"bdf78ef8-e0b1-47b5-8da7-4baae0482805"@en . "CONTENTdm"@en . "Delgamuukw Trial Transcripts"@en . "British Columbia. Supreme Court"@en . "2013"@en . "1990-06-18"@en . "In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial."@en . ""@en . "https://open.library.ubc.ca/collections/delgamuukw/items/1.0018540/source.json"@en . "application/pdf"@en . " 28574 Proceedings 1 June 18, 1990 2 Vancouver, B.C. 3 4 THE REGISTRAR: Order in court. In the Supreme Court of British 5 Columbia, this 18th day of June, 1990. Delgamuukw 6 versus Her Majesty the Queen at bar, my lord. 7 MR. GRANT: My lord, before my friend proceeds, there's two 8 matters I wish to deal with that are relatively 9 housekeeping. One is that -- is with respect to the 10 errata or correcting pages in Volume 4 of our 11 argument. I'll hand up the copy for the Court in a 12 moment, but I'm going to refer you just to the pages. 13 It would be a correction. A new page 2 of the index, 14 correction to page 43. 15 THE COURT: Have these been inserted in my copy? 16 MR. GRANT: No. I'm going to hand you this one, my lord. It's 17 new pages 61-1 to 61-5, a new page 64, a new page 78, 18 a new page 107, a new page 115, a new page 163 and a 19 new pages 216, 217 and a 217-1 and a new page 367. 2 0 And I've -- I've marked those and advised Madam 21 Registrar. Now, those -- I've put a sticky on those 22 so that your lordship would appreciate those are ones 23 where there are corrections that I indicated. Putting 24 those in would mean that that disk would match -- the 25 disk will match that and, of course, that's part of 2 6 our argument. 27 THE COURT: All right. Thank you. 28 MR. GRANT: Now, the second point I wish to raise, my lord, is a 29 concern that the plaintiffs have as a result of a 30 discussion between Ms. Koenigsberg and Mr. Rush on 31 Friday at 10:30. Ms. Koenigsberg advised Mr. Rush at 32 10:30 on Friday by telephone that there would be new 33 material on the wills, and Mr. Rush requested it right 34 away. I've just received it this morning. Ms. 35 Koenigsberg said she would get it Friday afternoon. 36 There would be new material and that would be argued 37 today. There was an addendum to the argument on law 38 and use and occupation, which we would not receive 39 until tomorrow morning. There was a major factual 4 0 argument on use and occupancy, abandonment and 41 extinguishment, which from her description to him was 42 a very large section, which we do not have, and she 43 did not say when we would have it; presumably by 44 Thursday or Friday when it's being argued. 45 And then there is a new -- a further 100 pages on 46 the counterclaim, which we would not get until next 47 week. 28575 Proceedings 1 Now, except for the -- the problem is, is getting 2 all of these addendums, is that we must have time to 3 read these and deal with whether we're responding to 4 them or not, and it's our position, my lord, that in 5 this situation, except for any response on Sparrow, 6 which we can understand would be late, that there was 7 no real reason why -- for example, in the 8 counterclaim, it was delivered, I believe, around 9 April 15th or 19th. It does say there will be new 10 material. Well, now we're not going to get that until 11 next Monday or Tuesday, and we say that somehow this 12 should have been delivered earlier. I don't know what 13 my friends can do about this because I understood that 14 last week it was raised and they indicated they would 15 give us all the additional material by today. But we 16 to respond, my lord, cannot -- we would have to not be 17 able to have evening sittings or this Saturday because 18 my friends have given up Friday of their own volition. 19 We must have time to be able to read this before our 20 reply next Thursday. It puts us in a terrible 21 position. So we're asking that -- that we be -- we be 22 given those evenings and those Saturdays to do that, 23 because we want to -- and this coming Saturday to do 24 that so that we can reply. We're in a situation now 25 where if the Federal schedule of delivery occurs, 26 we're going to get a very large section less than a 27 week before our reply, and we're going to get a 28 further hundred pages on the counterclaim less than a 29 week before our reply. It's going to be very 30 difficult, my lord. We all know the schedule, and my 31 friend, Mr. Macaulay, indicated that giving up Friday 32 was not going to jeopardize that schedule, but we have 33 to have time to review what they're going to start -- 34 continue to deliver. 35 THE COURT: Well, I don't know that there's anything that I can 36 usefully say. I have to urge your learned friends to 37 get the material to you as quickly as possible. But 38 I'm not able to interject with something to do this in 39 any useful or constructive way. The -- the issues in 40 this case are -- have been pretty well canvassed. I'm 41 surprised if there's anything new in this case other 42 than the recent jurisprudence, which is there and 43 everyone has time to deal with it. Other than that, 44 there's nothing I can say. I am not disposed, and Mr. 45 Grant isn't asking, to extend the length of this trial 46 beyond 4:00 p.m. on June 30th and I cannot sit this 47 week in the evenings anyway. It may be that the right 28576 Proceedings 1 thing to do is not to sit in the evenings next week 2 either as Mr. Grant suggests. I will -- I just think 3 we should carry on and see how we get along. I don't 4 know if you're able to say, Mr. Macaulay, how late you 5 want to sit tonight. 6 MR. MACAULAY: Well, my lord, if we could go till five o'clock 7 tonight. 8 THE COURT: Yes. I think that's reasonable. 9 MR. MACAULAY: I expect that most of the matters that Mr. Grant 10 has referred to will be in his hands today or tomorrow 11 morning. 12 THE COURT: Yes. Right. 13 MR. MACAULAY: We are in the position of having -- of wanting to 14 and having to scale down and change our submission 15 because the Province in so many cases had covered 16 certain topics so thoroughly that it would make no 17 sense to refer to them. The -- the use and occupation 18 submission will be available later tomorrow morning, 19 not Thursday. And the new material on wills, they're 20 the same old wills. I have some notes for 21 submissions, which has the tendency of cutting down 22 the number of submissions and the number of wills that 23 we have to look at. It's a few pages, 10 to be exact, 24 including some brief submissions. No. Really nine 25 pages. I don't think that the -- his advisors on 26 wills are going to take 10 minutes -- have to take 27 more than 10 minutes to read it. 28 Before I come to wills, and that's the next topic, 29 my lord, there is a little unfinished report regarding 30 Loring reports. Your lordship will recall that we 31 were having difficulty with a bad copy at Tab 82 in 32 Volume 2. It was the date. It had to do with a 33 letter from Loring to Mr. Vowell, his superior, 34 regarding the Kispiox request that the Indian reserve 35 commissioner attend on them to allot reserves. It 36 wasn't a letter addressed to Loring. It was a letter 37 addressed to the commissioner. And your lordship will 38 recall that Loring in his response -- as part of his 39 response told his superior what apparently he had been 40 told by the people of Kispiox; that they were under 41 the impression that all they were going to get by way 42 of reserves was the village site. And your 43 lordship -- we all had difficulty making out the date, 44 whether it was 1896, 1898 and so on. I have a better 45 copy and I think it shows fairly clearly that the date 46 of the letter was August 3rd, 1896, which would fit in 47 with the -- the issues then being addressed. That is, 28577 Proceedings 1 it was 1896 that the issues were being addressed, not 2 1898. However, that may be. If I could hand up 3 another copy or two copies of -- 1209A-70 is the 4 exhibit number. Oh, yeah. But it's at Tab 82. 5 MR. GRANT: Before my friend starts, I appreciate him now 6 updating the status of things. I wonder if my friend 7 will or can advise if there's any chance we can get 8 his counterclaim argument prior to next weekend so 9 we'll have time to deal with it on the weekend. 10 MR. MACAULAY: I hope so, my lord. 11 MR. GRANT: Thank you. 12 MR. MACAULAY: There's another matter. Mr. Grant asked me to 13 look for additional material concerning Ootsa Lake and 14 Chislatta Lake and so on, and I have found others. 