardinal, where  42 basically the Supreme Court of Canada said what I  43 think is obvious, and that is that in the case of the  44 prairies, regarding Indian people, because of these  45 various agreements, is substantially different.  It's  46 a unique position than Indian people across the  47 country otherwise enjoy. 29412  Submissions by Ms. Mandell  1 So we say in summary -- and this is at paragraph  2 32, the historical and constitutional facts before the  3 Court in Horseman are substantially different from  4 those considered by the Court in Sparrow or to be  5 considered in this Court.  And your lordship will --  6 if I could just finish Horseman, it will take me one  7 minute.  8 THE COURT:  All right.  9 MS. MANDELL:  You will recall that Canada referred you to the  10 passage in Horseman which they say stands for the  11 proposition that extinguishment may occur by  12 implication or in the absence of express statutory  13 language.  And the passage which was read and the  14 sentence which I think the Federal Crown relies upon  15 is:  16  17 In addition, although it might well be  18 politically and morally unacceptable in today's  19 climate to take such a step as that set out in  20 the 1930 agreement without consultation with,  21 and concurrent to the native people affected,  22 nevertheless, the power of the Federal  23 Government to unilaterally make such a  24 modification is unquestioned and has not been  25 challenged in this case.  26  27 But I point out to your lordship that the court  28 in Horseman expressly made no comment whether the  29 Federal power to extinguish can be exercised by  30 implication or must be expressed clearly in a statute.  31 And I set out the passage which I know your lordship  32 is aware of.  33 We say in summary on this point, that the hunting  34 right at issue in Horseman was "modified," and that's  35 the language of the Supreme Court of Canada, "not  36 extinguished," and then, "by express language in a  37 constitutional enactment."  38 And perhaps I could leave it at that and complete  39 this after lunch.  40 THE COURT:  All right.  Can counsel let me know generally what  41 they think about how long we are going to be this  42 afternoon?  43 MS. MANDELL:  My lord, if you and the court reporters and  44 everybody else is agreeable, with a lot of pushing and  45 slicing we can be finished between 5:00 and 5:30.  I  46 know, you thought I was going to say four o'clock.  47 THE COURT:  You have no idea how much that hurts.  I am not sure 29413  Submissions by Ms. Mandell  1 I can stay 'til five o'clock.  Well, I don't like to  2 put this on a personal basis, but I'm not sure -- if  3 you want a judgment out of me, I am not so sure that's  4 a good idea.  I thought we would finish at four  5 o'clock and I think we should, don't you?  6 MS. MANDELL:  Yes.  7 THE COURT:  Well, I don't want to sound dramatic because I don't  8 really think that's required, but I understood that  9 counsel said that three days would be enough, that we  10 didn't need to sit long hours, that we could complete  11 it in regular court hours and --  12 MS. MANDELL:  My lord, the problem which we are facing is that  13 Mr. Goldie took a half of those three days.  We were  14 then compressed to two and a half days.  15 THE COURT:  I know that, but there was a reason for that too,  16 and there is always a reason for that.  Well, I think  17 that if -- I think that we will stay 'til five o'clock  18 and then we will adjourn properly.  19 MS. MANDELL:  We will try to finish by 4:00.  We will do  2 0 everything we can to do that.  21 THE COURT:  Well, I will leave it with counsel.  We will not sit  22 beyond five o'clock.  23 THE REGISTRAR:  Order in court.  Court stands adjourned.  24  2 5 (PROCEEDINGS ADJOURNED AT 12:30 P.M.)  26 I hereby certify the foregoing to  27 be a true and accurate transcript  28 of the proceedings transcribed to  29 the best of my skill and ability.  30  31  32  33  34  35 Toni Kerekes,  36 Official Reporter,  37 UNITED REPORTING SERVICE LTD.  38  39  40  41  42  43  44  45  46  47 29414  Submissions by Ms. Mandell  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  2  3 THE COURT:  Ms. Mandell.  4 MS. MANDELL:  Thank you, my lord.  We are going to heed your  5 words and try and be done by four.  6 THE COURT:  Well, that will be very welcome.  I just spoke to  7 Mr. Justice Taylor downstairs and I told him we might  8 be an extra hour and he thought that fell under the  9 dominimus rule.  He is probably right, considering the  10 total elapsed hours.  11 MS. MANDELL:  Otherwise, for any other trial I would have  12 thought an hour is a long time.  My lord, I am at the  13 bottom of page eleven in the argument and I have been  14 contending with the arguments that were raised by the  15 Federal and Provincial Crown as to why clear and plain  16 might not be as it was stated and as we assert  17 expression in legislation.  18 At paragraph 36, Canada urges the analysis of Mr.  19 Justice Mahoney in Hamlet of Baker Lake.  And I've  20 cited the passage which they rely upon there.  21 We say at paragraph 37 that Canada argued that the  22 Court in Sparrow approved the Baker Lake test, or  23 alternatively, that Sparrow was not inconsistent with  24 it.  My lord, I am not going to ask you to turn to it,  25 but to point out to you that if you return to the  26 paragraph of extinguishment which I have set out at  27 page one, the passage from Mr. Justice Mahoney which  28 is relied upon by Canada is set out and it's set out  29 in conjunction with the expression which Mr. Justice  30 Judson also set out an extinguishment, positions which  31 we argue were set up by the Supreme Court of Canada in  32 Sparrow and then repudiated in favour of the "clear  33 and plain intention" test.  We say that if the Court  34 in Sparrow wished to adopt the above analysis from  35 Baker Lake or to reconcile Mr. Justice Mahoney's view  36 with the notion of "clear and plain intention", the  37 Court would have done so expressly.  And I cite the  38 fact that Mr. Justice Mahoney said that Hall and  39 Judson expounded the same test for extinguishment.  4 0 And the Supreme Court of Canada in Paul noted that  41 there was a disagreement on that point.  42 Finely, at paragraph 40 Canada argued that a  43 proper interpretation of the decision in Sparrow that  44 "the sovereign intention must be clear and plain"  45 results not in the expression of extinguishment  46 through legislation but rather in the Court placing a  47 heavier onus on the party alleging extinguishment. 29415  Submissions by Ms. Mandell  1 And we say at paragraph 41 that this is a novel  2 interpretation.  It's not supported by any of the  3 authority or reflected in any of the authorities that  4 address the extinguishment debate, and that we say  5 that it's incorrect.  First of all, the judgment of  6 Sparrow on this point goes to -- this should be the  7 judgment of Calder on this point goes to substance.  8 And Mr. Justice Judson infers extinguishment and Mr.  9 Justice Hall requires a clear and plain intention.  10 And we say that Canada relies upon the Sioui case to  11 support their position that clear and plain intention  12 involves an "on the ground" and cite specific  13 analysis.  And we say first that the Sioui case is not  14 support for such a proposition.  And at page --  15 paragraph 45 we set out the fact that the case  16 involved the interpretation of a treaty term, one  17 particular term of which was that there was a common  18 intention of the parties in their concluding treaty to  19 reconcile the Huron's need to protect the exercise of  20 their customs and the desire of British conquerers to  21 expand.  And this was an expression in the treaty  22 found by the Court to be a term.  23 Canada asserts, without justification, we say,  24 that the standard of protection afforded to treaty  25 rights is greater than that afforded to aboriginal  26 rights.  And we say that Sioui case can't illustrate  27 anything but the danger of an error in an approach  28 such as that where the Court is being asked in the  29 Crown -- Canada is asking this Court to interpret  30 aboriginal rights and the test as if it were a treaty  31 term as it was in the Sioui case.  32 Finally, at paragraph 48 we say that Canada leaps  33 from the Sparrow test of clear and plain intention to  34 a test of extinguishment by clear and plain acts.  And  35 we say that this is wrong.  36 We say at paragraph 49 that it misses the -- it  37 doesn't address - and I'm not going to in this section  38 as I've already done it - the fundamental error and  39 that is that Provincial legislation after 1871 is  40 incapable of extingishing title.  And we say that the  41 test that Canada proposes doesn't address that because  42 rather than to look for legislation, look to the  43 legislation and instead looks to the acts.  44 And we say at paragraph 50 that this argument,  45 that is the proper test to apply to extinguished  46 title, that we say the Federal Government is looking  47 for Crown intention in the wrong place.  Rather than 29416  Submissions by Ms. Mandell  1 examining the berry patch at Nadina Mountain at any  2 given year to acertain Crown intention to extinguish  3 rights there, we say an examination should be made of  4 the legislation.  And we say that because of the  5 result that extinguishment by definition is  6 irreversible.  It permanently frees the title of the  7 Crown from the burden of aboriginal title.  8 But what Canada's test would bring us into is that  9 aboriginal rights, for example, to trap are  10 extinguished when the Crown has granted trapping  11 rights to a non-Indian person, who uses that trapline  12 for a use inconsistent with Indian rights to trap  13 there.  We say, though, what would be the situation if  14 the Indian person returned to use the line when the  15 non-Indian trapper broke his leg?  Or perhaps the area  16 was logged and some 50 years later the Indian person  17 returned at that time to exercise their rights.  18 If extinguishment were permanent, on Canada's  19 analysis, an Indian Nation could lose their rights to  20 the territory if they were unfortunate enough to have  21 the issue of extinguishment brought to a decision  22 during the one year that the non-Indian trapper was  23 able to trap before his hypothetical accident.  24 And we say as well at paragraph 54 that the test  25 would give to the Indian people no notice that the  26 rights were extinguished, or that it was available to  27 be re-exercised.  28 Canada argues that if the right were regulated  29 over time, by virtue of the regulation the right has  30 been diminished to become a right to hunt like  31 everyone else.  And we set out at paragraph 55 to 56  32 the fact that Sparrow repudiated this point as it  33 related to the exercise of fishing rights and there is  34 no reason to suggest that the Court would apply a  35 different analysis with respect to hunting rights.  36 According to Canada, extinguishment can be without  37 notice, without express language and legislation,  38 without consent, and without compensation.  And we say  39 that this test is contrary to the honour of the Crown.  40 Finally, and in the alternative, Canada argues  41 that extinguishment or diminishment of a right can  42 occur by the execution of government policy.  They  43 argue that this is another way of saying that by  44 virtue of the nature of aboriginal rights those rights  45 are capable of being diminished inherently and are  46 held subject to the goodwill of the sovereign.  47 Now, I read to your lordship yesterday the passage 29417  Submissions by Ms. Mandell  1 from Sparrow where Mr. Goldie interrupted and we  2 debated as to whether or not Sparrow seemed to imply  3 that there was a government policy capable of  4 extingishing.  And I wanted to just review the  5 wording, and if I could just ask your lordship to  6 follow the phrase that begins with:  7  8 "However, historical policy on the part of the  9 Crown is not only incapable of extingishing the  10 existing aboriginal right without clear  11 intention, but it is also incapable of, in  12 itself, delineating the right."  13  14 And Mr. Goldie in his interruption suggested that  15 there was some extinguishment by policy if it was by  16 clear intention.  And we say that what the Court here  17 was referring to, and what we're arguing, is that the  18 clear intention is expressed by clear language in a  19 statute within the constitutional competence of the  20 legislature to enact.  And you will recall in Sparrow  21 that the policy there as described by the Court was a  22 hundred years of Canada's non-recognition of title  23 together with the regulation for a hundred years which  24 hadn't recognized title and that policy expressed in  25 those regulations the Court found was incapable of  26 extingishing title.  27 And we say at paragraph 61, thus the Court in  28 Sparrow expressly rejected the position that  2 9 extinguishment may be effected through government  30 policies.  A policy after all, is fluctuating.  If  31 extinguishment had been capable of being effected by  32 Government policy, then the Court in Sparrow would  33 have applied that analysis to find that the fishing  34 rights had been extinguished by regulation, which had  35 been in place for almost a century, which reflected  36 the government policy to exercise dominion over the  37 fish in a manner inconsistent with the continued  38 enjoyment of aboriginal rights.  Or alternatively,  39 that the Federal Government policy of the denial of  40 aboriginal title for over a century extinguished  41 title.  On both points, the Supreme Court of Canada  42 found to the contrary.  43 Now, I wanted to address finally, my lord, the  44 question which you raised about whether or not a  45 Patent -- a Letters Patent might be seen as expression  46 to extinguish.  And your lordship will recall the  47 decision of The Queen v. Smith, and I have set it out 2941?  Submissions by Ms. Mandell  1 at paragraph 64 the appropriate passage where Mr.  2 Justice Le Dain, as he then was, in discussing  3 extinguishment refused to find extinguishment on the  4 basis of acts which opened up a system of land  5 surveying with respect to reserve lands which were  6 going to be sold, but did say in passing, and I set  7 out the quote, that if the land had actually been  8 patented, there had been Letters Patent granted, then  9 that might in fact, he suggests, could have  10 extinguished.  11 At paragraph 66, without addressing the argument  12 whether such grants would be ultra vires the Colony of  13 B.C. to grant, according to Mr. Justice Le Dain's  14 analysis the Colony of British Columbia before  15 Confederation, and the Federal Government after  16 Confederation would possess the power to extinguish  17 title by granting title to land in fee-simple,  18 notwithstanding whether clear and plain words were  19 used to extinguish aboriginal title in the  20 legislation.  And I say on the side, we know that in  21 fact no such grants were made in the claims area  22 before or after Confederation by the appropriate  23 governments.  24 THE COURT:  Well, that can't be right, is it?  25 MS. MANDELL:  Yes, that's right, my lord.  26 THE COURT:  No grants in the claims territory before or since  27 Confederation?  28 MS. MANDELL:  By the appropriate government, that would mean the  29 Federal.  30 THE COURT:  Oh, you mean by the Federal Government?  31 MS. MANDELL:  That's right.  However, it follows from Sparrow  32 that the test must be express language in the statute.  33 And you'll recall that Mr. Justice Le Dain's comments  34 were pre-Sparrow.  And we say because otherwise the  35 honour of the Crown would be impunged by a test which  36 permits lack of notice to the Indian persons when an  37 official of the Crown arbitrarily passes patents to  38 non-Indian people in the homeland of an Indian Nation  39 without regard to their aboriginal title.  And so we  40 say that the test -- now that Sparrow has so clearly  41 decided the matter as it did, we say that the test is  42 clear, as decided by Sparrow, and this is an  43 alternative argument to the consent argument we have  44 advanced, that clear and plain means clear and plain  45 proper notice honour of the Crown and we say they  46 adopted Hall which said that means an expression in  47 the legislation clear and plain. 29419  Submissions by Ms. Mandell  1 And I would just like to quickly address the  2 colonial period and say this to you, my lord.  Overall  3 we say that if you accept that this is the test, that  4 is that extinguishment has to be clear and plain, and  5 there hasn't been a clear and plain expression in the  6 colonial period, we say it doesn't matter what all  7 that history of the colonial period is which has been  8 contended for to be the policy of the Crown during the  9 period.  We say look at the legislation.  If the  10 legislation says it, then it is.  If it doesn't say  11 it, then it isn't.  And whatever else is underneath is  12 interesting but it's not of -- it's not of relevance  13 to this Court.  And in this respect and looking at the  14 colonial period, we have two arguments which we would  15 like you to weigh in the balance.  The first is that  16 the Province does not point to any specific  17 legislation with the exception of the 1860 Land  18 Ordinance which they say of itself evidences a clear  19 and plain intention to extinguish.  They rely upon the  20 building block that Mr. Justice Judson laid in place,  21 which is that you can look at the totality of the  22 legislation and analyse from that the intention of the  23 Crown to extinguish by opening up the land for  24 settlement.  And we say that this has been repudiated  25 by Calder or by Sparrow, and that if my friends  26 continue as they do to rely upon it that they are on  27 very shaky ice.  28 Now, the only act which they do take your lordship  29 to is the 1860 Land Ordinance.  And it's exactly this  30 analysis which points to the argument which I first  31 asserted, which is look to the legislation and if you  32 don't find anything there that's the end of the day.  33 Because when you look at the 1860 legislation there is  34 no clear and plain expression.  So what the Province  35 would ask you to do is go underneath it and what do  36 you see underneath it?  You see an opinion by Captain  37 Clark that aboriginal title in British Columbia had  38 been extinguished.  You see a legal opinion by Judge  39 Begbie that aboriginal title had not been  40 extinguished.  And the Province is asking you to  41 analyse the 1860 statute not by looking at it, but to  42 look behind it to give greater weight to the intention  43 of the Crown as expressed in an unresolved debate  44 about the existence of aboriginal title.  And we say  45 there is no principle of statutory construction which  46 would permit such an approach.  47 And lastly on this point, my lord, and it's at 29420  Submissions by Ms. Mandell  1 paragraph 78 at page 22.  I'd like to address a more  2 general argument about the overall problem of inducing  3 or taking from the colonial period an extinguishment  4 argument.  The argument that the Colonial instruments,  5 by any analysis, could have the effect of extingishing  6 aboriginal title is an argument which tarnishes the  7 honour of the Crown.  Even if the Crown had affected a  8 clear and plain expression of intention to extinguish  9 any Act in that period, which it did not, the Indian  10 people did not have a vote at the time and the  11 parliamentary debate could not have included their  12 representation.  The government of the Colony was  13 small and the non-Indian population was few in number  14 with isolated settlements outside the claim area.  The  15 officials of the Crown in the Colony had little to no  16 knowledge of the claims area in the period; the only  17 actual possession in the area were the Gitksan and  18 Wet'suwet'en.  