15 They're mostly sketches, which appear to be undated. 16 And I'll just inform your lordship and my friend of 17 the numbers of those exhibits. 18 THE COURT: Do you know the exhibit number in Mr. Loring's 19 material? 2 0 MR. MACAULAY: That gave rise to that? 21 THE COURT: Yes. 22 MR. MACAULAY: It was 205, I think, Tab \u00E2\u0080\u0094 Tab 75. It was Tab 23 75. Yes. That's right, of the collection, Tab 75. 24 But the exhibit number was 1209C, as in Charlie, 205, 25 where he said no Indians are living at Ootsa and 26 Francis Lakes. And then he talks about Chislatta and 27 certain numbers of families going to Bella Coola. 28 There is a -- another reference to that matter at 29 1209C-209, and then some sketches in the following 30 volume. It's sort of buried on the bottom of the 31 second page. 32 THE COURT: What is the reference? 33 MR. MACAULAY: Oh, it's Tab 209. 34 THE COURT: Yes. All right. 35 MR. MACAULAY: In the second volume. 36 THE COURT: That's the second volume of Loring's reports? 37 MR. MACAULAY: Second volume of this collection I handed up. 38 See, we put them there, but the actual exhibit number 39 is 1209C-209. 40 THE COURT: Yes. I'm in the second volume, I think. 41 MR. MACAULAY: This isn't in the volume. I'm giving additional 42 references that my friend asked for. 43 THE COURT: Yes. I'm just \u00E2\u0080\u0094 I want to make a note of where I 44 might find that. 45 MR. MACAULAY: The original letter was \u00E2\u0080\u0094 was at Tab 205, the 46 second volume of 205. 47 THE COURT: And then you gave me 209 and then you said there are 28578 Proceedings 1 some sketches. 2 MR. MACAULAY: That's Volume D of the \u00E2\u0080\u0094 of the exhibit, 3 1209D-213, 14, 15. And then there's another report in 4 the following year, I think, 1209D-20. So that's all 5 I can find on the subject. 6 THE COURT: All right. 7 MR. MACAULAY: In this \u00E2\u0080\u0094 this letter, September 30th, 1905, I 8 guess it is, 1905, he says -- he deals with Fraser 9 Lake on the first page and then he talks about 10 Chislatta, and he describes two villages on Chislatta, 11 and so on. And then he goes on: 12 13 \"I here beg leave to allude to my opinion 14 that the inhabitants of those localities 15 rather belong to the Northwest Coast agency, 16 since a letter of instructions made no 17 mention of bands south of the Telegraph 18 Trail.\" 19 20 And he says about Ootsa Lake: 21 22 \"To Ootsa Lake belongs no Indians.\" 23 24 This is an additional letter. 25 26 \"There is one named Nahone, (part Kitsun) 27 who hunts in that district, but belongs to 28 Moricetown. Another of the latter village 29 assuming right to land on Ootsa Lake, is one 30 Adilak (skin Tyhee) who left the Bulkley to 31 keep out of the way for appropriating 14 32 head of horses which should have come to 33 another by inheritance, and has expatriated 34 himself on other counts.\" 35 36 And then he goes on: 37 38 \"There is another village on the south shore 39 of Francis Lake (towards its middle) which 40 with the adjoining tract for meadowland and 41 gardens, will prove an urgent necessity to 42 the Indians there. 43 At the end of this month I was 44 proceeding to the head of Francis Lake. In 45 reporting everything doing well throughout 46 this agency.\" 47 28579 Proceedings 1 And then the next thing we have is in the following 2 volume. We have some sketches, which cover all the 3 places mentioned, some maps that he forwarded. And I 4 can't find the -- any covering letter. That's Volume 5 D and it's 213, 214, and 215, which includes, amongst 6 other things, Francis Lake. And he shows 3 dwellings, 7 2 smokehouses, 11 people, certain number of graves, 9 8 horses. And another one on Francis Lake, 26 people, 9 so many houses, so many graves and 25 horses. There 10 are three of those sketches. They're undated. One is 11 Chislatta Lake. One concerns Chislatta and Ootsa 12 Lake. And then the last one deals with Burns Lake, 7 13 people, an old graveyard, 9 horses and 6 cattle, and 14 so on. That's the Tibbetts family. We're still 15 there. And there's another family, Charles, and three 16 brothers with -- I think it's 13 people, certain 17 number of horses and cattle. But the -- the dates are 18 not endorsed on there. Clearly what he's doing is 19 he's indicating where -- where reserves ought to be. 20 And that's 1906 -- no. The next -- that's undated. 21 But the next and last letter we could find on the -- 22 on this subject is a letter -- and this is in 23 1209D-220. That's the exhibit number. It's not in 24 this collection. 25 THE COURT: 1209D-220? 26 MR. MACAULAY: Yes. 220. Now, he deals with Chislatta Lake and 27 then Ootsa Lake. He says Ootsa Lake -- about Ootsa 28 Lake: 29 30 \"The cabins on Ootsa Lake were only lately 31 erected by the two (2) Indians, of whom one 32 is Adilak, (self-styled) skin-Tyhee, 33 expatriated himself for his quarrelsome 34 propensities; and the other, Nahone (half 35 Kitsun) who merely hunts in the mountains 36 about Ootsa Lake, and has a house at Rocher 37 Deboule and another at Moricetown. 38 Furthermore, I learned from two gentlemen 39 coming from there (Ootsa Lake) that the 40 localities referred to had been staked by 41 settlers. I cannot get myself to understand 42 why Adilak should claim miles around Ootsa 43 Lake, whereas his fellow tribesmen, of the 44 Bulkley Valley, have to content themselves 45 with narrow strips of land, unless it were 46 to obtain plenty of latitude wherein to 47 exercise an exceedingly ugly temper. 28580 Proceedings 1 To Nahone, I approportioned the choicest 2 location (No. 6) on No. 2, Cor-ya-tsa-qua 3 reserve, north by west of No. 1 Moricetown 4 Reserve, and think him not at all worthy of 5 that much consideration.\" 6 7 Frankly, Mr. Loring didn't like these two gentlemen. 8 And then he says: 9 10 \"Only on a Marsh-meadow, within one mile 11 from end of Ootsa Lake - marked No. 6 - and 12 seven miles to the northwest of the village 13 of Chislatta, and recommended for the people 14 of Stilaholo\"... 15 16 It's another band, I guess. 17 18 \"... middle of lake - see my plan under 19 September last, I found a semblance of a 20 stake in the shape of a squared jackpine 21 sapling, cut off, but much short of being 22 four inches square. The excuse for a stake 23 was to such an extent encrusted with pitch, 24 that after scraping I made out the 25 following: 26 A.H. Wisgadge, northeast corner, 320 acres 27 (scrip)\" 28 29 That's some kind of pre-emption. Anyhow, those are 30 the letters that -- the ones that I'm referring to in 31 response to my friend's request for the references to 32 additional material. You have your own copy. 33 MR. GRANT: I just -- I know that. I just want your lordship to 34 note that last letter my friend reads, because he 35 talks about the removal of people in the Bulkley 36 Valley as well in 1906, just above where my friend 37 started, and I just wonder -- I didn't have the volume 38 here -- what -- if my friend has that note of what 39 date the Tab 75 letter was. Is it -- it's before 40 these, I presume. 41 MR. MACAULAY: 1905, yeah. 42 MR. GRANT: Thank you. 43 MR. MACAULAY: My lord, before I come back now to my argument, 44 may I hand up a -- all this is is a set of three blank 45 tabs. It's just -- they will be useful in separating 46 my brief submissions on various topics. Your lordship 47 will recall I have one in a book on Loring and now I'm 28581 Submissions by Mr. Macaulay 1 going to hand up short notes of oral argument on 2 wills. 3 THE COURT: Yes. 4 MR. MACAULAY: And there will be a couple more. They will be 5 the two Indian agents that gave evidence, Mr. J.B. 6 Boys and Mr. Mclntyre, your lordship will recall, 7 which I'll hand up this afternoon. So if I could hand 8 up the -- just the dividers as a convenience. And 9 I'll give Madam Registrar another set of these three 10 tabs so that we can -- we can divide the second copy 11 of the book in a convenient way. 12 My lord, I'm going to address the question of 13 wills this morning. I have had to rearrange affairs 14 for reasons I won't bore your lordship with, but I had 15 intended to make this and other submissions that I 16 make today after our submissions on aboriginal rights 17 and the subject pertaining to that, but as it's turned 18 out, we will not be able to make those until tomorrow. 19 Has your lordship got the -- 2 0 THE COURT: Yes. 21 MR. MACAULAY: \u00E2\u0080\u0094 the wills submission? 22 THE COURT: Yes. 23 MR. MACAULAY: I have also \u00E2\u0080\u0094 24 THE COURT: Where do you say it should be inserted in your 25 argument? 26 MR. MACAULAY: Well, your lordship had a little book. All that 27 was in it was about 22 pages of Loring. 2 8 THE COURT: Yes. 29 MR. MACAULAY: It should be in there. 30 THE COURT: Oh, all right. Thank you. 31 MR. MACAULAY: And the dividers that \u00E2\u0080\u0094 the blank \u00E2\u0080\u0094 the 32 dividers without any markings on them are just a 33 matter of convenience to separate those. 34 THE COURT: I should use one of those at this time. 35 MR. MACAULAY: Yes. 36 THE COURT: All right. Thank you. 37 MR. MACAULAY: There will be a couple more very brief ones in 38 that book. And now I am handing up copies of certain 39 wills, not all of them. It's a book that has the tab 40 numbers in this book that correspond with the tab 41 numbers in the original exhibit. For instance, the -- 42 we have -- we start in this book with Tab 4, Tab 5, 43 Tab 7, Tab 14 and so on. They correspond with the 44 original tabbing in the exhibit itself. The wills all 45 are found in Exhibit 1237A, B and C. And these are a 46 selection of those wills. 47 In addition, my lord, I'm handing up books of 28582 Submissions by Mr. Macaulay 1 genealogies that we say -- it's a book, single book -- 2 that we say pertain to the -- these wills. I'm not 3 going to make any extensive reference to the 4 genealogies, but it's a reference. The genealogies, 5 of course, are the plaintiffs' exhibits. Very 6 often -- very often the plaintiffs have 24 or 30 pages 7 in one genealogy. We have tried to isolate the ones 8 that are relevant to the wills. And the tabbing is 9 the same with these extracts in genealogies. In other 10 words, the tabbing corresponds with the original 11 exhibit. You'll see that in some cases many -- some 12 testators, like James Blackwater, there are two tabs 13 in the original exhibits. So we have two tab numbers 14 assigned to him, one genealogy, of course. 15 THE COURT: Those tab numbers are in -- do you know the number 16 of the exhibit? 17 MR. MACAULAY: Yes. The exhibit is 1237 for the wills. Those 18 are where the wills are to be found. 19 THE COURT: Yes. 20 MR. MACAULAY: And there's a certain order of tabs. 21 THE COURT: Yes. 22 MR. MACAULAY: In everything I've handed up now the tabbing 23 corresponds to that original tabbing. So that Tab 1 24 is always Jimmy Andrew, and Tabs 5 and 6 are always 25 James Blackwater, et al. 26 THE COURT: So the tabbing relates to your \u00E2\u0080\u0094 2 7 MR. MACAULAY: The original exhibit. 28 THE COURT: \u00E2\u0080\u0094 to 1237, not to the plaintiffs' book of 29 genealogies? 30 MR. MACAULAY: That's right. They are extracts of the 31 plaintiffs' genealogies. We may have a testator on 32 page 12 of a 25-page genealogy. We're not producing 33 the whole genealogy. This is a selection from the 34 plaintiffs' exhibits which are -- if an inquiry has to 35 be made about who this testator is or who the 36 beneficiaries are, what relationship they had, then 37 you can have reference to the genealogies. I do not 38 intend to make -- partly because of the time, but I do 39 not intend to make extensive references to those 40 genealogies. I'll just say that's where I got my 41 information, and the question whether somebody is a 42 son or a nephew or brother or sister, and so on. 43 MR. GRANT: I understand my friend has -- just if he could 44 clarify before he starts in the genealogy extract. I 45 see that some -- there's a sequential numbering and 46 some of them are blank on the index and there's 47 nothing in where those blanks are, but I notice, for 28583 Submissions by Mr. Macaulay 1 example, Tab 10 refers to Henry Brown. In looking at 2 the index, I assume there's something in there. 3 There's nothing in my copy. Tab 15 refers to Martha 4 Brown and there's nothing in my copy. I'm sorry. 5 THE COURT: I take that to mean that Mr. Macaulay won't be using 6 their genealogy with respect to that argument. 7 MR. GRANT: I just want to be sure that we're all in -- that a 8 tab doesn't mean there's anything in it. 9 MR. MACAULAY: Tab 10 should have something. 10 THE COURT: Yes. I have \u00E2\u0080\u0094 there's a content in my Tab 10. 11 MR. GRANT: Yes. I have nothing in Tab 10. 12 MR. MACAULAY: Well \u00E2\u0080\u0094 13 THE COURT: I have nothing in Tab 6. 14 MR. MACAULAY: No. 15 MR. GRANT: Nor Tab 14. 16 MR. MACAULAY: Can I explain Tab 6? You have to look at the 17 original exhibit to see why that is. 18 MR. GRANT: Maybe \u00E2\u0080\u0094 19 MR. MACAULAY: And the same \u00E2\u0080\u0094 but Tab 15 may not have something 20 there unless there's no genealogy. In some cases -- 21 now, in the case of Martha Brown, Tab 15 -- 22 MR. GRANT: I'm sorry. I had something. 23 MR. MACAULAY: -- she does not appear on any genealogy. That's 24 my guess. That would be my guess. There is no 25 genealogy. 26 MR. GRANT: I'm sorry. Sorry. I do have something in 15. I 27 guess it was 14 I have nothing in. Yeah. I have 28 something in 15. 2 9 THE COURT: I have nothing in 14. 30 MR. GRANT: So if what my friend is saying, there's a blank 31 after the number, that means there's nothing in the 32 tab, that I can be sure that I have everything if 33 that's \u00E2\u0080\u0094 34 MR. MACAULAY: I've asked Mr. Wolf \u00E2\u0080\u0094 35 THE COURT: How can you be sure you have nothing if there's 36 nothing in the tab? I'm sorry. How can you be sure 37 you have everything if there's nothing in the tab? 38 MR. GRANT: That's right. 39 MR. MACAULAY: I'll go back to the original exhibit and we'll 40 deal first with Tabs 5 and 6. They both deal with the 41 same testator, James Blackwater. That's why in the 42 genealogies we have nothing in Tab 6. Martha Brown, 43 Tab 15 -- 44 THE COURT: Well, is it any more difficult than that, Mr. 45 Macaulay? If you don't have a tab in this book of 46 genealogies -- rather, if you don't have anything in 47 the tab in the book of genealogies, it means that you 28584 Submissions by Mr. Macaulay 1 won't be relying or referring to a genealogy in your 2 argument? 3 MR. MACAULAY: That's right. 4 THE COURT: Yes. 5 MR. MACAULAY: There are testators we know their band numbers. 6 We have their band number because they're -- we can go 7 to the band lists, to the administration documents. 8 But in a number of cases you can't find them on 9 genealogies. 10 THE COURT: Yes. 11 MR. MACAULAY: They just weren't there for whatever reason. 12 MR. GRANT: Mine may be more elementary, my lord. I take it 13 that if there's a number on the index and no name 14 beside it, I should assume there's nothing in the tab, 15 if there's a number. And then if that's how my friend 16 is proceeding, then I can be sure I have whatever he 17 has by using the index. 18 THE COURT: What is missing is that Mr. Macaulay is saying 19 either he is not relying upon a genealogy for his 20 argument with respect to that testator or he didn't 21 find a name in the -- in any genealogy. 22 MR. MACAULAY: That's right. 23 THE COURT: That doesn't say that his search is necessarily 24 conclusive in that regard. 25 MR. MACAULAY: And there's another explanation for a blank tab, 26 and that is where, as in the case of Jimmy Blackwater, 27 we used two tabs in the original book for that man. 28 So there would only be one genealogy. We put that 29 under Tab 5 and there would be nothing under Tab 6. 30 THE COURT: All right. 31 MR. MACAULAY: I thought I was trying to simplify matters, but I 32 didn't succeed. 33 THE COURT: Oh, I think we'll let you know. 34 MR. MACAULAY: Now, have you got two of these? 35 THE REGISTRAR: Just one. 36 MR. MACAULAY: My lord, there were 133 members of the various 37 Indian bands in the claim area who made wills that we 38 have found. And they're all in this Exhibit 1237. 39 It's three volume exhibits. So the volumes are marked 40 A, B and C. The D.I.A. estate administration 41 documents are included in the exhibit itself for the 42 purpose of showing the identity, the village and the 43 band number of the testator. We don't include any 44 other estate document because the points I am making 45 about the wills have nothing to do with the -- the way 46 in which the -- any estate was administered or not 47 administered. 