In asserting in 1990, the argument that  19 the Crown during this period extinguished aboriginal  20 title in the area is to ask the Court to declare that  21 the Crown, now strong, will be deemed to have  22 accomplished acts of extinguishment which at that time  23 the Crown was unable to do.  24 And we leave that with you, my lord, and I'm going  25 to ask you to read the remaining argument about the  26 Colonial Laws Validity Act, and we say that in  27 response in part to your question to Mr. Rush  28 yesterday as to whether or not if you don't find  29 common law aboriginal title, how does it help you to  30 bring the Royal Proclamation to British Columbia.  We  31 say in this addition --  32 THE COURT:  No, I said if you do find it.  33 MS. MANDELL:  If you do find it out does it help you.  34 THE COURT:  Yes.  35 MS. MANDELL:    The only additional footing which we ask your  36 lordship to consider is the argument which was  37 advanced by the plaintiffs and replied to by the  38 Province and we are relying to the Province, and that  39 is that the Colonial Laws Validity Act would appear to  40 save the operation of the Royal Proclamation of 1763  41 during the Colonial period and that the Royal  42 Proclamation as a separate instrument would remain as  43 an act of the Imperial parliament binding -- an act  44 equivalent to the Imperial parliament binding upon  45 British Columbia and as such would be an over-arching  46 act which would be applicable in relationship to the  47 reading down of the Colonial instruments consistent 29421  Submissions by Mr. Jackson  1 with the Proclamation, and so it forms a separate  2 footing on the extinguishment argument.  Thank you,  3 those are -- those are that.  4 THE COURT:  Thank you.  5 MR. PLANT:  Well, because it's in my friend's section, there is  6 just one note I'd ask you to make, my lord, back in  7 paragraph ten on page three where Ms. Mandell referred  8 to the Oneida case.  And this arises out of also some  9 statements which Mr. Jackson made I think yesterday.  10 And in the reference to the Oneida case in the second  11 line there, which is tab 39, if your lordship could  12 just make a note of page 177, because on that page it  13 becomes --  14 THE COURT:  177 of what?  15 MR. PLANT:  Of the judgment in Oneida which your lordship will  16 find that as stated there in Volume 12, tab 39.  17 Because on page 177 the Court makes clear that the  18 lands in issue in Oneida II were reserve lands.  So  19 they would be lands subject to recognized aboriginal  20 title as opposed to unrecognized aboriginal title.  21 And that has to be taken into account in considering  22 my friend Mr. Jackson's submission that Oneida II  23 overrules Tee-Hit-Ton.  I will just leave that with  24 you as a fact that I want your lordship to have in  25 considering the submission.  2 6 THE COURT:  Thank you.  27 MR. JACKSON:  My lord, my friend is wrong on that point.  The  28 lands were lands which the Oneida retained under the  29 terms of the treaty.  They were not lands which were  30 reserved to them in any other sense.  In that sense  31 they were Royal Proclamation type lands.  32 MR. PLANT:    I am just reading the word reservation.  33 MR. JACKSON:  The Oneidas retained a reservation, which means  34 they ceded in fact I believe it was a very large area  35 of land and they retained out of that aboriginal  36 proprietary territory their smaller area which was  37 then set aside as a reservation, but it was not a  38 grant of lands as a reserve.  It was a reservation out  39 of their traditional territory, my lord.  So my point  40 is simply that it is not in any way -- does not in any  41 way change the whole thrust of Oneida, which is  42 unequivocally a statement that you don't need a  43 recognition.  And I don't wish to really deal with  44 that any more, my lord.  4 5 THE COURT:  Thank you.  46 MR. JACKSON:  What I do wish to deal with, though, my lord, is  47 the last part of the argument I am going address you 29422  Submissions by Mr. Jackson  1 on which is the reply to the Federal defendant's  2 argument and this is referenced by Part III.  It  3 starts at Part III and that reference is to the  4 designation of the Federal Government's argument, so  5 it's Part III of the Federal Government's position.  6 For your convenience, my lord, in terms of where you  7 can put it in your documents, it would fit in as tab  8 11 to Volume 2 which I handed up to your lordship  9 yesterday.  10 THE COURT:  What colour was it?  11 MR. JACKSON:  There should been a tab 11 in your lordship's  12 binder.  13 THE COURT:  All right.  Thank you.  14 MR. JACKSON:  Does your lordship have a tab 11?  15 THE COURT:  Yes.  Thank you.  16 MR. JACKSON:  My lord, the first part, what is the nature of  17 aboriginal rights, I am going to leave with your  18 lordship.  It deals with a number of propositions and  19 I am content to have your lordship deal with them  20 later.  I wish in my oral submissions to deal with  21 Part IV which starts at page five under the heading  22 Use and Occupancy Rights, which is the heading of the  23 Federal defendant's argument.  And paragraph 11 on  24 page five, my lord, I set out the Federal defendant's  25 position regarding the nature of the plaintiffs'  26 aboriginal rights at the time of the assertion of  27 sovereignty in 1846 which they say their rights are  28 usufructary only, sui generis in their nature and held  29 "at the pleasure of the Crown."  30 And furthermore, my lord, interpreting what Mr.  31 Justice Dickson meant by describing aboriginal rights  32 as "pre-existing" the Federal defendant states that  33 aboriginal rights are defined by the uses made of land  34 by the aboriginal people before British sovereignty.  35 And in paragraph 37 they have set out what I  36 understand to be the full blown nature of the rights.  37 They are:  38  39 "by judicial definition, rights traditionally  40 practised in the aboriginal economy by the  41 ancestors of the present claimants.  As such  42 they are limited:  43  44 to the resources historically exploited in  45 the geographic area under consideration;  46  47 by the ancestors of the people claiming the 29423  Submissions by Mr. Jackson  1 'aboriginal' right...  2  3 and to a level or degree reasonably  4 corresponding to the level of historical  5 exploitation."  6  7 And I say in paragraph 13, my lord, that that is in  8 fact the frozen rights theory, and I will be coming  9 back to that in a moment.  10 In paragraph 14, my lord, Ms. Koenigsberg sought  11 to give further definition or content to Mr. Justice  12 Dickson's phrase "pre-existing" through what I say is  13 an unprecedented conjunction of the doctrine of  14 continuity - that a change in sovereignty over a  15 particular territory does not in general affect the  16 presumptive title of the inhabitants.  And she sought  17 to apply or conjoin with Black's Law Dictionary's  18 definition of "presumption" title.  So in fact what  19 she said is that the pre-existing right defined by a  20 preference to the presumptive title was according to  21 Black:  22  23 "A barely presumptive title, which is of the  24 very lowest order, arises out of the mere  25 occupation or simple possession of property  26 without apparent right, or any pretense of  27 right, to hold and continue such possession."  28  29 That's what she said "pre-existing" means by  30 referentially incorporating Black's in the absence of  31 any other further indication from his lordship Mr.  32 Justice Dickson, that's what he must have meant.  And  33 the plaintiffs say, my lord, that this minimalist  34 interpretation of pre-existing is not only  35 unprecedented but indeed is contradicted by the very  36 precedents upon which it is said said to rest.  And I  37 have set out there, my lord, a passage in Amodu Tijani  38 which makes the point as well as it can be made.  The  39 Privy Council said:  40  41 "In the light afforded by the narrative, it is  42 not admissible to conclude that the Crown is  43 generally speaking entitled to beneficial  44 ownership of the land as having so passed to  45 the Crown as to displace any presumptive title  46 of the natives."  47 29424  Submissions by Mr. Jackson  1 And the next passage gives you what they mean by that.  2  3 "In the case of Oduntan Onisiwo v. Attorney  4 General of Southern Nigeria decided by the  5 Supreme Court of the Colony in 1912, Osborn,  6 C.J. laid down as the effect of the cession of  7 1861, that he was of opinion that 'the  8 ownership rights of private land owners,  9 including the families of the Idejos, were left  10 entirely unimpaired, and as freely exercisable  11 after the cession as before.  In this view the  12 Lordships concur.  A mere change in sovereignty  13 is not to be presumed as meant to the disturb  14 the rights of private owners.'"  15  16 My lord, it's self-evident in that proposition  17 that "presumptive title" was not meant to refer to a  18 title of the very lowest order with no real rights.  19 The Court in that case having looked at the nature of  20 the pre-existing system of the Idejo land owning  21 chiefs said that it was ownership.  22 THE COURT:  Does he say that?  He defines them as owners.  23 MR. JACKSON:  But remember, my lord, he defines rights --  24 THE COURT:  The ownership rights of private land owners.  Seems  25 to me that he's already defined them as owners.  26 MR. JACKSON:  He did that, my lord, and you'll recall my other  27 references to Amodu Tijani was that the Court had to  28 look at the nature of pre-existing system as it was  2 9              developed under the previous regime.  And having  30 looked at that, and your lordship may recall the long  31 passages I cited from that case, the Court said the  32 system of the Idejos was a system of ownership.  But  33 my point here is, my lord, that in talking about  34 presumptive title, the Court was not talking about a  35 very low title with no legal characteristics or  36 conveying no legal rights.  Quite to the contrary.  37 THE COURT:  If I go to that case will it provide an explanation  38 of what they meant there by -- what is meant in that  39 quotation by private ownership rights of private land  4 0 owners?  41 MR. JACKSON:  It will, my lord.  42 THE COURT:  All right.  43 MR. JACKSON:  And I — in fact, if you look at the reference I  44 have given under the heading of Volume 3, page 185,  45 that is where I have previously dealt with --  4 6 THE COURT:  Yes.  47 MR. JACKSON:  -- Amodu Tijani at some great length, and you will 29425  Submissions by Mr. Jackson  1 find that passage in the midst of its context as it  2 were.  And I say, my lord, that it's self evident that  3 the "presumptive title of the natives" as that term is  4 used by the Privy Council bears no relationship  5 whatsoever to the definition argued for by the Federal  6 defendant.  And I say that the definition is neither  7 consistent with the general tenor of Mr. Justice  8 Dickson's judgment in Guerin.  The definition offered  9 by the Federal Government is one which would denude  10 the aboriginal title of the plaintiffs "of any right  11 or even pretense of right to hold and continue  12 possession."  13 Now, my lord, you will recall Mr. Justice Dickson  14 in Guerin in defining the nature of the Indian title  15 said:  16  17 "Indians have a legal right to occupy and  18 possess certain lands, the ultimate title to  19 which is in the Crown."  20  21 The interpretation offered by the Federal defendant  22 would re-state that proposition to read:  23  24 "Indians have a legal right to occupy and  25 possession lands without any apparent right,  26 or any pretense of right, to hold and continue  27 such possession."  28  29 My lord, does the Federal Government - and say this on  30 page 7 - seriously argue that this is what Mr. Justice  31 Dickson meant in Guerin.  In Sparrow Chief Justice  32 Dickson noted - and I am quoting here - that "for many  33 years, the rights of the Indians to their aboriginal  34 lands - certainly as legal rights - were virtually  35 ignored."  36 The Federal defendants' interpretation of  37 pre-existing would entrench rather than redress that  38 lamentable fact.  39 I say at paragraph 19, the extent to which the  40 Federal defendant is able to stand the Chief Justice's  41 statements upon their head in a way in which minimizes  42 the nature of aboriginal rights is further reflected  43 in its discussion of the "sui generis" nature of those  44 rights.  As interpreted by the Federal defendant "sui  45 generis" is an affirmation that aboriginal title is  46 not a property right, but is properly defined as a  47 "personal and usufructary right", the term used by the 29426  Submissions by Mr. Jackson  1 Privy Council in St. Catherine's.  2 And paragraph 20, my lord, I set out the passage  3 in which Mr. Justice Dickson in Guerin - and I thought  4 it was very clear what he was trying to do - went out  5 of his way to say that that characterization was not  6 accurate.  It was used in the cases.  It was used in  7 the context of trying to resolve some constitutional  8 issues.  It was a problem which arose from trying to  9 characterize aboriginal title in real property terms  10 known to the common law of real property.  And that's  11 what he said.  And at the very end of his passage, my  12 lord, he makes that point and he makes the point that  13 in neither case, either describing it as personal  14 usufructary or describing it as beneficial ownership,  15 is the characterization accurate.  16 Now, my friend having set out that passage then  17 goes on to say that the way in which sui generis is to  18 be interpreted is by concentrating almost to the point  19 of exclusion on the definition of a usufruct.  And  20 they referred your lordship to the Smith case.  And,  21 my lord, the reason why in Smith the Supreme Court of  22 Canada chose to, as it were, use the refrain of  23 personal usufructary was because the issue in that  24 case was remarkably similar to St. Catherine's  25 Milling:  who benefited from the surrender of an  26 Indian interest in land.  And I say, my lord, that the  27 Federal defendant in seeking to say that's what sui  28 generis means is in error and has misread the Guerin  29 decision.  30 And paragraph 23 through to paragraph 25, my lord,  31 I've dealt with the Smith case and why in fact I say  32 Mr. Justice Dickson's reference to it in no way is an  33 intention or in no way does it suggest that the Indian  34 interest is not a proprietary interest.  35 And if I could turn to paragraph 26, my lord, the  36 Federal defendant interprets the Sparrow decision as  37 further support by the Supreme Court of Canada for the  38 proposition that aboriginal rights or aboriginal title  39 is a non-proprietary interest in land.  And we say  40 that the Federal defendant again misreads the language  41 of the Supreme Court.  And I have set out a passage,  42 my lord, which your lordship has been directed to on  43 several occasions.  I've underlined two lines, two  44 sentences.  One:  45  46 "Fishing rights are not traditional property  47 rights.  They are rights held by a collective 29427  Submissions by Mr. Jackson  1 and are in keeping with the culture and  2 existence of that group.  The courts must be  3 careful, then, to avoid the application of  4 traditional common law concepts of property as  5 they develop their understanding of what the  6 reasons for judgment in Guerin referred to as  7  8  9 The Federal defendant latches on to the first  10 sentence.  We say, however, that that sentence is  11 integrally related to the second sentence.  Aboriginal  12 fishing rights as part of aboriginal rights are  13 different from traditional property rights in that  14 they are collective property rights rather than  15 property rights possessed by an individual.  That this  16 is the point of the Supreme Court's statements we say  17 is reinforced, and I made this point yesterday, by the  18 reference which the Court makes immediately thereafter  19 to the article by Mr. Leroy Little Bear.  And I have  20 set out for your lordship some of the passages which I  21 referred to generally yesterday from Mr. Little Bear's  22 article where he talks about the Indian nature of  23 property and some of its different features from the  24 common law interest, particularly its communal aspect,  25 particularly the fact that it embraces that not simply  26 human beings have -- the present generation has an  27 interest in property, its past generations, its future  28 generations, and it's a much more holistic  29 interpretation of property.  But it still is a  30 property concept.  And I will be providing your  31 lordship with the full article in my supporting  32 documents, but I have just given you some of the  33 extracts there, my lord, which I think you will find  34 helpful not only in terms of understanding what the  35 Court meant in Sparrow and in rejecting the Federal  36 defendants' position that it was a rejection of the  37 proprietary nature of the rights, but I think also in  38 terms of giving some support for the kind of  39 evidentiary basis which we have sought to provide your  40 lordship.  41 THE COURT:  Is Mr. Little Bear's article in evidence?  42 MR. JACKSON:  It's not in evidence, my lord.  43 THE COURT:  All right.  Well, is there a mistake in the fourth  44 line?  45 MR. JACKSON:  Of the article?  46 THE COURT:  Yes.  He lectures us and says it's high time we  47 stopped using as premises take reasonings.  End of the 2942?  Submissions by Mr. Jackson  1 fourth line.  2 MR. JACKSON:  Yes, my lord, that is a mistake.  I will look that  3 up and tell you what the word is.  4 THE COURT:  All right.  Thank you.  5 MR. JACKSON:  But I will be providing your lordship with -- it's  6 not a very long piece.  7 THE COURT:  Thank you.  8 MR. JACKSON:  My lord, at paragraph 29 the Federal defendant  9 sets out what I have referred to as the frozen rights  10 theory of aboriginal rights, and under this theory the  11 plaintiffs' rights are defined by reference to their  12 traditional aboriginal economy as of 1846 and are  13 limited to the resources exploited at that time.  And  14 the only concession which the Federal defendants  15 admits by virtue of the decision in Simon is that the  16 practices or methods of exploitation of traditional  17 resources is not frozen and therefore permits modern  18 technology; thus high powered rifles can be used in  19 the hunting of mountain goats.  20 THE COURT:  That seems awful unfair to me, Mr. Jackson.  21 MR. JACKSON:  As a characterization of their position, my lord?  22 THE COURT:  As a fair fight between the hunter and the mountain  23 goats.  Seems dreadfully unfair.  24 MR. JACKSON:  My lord, I am not a hunter so I am not in a  25 position to --  2 6 THE COURT:  No.  All right.  27 MR. JACKSON:  My friend advises me mountain goats don't have  28 aboriginal rights, my lord.  29 THE COURT:  Well, that's not what they say.  30 MR. JACKSON:  And I think in accordance with the holistic  31 philosophy of my clients I would suspect they argue  32 they do.  33 My lord, we have dealt with at some length in our  34 principal submissions of what we say are the vaguers  35 and the vices of the frozen rights theory, and of  36 course I have no intention of belabouring that point.  37 You have the reference to our previous submissions.  38 There are just several points which I do wish to raise  39 by way of reply.  The first one, my lord, is in  40 paragraph 31, the Federal defendant sought some  41 comfort in the fact that the Royal Proclamation refers  42 to hunting grounds.  And they refer to the Tennisco  43 case which says that giving that provision of the  44 reservation of hunting grounds a large and liberal  45 interpretation, it includes fishing.  My friend's  46 point, however, is that the reference is to  47 traditional harvesting practices. 29429  Submissions by Mr. Jackson  1 My lord, at paragraph 32 I refer your lordship to  2 the statements of Chief Justice Marshall in Worcester  3 and Georgia where he, too, had to deal with a  4 definition of Indian country by reference to hunting  5 grounds.  And what the Chief Justice said was:  6  7 "So with respect to the words 'hunting  8 grounds'.  Hunting was at that time the  9 principal occupation of the Indians, and their  10 land was more used for that purpose than for  11 any other.  It could not, however, be supposed  12 that any intention existed of restricting the  13 full use of the lands they reserved."  14  15 And in our principal submissions, my lord, I of course  16 went at great lengths in Worcester and Georgia to  17 explain the background and how in fact the Cherokees  18 had thoroughly modernized their economy in ways which  19 applying to the Federal defendants' argument amounted  20 to an extinguishment of their rights.  21 And I say at paragraph 33, moving from Worcester  22 the centrepiece of the nineteenth century  23 jurisprudence on aboriginal rights, to the Supreme  24 Court of Canada decision in Sparrow, the contemporary  25 benchmark, we find the same approach to the  26 interpretation of aboriginal rights one which permits  27 aboriginal peoples to develop in the context of a  28 contemporary world.  In our previous submissions we  29 set out a number of the arguments which Professor  30 Slattery gathered against the frozen rights theory.  31 The Supreme Court in Sparrow evidently found these  32 arguments as compelling as the plaintiffs.  The Court  33 relying upon Professor Slattery concluded, and again  34 your lordship has been referred to this:  35  36 "...  the word 'existing' suggests that those  37 rights are 'affirmed in a contemporary form  38 rather than in their primeval simplicity and  39 vigor.  Clearly, then, an approach to the  40 constitutional guarantee... which would  41 incorporate 'frozen rights' must be rejected."  42  43 And I say, my lord, that the Federal defendant  44 suggests that their position that aboriginal rights  45 are limited to traditional activities although those  46 activities may be carried out on using modern methods  47 is consistent with the United States jurisprudence. 29430  Submissions by Mr. Jackson  1 And they cite Felix Cohen's Handbook of Federal Indian  2 law.  With respect, my friends have misread the  3 American jurisprudence.  The extract lay cited and  4 appended to their argument is taken from a chapter in  5 the handbook which is under the heading of "Hunting,  6 Fishing and Gathering Rights."  If my friends were to  7 look elsewhere in the handbook they would find a  8 statement, and I have given your lordship the  9 reference to it, that under the general heading of  10 aboriginal title Indians "are entitled to full use and  11 enjoyment of the surface and mineral estate and to the  12 fruits of the land, such as timber resources."  And I  13 in fact dealt with that point, my lord, in relation to  14 two U.S. Supreme Court decisions in the 1930s which  15 Professor Cohen himself had thought had given the  16 death nail or the death below to the argument of  17 frozen rights.  Unfortunately so far as the Federal  18 defendant was concerned the jury was still out.  19 Paragraph 35, my lord, Ms. Koenigsberg in her oral  2 0 argument acknowledged that the Federal Government's  21 position was a frozen rights theory but sought to  22 justify it.  And she did so in the following way:  23  24 "And I say that the answer to my friend's  25 question, that put to limits on aboriginal  26 rights that are recognized is to confine the  27 Indians to some traditional way of life, and,  28 in my submission, the full answer to that is  29 that the Indians, along with all other citizens  30 of this country, have the right to acquire  31 property in any form and they have special  32 rights, and those are the rights that I have  33 delineated.  Those rights, in my submission,  34 may be used as a base from which to acquire  35 other rights that may be used."  36  37 And your lordship said:  "How would you see that?"  38 And Ms. Koenigsberg continued:  39  40 "Leasing a reserve, part of a reserve to  41 generate income, earning money to -- in the  42 exercise of, if there was a trapping right, and  43 buying a tractor and buying some land and doing  44 whatever you want with it."  45  46 My lord, the Federal Government's conception of  47 aboriginal rights protects only a way of life tied to 29431  Submissions by Mr. Jackson  1 the harvesting of "traditional" resources.  The Indian  2 people can engage in hunting, fishing, trapping and  3 berry picking; they also have a legal interest in  4 their reserve lands and can use all the resources of  5 the reserves (in the case of the plaintiffs' some 40  6 square miles) to provide for their economic support  7 and development.  If the combination of their  8 traditional harvesting and the development of the  9 reserve resources does not provide a sufficient  10 economic base they are free to participate in the  11 larger economy by taking employment in that economy.  12 However, and I say this is the real kicker in the  13 Federal Government's analysis, to the extent that they  14 do seek employment in that larger economy and either  15 move to villages closer to new economic opportunities  16 or spend part of the year on the coast working in the  17 commercial fishing industry, those acts are evidence  18 of the abandonment of their rights to make a living  19 from the harvesting of traditional resources.  20 And I say, my lord, the reality not only for the  21 Gitksan and Wet'suwet'en but for almost every other  22 Indian Nation in Canada - except for the few who  23 through the luck of geology have reserves in oil and  24 gas rich territory - is that they are the poorest  25 people in this country whose economic standards of  26 living that fall far below the Canadian expectations  27 and correspond more closely to the third world.  Ms.  28 Koenigsberg's answer to yourlordship's question as to  29 how the Federal defendant's conception of aboriginal  30 rights is a basis for the acquisition of other rights  31 is in fact a hollow one entirely contingent upon  32 Indian people being prepared to assimilate into our  33 society.  But of course once they of done that they do  34 not need aboriginal rights because they are just like  35 the rest of us.  This indeed, my lord, was the agenda  36 and principal purpose of Indian Agent Loring's  37 endeavors.  And the Federal Government would have you  38 believe that this process has been completed and  39 reflects the reality of Gitksan and Wet'suwet'en  40 society today.  And of course our submissions are that  41 that is not the reality of Gitksan and Wet'suwet'en  42 society today.  43 My lord, the plaintiffs' conception of aboriginal  44 rights proceeds from completely different assumptions  45 about native societies, the historical processes in  46 the claim area and the place of aboriginal rights in  47 the plaintiffs' future.  The aboriginal title to the 29432  Submissions by Mr. Jackson  1 plaintiffs is the source of their economic, social and  2 cultural well-being and is not tied to any particular  3 use of the territories.  Their societies are open and  4 adaptive and have indeed sought to accommodate and  5 take advantage of new economic opportunities.  In so  6 doing they have developed a mixed economy although  7 their economic choices have been immeasurably  8 constrained by virtue of alienations of significant  9 parts of their territories, by economic circumstances,  10 beyond their control, for example the collapse of the  11 world fur prices in the 50's, and their inability to  12 develop their territories outside the reserves in the  13 context of contemporary economic production.  They see  14 their aboriginal rights as the basis not only to  15 maintain the productivity of their territories for the  16 harvesting of food both for their own consumption and  17 trade but also to develop a resource base, in the  18 context of a mixed economy, to provide and guarantee a  19 secure foundation for themselves and their children.  20 The plaintiffs' view of aboriginal rights  21 therefore is in the context of a future which  22 recognizes their distinctiveness as aboriginal peoples  23 in a contemporary world rather than, as with the  24 Federal Government, looking backwards and freezing  25 them into a nineteenth century economy with the  26 alternative of full assimilation.  And this  27 anticipation, my lord, of assimilation, which we say  28 underlies the whole tenor of the defendants'  29 conception of aboriginal rights, was in fact explained  30 by Ms. Koenigsberg.  And I have set out the full  31 passages from her submissions in the body of my text.  32 And in paragraph 40 I say that it is our  33 submission that the Federal defendants' conception of  34 aboriginal rights is far removed from the concept  35 which is recognized and affirmed in Section 35.  36 Rather than interpreting aboriginal rights, as  37 required by Sparrow, to permit their evolution over  38 time, the Federal Government envisages their  39 progressive extinction.  4 0 And my lord, I want to move from that conception  41 of the rights to the way the Federal defendant  42 conceives the concept, the legal concept of  43 abandonment.  Because they are integrally related.  44 The Federal defendants' position on abandonment flows  45 inextricably from its conception of the nature of  46 aboriginal rights.  Thus since aboriginal rights are  47 defined as use and occupancy of traditional lands for 29433  Submissions by Mr. Jackson  1 resources historically exploited, the non-use and  2 non-occupation of traditional lands and the  3 non-exercise of traditional practices for more than a  4 generation, which the Federal Government equates from  5 20 to 25 years, constitutes abandonment with the  6 result that, citing from their argument, "all legal  7 rights or interest in those lands come to an end and  8 are extinguished."  9 The Federal Government - this is paragraph 42, my  10 lord - refers to a number of authorities for the  11 proposition that aboriginal rights can be lost through  12 abandonment.  None of them deal with the legal  13 principles upon which abandonment can be found and in  14 most of them as Ms. Koenigsberg herself acknowledged  15 the issue of abandonment did not even arise.  And the  16 way Ms. Koenigsberg conceived the concept, and rightly  17 so from her perspective and her view of the rights,  18 abandonment "seems to flow from the nature of the  19 rights."  20 My lord, at paragraph 44 and 45 I deal with a  21 point which I think I can leave to your lordship as to  22 the application of that theory to reseres.  And when I  23 say applying that theory to reserves, the reserves  24 also would be abandoned though Ms. Koenigsberg says  25 for some reason they are not because they are Indian  26 reserves.  I'll leave that point with your lordship.  27 Paragraph 46 which is my main proposition here,  28 the Federal defendant advances only two principles in  29 denying the concept of abandonment.  The first that it  30 be voluntary and the second that abandonment of rights  31 cannot be lightly inferred.  And it is our submission  32 that there are additional principles which must be  33 applied to the concept of abandonment drawn both from  34 the general law and from the particular law relating  35 to aboriginal rights.  And I have set out, my lord, a  36 definition of abandonment from Black's Law Dictionary,  37 and you'll see there that the hallmark of the  38 definition, my lord, and I have underlined some of the  39 definitions:  40  41 "The voluntary relinquishment of all right,  42 title, claim and possession, with the intention  43 of not reclaiming it...  Intention to forsake  44 or relinquish the thing is an essential  45 element, to be proved by visible acts....  46 includes both the intention to abandon and the  47 external act by which the intention is carried 29434  Submissions by Mr. Jackson  1 into effect."  2  3 And I say at paragraph 48, my lord, that as in the  4 definition of a crime, there is both a material  5 element, certain acts of giving up, coupled with an  6 intentional element - of not returning.  And the  7 Federal defendants' concept of abandonment is limited  8 to the material element and relies upon omissions of  9 non-use.  The Federal defendants' concept of  10 abandonment in relation to Black's General Law  11 definition is, to use the criminal law analogy, akin  12 to one of absolute liability.  13 My lord, we know what the former Chief Justice  14 Dickson thought of absolute liability from Sault Ste.  15 Marie and we know what the present Chief Justice  16 thinks of it from his decision in the Motor Vehicle  17 Reference case.  It is contrary to fundamental  18 principles.  And I say that my friend's definition of  19 abandonment, or rather lack of definition of  20 abandonment, is also inconsistent with fundamental  21 principals of aboriginal rights.  22 It is clear, my lord, in paragraph 49, from the  23 Federal defendants' argument and the way in which the  24 concept of abandonment was applied by one of the cases  25 upon which they rely and Mr. Justice Steele's decision  26 in Bear Island that abandonment is integrally related  27 to extinguishment.  Indeed, it is a method of  28 extinguishment.  As his lordship stated:  29  30 "Under these circumstances, even if it were  31 found that the Province of Ontario, and  32 subsequently Ontario, exercised complete  33 dominion over the lands in issue and enacted  34 legislation allowing for settlement but erred  35 in law to expressly state its intention to  36 extinguish aboriginal title, I find that such  37 title was in fact extinguished because the  38 Indians have abandoned their traditional use  39 and occupation of the Land Claim Areas."  40  41 We say, my lord, this is of utmost significance in our  42 argument, as a matter of, first, principle the  43 plaintiffs submit that the test for abandonment as an  44 aspect or species of extinguishment can be no less  45 stringent than the test for extinguishment.  Applying  46 the standards affirmed in Sparrow any abandonment of  47 aboriginal rights must therefore be based upon a clear 29435  Submissions by Mr. Jackson  1 and plain expression of intention by the plaintiffs to  2 abandon their rights coupled with acts which are  3 unambiguously referable to such an intention.  And it  4 is submitted that no such evidence is before this  5 court.  6 Quite to the contrary the evidence of the  7 persistence of the plaintiffs' system of succession of  8 Chiefs' names integrally related to the passing of the  9 territory on fishing sites, the reaffirmation of the  10 plaintiffs' rights to the territories in the feast  11 hall, their assertion of rights in the form of  12 petitions and protests and the filing of a  13 comprehensive land claim, all demonstrate an intention  14 to retain not give up their rights.  Absent a clear  15 and plain intention to renounce their rights there is  16 no need, my lord, for you to look at the evidence  17 which the Federal defendant relies upon to show that  18 that particular territories and particular areas  19 within particular territories have not been harvested  20 over the last generation.  In any event, we say that  21 that evidence suffers from such serious deficiencies  22 in terms of its factual accuracy that no reliance  23 should be placed upon it.  Other evidence to which the  24 Federal defendant points, is that of employment  25 history, which it says demonstrates that most of the  26 plaintiffs who gave evidence spend little time in the  27 territories involved in traditional harvesting  28 activities and they are for the most part fully  29 integrated into the wage economy.  This - Mr. Grant  30 addressed you on this this morning - suffers also from  31 serious factual inaccuracies, so as to render it an  32 unreliable source of data.  But regardless of its  33 accuracy, we say that that material does not  34 constitute evidence of either an intention or of  35 actions unambiguously referable to an intention to  36 abandon aboriginal rights.  What it does evidence is  37 that the plaintiffs have incorporated wage labour and  38 cash elements into their kinship economy.  To the  39 extent that cash now plays a large part in feast  40 payments for the rights to chiefly names and  41 territories this demonstrates the plaintiffs'  42 willingness to accommodate, to adapt and incorporate  43 new threads into an ancient tapestry; it negates their  44 intention to capitulate and to assimilate in the  45 dominant society.  46 My lord, at paragraph 53 I say that our submission  47 that the test for abandonment can be no lower than 29436  Submissions by Mr. Jackson  1 that for extinguishment is one supported by the U.S.  2 jurisprudence, the only jurisprudence which has really  3 addressed this issue.  In our previous submissions we  4 have dealt with the Santa Fe case, in particular its  5 reference to the need for a "clear and plain"  6 congressional intent to extinguish aboriginal title.  7 And your lordship will recall that the issue there was  8 whether the creation of a reservation operated to  9 extinguish aboriginal title in lands outside of the  10 reservation.  The Court also dealt with the issue of  11 abandonment which it saw as a mirror image and that,  12 of course, is our point, of the extinguishment issue.  13 And this is made clear in the following passages from  14 the judgment of Mr. Justice Douglas:  15  16 "We search the public records in vain for any  17 clear and plain indication that Congress in  18 creating the Colorado River Reservation was  19 doing more than making an offer to the  20 Indians... which it was hoped it would be  21 accepted as a compromise over troublesome  22 questions. . .  23  24 Nor was there any plain intent or agreement on  25 the part of the Walapais to abandon their  26 ancestral lands if Congress would create a  27 reservation."  28  29 And the Court went to to say that a subsequent  30 reservation did evidence an intent to abandon because  31 it was created at the express request of the Indians.  32 And my lord, at paragraph 55 I refer your lordship  33 to another American case, the Wichita Indian Tribe  34 case where the Federal Court of Appeal dealt with the  35 issue of abandonment in the context of an argument  36 that shifts in village sites and moves based upon  37 taking advantage of other economic opportunities  38 constitute an abandonment.  And I am not going to go  39 through that, my lord, but I'll leave that with you.  40 And I say that therefore, my lord, in paragraph 58  41 that neither on the law or on the facts have the  42 plaintiffs abandoned their aboriginal rights in the  43 claim territory, my lord.  44 That come completes the last thing I have to say  45 in relation to the submissions, my lord, in this case.  46 If I may just make a few comments to your lordship.  I  47 usually stand at one of these from a rather different 29437  Submissions by Mr. Goldie  1  2  3  4  5  THE  COURT  6  7  8  9  MR.  GRANT  10  11  12  THE  COURT  13  MR.  GRANT  14  THE  COURT  15  16  MR.  GRANT  17  THE  COURT  18  MR.  GRANT  19  THE  COURT  20  MR.  GRANT  21  22  23  24  25  26  27  28  29  THE  COURT  30  MR.  GRANT  31  32  33  THE  COURT  34  MR.  RUSH:  35  36  THE  COURT  37  MR.  GRANT  38  39  40  41  42  THE  COURT  43  MR.  GOLDI  44  45  46  47  THE  COURT  perspective, and I would just like to say to your  lordship that it's been a great privilege and pleasure  to appear in this case before your lordship, and you  have a hard task in front of you, my lord.  Thank you, Mr. Jackson.  So do you.  I understand  there will be a new group of law students entering  into the university in the fall.  That must be a  difficult job too.  Thank you.  My lord, while Mr. Rush is getting prepared for the  next part, I just want to refer you to Exhibit 631.  This goes to population.  Oh, yes.  And Exhibit 631 is a February 1985 —  Just a moment, please.  I have a note here  somewhere.  Yes.  It's a February 19, 1985 the trapline proposal.  