28585 Submissions by Mr. Macaulay 1 In some cases you can't tell from reading the will 2 alone what kind of property was the subject of the 3 bequest, for instance whether or not that testator was 4 leaving land on reserve to the beneficiary. In cases 5 like that, you can look at the estate administration 6 documents for particulars. The same applies to 7 traplines. Occasionally a testator will say I leave 8 all my property of every kind whatsoever, both real 9 and personal. In order to determine whether he was 10 disposing of a trapline as well as other things, you 11 have to go to the administration document, the D.I.A. 12 administration document, to see, yes, there is a 13 trapline or, no, there is no trapline. 14 The wills take a great variety of forms and some 15 are very informal. Others are -- not many -- are on 16 D.I.A. forms and some appear to have been drafted by 17 solicitors, undoubtedly were drafted by solicitors 18 because there are provincial probate documents that 19 relate to them. The earliest, that of Alexander 20 Oakes, which is at Tab 95, is 1904, made in 1904, and 21 the most recent was the will of Wallace Wale, and it 22 was made in 1987. That's Tab 135 of the original 23 exhibit. 24 I have set out here the division of wills by 25 decades, and you will see that there are very few 26 before 1930 and then they varied from 20 to 30 from 27 1930 through to 1980. After 1980 there was a \u00E2\u0080\u0094 only 28 half that number. That may be because of this 29 litigation, but it's just as likely the wills haven't 30 come in. These people who have made wills of the 31 1980's are still alive and their wills are not in the 32 hands of the department. In some cases, two or three 33 successive wills were located and it's the -- although 34 the earlier wills are included in the original 35 exhibit, but it's the last of the two or the last of 36 the three that's referred to in this submission. 37 We've taken the latest. 38 Of the 133 testators, the vast majority made 39 bequests of Indian reserve houses and land. These are 40 the localities and severalty that Loring talks about. 41 These were the dwellings and properties referred to in 42 the Loring reports. And 95 of the wills provide for 43 inheritance of houses and land on Indian reserves by 44 beneficiaries who are members of the testator's 45 immediate family, wives and children, and in some 46 cases grandchildren. And I've given here a list of 47 the wills and the tab number is the -- is -- relates 28586 Submissions by Mr. Macaulay 1 to the original exhibit where the will is to be found. 2 MR. GRANT: 12 87. 3 MR. MACAULAY: Yeah. For instance, the James Blackwater, 5/6 4 simply means that the document relating to him appear 5 in both those tabs in the original exhibit. And the 6 same with Henry Brown. Tabs 10 and 11 relate to him, 7 and so on. We have listed the beneficiary or 8 beneficiaries in each case. These are the single 9 family dwellings built, individual allotments made 10 after 1890 away from the old village sites where the 11 traditional long houses or plank houses were situate. 12 I include that only because although it appeared in 13 the early stages of the trial that these -- this 14 property was not to be considered as traditional, a 15 later -- later witnesses of the plaintiffs seem to be 16 giving evidence to the effect that in some cases, if 17 not all cases, this was traditional property. But 18 clearly, and it just stands to reason, this kind of 19 property there were single family dwellings. They 20 were for families as we understand the word, not 21 larger extended groups. It would only be natural that 22 they would be bequeathed to children and grandchildren 23 in most cases. In some cases there might not be a 24 surviving child or grandchild, but we have not 25 included those. Some of them would be traditional in 26 the sense that they would go to the -- to people in 27 the same clan. If a wife leaves a -- her house to her 28 daughter, the plaintiffs can say, well, there, that's 29 traditional. They're the same house, same clan. If a 30 father leaves the property to his daughter or son, it 31 isn't. We have made no distinction here between the 32 traditional and nontraditional. The purpose of 33 compiling this material is to show that in -- in the 34 great majority of cases it was -- the property was 35 left to sons and daughters and grandchildren. 36 There are 43 testators who bequeathed traplines 37 and hunting grounds to their heirs. And that number, 38 the following, and I'm listing them here, provided in 39 their wills that these traplines and these hunting 40 grounds should be inherited by beneficiaries who were 41 not of the same clan. If you're not of the same clan, 42 you're necessarily not of the same house either. And 43 in most cases it was a question of the testator being 44 a male, leaving his trapline to his wife or his 45 children because a man's wife is necessarily not of 46 the same clan or house and the children similarly, 47 because they adopt the house and clan affiliation of 28587 Submissions by Mr. Macaulay 1 the mother, are not connected with the father in that 2 way. 3 I should mention there is -- there are a few -- 4 there are a few of these testators who aren't 5 plaintiffs, but they have traplines in the claim area 6 and they live in the claim area and they are Indians 7 and they are members of bands. On this page 5 there's 8 one. And I have identified them where I can. Theresa 9 Sam. Theresa Sam is a member of the Burns Lake Band 10 and she had a trapline. And she bequeathed that 11 trapline to a grandson. Similarly Chief -- both 12 Tibbetts, Chief David and Frank David, who left their 13 traplines to their sons, neither of them are 14 plaintiffs. They are members of the Burns Lake Band. 15 MR. GRANT: Well, maybe my friend could clarify for me then that 16 phraseology, not a plaintiff. Is my friend saying -- 17 when these people aren't plaintiffs, is he just saying 18 they're members of an Indian band under the Indian 19 Act, which isn't one of the bands? If that's all he's 20 saying, then that doesn't necessarily follow. There's 21 extensive evidence that people belonging to other 22 bands are plaintiffs. Or is he saying that they're 23 not members of the plaintiff houses? 2 4 MR. MACAULAY: I think my friend knows the answer to that. 25 MR. GRANT: Well, I don't know the answer to that. 26 MR. MACAULAY: He knows about Theresa Sam and he knows she's not 27 a plaintiff and he knows that she's a member of the 28 Burns Lake family. 29 THE COURT: Well, I'm with your friend on this one, Mr. 30 Macaulay, because I'm not sure. 31 MR. MACAULAY: Burns Lake Band are not Wet'suwet'en or they're 32 not connected with the Wet'suwet'en for the purposes 33 of this action. They don't appear in the genealogies 34 either. 35 THE COURT: Can I take that as a given? That is, if someone 36 belongs to the Burns Lake Band, that they aren't 37 members of the plaintiff house? 38 MR. MACAULAY: I don't know of one who's a member of a plaintiff 39 house in the Burns Lake Band. If they were members -- 40 if they were members of the plaintiff house, they'd 41 appear on genealogies. That's another way of putting 42 it. You can't find any Tibbetts on the plaintiffs' 43 genealogies. 44 THE COURT: I don't \u00E2\u0080\u0094 I'm sure if I looked at your documents I 45 could find the answer to the question of whether the 46 Burns Lake reserve is in the claim area or not. I 47 think somebody told me that it was. 28588 Submissions by Mr. Macaulay 1 MR. MACAULAY: Well, Mr. Mclntyre gave that evidence. 2 THE COURT: Yes. All right. And the Burns Lake Band has a 3 reserve also within the claim area. 4 MR. MACAULAY: Yes. Some of them are plaintiffs and others 5 aren't. But in the case -- I don't know of a single 6 exception to the -- my proposition in the case of the 7 Burns Lake Band. I don't know of a single one who is 8 a plaintiff. There might be. It's possible that a 9 Burns Lake Band member married a Wet'suwet'en who is a 10 member of a house. But none of these are -- or were. 11 That's one of the problems of -- that relates to the 12 plaintiffs' claim. 13 THE COURT: Yes. 14 MR. MACAULAY: There were people who lived there. The maps I 15 just produced at my friend's request, the Loring's 16 sketches, that shows the Tibbetts family. 17 THE COURT: Yes. 18 MR. MACAULAY: They were there in 1906. The Tibbetts family are 19 not plaintiffs, people named Tibbetts. 20 THE COURT: They're recent arrivals. 21 MR. MACAULAY: Who knows when they got there. There were there 22 in 1906 -- 23 THE COURT: All right. Thank you. 24 MR. MACAULAY: \u00E2\u0080\u0094 on Burns Lake. We have no record of when they 25 first got there. When Mr. Loring went to Burns Lake, 26 there they were. Might have been there for a thousand 27 years for all we know. 28 Now, this book of wills that I handed up covers 29 all the categories of people who bequeathed traplines 30 and hunting grounds. I haven't included a few cases 31 and they're so rare as to be statistically irrelevant, 32 cases where fishing stations were or chiefs' names or 33 totem poles or things of that kind. They're the 34 exception. I don't think that we can draw any 35 conclusions from the fact that a particular chief 40 36 years ago decided he would leave his fishing ground in 37 his will. But there is a -- there is a large enough 38 proportion of trapline and hunting ground -- they mean 39 the same thing -- trapline who left their wills to 40 make it relevant and justify drawing certain 41 conclusions when that -- those -- the facts, and 42 that's what they are, are considered in connection 43 with other facts concerning other evidence concerning 44 traplines. 45 My lord, if you'll turn to page -- of this book, 46 book of 46 wills, I want to explain something that 47 I've put in there. 28589 Submissions by Mr. Macaulay 1 THE COURT: Can I take it that all the testators, all 133 2 testators resided in the claim area at the time of 3 their death -- at the time they made their will, 4 rather? 5 MR. MACAULAY: They were members of bands in the claim area at 6 the time they made their will. Some of them made 7 wills -- I think Harry Oakes, who was a famous member 8 of a famous Kitwanga family, I think his was dated at 9 Port Essington. There are some of them that were 10 dated at the canneries where they spent part of the 11 year. 12 THE COURT: All right. Thank you. Yes. Book of wills? 13 MR. MACAULAY: Now, if you look at Tab 1 \u00E2\u0080\u0094 I'm sorry. It's Tab 14 4. 15 THE COURT: Yes. 16 MR. MACAULAY: Because he appears in the original at Tab 4. Mr. 17 Peter Bazil, you will see we've put in a memorandum 18 showing -- and we get this from the administration 19 documents. He is number 8, Moricetown. His Indian 2 0 name is Wah tah k'eght. We get that from the 21 genealogy. His house is Wah tah k'eght. And we quote 22 there Exhibit 119, page 9. That's the genealogy. His 23 clan is Laksilyu. The date of the will is given and 24 the witnesses. And in every case, in the case of 25 every will included, we have -- you'll see he's the 26 head chief, Peter Bazil. 27 The next one, Blackwater, is the head chief too. 28 He is Wii Minosik of the House of Wii Minosik. 29 The third one, Albert Brown, is Wii Goob'1. But 30 he is in the House of Gyetimgaldo'o. So he has a name 31 in that house. And in these cases we have referred 32 to -- located them on the plaintiffs' genealogies and 33 established their Indian name and their house and clan 34 in that way. 35 Sometimes there's a bit of difficulty in the 36 genealogies. If you look at the following one, Joseph 37 David Brown, his band he is number 6, Kitsegukla. We 38 have his Indian name and we have a notation. He 39 appears on another genealogy. That is another house's 40 genealogy. He is married to Martha Brown, Mool'xan. 41 MR. MACAULAY: But he doesn't appear, for reasons we don't know, 42 on the genealogy of his own house, if indeed that's 43 his own house. 44 THE COURT: Where did you get the house reference from? 45 MR. MACAULAY: The other genealogy, the Haak Asxw genealogy. 46 That's where we have to turn to the big book. 47 THE COURT: Oh, yes. 28590 Submissions by Mr. Macaulay 1 MR. MACAULAY: And we have that's Joseph David Brown, Tabs 13 2 and 14. 3 THE COURT: Where did you get that his name was Xsgogimlaxha, 4 X-s-g-o-g-i-m-l-a-x-h-a? Where did you get that? 5 MR. MACAULAY: From the genealogy of his wife's house. Could 6 you turn to Tab 13, my lord, in the big book of 7 genealogies that you have there? 8 THE COURT: Yes. 9 MR. MACAULAY: And go to Tab 13. At page 2 of the tab you'll 10 see Joe Brown is listed there. And we believe that to 11 be the same Joseph Brown. And we get his name from 12 that. Now, the plaintiffs may argue no, it's another 13 Joe Brown. And let them do so. 14 MR. GRANT: I just wonder. That's what I'm trying to 15 understand, my friend's logic. Is there anything 16 other than the fact that the name Joe Brown is the 17 same name as is on the will? Is that the sole basis? 18 I mean, he says we think that's the same Joe Brown. 19 I'm just wondering what the connecting link is in my 20 friend's argument, that's all. 21 MR. MACAULAY: No. There's \u00E2\u0080\u0094 22 THE COURT: Well, I don't see him on this -- on this genealogy 23 for Sakxum Higookx, S-a-k-x-u-m, new word, 24 H-i-g-o-o-k-x. I don't see him on that genealogy. 25 MR. MACAULAY: No. The second genealogy shows the 26 beneficiaries. Esther Brown, I take it, is the same 27 as Esther Hyzims. She is Esther Hyzims. And then on 28 the last page of that second genealogy, Connie Wesley 29 is another of the beneficiaries. 30 THE COURT: I see. 31 MR. MACAULAY: She was Connie Wesley married to George Milton, 32 because in order to make the submissions, we had to 33 determine who was who and what clan they were. 34 MR. GRANT: In following my friend, I'm still wondering how he 35 connects this particular Joe Brown, the husband of 36 Martha Brown, to the person he's got with that will, 37 Joseph David Brown. 38 MR. MACAULAY: Well, it's a process, in some cases, of 39 deduction. This is a Kitsegukla man, the man who made 40 the will, and that Joe Brown is the Joe Brown of that 41 era in Kitsegukla. He's one of the Joe Browns in Kitsegukla. Right. That's a good research project for your friend. Another reason why I'll take the weekend to read 46 these wills again. 47 MR. MACAULAY: Can I turn to William Brown, number 27, 42 THE COURT 4 3 MR. GRANT 4 4 THE COURT 4 5 MR. GRANT 28591 Submissions by Mr. Macaulay 1 Gitanmaax? It's the next in that tab of wills. 2 William Brown. It's Tab 22. 3 THE COURT: Yes. 4 MR. MACAULAY: Now, this is one where William Brown appears on 5 Wiigyet, the Wiigyet genealogy, is married to Hanna 6 Jackson. So there is no house given. 7 THE COURT: NHG means no house given, does it? 8 MR. MACAULAY: Yes, my lord. We have \u00E2\u0080\u0094 well, more than clues. 9 We have identification in the -- in the wills 10 themselves. They -- they refer to sons and daughters 11 by their names, and that's another way of -- of 12 determining who they are. 13 MR. GRANT: So I take it my friend here just in this example 14 demonstrates -- so I just want to be clear about them. 15 My friend is relying on wills of non-plaintiffs in 16 support of his argument. In this case William Brown 17 is identified as Nishga. 18 MR. MACAULAY: In wills of band members of the bands in the 19 claim area. We didn't exclude wills because they 20 didn't happen to be on genealogies. And, of course, 21 it affects the -- to some extent it might affect the 22 conclusion we draw. 23 The next one, my lord, is Tab 27, Daniel Cookson, 24 who is Guxsan. He is the head chief of the house in 25 Kitsegukla. And his clan is given there. And in this 26 will he leaves -- if you turn to the will -- I should 27 mention something about this, my lord. You notice at 28 the top there's the written copy. If you go to the 29 original exhibit, you will see that there is both the 30 handwritten document and a copy in most cases. What 31 happened was there was no Xerox in those days. The 32 regulations required the Indian agent to send a copy 33 of the will to Ottawa. So he typed out a copy and 34 either sent the original or -- and kept a copy for 35 himself or vice versa. In a very few cases all we 36 have is the copy, but it's an estate document and it 37 was done at the time by -- in the ordinary course of 38 business by the official carrying out his duty. 39 Looking at the original exhibit will show if that's 40 apparently a case where only the copy has survived. 41 The original may be in the archives somewhere, but 42 only the copy has survived. In that case, he left 43 land on reserve to his wife and some cash, which is 44 not relevant, and then cash -- a cash bequest to 45 Arthur Sampare, and Vincent Woods and Ben Woods and 46 Edward Wesley were to receive the trapline. Now, Ben 47 Woods appears on the same genealogy here, the Guxsan 28592 Submissions by Mr. Macaulay 1 genealogy, but he is not -- he is in the house. No. 2 It's the other one who isn't. Wesley was not. In 3 that case, it's Wesley, Edward Wesley, who is not a 4 member of the same clan. 5 MR. GRANT: Well, I disagree, my lord. My friend's Tab 853, Mr. 6 Wesley is indicated, as is Mr. Mark, and they're all 7 on the Guxsan genealogies members of that house, both 8 Woods, Mark and Wesley. 