Exhibit 6 —  Exhibit 631.  Yes.  And it was tendered in the examination of Mr.  Sterritt.  In that document, my lord, there is a  reflection that the Gitksan and Wet'suwet'en together  number approximately seven thousand.  And I haven't  had an opportunity to refer to those references my  friends have given, so I am not going to comment  further on those right now, but that is an additional  reference in terms of the population and it doesn't  have a breakdown.  How would you break it down, Mr. Grant?  I would break it down between six thousand and -- or  5500 and 1500.  5500 Gitksan and about 1500  Wet'suwet'en.  Anyone say nay?  Did you disagree, Ms. Koenigsberg?  I think she was looking at me, my lord, at the time I  was about to hand her some more documents.  All right.  The only other point, my lord, is that the documents  in support of the archeological section I dealt with  this morning, we have them bound.  But we will deal  with those next week and provide them.  They are the  references there.  All right.  Thank you.  :  My lord, before my friend starts, perhaps I could  hand up my notes with respect to those places in my  friend's previous argument in which I submit he simply  reinforced his previous submissions.  All right.  Thank you.  Now, these are in relation 2943?  Submissions by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  MR.  THE  MR.  THE  MR.  MR. RUSH  THE  MR.  MR.  THE  COURT  RUSH:  THE COURT  to which argument?  RUSH:  Royal Proclamation it says.  GOLDIE:  Perhaps I could explain, my lord.  RUSH:  Well, I don't think there needs to be any  explanation, my lord.  COURT:  I don't know if there is or not.  I haven't even  seen the document before.  GOLDIE:  Perhaps I might explain what the document is.  COURT:  Yes.  GOLDIE:  The title, my lord, is notes prepared by defendant  Province of examples of references in plaintiffs'  reply of June 29, 1990 on the Royal Proclamation,  which in my submission repeat or reinforce previous  submissions.  Transcript references are omitted unless  oral argument significantly expands the plaintiffs'  written argument.  My lord, the first column.  I don't think we need this, my lord.  Isn't it  self-evident?  I don't know.  I have never seen it before.  Well, every minute my friend speaks is a minute less  that I have to speak.  The document, as my friend has  often said, speaks for itself.  Well, your people are always imposing on everyone  else's time.  Well, my lord --  I don't know why you should have the only right to  complain, Mr. Rush.  Well, hopefully, my lord, we are endeavoring to meet  your lordship's concern and end by four o'clock.  Well, I appreciate that, but I don't think that we  have to be so tight with our time that somebody can't  be allowed to make an explanation of documents that  none of us have seen before.  GOLDIE:  My lord, this was done yesterday in order to save  time and so that I could spare your lordship and my  friend the objections that I wished to make on the  basis that my friend was either repeating what he had  submitted before or was introducing new argument  unwarranted by anything that I had said, or he may  have for all I know split his case.  But, my lord, the  introduction which my friend made to his general  submission was that the defendant had introduced a new  theory.  My lord, when I go back and look at the  documents I find that is simply not so.  And the  theory that Rupert's Land -- I assume this is what my  friend is talking about, the theory that Rupert's Land  was restored to the British and there is no change of  RUSH:  COURT  MR. RUSH:  THE COURT  MR. 29439  Submissions by Mr. Goldie  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  sovereignty, was one that is set out in my submission  which was given to my friend on March 30.  My friend's  argument was made in Smithers on April the 5th and 6th  and included parts which were aimed at my argument.  So I have set out, my lord, the parallel -- parallel  submissions between my friend's written submission  and -- I'm sorry, my friend's final written argument  and the written reply that was handed up.  And I'll  say no more about that, my lord.  But as I indicated  yesterday, I said that I wanted to say something about  the Mitchell case which came down on May 26 and I'm  prepared to do that after my friend completes his next  submission.  MR. RUSH:  Well, I don't think my friend has any right to say  anything more about Mitchell.  There are ten pages of  the transcript on Volume 366 in which he went on at  quite some length and including the point that he  wishes to make and that is commenting the Nowegijick  principles.  And that's what my friend says he has a  right to speak about?  I don't know.  I thought he wanted to speak about  Mitchell which he said came down after he made his  submission.  GOLDIE:  That's correct.  RUSH:  Well, that's what he said, but it didn't, because he  commented on at some length in --  THE COURT:  On Mitchell?  MR. RUSH:  Yes, on Mitchell?  MR. GOLDIE:  On my reply to the Federal Government, my lord.  Your lordship required me to reply to the Federal  Government instead of writing.  And I did so.  And I  replied to the Federal Government and I endeavored to  cover every base, but I have not had a chance to talk  about Mitchell in respect of the submissions that are  now being made.  COURT:  All right.  RUSH:  Well, that —  COURT:  How long will it take you to make this submission,  Mr. Goldie?  GOLDIE:  About three minutes, my lord.  COURT: All right. Well, in the great game of rugby when  there is an injury the referee adds a certain amount  of time to the clock to make sure that the full time  for the match is allowed to the players, and so we  will -- if you take three minutes, Mr. Goldie, we'll  add six minutes to the clock and not infringe on Mr.  Rush's time.  Where should this document you have just  THE COURT  MR.  MR.  THE  MR.  THE  MR.  THE 29440  Submissions by Mr. Goldie  1 given me most conveniently be located where I will  2 come across it when I look at the -- there was Mr.  3 Rush's argument yesterday, was it?  4 MR. GOLDIE:  Yes, my lord.  5 MR. RUSH:  On the Royal Proclamation, my lord.  6 THE COURT:  Plaintiffs reply on the Royal Proclamation.  7 MR. GOLDIE:  Yes.  Thank you, my lord.  8 THE COURT:  All right.  I will put that in there.  All right.  9 Go ahead on Mitchell, Mr. Goldie.  10 MR. GOLDIE:  Does your lordship wish me to speak to the --  11 THE COURT:  Yes.  12 MR. GOLDIE:  Yes, all right.  Well, I have something to hand up  13 on that too, my lord.  Again, in the interests of  14 time.  15 MR. RUSH:  My lord, you might follow this argument at Volume 366  16 at page 29120.  17 THE COURT:  I am sorry?  18 MR. RUSH:  29120 where my friend has spoken about this issue  19 already.  20 THE COURT:  Page 291 —  21 MR. RUSH:  29120 at Volume 366.  And his consideration of the  22 case as a whole I think starts at some ten pages  23 earlier.  24 MR. GOLDIE:  Yes.  25 THE COURT:  All right.  26 MR. GOLDIE:  I am not going to refer your lordship to those  27 submissions.  They were directed completely to the  28 Federal Government's response.  29 THE COURT:  And where do you say this should be inserted?  30 MR. GOLDIE:  In the Royal Proclamation document also, my lord.  31 My friend has submitted that the Nowegijick case  32 requires the application of those principles which are  33 directed to the interpretation of statutes relating to  34 the Indian peoples to the Royal Proclamation.  And my  35 submission is directed entirely to its application to  36 the Royal Proclamation, and I confine it to that.  37 Now, I say at page 20 of his reasons the Chief Justice  38 stated:  39  40 "'Nowegijick' directs the courts to resolve any  41 'doubtful expression' in favour of the Indians  42 where more than one reasonable interpretation  43 is available."  44  45 At page 29 of his reasons LaForest J. (with whom two  46 judges concurred and with whose reasons on the  47 interpretation of section 90(1)(b) of the Indian Act 29441  Submissions by Mr. Goldie  1 Wilson J. agreed - two other judges concurring with  2 her) commenced a discussion of Nowegijick, and at page  3 30 -- I am not going to read that, my lord.  It is set  4 out.  5 THE COURT:  This is what Madam Justice Wilson said?  6 MR. GOLDIE:  No.  Mr. Justice LaForest, my lord.  7 THE COURT:  All right.  8 MR. GOLDIE:  And in my submission he is speaking for all of  9 that -- the six members of the Court.  And he is  10 commenting on Nowegijick.  11 THE COURT:  Yes.  All right.  12 MR. GOLDIE:  And he states at the outset that he doesn't take  13 exception to the principle that treaties and statutes  14 relating to Indians should be liberally construed,  15 etc.  But he goes on to say:  16  17 "But as I view the matter,"  18  19 And this is over the page,  20  21 "somewhat different considerations must apply  22 in the case of statutes relating to Indians."  23  24 Now, my friend's submission is that the Royal  25 Proclamation is to be dealt with as a statute.  He  26 goes on to say:  27  28 "Whereas a treaty is the product of bargaining  29 between two contracting parties, statutes  30 relating to Indians are an expression of the  31 will of Parliament.  Given this fact, I do not  32 find it particularly helpful to engage in  33 speculation as to how Indians may be taken to  34 understand a given provision.  Rather, I think  35 the approach must be to read the Act concerned  36 with a view to elucidating what it was that  37 Parliament wished to effect in enacting the  38 particular section in question.  This approach  39 is not a jettisoning of the liberal  40 interpretative method.  As already stated, it  41 is clear that in the interpretation of any  42 statutory enactment dealing with Indians, and  43 particularly the Indian Act, it is appropriate  44 to interpret in a broad manner provisions that  45 are aimed at maintaining Indian rights, and to  46 interpret narrowly provisions aimed at limiting  47 or abrogating them.  Thus if legislation bears 29442  Submissions by Mr. Goldie  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  on treaty promises, the courts will always  strain against adopting an interpretation that  has the effect of negating commitments  undertaken by the Crown...  At the same time, I do not accept that this  salutory rule that statutory ambiguities must  be resolved in favour of the Indians implies  automatic acceptance of a given construction  simply because it may be expected that the  Indians would favour it over any other  competing interpretation.  It is also necessary  to reconcile any given interpretation with the  policies the Act seeks to promote."  And then I say in my submission he rejected the  principle of Nowegijick as applying to the  interpretation of every Act of Parliament which  affects Indians.  The territorial reach of the Royal Proclamation -  and this was the particular aspect as I understood it  that my friend sought to apply - does not "relate" to  Indians.  It relates to the implementation of the  Treaty of Paris, the erection of colonies in the  conquered and ceded territories.  The first and  foremost purpose of the Proclamation, my lord.  My  lord, that's a quote from Sioui at page 42.  Mr.  Justice La Mare, as he then, was stated that the first  and foremost purpose of the Proclamation was the  erection of the colonies and then amongst other things  to the creation and protection of Indian interests in  some of those territories.  The Nowegijick principle  applies to resolving ambiguities in respect of those  interests.  It does not apply in interpreting the  geographic reach of the Proclamation as that engages  wholly different interests - including Britain's  relations with France, Spain and its old colonies -  and relates to the policy of the Proclamation as a  whole.  :  All right.  Thank you.  I think we'll take the  afternoon adjournment rather than interrupt ourselves.  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  THE COURT:  As you will see I have invited my colleague Chief  Justice Esson to sit with me for this part of the  trial, it being towards the end of a significant case  in history of the Court, and also for the reason that  THE COURT 29443  Submissions by Mr. Rush  1 this marks probably the last sitting of what presently  2 constitutes the Supreme Court of British Columbia, it  3 becoming a different sort of court at midnight  4 tonight.  And in addition, and perhaps of even greater  5 significant is the fact that it's almost to the minute  6 one year since Chief Justice Esson assumed his present  7 difficult duties.  I asked him also to join with me  8 this afternoon, however, so he could properly reclaim  9 his courtroom for other uses and I am grateful that he  10 has agreed to sit with me this afternoon.  Thank you,  11 Mr. Rush.  12 MR. RUSH:  My lord, Chief Justice Esson.  My lord, I direct you  13 to the plaintiffs' reply volume on the Colonial  14 period, and I direct you in particular to page 38  15 where I will begin.  And at paragraph 55, and as by  16 way of an introduction, my lord, the plaintiffs have  17 argued that the pre-Colonial policy does not really  18 matter, and that it is irrelevant in terms of the  19 position at law.  But if you see some significance in  20 that period, then I have the following to say about  21 certain of the defendants' arguments, and in  22 particular the one I address at paragraph 55, which is  23 this:  It is argued by the Province that the Colonial  24 policy in British Columbia was settled by Douglas by  25 1860 and it was in respect of reserving the sites of  26 settlement and of the adjacent cultivated areas.  Now,  27 my lord, I have taken the trouble to determine or at  28 least set out for you, and I will do so orally now,  29 what the Province's argument is here.  At paragraph 29  30 it's this, and I quote:  31  32 "These examples of administration illustrate  33 one of the salient features of the Colonial  34 policy, that of reserving the sites of  35 settlements and of the adjacent cultivated  36 areas."  37  38 We can take that as a Provincial statement that there  39 was one policy.  Secondly, at paragraph 30 the  40 Province says:  41  42 "In all material respects the policy of the  43 Mainland Colony with respect to its native  44 residents was settled by Douglas by 1860."  45  46 And there they say policy was settled at that time.  47 And what I say, my lord, is that they are wrong on 29444  Submissions by Mr. Rush  1 both counts.  This misinterprets the documentary  2 record.  There was no one reserve-making policy in the  3 Colonial period.  That policy took various expressions  4 from as early as 1850 through to 1871.  In fact, in  5 some of the -- in some of the debates of the  6 Confederation Debates on March 26, 1870 it was stated  7 there was no policy.  And what I say, my lord, is that  8 whatever form it took it differed from time to time  9 and circumstance to circumstance.  The extent of the  10 variation of this policy is evident from the following  11 variety of statements made about aboriginal title in  12 the colony by people in positions of authority both  13 before Union and after.  Now, I have here set out a  14 large number of those statements, my lord, and I don't  15 intend to take you to every one of them, but I'm going  16 to direct your attention to those that are on page 39.  17 But —  18 MR. GOLDIE:  My lord, none of those were made at the time of the  19 Colony of British Columbia was in existence.  20 MR. RUSH:  Ah, yes, but my friend makes the point that the  21 colonial policy was the same in Vancouver's Island as  22 it was in the mainland.  And so he has to live with  23 his determination on that point.  And what I say, my  24 lord, is that if you look at the statements about what  25 that policy is, those statements belie his  26 proposition.  And I ask you to review those set out in  27 sub-paragraphs (a), (b) and (c), and I'll ask you now  28 to go to page 41.  29 MR. GOLDIE:  They were not made by Douglas when he was in a  30 position of authority, my lord, on Vancouver Island.  31 MR. RUSH:  Well, thank you very much for that.  At sub-paragraph  32 (h), my lord, I direct your attention to Douglas'  33 statement to Lytton in March 14, 1859.  The critical  34 part, my lord, is that which is the second sentence of  35 this paragraph and he says:  36  37 "Those reserves should in all cases include  38 their cultivated fields and village sites for  39 which from habit and association they  40 invariably conceive a strong attachment."  41  42 Well, was that the policy?  Go to (i), my lord, over  43 to page 42.  This is Douglas -- this is Carnarvon to  44 Douglas:  45  46 "In the case of the Indians of Vancouver Island  47 and British Columbia Her Majesty's Government 29445  Submissions by Mr. Rush  1 earnestly wish that when the advancing  2 requirements of colonization press upon Lands  3 occupied by Members of that race measures of  4 liberality and justice may be adopted for  5 compensating them for the surrender of the  6 territory which they have been taught to regard  7 as their own."  8  9 Was that the policy, my lord?  Go to (k), Douglas to  10 Newcastle on October 9, 1860.  11 THE COURT:  I am sorry.  Douglas to Newcastle?  12 MR. RUSH:  Yes.  To Lord Newcastle.  13 THE COURT:   (K)?  14 MR. RUSH:  Yes.  15 THE COURT:  This is Douglas to House of Assembly.  16 MR. RUSH:  No.  The reference is after the quote, my lord.  17 THE COURT:  Oh, I'm sorry.  Yes.  Thank you.  18 MR. RUSH:  19  20 "I also explained to them that the Magistrates  21 had instructions to stake out, and reserve for  22 their use and benefit, all their occupied  23 village sites and cultivated fields and as much  24 land in the vicinity of each as they could  25 till,"  26  27 it should be,  28  29 "or was required for their support; and that  30 they might freely exercise and enjoy the  31 rights of fishing the lakes and rivers and of  32 hunting over all unoccupied Crown lands in the  33 Colony."  34  35 Was that the policy, my lord?  36 Page 44 sub-paragraph (q), this is Douglas to the  37 House of Assembly:  38  39 "I deem and expedient ... to enter into  40 arrangements with the natives for the  41 satisfaction of their claims on the land ...  42 As an essential part of that arrangement, I  43 propose that a portion of land shall be  44 reserved and secured for their exclusive use  45 and benefit ... "  46  47 Then I take you, my lord, to paragraph (v) on page 46, 29446  Submissions by Mr. Rush  1 Douglas to the Legislative Council on January 29,  2 1864:  3  4 "... the plan of forming reserves of land,  5 embracing the village sites, cultivated  6 fields, and favourite places of resort of the  7 several tribes."  8  9 Well, now is that the policy?  And what about Mr.  10 McColl's report of May 16, 1864:  11  12 "... I had further verbal orders given to me  13 by Sir James Douglas, to the effect that all  14 lands claimed by the Indians were to be  15 included in the Reserve; the Indians were to  16 have as much land as they wished."  17  18 Was that the policy, my lord?  And what about  19 sub-paragraph (x):  20  21 "Mr. William McColl ... will also mark as  22 Indian Reserves any ground which has been  23 cleared and tilled for years by the Indians ...  24 Mr. McColl will mark out ... whatsoever land  25 the Indians claim as theirs; and at any Indian  26 Village where the quantity of land demanded by  27 the Indians is not equal to ten acres for each  28 family, Mr. McColl will enlarge the reserve to  29 that extent."  30  31 That's the Surveyor-general's Instructions to Mr.  32 McColl.  33 But my lord, the real distinction to be drawn here  34 is found at page 48.  And this is Trutch's view of  35 what the pre-Colonial land policy was.  It's found at  36 subparagraph (cc):  37  38 "... Government has ... set apart such  39 portions of the Crown lands as were deemed  40 proportionate to and amply sufficient for the  41 requirements of each tribe..."  42  43 And I have set out some more of the passage on the top  44 of 49, the second paragraph:  45  46 "...  