9 MR. MACAULAY: My friend is right. I have Daniel Cookson as 10 part of my list -- I haven't come to that yet -- of 11 testators who did bequeath their trapping and hunting 12 lines in a manner that appears in accordance with the 13 house clan structure. That's at page 7. I have three 14 lists. I've just been going through these in 15 alphabetical order. But if your lordship will -- will 16 look at my three lists, one appears at pages 5 and 6. 17 And that's a list of the testators who we say did not 18 leave their traplines in the manner -- in the crest -- 19 according to the crest system. 20 And then there's a second list of bequests of 21 traplines to beneficiaries who don't appear on any 22 genealogy. 23 And the third list is bequests -- that's on page 24 7 -- bequests of traplines in a manner that appears to 25 be in accordance with the house clan structure 26 described by the plaintiffs at trial to the extent 27 anyhow that the legatees are of the same house. And 28 Cookson was one of those. 29 THE COURT: That, of course, wouldn't conform to the clan \u00E2\u0080\u0094 to 30 the crest system, as it's been described in the other 31 evidence, just leaving it to members of the clan. 32 MR. GRANT: They leave it to named successors. In the case of 33 Guxsan, it went to Peter Mark. 34 THE COURT: If he's the successor. 35 MR. GRANT: That's what you see when you look at the genealogy. 36 I think that's what my friend is saying. 37 MR. MACAULAY: Well, there are a few cases of that. And I \u00E2\u0080\u0094 38 I'll be referring to them. And my recollection is 39 that Dan Cookson was one of them. Yes, it is. He was 40 one of them. 41 THE COURT: Well, Peter Mark was Guxsan, but Edward Wesley 42 wasn't. He had a different name. 43 MR. MACAULAY: Yes. The first list of \u00E2\u0080\u0094 if I can come back to 44 the first list, if we turn to Fritz Harris -- and I am 45 turning to him because one of the beneficiaries gave 46 evidence at trial. That's Tab 42. Fritz Harris was 47 in the House of Delgamuukw, and he left his trapline, 28593 Submissions by Mr. Macaulay 1 he says, to Chris Harris and Jeff Harris. \"I hereby 2 give, devise and bequeath my traps and trapline\". 3 Well, of course, they were of a different house. He 4 was Delgam Uukw. And they were, as my recollection 5 serves, Geel -- Luus -- sorry -- Luus. 6 Now, the last survivor of them, Jeff Harris, gave 7 evidence. Your lordship heard his evidence in 8 Smithers. And he gave the -- he said that his father 9 had murdered his mother and that that was the reason. 10 It was to compensate for that that the boys got the 11 trapline. He was asked if that transaction had been 12 dealt with at the feast and he said no. So you find 13 some odd explanations for the odd one. I thought I 14 ought to draw that very unusual explanation to your 15 lordship's attention. 16 Now, there is another odity that I should mention 17 to your lordship. Mathew Sam of Noralee. The Noralee 18 Mathew Sam was Tab 108. Mathew Sam had adopted his 19 beneficiary. Mathew Sam was Gyologyet, so in the 20 House of Woos. That was his chief's name. He adopted 21 Roy Morris, who he describes as his grandson in his 22 will, and left the trapline to his grandson. But that 23 trapline was in the territory of Knedebeas. And in 24 fact the current Knedebeas made an issue of that, but 25 both the -- but the beneficiary, Roy Morris, whose 26 chief's name was Woos, he was a head chief. He stuck 27 with it and he -- he had the trapline now, although 28 it's Knedebeas territory. So that is not in 29 accordance with the crest system at all where a man 30 bequests his trapline to his son or his daughter. Of 31 course, it goes without saying that under the system 32 that we've heard, that it could not possibly be a 33 crest system transaction. And most of these are -- 34 are like that. 35 In one case Seymour Tom left his trapline to 36 members of the Stellaco Band. They're not on the 37 genealogies. But they're also said to be in the will 38 itself Stellaco. That's Tab 128. He is number 6 of 39 the Maxim Lake Band. And he bequeathed his trapline 4 0 to Kenneth Luggie and Gordon Luggie. And he says in 41 his will: \"These boys are members of the Stellaco 42 Band of Indians\". And, of course, they're not on any 43 genealogy, but the trapline is in the claim area and 44 he is a plaintiff. 45 The second category of bequests are to people who 46 aren't on any genealogy. Now, Solomon Dick, there's a 47 note that his wife was a Sustut Dene. So that the 28594 Submissions by Mr. Macaulay 1 sons would not be either Gitksan or Wet'suwet'en. 2 They would be Sustuts. So that couldn't possibly be 3 in accordance with the crest system. He's at Tab 33. 4 He's number 17 Glen Vowell, and he has a chief's name 5 in the House of Miluulak and his clan is Lax Seel. 6 His will provides that his house and contents to Peter 7 Dick, my grandson, whom I adopted, and to Martha Dick. 8 But neither of those is on a genealogy. We have 9 Solomon Dick itself on a genealogy of Miluulak. And 10 it gives his chief's name. And the genealogy shows 11 that Martha, his wife, was a Sustut Dene. Yes. He 12 was first married to someone else, then to Martha. A 13 sister Dene and the two beneficiaries who are named 14 are not on any genealogy. So that that can't be 15 classified as a -- as a crest system, bequest of a 16 trapline. 17 Chief Louis, who is Louis Baptist, at 64 he -- Tab 18 64. Chief Louis is number 14 in the Chislatta Band, 19 but his house is said to be that of Goohlaht/Caspit, 20 where he appears, Louis Baptist. And his will 21 provides: 22 23 \"I, the undersigned Chief Louis of the 24 Chislatta Band wish to will herewith 25 everything I own, including trapline, cabin, 26 house, land, equipment of any nature 27 whatsoever to my grandsons George, Johnny 28 Peters, son of something Peters deceased.\" 29 30 Now, Chief Louis, although he is a member of the 31 Chislatta Band, is a plaintiff if he appears on the 32 genealogies. He is claimed to be a plaintiff, or the 33 ancestors of plaintiffs. His is not the sort of case 34 we run into with Theresa Sam or Chief Tibbetts. This 35 is an odd -- one that's difficult to classify. 36 Douglas Marsden, Tab 70. Marsden was number 126 37 Kitwanga and he had been formerly at Kitwancool. 38 There is no house given for him. He called himself a 39 chief in his will. And he bequeaths all his personal 40 and real properties and interest in the trapline to 41 Gordon Johnson, who is not on the genealogy. Gordon 42 Johnson, I believe, was Chief Fred Johnson's son. He 43 is a Kitwancool chief. 44 MR. GRANT: Gordon Johnson is Malii, M-a-1-i-i, my lord. 45 There's evidence of Mr. Williams on that. He's in the 46 same house as Glen Williams, and this succession from 47 Douglas Marsden to Gordon Johnson was referred to 28595 Submissions by Mr. Macaulay 1 in -- I believe it in Mr. Williams' evidence. 2 They were in the same house but they're Kitwancool 3 houses. 4 MR. MACAULAY: Well, this is a Kitwanga band member. Perhaps 5 that shouldn't be in the collection at all, but once 6 you start excluding them for this reason or that 7 reason, it's impossible to draw the line. What we 8 have done is -- I repeat. What we have done is we 9 have taken the band members of bands in the claim area 10 who live there and Mr. Marsden at the time he drew his 11 will -- 12 THE COURT: Gordon Johnson is who? 13 MR. MACAULAY: Gordon Johnson is a -- bears a chiefly name in 14 the Kitwancool band. 15 MR. GRANT 16 THE COURT 17 MR. GRANT Malii, my lord, M-a-1-i-i. That's a Kitwancool house. It's a Kitwancool house. And Douglas Marsden was in 18 that house. 19 THE COURT: So you're only interested in the factor where is the 20 trapline. 21 MR. GRANT: For the purposes, yeah. The only relevant may be 22 where the territory was. My recollection is it's in 23 the Kitwancool area. 24 THE COURT: All right. 25 MR. MACAULAY: In the case of George Moore, he bequeathed the 26 trapline to his grandchildren. That's 78. He himself 27 was in the House of Sakxum Higookx. Allan Johnson was 28 in the same house and successor to his name, but 29 Pauline Johnson was not. In fact, she's not on the 30 genealogies. That's why she's on that list. 31 THE COURT: She's quite a person. 32 MR. MACAULAY: Yes. Went on to other things, not trapping. 33 THE COURT: Couldn't be the same one, could it? 34 MR. MACAULAY: I don't know, my lord. 35 THE COURT: All right. 36 MR. MACAULAY: Sophia Mowatt bequeathed traplines to several 37 people. One of them was a grandson not on the 38 genealogies. 39 And Jasper Skulsh bequeathed his trapline. That's 40 118. He's a Kispiox man. 41 MR. GRANT: Pauline Johnson, by the way, my lord, would have 42 been the sister of Allan Johnson. I don't think she 43 was the one that went on to greater things, although 44 she may have been named after the person that was 45 travelling through the same area. 46 MR. MACAULAY: Anyhow, that person doesn't appear on the 47 genealogies. Pauline Johnson -- 28596 Submissions by Mr. Macaulay 1 THE COURT: No. 2 MR. MACAULAY: \u00E2\u0080\u0094 is not \u00E2\u0080\u0094 I don't know how you define 3 plaintiff, but as I understand it, you define 4 plaintiff by their presence or nonpresence on the 5 genealogies. And that's how you know that Chief 6 Tibbetts is not a plaintiff. He might qualify in 7 every conceivable way other than the fact that he's 8 not on the genealogies. He is excluded from the magic 9 circle. 10 THE COURT: Well, I would have thought that that's one way. 11 Another way of describing it is to say that a 12 plaintiff has to be a member of one of the houses of 13 the named chiefs. 14 MR. MACAULAY: Yes. Yes. 15 THE COURT: All right. 16 MR. MACAULAY: I don't know what the problem with Pauline was. 17 MR. GRANT: She's deceased. I think that's the problem. 18 MR. MACAULAY: Is that why she's not on the genealogies? 19 MR. GRANT: Well, I don't know. She's not a plaintiff today. 20 MR. MACAULAY: All kinds of deceased people on the genealogies. 21 Anyhow, Jasper Skulsh of Kispiox, who here is a case 22 where he did what appears to be D.I.A. form, witnessed 23 by a doctor, Dr. Donald, and the Indian agent 24 Mortimer. He bequeaths to Douglas Angus and Raymond 25 Tait jointly his trapping ground. He was -- he had an 26 Indian name in the House of Gutginuxw. He did not 27 have the head chief's name. And his genealogy shows 28 the -- here that Douglas Angus was of that -- the 2 9 right house. And Raymond Tait we -- is not on that 30 genealogy. So one was right and the other is no house 31 given. When I say no house given, we -- like, I'm 32 sure the other parties -- we developed a master roll 33 of all the people who appear on genealogies. It 34 wasn't a question of just thumbing through the 35 genealogies. And we haven't been able to find that 36 person on the genealogies. There's a typical 37 disposition, typical. It's almost universal 38 disposition of land on the reserve. He says: \"To my 39 wife, Emma, my land situate on the Kispiox Indian 40 reserve\". And we don't say that hurts the plaintiffs 41 or doesn't hurt the plaintiffs, but it puts pain to 42 the proposition that any of that reserve -- those 43 reserve allotments and houses were traditional 44 property in any sense. 45 My lord, if there's going to be an adjournment. 4 6 THE COURT: Yes. All right. Thank you. 47 THE REGISTRAR: Order in court. Court stands adjourned for a 28597 1 short recess. 2 (PROCEEDINGS ADJOURNED) 3 4 I hereby certify the foregoing to be 5 a true and accurate transcript of the 6 proceedings transcribed to the best 7 of my skill and ability. 8 9 10 11 Kathie Tanaka, Official Reporter 12 UNITED REPORTING SERVICE LTD. 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 28598 Submissions by Mr. Macaulay 1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 2 3 THE COURT: Mr. Macaulay. 4 MR. MACAULAY: My lord, in this category of the requests to 5 people who don't appear on genealogies, the last one I 6 want to refer to, the last one on my list is Mary 7 White. Mary White was a head chief. Her name -- her 8 chiefly name was Miluulak. Mrs. Mary White, Alexander 9 White's widow, or wife, she made a will on, you know, 10 a printer's form. It's one of the many varieties of 11 wills. It's at tab 151. And she gives all her real 12 and personal estates to her daughter Elsie White, 13 including her hunting -- \"my Hunting Ground called 14 'Malaulach' near Takla Lake.\" The Malulach area shown 15 on the plaintiffs' maps is indeed near but not on 16 Takla Lake. It's over here, my lord. Takla Lake is a 17 bit south. She describes it as -- gives it the name, 18 Malaulach, which is a hunting ground. But her 19 daughter Elsie is not on the genealogy, or at least if 20 she were -- anyhow, she left the -- her property in 21 that way. 22 Now, the next testators, starting with Peter Bazil 23 and Daniel Cookson, did leave their traplines to 24 members of their house. As I mentioned earlier, there 25 were a few testators who purported to leave fishing 26 stations, berry patches and other traditional 27 property, not always in accordance with Gitksan and 2 8 Wet'suwet'en systems. And we find examples in the 29 wills of Chief Laknits and of James White who was the 30 Gyetimgaldo'o. But there isn't a large enough group 31 of those to make anything of it. But of the 43 32 testators who did make mention of traplines or hunting 33 grounds in their wills, only two disposed of their 34 traplines in terms that left it to the successor, as 35 head chief of the house, to determine who should use 36 the trapline. These were Peter Mark and George 37 Naziel. But the latter's will was made post motam 38 litem in 1986, and it was witnessed by the \"Legal 39 Information Counsellors\" and including Jack Sebastian 40 of the Tribal Council. And even so, maybe we should 41 look at his will, my lord. 93. That was to be an 42 example of a traditional will, presumably. It's at 43 tab 93. And he leaves to his sons his Indian reserve 44 property. There is nothing unusual about that. He 45 leaves to one son \"my property, the Hudson's Bay 46 Ranch,\" on the Telkwa High Road. Well, the Telkwa 47 High Road, the southern end of the Telkwa High Road is 28599 Submissions by Mr. Macaulay 1 at Telkwa. George Naziel was Madeek, and Madeek's 2 property, Madeek's land, of course, is a way down much 3 farther south than that. Around Buck Flats. It's 4 down in here. The Hudson's Bay Ranch that he 5 bequeaths to his son is in somebody else's territory. 6 Then after dealing with his -- the power saws and -- 7 THE COURT: I am sorry, I was wondering how you knew it was -- 8 yes, I'm sorry. The ranch is on the Telkwa High Road 9 and therefore it's within the territory of who, Woos 10 or Wah tah ghets? 11 MR. MACAULAY: Well, since I don't know exactly where the ranch 12 is, it be one or the other, it doesn't say exactly 13 where the ranch is. The Telkwa High Road is 20 miles 14 long or something like that. 15 THE COURT: It goes right to Moricetown, doesn't it? 16 MR. GRANT: Yes. 17 MR. MACAULAY: Yes. But the southern end of it, my lord. The 18 village or town of Telkwa now. And then he bequeaths 19 to his grandson and sons -- sons and grandsons the 20 trapline \"to be held in trust,\" as he says, \"until 21 until decided different in the feasthouse, when my 22 Chief Name is passed on to Clarence Dennis.\" That 23 might be considered -- this is the 1986 will might be 24 considered to be only insofar, though, as the trapline 25 is concerned, his trapline at Buck Flats to be in 26 accordance with the plaintiffs' evidence of their 27 system. There were two other chiefs, only two, who 28 bequeath their -- these are head chiefs, who bequeath 29 their traplines to their successors and those are 30 Peter Bazil and Andrew Wilson. They are at tabs four 31 and 154 respectively. 32 The others of this ten I'm dealing with now, the 33 so-called traditional ones, the other trapline 34 requests made within a house were made to specific 35 persons. For instance, Daniel Cookson, tab 27. He is 36 Guxsan, the head chief, and he leaves his trapline - 37 we have seen this before - to two members of his 38 house, two particular members of his house, that's Ben 39 Woods and Edward Wesley, neither of whom is Guxsan. 40 MR. GRANT: And Peter Mark. 41 MR. MACAULAY: Well, the \u00E2\u0080\u0094 the trapline was left to Ben Woods 42 and Edward Wesley and then three people, including his 43 successor, get the beaver hunting grounds, which is 44 looked after separately, dealt with separately in the 45 will. Peter Mark, Arthur Sampare and David Milton. 