but these claims have been held to have  47 been fully satisfied by securing to each tribe 29447  Submissions by Mr. Rush  1 as the progress of the settlement of the  2 country seemed to require -- the use of  3 sufficient tracts of land for their wants for  4 agricultural and pastoral purposes."  5  6 This is what Trutch thinks in January 13, 1870.  But  7 my lord, let me take you to what he thought on October  8 14, 1872 which is at 51, (ff):  9  10 "We have never bought out any Indian claims"  11  12 so says Trutch,  13  14 "to land, nor do they expect we should, but we  15 reserve ... tracts of sufficient extent to  16 fulfill all their reasonable requirements for  17 cultivation or grazing."  18  19 Now, my lord, I ask you to compare that statement  20 against the statement which Douglas made in 1874 and  21 that's found at (hh):  In a reply to a request made by  22 Indian Commissioner Powell as to whether there was any  23 particular 'basis of acreage used in setting apart  24 Indian Reserves', James Douglas, about whose policy it  25 is said that there is one policy and it was settled in  26 1860, said this:  27  28 "To this inquiry I may briefly rejoin that, in  29 laying out Indians Reserves, no specific number  30 of acres was insisted upon.  The principle  31 followed in all cases was to leave the extent  32 and selection of the land entirely optional  33 with the Indians who were immediately  34 interested in the Reserve; the surveying  35 officers, having instructions to meet their  36 wishes in every particular, and to include in  37 each Reserve the permanent village sites, the  38 fishing stations and burial grounds, cultivated  39 land and all the favourite resorts of the  40 tribes, and, in short to include every piece  41 of ground to which they acquired an equitable  42 title through continuous occupation, tillage,  43 or other investment of their labour."  44  45 Now, my lord, I ask you to go to 56 with my conclusion  46 on this.  And what I say is that this list confirms  47 the wide variation in the colonial reserve-making 2944?  Submissions by Mr. Rush  1 policy; that the policy was not one of reserving  2 "sites of settlement and adjacent cultivated areas" as  3 argued by the Province.  4 The letter from Douglas to Powell describes a  5 colonial reserve policy far different from the one the  6 Province seeks to establish.  Douglas was responding  7 to a specific inquiry from Powell in which he was  8 asked:  "if during the period of my Governorship in  9 British Columbia there was any particular basis of  10 acreage used in setting apart Indian reserves."  The  11 question and the answer related to the size of Indian  12 Reserves and obviously did not deal with the questions  13 of the recognition and the need for extinguishment of  14 aboriginal title on Vancouver's Island and on the  15 mainland during the period of his Governorship in the  16 colonies.  It is significant, however, that Douglas'  17 description of the reserve-making practice differs  18 significantly from that described by Trutch in January  19 1870 and I say, from the instructions given to Douglas  20 in December of 1849 by Barclay.  21 Douglas expressed a policy in far more "generous"  22 terms in 1874 as "to leave the extent and selection of  23 land entirely optional with the Indians."... and to  24 include " ... all the favourite resorts of the  25 Indians" and, in short "to include every piece of  26 ground to which they acquired an equitable title  27 through continuous occupation, tillage, or other  28 investment of their labour."  And what I say, my lord,  29 is that Douglas in 1874 described if -- described a  30 policy which if it had been properly implemented would  31 have included the whole of the Gitksan and  32 Wet'suwet'en territories as being selected by them and  33 places of their continuous occupation and investment  34 of their labour.  The "policy" regarding reserves  35 expressed by Douglas in 1874 is far different than the  36 one which the Province seeks to establish.  It is a  37 far cry from the one expressed by Trutch copied by  38 Walkem in 1875 and again by McKenna in 1912.  39 Now, I leave that point, my lord, and I ask you to  40 go back to page one.  The Province relies on the  41 Deadman's Island case to support its argument that  42 James Douglas in 1858 had powers which were  43 "absolutely autocratic."  To found its judgment the  44 Court there relied on a "Set of letters, despatches  45 and maps" which it conceded were imperfect in detail.  46 Nonetheless they suggest that these documents "provide  47 a clear picture of the early land history of the 29449  Submissions by Mr. Rush  1 colony."  Well, the picture couldn't have been that  2 clear, my lord, with respect, because on page 555 of  3 their Judgment Their lordships have Governor Douglas  4 arriving in the Colony in 1859.  And they say:  5  6 "Accordingly we find that early in 1859, that  7 is to say a few months after his arrival,  8 Governor Douglas issued a proclamation in the  9 colony dealing with the subject of land."  10  11 Douglas had travelled throughout the mainland as the  12 Hudson's Bay Company factor in the 1820s and 1840s.  13 He issued despatches about his travels when he was on  14 the mainland in June of 1858.  15 Their Lordships seemed to think that the "reign of  16 law", as they call it, may be taken from the "date  17 from the advent of Governor Douglas in 1858."  Now,  18 what was before them we don't know, my lord, but Their  19 Lordships could not have had before them the 1803 and  20 1821 Jurisdiction Acts which extended civil and  21 criminal jurisdiction from Upper Canada to the Indian  22 territories located in New Caledonia.  23 Their Lordships further described Governor  24 Douglas' powers as "absolutely autocratic" and my  25 friend relies on this description, and that "he  26 represented the Crown in every particular, and was, in  27 fact, the law."  Their Lordships could not have read  28 Governor Douglas' Commission of September 2, 1858  29 restricting his powers.  More importantly, they could  30 not have read the Instructions issued to Douglas on  31 the same date in which he was expressly limited in his  32 law-making power by thirteen separate prohibitions  33 which included, significantly, one which prevented him  34 from making laws that would prejudice the royal  35 prerogative and the rights and property of subjects in  36 the colony.  37 MR. GOLDIE:  My lord, this is a new argument, of course, but  38 papers which the Court had before it were the  39 documents in Exhibit 1142 which included the  40 Commission.  And his arrival on the mainland refers to  41 his arrival as Governor at Fort Langley in November  42 1858.  43 MR. RUSH:  Well, I don't know how we know any of that, my lord,  44 because I invite your lordship to read the case which  45 is at tab one of my proceedings.  I think you will  46 find it edifying.  47 MR. GOLDIE:  I agree, and I invite your lordship to do that, and 29450  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH  THE  MR.  THE  MR.  THE  COURT:  RUSH:  COURT:  RUSH:  COURT  MR. RUSH  MR.  MR.  MR.  MR.  the documents in Exhibit 1142 are the blue books that  are referred to in that.  What I say, my lord, is that if those documents were  in front of Their Lordships it was a shocking failure  on their part to read them properly.  Well, I am not going to make that conclusion, Mr.  Rush.  No, I don't think you will, my lord, but maybe you  will make a conclusion that --  Lawyers inundate judges with papers sometimes and  assume they are committed immediately to memory.  I am  not prepared to make that assumption.  My lord, what I say --  Counsel may never have mentioned it.  And told Their  Lordships - I have heard it said so often - all you  need to look at to decide this case is this and this  and this.  As I said before, we usually believe  everything counsel tell us.  Well, in that case, my lord, I am asking you not to  believe this case.  At paragraph five, my lord, on page three:  As a  matter of law, Douglas, while representing the Crown,  was not the Crown.  He was not a viceroy.  He was a  Governor with delegated powers subject to considerable  constraint.  That the Province -- that the Province in  their Argument tries make Douglas out to be a petty  autocrat, a small-town factotum, flies in the face of  British constitutional and colonial law.  And I cite  Berridale Keith for that proposition.  GOLDIE:  I don't think Professor Berridale Keith  characterized the Province's argument in those terms,  my lord.  RUSH:  But if he were here, my lord, he would.  GOLDIE:  Well —  RUSH:  And my lord, I want to direct your lordship's  attention to a similar argument that my friends make  at page 36, at paragraph 52 to 54, which I will not  take you to.  However, I do want to draw your  lordship's attention to an argument that the Province  raises.  It's on page 8 at paragraph 13.  Dealing with  the pre-revolutionary experience of Indians in the  United States.  And they cite in support of that their  proposition which really amounts to a form of  frontierism, a book by Frederick Merk, an American  historian who wrote a book called "History of the  Westward Movement."  And when you consider the passage  that my friends have directed your attention to, I ask 29451  Submissions by Mr. Rush  1 you also to consider the passages of two professors  2 who have critiqued the thesis as represented by Merk  3 in that -- in those passages that have been directed  4 to your lordship.  They are on page ten, Berkhofer,  5 and on page eleven of my argument, Patricia Limerick.  6 And I simply wish to say, my lord, as a flavour of  7 their critique this:  Miss Limerick, Professor  8 Limerick said:  9  10 "A de-emphasis of the frontier opens the door  11 to a different kind of intellectual stability.  12 Turner's frontier -- "  13  14 And Merk was a student of Turner.  15 MR. GOLDIE:  Well, so were many other people, my lord.  There  16 were lots of students of Turner.  17 MR. RUSH:   And of protege.  18 MR. GOLDIE:  We have no opportunity to go behind and see what  19 people think of these two professors.  2 0 MR. RUSH:  21  22 "Turner's frontier was a process, not a place."  23  24 MR. GOLDIE:  I am objecting to this kind of back-door attack on  25 a document that my friend has had since I made my  2 6 argument.  27 MR. RUSH:  Well, my friend put Merk forward and I am putting  28 forward some people who have a different view of Mr.  29 Merk.  30 MR. GOLDIE:  They don't refer to Merk.  They refer to Turner.  31 MR. RUSH:  That's right.  And my lord, if you look at the  32 introduction to Merk's book you will see that he is a  33 student and protege of Mr. Turner.  34 THE COURT:  Just a moment, please.  Mr. Goldie, do I recall  35 correctly that Merk appeared for the first time in  36 your argument?  37 MR. GOLDIE:  That is correct.  And my argument was filed on  38 March 30.  And my friend's argument was made in this  39 particular aspect in May.  He had ample opportunity to  40 raise these issues instead of waiting for a reply and  41 knowing that I have no opportunity to get behind the  42 people that he's introducing at this point.  43 THE COURT:  I have no way to deal with it except to put it down  44 as a matter of weight.  It's a somewhat futile  45 gesture, but I know of no other way to deal with it.  46 MR. RUSH:  Thank you, my lord.  I would ask you to take that  47 into account in assessing the weight that you should 29452  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  attribute to Professor Merk's learned thoughts.  I would ask you also to turn to page 18, paragraph  26.  And my lord, your lordship asked me a question  during the course of our submissions with regard to  whether or not the Select Committee's recommendations  had been implemented in New Zealand or -- had not been  implemented in New Zealand or in the Colony of  Vancouver's Island.  And at the time I said that it  was the -- it was in respect of Vancouver's Island.  I  was half right.  I'd like to direct your attention to  a passage by Peter Adams in a book called "Fatal  Necessity" in which he indicates that the policy and  the recommendations of the New Zealand Select  Committee in 1884 were not --  MR. GOLDIE:  My lord —  MR. RUSH:  -- implemented in New Zealand after the  recommendations were made.  MR. GOLDIE:  Excuse me.  Will your lordship make a similar --  this is also new.  Make a similar comment with respect  to the opportunity given to us to deal with it.  MR. RUSH: Well, my lord, of course it's new. This is a reply.  I am supposed to have a new thought in reply.  THE COURT:  Well, there is an element of unfairness in it all.  I don't know quite how to grasp unfairness.  It's  usually an illusive creature.  But I'm not able to at  the moment, short of giving Mr. Goldie another reply  and then you a reply to that, to suggest how it should  be done.  MR. RUSH: My lord, with respect, I am responding to a question  that your lordship placed and it's not in response to  my learned friend.  THE COURT:  Well —  MR. RUSH:  This question was put to me and I didn't know the  full answer and I equivocated on whether it was both  in respect of New Zealand or in respect --  THE COURT: But I put that question to you when, Mr. Rush, more  than a month ago?  MR. RUSH:  Oh, yes.  Yes.  That's so, my lord.  THE COURT:  Well, it seems to me that if there is not to be a  direct answer, almost a yes or no, then it -- and  there is an intention to refer to authorities or  learned writings, that notice should be given of it.  But I won't stop you.  I think the only fair -- the  only possible thing to do is to proceed.  What does  Mr. Adams said about it?  MR. RUSH: 29453  Submissions by Mr. Rush  1 "Although the 1884 select committee was by no  2 means packed with New Zealand Company men, the  3 committee rejected Hope's draft and adopted, by  4 a narrow majority, that of Lord Howick.  5 Howick's report condemned the Treaty of  6 Waitangi as 'injudicious', maintained that a  7 correct interpretation of it did not depend on  8 an admission of Maori claims to all the wild  9 lands in  New Zealand, and recommended that  10 measures be taken to obtain for the Crown a  11 title to all land not actually occupied or  12 enjoyed by the Maoris.  So hedged about with  13 caution was this recommendation, however, and  14 so far from unanimity was the select committee,  15 that Stanley had no qualms about refusing to  16 advise a course which he believed inconsistent  17 with 'justice, good faith, humanity, or  18 policy.'  Indeed, as he wrote to the Prime  19 Minister, Sir Robert Peel, even 'setting aside  20 considerations of justice and good faith, I  21 dare not act on the principles laid down by the  22 Committee and apparently -- "  23  24    THE COURT:  "Laid down by the Company."  2 5    MR. RUSH:  26  27 "-- laid down by the Company and apparently  28 supported by the Committee."  29  30 Lord Stanley was Colonial Secretary at the time.  31 Now, my lord, I ask you to make a note that on  32 page 36, my lord, at paragraphs 52 through to 53 is  33 the extension of the argument relying on the Deadman's  34 case that the Crown makes in respect of the vaulted  35 authority that Sir James -- or James Douglas had  36 during the time of his Governorship in the Colony of  37 British Columbia.  Those will be my submissions on  38 this period.  3 9    THE COURT:  Thank you.  40 MR. GOLDIE:  Of course, your lordship will see this is precisely  41 the kinds of thing that I was objecting to yesterday,  42 namely I was replying to my friend's argument.  So  43 this is -- this is a reply to my reply to my friend's  4 4 argument.  45 THE COURT:  All right.  46 MR. GOLDIE:  No wonder we dislike replies.  47 THE COURT:  Ms. Mandell. 29454  Submissions by Ms. Mandell  1 MS. MANDELL:  Thank you, my lord.  My lord, I have got two  2 submissions, one which I will address to you orally  3 and one which I'll ask you to consider following my  4 handing it up to you at the end of this particular  5 submission.  The first is a reply to the Province's  6 argument which is found in part Roman numeral VII,  7 Section one.  8 THE COURT:  I am sorry, whose argument is it?  9 MS. MANDELL:  This is the Province's argument.  10 THE COURT:  And what is it headed again?  11 MS. MANDELL:  I've entitled it Section 109 of the Constitution  12 Act 1867.  13 THE COURT:  Do you have a numbered reference for the Province's  14 argument?  15 MS. MANDELL:  It's at the top of the heading.  If your lordship  16 will turn --  17 THE COURT:  Yes.  Part VII, Section one?  18 MS. MANDELL:  That's right.  Part VII, Section one and Part X,  19 Section 4.  And my lord, I will also be addressing you  20 with respect to a reply to the Province's argument  21 which I have entitled Section 88 of the Indian Act,  22 but that in the interests of time I will ask you to  23 consider at your leisure.  24 My lord, the Province's argument depends on a  25 finding in our submission that Section 109 does not  26 apply to British Columbia.  I have set out Section 109  27 and your lordship is aware of it and I've underscored  28 the parts which in our submission are crucial and that  29 is that the Province gets their lands, mines, minerals  30 and royalties at Confederation "subject to any Trusts  31 existing in respect thereof, and to any Interest other  32 than that of the Province in the same.  I have set out  33 Section 146 of the Constitution Act.  It should be  34 1867 which entered British Columbia into  35 Confederation.  And I underscored the fact that the  36 entry of British Columbia into the Confederation was  37 subject to the Provisions of the Act, which is the  38 1867 Act, and I also set out Term 10 of the Terms of  39 Union which your lordship will see also expressed that  40 the Union was going to include the provision that the  41 British Columbia Government would be subject to the  42 terms of the existing 1867 Act.  43 Now, at paragraph five, the Province asserts that  44 Crown lands did not come under the administration of  45 the Province as a result of Section 109, and they rely  46 upon this passage of the Precious Metals case, which I  47 have reproduced at page two, and I will read it to 29455  Submissions by Ms. Mandell  1 your lordship:  2  3 "... the title to the public lands of British  4 Columbia has all along been, and still is,  5 vested in the Crown; but the right to  6 administer and to dispose of these lands to  7 settlers, together with all royal and  8 territorial revenues arising therefrom, had  9 been transferred to the Province, before its  10 admission into the federal union."  11  12 And we say that the Province attaches weight to the  13 statement, and we say wrongly, that the right to  14 administer lands "had been transferred to the  15 Province" before Confederation.  We say that to  16 construe that sentence literally, as the Province  17 does, is incorrect.  There was no province before  18 Confederation and before the admission of the Colony  19 of British Columbia into the Federal Union.  Their  20 Lordships were clearly expressing the view that the  21 administration of Crown lands, the ownership of which  22 was vested in an indivisible Imperial Crown, had been  23 transferred to the Colonial government prior to  24 Confederation.  25 THE COURT:  Ms. Mandell, I haven't got the context of this  26 quotation from the Precious Metals case.  What do you  27 understand Their Lordships are referring to when they  28 say in the second line "is vested in the Crown"?  29 MS. MANDELL:  Vested — I take it to say that the title to  30 public lands in British Columbia has all along been  31 and is vested in the Imperial Crown at that time.  32 THE COURT:  All right.  Thank you.  33 MS. MANDELL:  My lord, at page three the Precious Metals case  34 holds that Section 109 applies to land in British  35 Columbia.  This is the -- this is the holding of the  36 case and the case turns on the analysis and I set out  37 the passage where that's so and we say that this is  38 all the more apparent when the whole Precious Metals  39 case is read.  And your lordship is aware that it  40 involves a dispute between Canada and British Columbia  41 as the right -- as to the right to revenues from  42 precious metals on Crown lands within the Railway  43 Belt.  44 The Privy Council held that "gold and silver  45 mines...are not regarded as partes soli, or as  46 incidents of the land in which they are found."  Their  47 Lordships then proceeded to analyze the interests 29456  Submissions by Ms. Mandell  1 obtained by the Province under Section 109.  2 Accordingly, the powers of the "province", and I say  3 as opposed to the "Colony" of British Columbia to  4 administer Crown lands is derived from 109, and we say  5 and the provincial interest is subject to interests  6 other than those of the province, including aboriginal  7 title.  What the Precious Metals case said is that the  8 interest in land passed to Canada in the Railway Belt  9 pursuant to the Terms of Union and that interest was  10 no greater, and in fact the Privy Council found that  11 it was less than the province's interests acquired  12 under 109.  13 We say it's impossible to infer, as the Province  14 does, that the ability of the Province to convey its  15 interest in land to Canada or that its prerogative to  16 the revenues from precious metals demonstrates that  17 the provincial interest was not "fettered" by  18 aboriginal title.  The transfer of Railway Belt lands  19 to Canada was to permit Canada to "recoup the cost of  20 constructing the railway by selling the lands to  21 settlers," and of course it's without saying that no  22 issue of aboriginal title was raised or considered in  23 that case.  24 The Province argues that no Indian title  25 constituting an interest other than that of the  26 Province fettered the power of the Province either to  27 transfer land in the Railway Belt to Canada or to  28 maintain its right to gold and silver found within the  29 Railway Belt.  Far from showing that Section 109 has  30 no application in British Columbia, the case, we say,  31 and it's supported, relies on the wording of that  32 section to determine first, what the Province received  33 at Confederation, and second, what it conveyed to  34 Canada.  We say that if your lordship reads the  35 Precious Metals case combined with St. Catherine's  36 Milling it brings about the following result.  The  37 Province --  38 MR. GOLDIE:  Excuse me.  My lord, all of this was canvassed by  39 Ms. Mandell at Volume 334 on May 9 starting at 25949  40 when she dealt with the Precious Metals case.  41 MS. MANDELL:  My lord, I didn't directly deal with the statement  42 made by the Province which I have set out at paragraph  43 five and which appears in their argument and which I  44 am now replying to.  I have got --  45 THE COURT:  Reply in those circumstances should really be very  46 limited --  47 MS. MANDELL:  Well, it — 29457  Submissions by Ms. Mandell  1 THE COURT:  And rather than a full review of the whole  2 jurisprudence relating to the section.  3 MS. MANDELL:  The only remaining point, my lord, that I wish to  4 make, and I don't believe my friend can point to any  5 statement where I have already made it, and if he does  6 I'll be corrected or surprised, is that if you do  7 combine the Precious Metals case with the St.  8 Catherine's Milling case the result is that the  9 Province received its land subject to interest other  10 than that of the Province, and that's including  11 aboriginal title, but the Province had the right to  12 convey its interest in land which it did to the  13 Federal Government in order to deal with the Railway  14 Belt.  15 The Province argues that the conduct of the  16 Federal Crown after Union demonstrated that the  17 Federal Government treated lands in British Columbia  18 as if Section 109 were empty of an aboriginal interest  19 which burdened the title of the Province.  And they  20 rely on three arguments, both -- all three of which I  21 have set out in paragraph 14, and I can summarize them  22 to be broken down this way.  That the Province relies  23 upon the extension of the Dominion Lands Act to B.C.  24 in 1875 and then it's repealled to argue that so far  25 as the second administration of Sir John A.  26 Macdonald - under whose leadership the British  27 Columbia Terms of Union were negotiated - there was no  28 Indian title in British Columbia.  It also relies upon  29 the difference in treatment legislatively between the  30 Peace River District and the Railway Belt.  And  31 finally, the Province suggests that the eventual  32 opening up lands in the Railway Belt for settlement  33 and the retransfer of jurisdiction over those settled  34 lands from the Dominion to the Province all support  35 the proposition that by 1883 aboriginal title was  36 treated by Canada as extinguished in British Columbia.  37 And in response to all of those propositions, my lord,  38 we have two legal general points to make.  We say that  39 first, Section 109 would embrace an aboriginal  40 interest which is an interest other than that of the  41 Province unless aboriginal title was never  42 extinguished as a matter of law.  43 THE COURT:  I am sorry, your text is "never existed."  44 MS. MANDELL:  I am sorry, has never existed as a matter of the  45 common law, or unless the aboriginal title had been  46 extinguished in British Columbia in the Colonial  47 period.  At least as it relates to fishing rights, 2945?  Submissions by Ms. Mandell  1 Sparrow stands against both propositions.  2 We say secondly, if the Province was bound by  3 Section 109 at Union no acts of the Federal Crown,  4 except the clear and plain legislation extingishing  5 aboriginal title could disencumber the Provincial  6 title of its burden.  After Confederation, in every  7 other respect, we say the conduct of the Federal  8 Government is largely irrelevant.  9 And secondly, again as a matter of law, we draw to  10 your lordship's attention, and I am not going to take  11 you through the passages, that Guerin and Calder have  12 considered Section 109 in conjunction with the  13 decision of the St. Catherine's Milling case in their  14 consideration of aboriginal title to off reserve lands  15 in British Columbia.  No Court has rejected its  16 application.  17 And I ask you also at paragraph 22 at page 7 to  18 note that the B.C. Court of Appeal in White and Bob  19 also Mr. Justice Norris' decision also referred to  20 Section 109 in his analysis of Indian hunting rights,  21 recognized in a Douglas treaty on Vancouver Island.  22 Now, the Province places some reliance on the case  23 of Smith to argue that the burden on the Provincial  24 Crown title under Section 109 was only that interest  25 which was created by the Federal Government under  26 section 91(24) .  The Smith case concerned lands  27 reserved for Indian under 91(24) and also lands which  28 had been absolutely surrendered to the Crown.  The  29 ratio of the case was that upon absolute surrender of  30 reserved lands, the Indian interest ceased to be a  31 burden on Crown title.  To the extent that the Court  32 in Smith characterized the burden on Provincial Crown  33 title with reference to 91(24) they did so because  34 that was the facts of that case.  35 In summary, we say there is no authority which  36 supports the Province that Section 109 either did not  37 apply to British Columbia or that aboriginal title  38 protected by Section 109 was an empty tea box in  39 British Columbia, or that the burden on Provincial  40 Crown title was only that interests created by the  41 Federal Government under section 91(24).  We say  42 authority to the contrary is found in Calder, Guerin,  43 White and Bob and Sparrow.  44 Now, the Province stresses the facts surrounding  45 the Railway Belt as demonstrating federal conduct  46 disregarding aboriginal rights.  47 In reply to these facts, and this is in an 29459  Submissions by Ms. Mandell  1 alternative to the law which we say that if Section  2 109 applies upon none of these facts are very  3 relevant, but we do say that after Confederation, and  4 my lord, this is the important point, Federal  5 legislation - this isn't policy, this isn't what the  6 Federal Government did or said.  Federal legislation  7 recognized the existence of aboriginal title to off  8 reserve lands in British Columbia, a fact which flies  9 in the face of the Province's theory that Section 109  10 as it relates to aboriginal title was empty of  11 content.  12 THE COURT:  What Federal legislation are you referring to there?  13 MS. MANDELL:  There is actually three separate pieces.  One I've  14 set out at tab 2 and, my lord, I have already referred  15 you to in my argument, so I didn't feel the liberty to  16 refer to it again.  But this is the Indian Acts which  17 in 1874 contained a term which provided for the  18 surrender of off reserve lands and that was extended  19 to British Columbia by the 1876 Indian Act.  And I  20 have set out the places in the plaintiffs' argument  21 where that was discussed and the cases which referred  22 to those sections were also mentioned.  23 We further refer to the Dominion Lands Act and the  24 section of the Dominion Lands Act, Section 42, is set  25 out at page eight, paragraph 28 which says:  26  27 "None of the provisions of Act respecting the  28 settlement of the Agricultural lands, or the  29 lease of Timber lands, or the purchase and sale  30 of Mineral lands, shall be held to apply to  31 territory the aboriginal title to which shall  32 not at the time have been extinguished."  33  34 The Mackenzie administration extended and applied the  35 Dominion Lands Act - and I have read you that  36 portion - both of which contained the above provision  37 to British Columbia.  And that was done in an Act to  38 Extend to the Province of British Columbia the  39 Dominion Lands Act.  And I've set out that and the --  40 it's also contained in the tabs which follow.  Now,  41 the Province builds its --  42 MR. GOLDIE:  I was just going to say it's laid out in detail in  43 my summary under part eight and in the counterclaim  44 argument, my lord, including the dates and the  45 legislation which repealed those.  46 MS. MANDELL:  I'm just getting to that, my lord.  47 THE COURT:  All right. 29460  Submissions by Ms. Mandell  1 MS. MANDELL:  It's also laid out in the tabs to this material if  2 your lordship wishes to find it in this body of  3 material.  But the point I'd like to make before we  4 get to its repeal is that between 1871 and 1880 the  5 provision of the Dominion Lands Act which I have just  6 read to you which says that the Dominion Lands Act is  7 not applied to lands the aboriginal title to which  8 shall not at the time have been extinguished  9 deliberately by Federal legislation applied to British  10 Columbia.  And that's after Confederation.  After the  11 Terms of Union.  12 Now, the Province builds its case on the fact that  13 this provision of the Dominion Lands Act was repealed  14 as it related to British Columbia in 1880.  And we say  15 in reply --  16 THE COURT:  Ms. Mandell, surely these are all legislative slips  17 that went on.  How can it be argued -- I mean, it  18 seems to me it can be argued in your favour for that  19 five year period and just as equally for your friend's  20 favour thereafter.  I mean, how does it -- isn't it a  21 wash between the two of you?  22 MS. MANDELL:  Well, my lord, I'd say that — I only want to make  23 this point, that the -- overall the Federal  24 legislation in the area has been pretty poor.  25 THE COURT:  Well, that doesn't help me very much.  26 MS. MANDELL:  However, if Section 109 as my friend argues is  27 disencumbered with aboriginal title, it never in 1871  28 had any in it and thereafter the Federal Government  29 didn't recognize any, which is the conclusion that my  30 friend would have you draw from the history that he  31 places before you about the Railway Belt, we say that  32 the fact that the -- that Federal legislation after  33 1871 expressly recognized aboriginal title as it  34 related to British Columbia is contrary to what my  35 friend's theory is.  That's the only point we take  36 from that.  37 THE COURT:  It seems to me you are advancing the accidental  38 theory of history.  39 MS. MANDELL:  Well, I don't —  40 THE COURT:  I don't know what possible inferences I can draw  41 from legislative accidents.  42 MS. MANDELL:  Well, my lord, I wouldn't say that it's a complete  43 accident when the Dominion Lands Act by a separate act  44 and title, an Act to Extend to the Province of  45 British Columbia the Dominion Lands Act --  46 THE COURT:  But five years later they repealed it.  47 MS. MANDELL:  Yes, that's right, they did repeal it.  And when 29461  Submissions by Ms. Mandell  1 they did repeal it what they did was they by act they  2 acknowledged the existence of aboriginal title  3 reflected in a clause of a contract which was executed  4 on October 21, 1880 between the Dominion and a  5 syndicate which had undertaken to build and operate  6 the railway.  And the clause which was therein enacted  7 was Section 12 which says:  8  9 "The Government shall extinguish (aboriginal)  10 title affecting the lands herein appropriated,  11 and to be hereafter granted in aid of the  12 railway."  13  14 So you have -- it's hardly completely accidental when  15 you've got with respect to lands in British Columbia  16 and the Railway Belt which my friend asks to you take  17 from that history that there is no aboriginal title  18 recognized by the Federal Government, that first the  19 Dominion Lands Act is expressly applied to British  20 Columbia and then the Act Respecting the Canadian  21 Pacific Railway which contains the schedule saying  22 Clause 12, The Government shall extinguish aboriginal  23 title, that that too is applied to the same lands.  24 And we say that the Dominion had acknowledged its  25 obligation to extinguish Indian title to the land over  26 which C.P.R. was to build the railway.  If such  27 extinguishment did not occur, the statute provided  28 that C.P.R. obtained only that which the Dominion  29 could legally grant.  And we say that's consistent  30 with the Precious Metals case.  31 Thus - and I am at paragraph 33 - as C.P.R. had  32 contractually agreed to accept only those rights which  33 the Dominion Crown could legally transfer, the  34 Dominion did not require to extend vis a vis C.P.R.,  35 the operation of the Dominion Lands Act.  And this is  36 in response to my friend's argument that you should  37 take something from the fact that the Dominion Lands  38 Act was withdrawn from its application to Railway Belt  39 lands.  And we say that there was another Act in place  40 which also protected aboriginal rights and that there  41 was no longer required that the Dominion Lands Act  42 applied.  43 We say at paragraph 35 that the Province also  44 finds support for its theory that land within the  45 Railway Belt since at least 1883 was considered by the  46 Federal Government to be free from the necessity of  47 extingishing Indian title.  And the two acts, the 29462  Submissions by Ms. Mandell  1 Dominion Settlement Act and the Provincial Settlement  2 Act, are set out and they are relied upon by my  3 friend.  And we say that what they show is that the  4 acts were making it clear that the disputes that were  5 being negotiated or resolved related to the building  6 of the railway.  And that's what is said in the  7 preamble and nothing is mentioned about aboriginal  8 title, and we are argue you can take nothing from it.  9 And finally at page 30 -- page eleven at paragraph  10 37 the Province attempts to pump up the significance  11 of a promise by the Dominion to open the lands for  12 settlement within the Railway Belt which are not  13 required for railway purposes.  The Province suggests  14 that the failure of Canada to extinguish Indian titles  15 to lands appropriated and granted in aid of C.P.R. are  16 those eventually laid open for settlement was because  17 there was "no aboriginal title in British Columbia."  18 We say such a leap is not logically, legally or  19 factually supported, and we cite what was noted by the  20 Court in Sparrow that the governments over the years  21 have engaged in conduct which is not honourable.  22 THE COURT:  They didn't say that, did they?  23 MS. MANDELL:  Well, yeah.  24 THE COURT:  Do you think so?  25 MS. MANDELL:  Yeah.  When they said:  26  27 "And there can be no doubt that over years the  28 rights of the Indians were were often honoured  29 in the breach."  30  31 And they cited --  32 THE COURT:  That's a far cry from saying something is  33 dishonourable.  34 MS. MANDELL:  Well, how about this:  35  36 "We cannot recount with much provide the  37 treatment accorded to the native people of this  38 country."  39  40 THE COURT:  That's quoting Mr. Justice Macdonald.  41 MS. MANDELL:  That's right.  It was a —  42 THE COURT:  It was a hearing, interlocutory application for  43 injunction.  44 MS. MANDELL:  Well, I think the Court in Sparrow is approving  45 the sentiment that we haven't always acted well in our  46 treatment of Indian people and it's not something  47 which we want to build law on.  And we say that 29463  Submissions by Ms. Mandell  1 dishonourable conduct is not evidence of  2 extinguishment.  3 THE COURT:  Well, it's semantical, but I wouldn't have thought  4 that the Supreme Court of Canada has come out that  5 strongly in characterizing conduct as dishonourable.  6 I think they were saying that they were setting a test  7 for the future that I'm -- well, it's not for me to  8 get into dialogue.  It just seems to me that that is  9 really not what the sense I took from those judgments,  10 that they were reputing dishonourable conduct.  Might  11 have been mistaken.  Might have been illconceived.  It  12 might have been misconceived.  But anyway.  13 MS. MANDELL:  I don't — I was —  14 THE COURT:  Mr. Macaulay is not objecting.  Go ahead.  15 MS. MANDELL:  The Province suggests - and this is at paragraph  16 38 - that there is a conclusion to be drawn from the  17 fact that the Federal Government granted lands in the  18 Railway Belt in British Columbia, prior to treaty.  19 The argument of the Province is, and I say appears to  20 be, that the practice of taking control of land before  21 treaty is contrary to the Federal practice in other  22 parts of the country, where, they suggest, treaties  23 were always made in advance of settlement.  And we  24 know this isn't the case and I've sighted the passage  25 from the Royalties case, or my friend calls it the  26 Annuities case, where the Court recounts in a very  27 brief way the history of Manitoba which suggests that  28 there was incursions into the territory and an Indian  29 unrest and a treaty followed.  30 The Province makes much of the fact that the  31 Dominion Lands Act confined to apply to lands in the  32 Peace River District east of the Rocky Mountains, but  33 not in the Railway Belt.  An explanation is provided  34 for in the preamble of the 1880 Repealing Act which  35 removed the application of the Dominion Lands Act.  36 The preamble states the reasons for the removal of the  37 Railway Belt from the application of the Dominion  38 Lands Act was a matter of geography.  And I set out  39 the preamble as it was then -- as it was there stated  40 in the act.  41 And my lord, we say with respect to this period  42 that it's significant that in the entire period after  43 Confederation including the McKenna-McBride history  44 debate, including the history of the reference to the  45 Courts, including the Special Joint Committee  46 hearings, reports to the Parliament involving the  47 issue of aboriginal title in British Columbia, at no 29464  Submissions by Ms. Mandell  1 point did the Federal Government say 109 does not  2 apply to British Columbia.  A statement to that effect  3 has only been made by the Provincial Crown in the  4 proceedings before this Court.  5 MR. GOLDIE:  I don't think I made that statement, my lord, but  6 let my friend continue.  7 MS. MANDELL:  If the Federal Government was so settled in its  8 understanding -- and I am speaking about the Federal  9 Government now because that's where the Province rests  10 its case in this respect.  If the Federal Government  11 was so settled in its understanding that Section 109  12 did not apply to British Columbia, and no aboriginal  13 title existed after Confederation, I ask why didn't  14 the Federal Government put an end to the debate by  15 enacting express legislation following the report of  16 the Select Committee stating aboriginal title is  17 extinguished in British Columbia.  If this fact were  18 indeed true, such a statement would do much to settle  19 outstanding concerns expressed between the Federal  20 Government and the Province on this issue.  21 THE COURT:  But how can an argument based on what somebody  22 didn't do who could have done it but didn't.  23 MS. MANDELL:  Well, that's the point, my lord.  24 THE COURT:   Surely that doesn't follow.  25 MS. MANDELL:  I say this, that if you are going do look at the  26 conduct of the Federal Crown, this is what my friend  27 has asked you.  28 THE COURT:  I don't think anyone is asking me to look at the  29 conduct of the Federal Crown.  I am being asked to  30 construe these statutes and the legal consequences  31 that flow from them.  32 MS. MANDELL:  And to draw the inference from there that even  33 though the statutes expressly in our submission  34 recognize aboriginal title, my friend is asking you to  35 draw the inference that the bi-play of statutes and  36 the events which occurred on the Railway Belt, the  37 events which occurred in the sense under the statutes  38 evidenced the Federal Government's lack of recognition  39 of aboriginal title in British Columbia.  And we say  40 that if it's so clear that that is in fact what's  41 going on in the period, why when the matter was  42 brought to a head in 1927 didn't the Federal  43 Government say in the interests of Federal/Provincial  44 relations, in the interests of clarity, this is the  45 way it is?  4 6 THE COURT:  Well, I don't know why they didn't and I don't even  47 know whether they wanted to do that. 29465  Submissions by Ms. Mandell  1 MS. MANDELL:  Well —  2 THE COURT:  I don't even know if they thought what Mr. Goldie  3 now says that the statutes made.  4 MS. MANDELL:  Well, I say that —  5 THE COURT:  I just don't think this is with respect a legal  6 argument.  This is a debating point.  7 MS. MANDELL:  Well, my lord, if you are going to look behind the  8 statutes which we say you shouldn't, but if you are  9 and you get embroiled in the policy of the times, we  10 say that the policy debate could have been brought to  11 a head and it wasn't and we say there is as much  12 significance to be drawn from that fact as the fact  13 that the Dominion Lands Act was withdrawn from the  14 operation of the Railway Belt at the time in 1880 when  15 it was.  16 THE COURT:  I know those things did happen.  17 MS. MANDELL:  Yes.  And also the Parliamentary debate on  18 aboriginal title did happen.  19 THE COURT:  I know what the resolutions of the two houses was.  2 0 MS. MANDELL:  And parliament didn't act.  21 THE COURT:  Parliament accepted the report.  That's all we know  22 happened.  23 MS. MANDELL:  That's as far as it goes.  That's right.  Finally,  24 my lord, the Province argues that the passage of the  25 Rupert's Land Act in 1868, the Manitoba Act and  26 Order-in-Council admitting Rupert's Land and the  27 Northwestern Territory into the Union, 1870 suggest  28 that the Federal and/or Imperial Governments  29 deliberatly refrained from recognizing aboriginal  30 title in British Columbia.  31 MR. GOLDIE:  I made no such submission, my lord.  32 MS. MANDELL:  Well, my lord, I understand the argument of my  33 friend -- if he is not making it then I am content,  34 but I understood that there was the argument made that  35 the contemporaneous passage of the Order of Her  36 Majesty admitting Rupert's Land with the Terms of  37 Union was something which your lordship should  38 consider in viewing what was intended by the Terms of  39 Union and in the Order admitting Rupert's Land, and as  40 I have set out in paragraphs 43 to 48 there was  41 express provisions regarding the recognition of  42 aboriginal title in the settlement of those lands.  43 MR. GOLDIE:  Yes.  I relied upon that, my lord.  44 MS. MANDELL:  Thank you.  My lord, in rely to that we say that  45 the Prairie Provinces were in -- this is at paragraph  46 42.  47 THE COURT:  Yes, I have it. 29466  Submissions by Ms. Mandell  1 MS. MANDELL:  The Prairie Provinces were in a different  2 constitutional position than British Columbia when  3 they joined Confederation.  Before Confederation the  4 lands of the Prairies were controlled by the Hudson  5 Bay Company.  The first step in bringing the Prairie  6 Provinces into Canada, was to effect a transfer of the  7 interests of the Hudson's Bay Company, and eventually  8 this was done by constitutional provision.  And your  9 lordship is aware that the lands of the Prairie  10 Province remained, the natural resources remained with  11 the Federal Government until 1930.  12 And so, my lord, if you'll turn to page 15 at  13 paragraph 49, the position that the Prairie Provinces  14 finds themselves in is that when they joined  15 Confederation Section 109 did not apply to them.  And  16 so there was no Crown protection Imperial Crown  17 protection respecting the protection for aboriginal  18 title.  And this was -- there was, in our submission,  19 with all the other Province when they joined  20 Confederation and 109 applied.  And so in Section 1 of  21 the transfer back, the Transfer Agreements in 1930  22 point is spelled out clearly that the Prairie  23 Provinces are now going to be put on the same terms as  24 the other Provinces when they received their lands  25 under Section 109.  And I set out Section 1 of the  2 6 Transfer Agreement.  27 In summary, the history of the Prairie Provinces  28 in our submission supports the plaintiffs.  Where  29 Section 109 did not apply because of the  30 constitutional facts particular to the Prairie  31 Provinces, express constitutional recognition was  32 provided by Britain to reflect the burden of  33 aboriginal title on Crown lands.  34 And we say in further reply, my lord, this was  35 something on the same point, that it is significant  36 that in every constitutional enactment applicable to  37 Canada, as Canada has evolved constitutionally, the  38 Imperial Government has recognized aboriginal title or  39 the treaty rights as a burden on the title of the  40 Crown.  And I start back from the Royal Proclamation,  41 I take your lordship through the Quebec Act, the  42 Constitution Act, and the Union Act, all of which have  43 saving provisions where the constitution therein is  44 enacted saving existing rights.  The British North  45 American Act, the protections are lodged in Section  46 91(24) and in particular in 109.  The Manitoba Act,  47 your lordship is aware of Section 31, and I have it 29467  Submissions by Ms. Mandell  1 reproduced at tab 11.  The Order of Her Majesty  2 admitting Rupert's Land which covers the Prairie  3 Provinces, your lordship is aware of those provisions  4 and they are set out in paragraphs 43 to 48.  The  5 Natural Resource Transfer Agreement, Section 11 and  6 13, and finally the Constitution Act, 1982, Section 25  7 and 35.  8 We say in summary, it's submitted that aboriginal  9 title, which was a burden on Crown title, was  10 protected by the Imperial Government through  11 constitutional provisions applicable to Canada from  12 its early enactments until the present.  Section 109,  13 we submit, remains an important constitutional  14 provision, binding on all lands in any of the  15 Provinces, where aboriginal title has not been  16 extinguished.  17 The fact that the recognition of aboriginal title  18 as a burden on Provincial Crown title has been  19 deferred so long by the Provinces does not release the  20 Province of the application of the constitutional  21 protection for aboriginal title expressed in 109.  22 And my lord, with respect to Section 88 I'd like  23 to just ask your lordship to consider the reply.  I am  24 not going to take you through it at all.  Only to say  25 that your lordship is aware that it's been argued for  26 that Section 88 of the Indian Act constitutes some  27 legislative vehicle through which Provincial law can  28 extinguish aboriginal title.  And we say in summary,  29 and it's developed in a fuller way, that Section 88  30 expressly does not deal with Indian lands, Provincial  31 law in relationship to Indian lands, and secondly,  32 that my friends have got the law wrong that a Federal  33 law such as the Indian Act through Section 88 through  34 the vehicle of referential incorporation could  35 accomplish what would amount to be an inter-delegation  36 where they would take Provincial law and make it  37 applicable that way, and we say that the principles  38 are wrong and we've advanced as to why we say so.  39 THE COURT:  All right.  40 MS. MANDELL:  Those are the remainder of my submissions.  41 THE COURT:  All right.  Thank you.  42 MS. MANDELL:  My lord, it's been a real pleasure being with you  43 for the last three years.  44 THE COURT:  I thank you, Ms. Mandell.  How much longer will you  45 be, Mr. Rush?  I am worried about Madam Reporter.  46 MS. MANDELL:  We will be finished at 4:30.  47 THE COURT:  We will take a very short adjournment. 2946?  Submissions by Mr. Rush  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2 THE COURT:  Mr. Grant.  3 MR. GRANT:  My lord, I just wanted to say that this morning I  4 didn't pass on my own comments.  It's been a pleasure  5 and an experience being before you for three years.  I  6 thought I would be saying more this afternoon, but I  7 am not going to say more this afternoon, which may be  8 good news for your lordship.  9 THE COURT:  I have never heard any better news.  Thank you.  Mr.  10 Rush?  11 MR. RUSH:  I have handed up to your lordship a binder that is  12 entitled Post Union Period.  It's the reply on the  13 post 1871 period and it's divided essentially into two  14 parts, a consideration of specific documents which we  15 felt --  16 THE COURT:  Excuse me, Mr. Rush.  I'm not with you.  17 MR. RUSH:  Yes.  18 THE COURT:  I am now, thank you.  19 MR. RUSH:  Yes.  It's divided into two parts, my lord.  The  20 first four pages is really a general statement which  21 Ms. Mandell has already put as a proposition that we  22 have already advanced, and that is namely that the --  23 essentially that the statements of opinion by  24 Ministers of Government, utterances of private  25 citizens, positions and policies expressed by the  26 Governments are of little value in the determination  27 of the issues which you have to resolve.  Our  28 proposition is really set out in paragraph four on  29 page two.  We say that those fall to be decided on the  30 interpretation of legal principles and on the sections  31 that we have identified as 109, 91(24) and Article 13.  32 And we say that the historical record patched together  33 by the Crown indicating Government official or  34 individual opinions from time to time in the policy of  35 the government expressed from time to time regarding  36 title or reserves is in the end of little assistance  37 in the determination of the plaintiffs' legal title to  38 the lands in the Province of British Columbia.  39 Neither is the documentary record of assistance to  40 determine the issue of extinguishment by clear and  41 plain legislative intention or of discharge.  These  42 are legal questions turning on a reading of the  43 legislative instruments and we say policy does not  44 determine law and we point out that the hazards of  45 policy were noted in Sparrow.  46 My lord, the other or the second feature of this  47 argument is found commencing at page five running 29469  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  through to the end which is a document by document  consideration that if your lordship feels it necessary  to consider the documents in there individually or in  their context, then we have comments to say about each  or some of the documents that are contained there.  With regard to the proposition that we state in  paragraph six on page three, this deals with the  interpretive doctrine of Nowegijick.  And what I  simply wish to do at this juncture, my lord, is to  draw your lordship's attention to the Mitchell case  and I've handed up a copy of the Mitchell case to your  lordship and it's in the pocket at the front of the  volume.  THE COURT:  Yes.  MR. RUSH:  And my lord, as I drew to your attention earlier  today, Mr. Goldie made his submissions with regard to  Mitchell, and he commented by citing extensive  passages from Mr. Justice LaForest's judgment.  And if  you didn't make a note, I would ask you to do so now.  That's found at volume 366 at pages 29114 through to  29123.  MR. GOLDIE:  You already provided his lordship with that  reference.  MR. RUSH:  I don't think I did it with the same specificity as  I'm doing it now.  But my lord, I point out to you  that the argument advanced today by Mr. Goldie repeats  some of that argument and cites a further passage from  Mr. Justice LaForest.  What I would ask you to do is  to first refer to the judgment of the Chief Justice at  page eight.  Now, it is the second page eight.  THE COURT:  Yes.  MR. RUSH:  And —  THE COURT:  Starting with Sullivan J. A.?  MR. RUSH:  Starting, my lord, with the Applicable Interpretive  Principles.  THE COURT:  Oh.  Yes.  Yes.  MR. RUSH:  This is the Chief Justice speaking and what he says  is this:  "I should say at the outset I find reasons and  reasoning of Morse J. persuasive.  In  particular, he was correct in resorting to the  principle enunciated by this Court in  Nowegij ick."  And the quote, 29470  Submissions by Mr. Rush  1 "when he found it necessary to resolve  2 interpretive difficulties.  In Nowegijick, the  3 Court had the following to say:  4  5 'It is legal lore, that to be valid,  6 exemptions to tax laws should be clearly  7 expressed.  It seems to me, however, that  8 treaties and statutes relating to Indians  9 should be liberally construed and doubtful  10 expressions resolved in favour of the  11 Indians.  If the statute contains language  12 which can reasonaly be construed to confer  13 tax exemption that construction, in my  14 view, is to be favoured over a more  15 technical construction which might be  16 available to deny exemption.  In Jones v.  17 Meehan, it was held that Indian treaties  18 'must ... be construed, not according to  19 the technical mean of [their] words ... but  20 in the sense in which they should naturally  21 be understood by the Indians.'"  22  23 Now, I just ask your lordship to pause to  24 differentiate between two aspects of this quotation  25 from Nowegijick, the one prior to the citation of  26 Jones and Meehan and the one after it.  That becomes  27 significant in what the Chief Justice now says.  Page  28 nine:  29  30 "Two elements of liberal interpretation can be  31 found in this passage.  (1) ambiguities in the  32 interpretation of treaties and statutes  33 relating to Indians are to be resolved in  34 favour of the Indians."  35  36 And I wish to pause here, my lord.  That is the  37 principle which the plaintiffs invoke in their favour  38 and we say has been endorsed and affirmed in the cases  39 of Sioui and Sparrow.  40  41 "(2) aboriginal understandings of words and  42 corresponding legal concepts in Indian treaties  43 are to be preferred over more legalistic and  44 technical constructions.  In some cases, the  45 two elements are indistinguishable, but in  46 other cases the interpreter will only be able  47 to perceive that there is an ambiguity by first 29471  Submissions by Mr. Rush  1 invoking the second element."  2  3 The second element I would point out, my lord, is  4 dealing with the second element referred to in the  5 Jones and Meehan case and is essentially directed to  6 the question of proper principles to apply in relation  7 to treaties.  8  9 "The appellants maintain that the Nowegijick  10 principle should not govern the present appeal.  11 Rather, it is asserted that the normal  12 principle that derogations from the civil  13 rights of a creditor should be  strictly  14 construed, is applicable.  The appellants  15 attempt to distinguish Nowegijick in part by  16 saying that the case was concerned with trying  17 to resolve a conflict between the State and an  18 Indian, in which case it was appropriate to  19 resolve any ambiguity against the author of the  20 doubt.  The appellants are in effect arguing  21 that Nowegijick is not applicable when it is a  22 private citizen or other civil party, and not  23 the State who will lose out if the Act is  24 interpreted in favour of aboriginal litigants.  25 I cannot accept the comments in Nowegijick  26 were implicitly limited in this way."  27  28 So the chief justice is saying that the principles  29 ought to apply in a list between the native people and  30 an individual.  31  32 "The Nowegijick principles must be understood  33 in the context of this Court's sensitivity to  34 the historical and continuing status of  35 aboriginal peoples in Canadian society.  The  36 above-quoted statement is clearly concerned  37 with interpreting a statute or treaty with  38 respect to persons who are its subjects -  39 Indians - not with interpreting a statute in  40 favour of Indians simply because it is the  41 State that is the other interested party.  It  42 is Canadian society at large which bears the  43 historical burden of the current situation of  44 native peoples and, as a result, the liberal  45 interpretive approach applies to any statute  46 relating to Indians, even if the relationship  47 thereby affected is a private one.  Underlying 29472  Submissions by Mr. Rush  1 Nowegijick is an an appreciation of societal  2 responsibility, and a concern with remedying  3 the disadvantage, if only in the somewhat  4 marginal context of treaty and statutory  5 interpretation."  6  7 He then goes on to deal with another point of  8 distinguishment that was argued before his lordship.  9 Now, I turn your lordship's attention now to the  10 comments of Mr. Justice LaForest and they are at page  11 29.  And much of this has been cited to you and I  12 don't intend to through it again, but I simply wish to  13 point your lordship to the following at 30.  At the  14 top, my lord, Mr. Justice LaForest says:  15  16 "I note at the outset that I do not take issue  17 with the principle that treaties and statutes  18 relating to Indians should be liberally  19 construed and doubtful expressions resolved in  20 favour of the Indians."  21  22 The Chief Justice and Mr. Justice LaForest are in  23 harmony on that point, and that is the first arm of  24 the Nowegijick test.  25  26 "In the case of treaties, this principle finds  27 its justification in the fact that the Crown  28 enjoyed a superior bargaining position when  29 negotiating treaties with native peoples.  From  30 the perspective of the Indians, treaties were  31 drawn up in a foreign language, and  32 incorporated references to legal concepts of a  33 system of law with which Indians were  34 unfamiliar.  In the interpretation of these  35 documents it is, therefore, only just that the  36 courts attempt to construe various provisions  37 as the Indians may be taken to have understood  38 them."  39  40 Now, I take you down, my lord, to the next paragraph:  41  42 "But as I view the matter, somewhat different  43 considerations must apply in the case of  44 statutes relating to Indians.  Whereas a treaty  45 is the product of bargaining between two  46 contracting parties, statutes relating to  47 Indians are an expression of the will of 29473  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT  Parliament.  Given this fact, I do not find it  particularly helpful to engage in speculation  as to how Indians may be taken to understand a  given provision."  And that's the point, my lord.  Mr. Justice LaForest  is taking the second arm and saying it's not very  helpful to apply principles that are noted there in  respect of statutes.  To carry on:  "Rather, I think the approach must be to read  the Act concerned with a view to elucidating  what it was that Parliament wished to effect in  enacting the particular section in question."  And I think that he is there referring to the mischief  principle.  "This approach is not a jettisoning of the  liberal interpretative method.  As already  stated, it is clear that in the interpretation  of any statutory enactment dealing with  Indians, and particularly the Indian Act, it is  appropriate to interpret in a broad manner  provisions that are aimed at maintaining Indian  rights, and to interpret narrowly provisions  aimed at limiting or abrogating them.  Thus if  legislation bears on treaty promises, the  courts will always strain against adopting an  interpretation that has the effect of negating  commitments undertaken by the Crown."  And he cites the Powers case.  And what I say, my  lord, is that there is no lack of unanimity here with  regard to Mr. Justice LaForest and Chief Justice with  respect to the application of these principles to  statutes such as the Royal Proclamation, the Terms of  Union, the B.N.A. Act and so on, and we urge that your  lordship should adopt as the Supreme Court of Canada  has those principles when you come to interpret the  statutes before you.  My lord, that's what I have to  say about this volume.  :  Thank you.  And I have one further volume which has been already  passed up to your lordship.  There is regrettably it's  unmarked.  :  This smaller one? 29474  Submissions by Mr. Rush  1  MR.  RUSH:  2  3  4  5  6  7  8  9  10  11  12  13  THE  COURT  14  15  MR.  RUSH:  16  17  THE  COURT  18  MR.  RUSH:  19  20  21  THE  COURT  22  MR.  RUSH:  23  24  25  26  27  THE  COURT  28  MR.  RUSH:  29  THE  COURT  30  MR.  RUSH:  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Yes.  My lord.  My lord, I don't intend to review the  contents of any of this volume with your lordship.  I  simply wish to point out what its contents are.  And I  first direct your lordship's attention to tab one  which is the reply to Canada's argument on the  Wet'suwet'en territories.  And I direct your  lordship's attention to the opening paragraph which  applies with equal force to the territories which are  described in tabulation two, which are the territories  of the Gitksan.  And this is the reply by the  plaintiffs to the Federal argument on the Gitksan  territories.  So I —  :  Wet'suwet'en?  This relates to Wet'suwet'en, does it  not?  The first tabulation does.  The second relates to the  Gitksan.  :  I see.  Yes.  All right.  But what I ask yoursecure lordship to do is that the  introduction that is contained in paragraph one of the  Wet'suwet'en tabulation is intended to apply to both.  :  To tab 2, yes, all right.  At tab 3 is the plaintiffs' reply to the argument of  the Attorney General of Canada to the Province's  counterclaim.  At tab 4 is the reply to the Province's  argument at part Roman VI, Section 4, or the extension  of Dominion.  :  You said 6?  I think you mean 9?  Excuse me.  Part IX, yes.  :  Yes.  All right.  At tab 5 is the reply to the argument on -- located  at part IX, Section 5, on limitations.  At tab 6 is  the plaintiffs' reply to the Province's argument on  the plaintiffs' claim to entitlement to damages.  My  lord, I will simply ask your lordship to take these  into account in your deliberations on the case.  As a  matter of formality, I suppose, I would ask at tab 6  at the end we -- we, of course say, my lord, that the  plaintiffs' case has been made out and that the  plaintiffs are the owners of their land and that they  have jurisdiction in respect of it.  And that we ask  that the declarations and reliefs sought by the  plaintiffs as set out in the amended statement of  claim be granted.  And we also ask that the  counterclaim be dismissed.  Your lordship asked at tab  7 -- I have set out the counsel who appeared on behalf  of the plaintiffs throughout the course of the trial  and I have therefore set them out.  I would like to 29475  Submissions by Mr. Rush  1 close the case on behalf of the plaintiffs and I have  2 a few closing remarks to make.  3 THE COURT:  Thank you.  4 MR. MACAULAY:  Before Mr. Rush makes his closing remarks, my  5 lord, I have to make objection to tabs one and two of  6 the material that's just been handed up.  Your  7 lordship will recall that in their argument the  8 plaintiffs dealt with each territory one by one and in  9 our submissions we adopted their numbering system so  10 that it would be easy for your lordship to compare the  11 two.  Now we have and I haven't -- I haven't read any  12 of it because it's just been handed to me, they  13 purport to deal, I take it, with every territory  14 again.  They go to Goohlat, the Nanika River, Atnah  15 Lake territory, for instance, at page 24, their  16 paragraph 56 and 57.  Then another Goohlat territory  17 at page 25, another one at the bottom of page 25 and  18 all of page 26 and so on.  Another one at page 27.  19 That is not rely.  And that should not be considered  20 by your lordship.  We replied to their argument.  They  21 purport now to discuss the evidence territory by  22 territory again.  23 THE COURT:  Well, your submission is really -- or your objection  24 is one to case splitting, I suppose, is it?  2 5 MR. MACAULAY:  Yes.  2 6 THE COURT:  Well, I can't —  27 MR. MACAULAY:  They refer to evidence.  This isn't a question of  28 reviewing the law.  29 THE COURT:  Well, I can't deal with your objection, Mr.  30 Macaulay, unless I read what's here and make a  31 determination if it amounts to splitting the case or  32 otherwise.  33 MR. MACAULAY:  Well, that's right, my lord, between either of us  34 we both suffer from the same disadvantage.  35 THE COURT:  All right.  36 MR. MACAULAY:  But I just see from the organization of it and  37 glancing at two or three pages they are reciting  38 evidence --  39 THE COURT:  All right.  40 MR. MACAULAY:  — pertaining to particular territories.  41 THE COURT:  If I think that there is —  42 MR. RUSH:  My lord, I would like to answer that if I may.  4 3 THE COURT:  Yes.  44 MR. RUSH:  It's briefly answered in paragraph one of the  45 Wet'suwet'en.  This is not an attempt to revisit or  46 review the evidence of the plaintiffs' territory by  47 territory.  What this is is an answer, a reply to 29476  Submissions by Mr. Rush  1 the —  2 THE COURT:  To what you say —  3 MR. RUSH:  -- Federal case where they say that the territories  4 have been abandoned on the ground and we say not so on  5 the evidence.  6 THE COURT:  Yes.  7 MR. RUSH:  That's the answer.  That's what it's directed to.  8 Not to go through the territories.  It was directed at  9 the proposition that there had to be use and  10 occupation.  Lacking use and occupation, abandonment  11 and we say not so.  12 THE COURT:  Yes.  I'll keep that in mind as well.  13 MR. RUSH:  Thank you.  14 THE COURT:  I made a note.  Thank you.  15 MR. GOLDIE:  My lord, under tab 3 my friend has Reply to  16 Argument of the Attorney General Canada to the  17 Province's Counterclaim.  And in that, although it  18 purports to discuss the Federal response to the  19 Province's counterclaim, there are a number of remarks  20 about the counterclaim, and I remind your lord ship  21 that my friend had his day on that at May 9 at page  22 26036.  2 3 THE COURT:  2 3 —  24 MR. GOLDIE:  26036, my lord.  He said — he handed up a next  25 batch material and said at line nine:  26  27 "Dealing with the post-Union recognition of  28 aboriginal title it goes in at the back of  2 9                     Volume 7."  30  31 And he went on at line eleven:  32  33 "My lord, the first part of this, page 67 to  34 70, is a summary response to the Province's  35 counterclaim.  And it is to their paragraph 41  36 the particular points have been addressed  37 previously by Ms. Mandell, to some degree  38 myself."  39  40 And then at line 23:  41  42 "As a summary of our position with regard to  43 the various components at paragraph 41 of the  44 Province's counterclaim."  45  46 And I said when I was raising with your lordship the  47 question of when I would reply to Canada's position on 29477  Submissions by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  MR.  THE  MR.  MR.  MR.  THE  MR.  the counterclaim, that I had no reply to make to the  plaintiffs.  They had set out their position.  I had  dealt with that and they could not add to it.  But  when I find when I read some of the material under  section 3, that they propose to characterize the  Province's counterclaim, and in my submission I'd ask  your lordship to disregard any observations on the  part of the plaintiffs with respect to the plaintiffs'  counterclaim.  They had their opportunity.  They took  it.  And this is clearly a case of splitting their  case.  COURT:  You say you didn't reply to --  GOLDIE:  I didn't reply to the plaintiffs' submissions with  respect to the counterclaim.  I did reply.  I should  say that, my lord, I did reply.  RUSH:  Oh, yes, you did.  COURT:  You did reply.  GOLDIE:  I did reply, yes.  RUSH:  Yes.  GOLDIE:  And I said as between ourselves and the plaintiffs,  that was over and finished with.  Because the  plaintiffs had put into their principle argument --  COURT:  Yes.  GOLDIE:  -- observations -- their views on the counterclaim.  Now, they insisted that I make my submissions with  respect to Canada before they stood up, and now we  find that they are taking some further swipes at the  counterclaim.  And I say they can't do that.  All right.  Well, I have made a full note of what  you said and perhaps Mr. Rush has something to say in  reply.  Reply to the objection on the reply.  Two points, my lord.  Both my friends would like to  keep this argument into discrete little boxes.  I  couldn't say anything about Canada's argument without  necessarily engaging in some way with the Province's  argument.  But when you read this you will see that  this is aimed at Canada and its comments.  That's my  first point.  My second point is there were 30 odd  documents belatedly filed by Canada to which your  lordship acknowledged that the Province ought to have  an opportunity of responding, and I take the same  opportunity, and there is one document in particular  which I have appended here which I draw your  lordship's attention to.  But this is a response to  Canada, and you'll see that when you read it.  It's —  throughout it's reference to pages and so on and of  course there is an introduction that I give, but I  THE COURT  MR. RUSH 2947?  Closing Remarks by Mr. Rush  1 think your lordship couldn't walk into the plaintiffs'  2 argument here without some introduction to what we say  3 about Canada.  4 THE COURT:  All right.  Well, all I can do is say that if I  5 conclude when I come to consider this, that fairness  6 requires some further opportunity for submissions or  7 responses I'll do my best to ensure that that happens  8 and beyond that I don't think I can say anything  9 useful at this time.  10 MR. RUSH:  My lord, if I may say these closing words on behalf  11 of the Gitksan and Wet'suwet'en people and my  12 co-counsel.  This has been a long and difficult trial  13 for both the bench and the bar.  The hectic schedule  14 that we've all been under in order to complete the  15 argument by today's date is one testimonial to that  16 fact.  The duration and the difficulty of the trial  17 obviously speaks to the importance of the Court's  18 decision to the Gitksan and Wet'suwet'en people and to  19 the people of the Province as a whole.  There are  20 large questions of principle which have been placed  21 before your lordship for decision and it will take all  22 of the Court's strength to deal with these.  And I  23 might add it will take a good deal of the Court's  24 strength to carry some of the volumes from the office  2 5 to home.  26 On behalf of the Gitksan and Wet'suwet'en people,  27 my lord, and my co-counsel I would like you to thank  28 you for your care and your patience in dealing with  29 the many ups and downs over the course of this trial  30 and especially at times the testiness of counsel.  I  31 wish to add that there are many hereditary chiefs, 15  32 of whom were named as plaintiffs, who could not be  33 here today as they had passed on during the course of  34 this trial.  Their absence has been a hardship for the  35 community and a loss to the case.  Notwithstanding  36 that, my lord, the people have persevered and as your  37 lordship is well aware despite the fact that the Court  38 case is far and long away from their community have  39 had chiefs in the courtroom throughout the duration of  40 the trial.  On their behalf, on behalf of my  41 co-counsel, I'd like to thank the Court and as well  42 the staff and the court reporters for their role in  43 the trial.  44 THE COURT:  Thank you, Mr. Rush.  45 MR. GOLDIE:  My lord, may I on behalf of my colleagues associate  46 myself with the remarks that my friend Mr. Rush has  47 made with respect to your lordship's consideration of 29479  Closing Remarks by Mr. Goldie  Closing Remarks by Mr. Macaulay  Closing Remarks by the Court  1 the problems that have come before you and his  2 acknowledgement of the role in which the Court staff  3 and the court reporters have played.  And I do so on  4 behalf of myself and my colleagues.  I add one further  5 observation, my lord, and it has to do with the nature  6 of the burden which your lordship has assumed.  As you  7 have remarked on a number of times this is a case that  8 is somewhat precedented in its size and in the  9 complexity and number of issues which have been placed  10 before the Court.  I would hope that your lordship  11 would not hesitate to seek the assistance of counsel  12 as you develop your thinking on the matter, if you  13 come across matters which appear to you to be a  14 problem I'm sure that all counsel would respond very  15 willingly to any requests for further assistance.  16 THE COURT:  Thank you, Mr. Goldie.  17 MR. MACAULAY:  My lord, may I join in with the remarks of my  18 friend Mr. Rush and Mr. Goldie.  We are grateful to  19 your lordship for putting up with us for so long and I  20 think it's -- may I say that it's a -- it should be  21 noted that despite the strains of a contest of this  22 magnitude and this length that at no time, although  23 there were a few sharp exchanges, was there ever any  24 true unpleasantness in Court of a kind that is  25 occasionally seen in some hotly contested litigation.  26 It's a great credit to my friends for the Plaintiffs  27 and for the Province as well as my own associates.  28 Thank you, my lord.  2 9    THE COURT:  Thank you, Mr. Macaulay.  The judgment of course  30 will be reserved.  I've wondered for some time what  31 one could possibly say when one reaches this stage and  32 what counsel have said and with which I respectfully  33 agree that this has been a long trial.  I wish first  34 to express my appreciation to counsel not just for  35 what they have said today but for the thoroughly  36 professional way in which they have undertaken and  37 discharged their enormous responsibilities.  One  38 cannot look at the record of this trial, that is the  39 physical manifestation of the record of this trial,  40 without recognizing the incredible effort and  41 expenditure of energy and time that has gone into the  42 research and preparation for this case, and for that  43 and for all the other efforts of counsel I am most  44 grateful.  I do not have any delusions that I am going  45 to be able to resolve all of the problems that have  46 arisen for consideration in the course of this trial.  47 I will be satisfied if I can make some small 29480  Closing Remarks by the Court  1 contribution towards -- the first step towards at  2 least the resolution of the legal issues that arise  3 for a consideration of this case.  I have no  4 misgivings or delusions about the ultimate course that  5 this matter has to take and the procedure that must  6 ultimately come to bear upon the total solution of the  7 problem.  I think that we will all have to prepare  8 ourselves for a long seige.  I will have more to do  9 than you will for the next little while, but I have no  10 doubt that what I say will not be the last word.  11 I have thought of what I should say at this time.  12 I'm reminded of Cromwell's admonition to the Rump  13 Parliament which might more properly be said by  14 counsel to me, which was, that you have sat here too  15 long.  In the name of God go.  And I am going to  16 accept that suggestion.  I think counsel could perhaps  17 think of Martin Luther King's famous "I'm free at  18 last, I'm free at last, I'm free at last.  Thank God  19 Almighty I am free at last."  But I think the more  20 appropriate analogy might be to the reference to the  21 syndrome sometimes known as the Stockholm Syndrome  22 which is where the hostage falls in love with his  23 captors.  And I have said from time to time that I  24 have been a captor or a prisoner here, that there has  25 been things happen which I could not avoid and things  26 had to be dealt with which could not be dealt with in  27 anything but an arbitrary way and I had been a captive  28 of the circumstances of this case.  But in the course  2 9 that I have come to know from a distance and to  30 appreciate and to like all of the counsel here who  31 appeared before me and I can honestly say that I am  32 sure that notwithstanding the relief that comes from a  33 moment like this I will over the next little while at  34 least miss the times that we have spent together.  35 I think that it is probably the safe course in a  36 time like this for a judge to say as little as  37 possible.  I have probably said quite enough.  I am  38 grateful to Chief Justice Esson for joining me here  39 today because I think that he will have just a small  40 flavour of what to look forward to in the difficult  41 decisions he will have to make with respect to the  42 assignment of the cases which will follow and I hope  43 he's wise enough to recognize the -- and I know he's  44 wise enough to recognize the kind of care that has to  45 go into that kind of a decision.  I am happy to return  46 his courtroom to him for such other use as he may make  47 of it and I apologize for keeping it so long.  I wish 29481  Closing Remarks by the Court  1 again to express my sincere appreciation to our court  2 reporters.  I have already said, and I do not think I  3 can improve on what I said to them privately, is that  4 I have often been reported before but I have never  5 been reported so well.  I wish also to express my  6 appreciation to Sharon Ritchie, who was the clerk for  7 approximately the first half of the trial, and to Sue  8 Thomson for the balance, without whose marvelous  9 assistance we would have been in a terrible state of  10 confusion about the exhibits, which fortunately is not  11 one of the problems we've had in this case and I am  12 grateful to both of them for their very outstanding  13 service to the Court.  I wish you all a well deserved  14 respite from this case, that is until Factums are  15 required, and I thank you all and wish you a restful  16 summer.  Thank you.  We will now adjourn.  17 THE REGISTRAR:  Order in Court.  This Court stands adjourned.  18  19 (PROCEEDINGS ADJOURNED)  20  21 I hereby certify the foregoing to  22 be a true and accurate transcript  23 of the proceedings transcribed to  24 the best of my skill and ability.  25  26  27  28  29  30 Laara Yardley,  31 Official Reporter,  32 UNITED REPORTING SERVICE LTD.  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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