46 Peter Mark is his successor as Guxsan, along with two 47 others. I am talking about now, my lord, I am saying 28600 Submissions by Mr. Macaulay 1 there are only two who left it to their successors, 2 period, not to their successors among others. And 3 there are other examples given, Richard Fowler at 35A. 4 Albert Johnson is an example of what I mean. That's 5 46. Albert Johnson, he leaves his registered trapline 6 at Brown Bear Lake to Sampson Muldoe to be shared with 7 his brothers, Earl Muldoe, Kenneth Muldoe, George 8 Muldoe and Lloyd Muldoe and Dick Crosbie and his house 9 to his wife Mary Johnson. And at tab 140 Weget, Chief 10 James Weget. He identifies himself as \"Chief of the 11 Kitzsegukla Band.\" Oddly enough he doesn't seem to 12 have got a name on the genealogy. His house is 13 identified. He is on -- he is on the Wiigyet 14 genealogy, but he is not given a chief's name, but he 15 describes himself as: 16 17 \"Chief of the Kitzsegukla Band do hereby make 18 a, Will, in writing to my Nephew Mr. Moses 19 Brown.\" 20 21 And he leaves what he calls: 22 23 \"I hereby surrender my Trapline estate to my 24 above named Nephew Moses Brown. A trapline 25 registered out at the Kitwincool area. A 26 trapline which belongs to my ancestors. And as 27 our Native Custom passes on to our Family as an 28 inherritance. Now, it remains into the Hands 29 of the above named Mr. Moses Brown.\" 30 31 THE COURT: Where is Miller Bay? 32 MR. MACAULAY: Oh, Miller Bay was on the coast, my lord. It was 33 a place where it was a TB hospital at one time. 34 THE COURT: Oh, all right. 35 MR. MACAULAY: But it was a place where seriously ill members of 36 the bands of the Babine Agency were sent. 37 THE COURT: Thank you. 38 MR. MACAULAY: It's closed now, I believe. It's not used for 39 that purpose. 40 MR. GRANT: I believe this trapline referred to here is outside 41 the trapline claim. It's within Kitwancool area, my 42 lord. 43 MR. MACAULAY: It may be, my lord, but it's a chief of the 44 Gitsegukla Band, a member of the Gitsegukla band who 45 says he is a Chief of Gitsegukla who is making that 46 request. There is an artificial -- of course that's 47 one of the problems. Here we have an artificial 28601 Submissions by Mr. Macaulay 1 removal of one of the Gitksan houses from this action. 2 But the evidence overall shows that people from 3 Kitwancool didn't live in splendid isolation. They 4 married people of other villages. 5 THE COURT: I understood they are Gitksan \u00E2\u0080\u0094 6 MR. MACAULAY: They are Gitksan. 7 THE COURT: They are Gitksans. 8 MR. MACAULAY: Yes. Yes. 9 MR. GRANT: I am not suggesting Mr. Weget was a Kitwancool 10 chief. I am saying that the land here, Weget had 11 certain rights, and I think you have heard evidence of 12 that. 13 MR. MACAULAY: Well, certain rights. It was called his trapline 14 on which he was registered. With the exception of 15 Peter Bazil, Daniel Cookson and Peter Ward and Douglas 16 Marsden, the testamentary disposition in the case of 17 traplines and hunting grounds involved a statement or 18 assertion of ownership usually phrased as \"my 19 trapline\" or \"my hunting grounds\". The term 20 \"trapline\" was used most times, or trapping ground. 21 Occasionally \"hunting ground\" is used and in the five 22 cases, the formula \"all I posess\" and similar 23 expressions are used. And we know from the estate 24 documents that it included traplines. In two cases, 25 Cookson and Morrison, there is a distinction drawn. 26 And we saw one of them just now between \"trapline\" and 27 \"hunting ground.\" They are used to identify separate 28 properties bequeathed to different beneficiaries. 29 It's tempting to think that a hunting ground means the 30 same as trapline, but that is not always so. If it's 31 so in some cases it's not in others. 32 My lord, the wills, these wills that we've 33 reviewed show that Indian reserve houses and 34 allotments are private property and they belong to and 35 are used by individual band members and their 36 immediate family. Traplines are dealt with by these 37 testators as personal property. They are bequeathed 38 to beneficiaries who are not members of the testators' 39 houses in a majority of cases. Not all but in a 40 majority of cases. And the traditional system of 41 inheritance and control by Hereditary Chiefs doesn't 42 appear to apply in the case of most traplines that are 43 the subject of bequests. 44 May I turn now, my lord, to the evidence and it 45 will deal again with traplines -- oh, can I say this 46 about the wills: These are documents drawn by the 47 ancestors of the plaintiffs themselves. This isn't 28602 Submissions by Mr. Macaulay 1 something written by somebody else about them. They 2 are the unself-conscious expression and have an unique 3 place in this body of evidence for that reason, with 4 the exception of that will made post motam litem, 5 perhaps. 6 I want now to, my lord, if I may, deal with the 7 evidence of Mr. J.V. Boys. Mr. Boys gave Commission 8 evidence. He's an elderly man. He was an Indian 9 Agent many years ago. And before I start with him I 10 would like to hand up some documents that are referred 11 to in Boys' evidence and in the Indian Agent 12 Mclntyre's evidence. There will be some reference 13 made. And they are both in this -- in a collection 14 which I hope will be useful. And I have -- in my 15 notes I refer to these exhibits, and they appear in 16 the order in which they are referred to. I hope to 17 anyhow. Can I explain, my lord, that because he gave 18 Commission Evidence Boys' transcripts are marked as 19 exhibits, so his first transcript is Exhibit 1213A and 20 another is 1213B, C, D, F. and G. The documents were 21 all collected in 1213E at various tab numbers. 22 THE COURT: What was that, five days of examination? 23 MR. MACAULAY: It was, yes, it was five. 2 4 THE COURT: Five volumes? 25 MR. MACAULAY: Five volumes. 2 6 THE COURT: Yes. All right. 27 MR. MACAULAY: One of the days was taken up with Mr. \u00E2\u0080\u0094 one and 28 a half days was taken up with Mr. Mackenzie's 29 cross-examination and it was held, I believe, that 30 that was not properly evidence before the court and so 31 Mr. Boys had then given Commission Evidence again and 32 Mr. Plant examined him as his witness. 33 THE COURT: Yes. All right. 34 MR. PLANT: Yes. Yes, Mr. Macaulay has got it almost right. 35 Mr. Mackenzie's cross-examination of Mr. Boys was 36 ruled by your lordship to be inadmissible as against 37 the plaintiffs. 3 8 THE COURT: Yes. 39 MR. PLANT: But insofar as it may have some bearing on the 40 counterclaim, it remained admissible. 41 THE COURT: All right. 42 MR. MACAULAY: Well, at any rate, I am not going to be referring 43 to the counterclaim just now. I'm referring to the 44 evidence. That's why -- a reason why there were so 45 many different days. Mr. Boys was Indian Agent at 46 Hazelton from September 1946 to mid 1951. I should 47 mention -- and it's not -- I don't give the reference, 28603 Submissions by Mr. Macaulay 1 but I don't think my friends will quarrel with me, he 2 was a Provincial policeman in the days when British 3 Columbia had a provincial police, before the war. And 4 his -- he was stationed in the area immediately north 5 of the claim area, that is on the Stikine, Telegraph 6 Creek, but he never -- his duties never actually took 7 him into the claim area, although he went right to the 8 border of it, to the Klappan area, which is due north 9 of -- immediately north of the claim area. After he 10 came back from the war he served as Indian Agent in 11 Hazelton from 1946 to mid 1951. He went on to serve 12 as the Indian Commissioner for British Columbia later, 13 but the evidence that I am referring to has to do with 14 his term of office in '46 to '51, which is now a long 15 time ago. When he took up his duties, the trapline 16 records were not in good order, so Boys had to spend a 17 lot of time dealing with this subject. And of course, 18 this affected the administration of estates. And if 19 your lordship could turn to tab one which corresponds 20 with my paragraph one, the tab corresponds to the 21 paragraph one. You will see his report on the 22 problems he was having, particularly those exhibits, 23 the letters he wrote at the time. The letters make 24 clear that trapping was an important subject in the 25 claim area at the time and he was having very 26 considerable difficulty in reconciling his maps, and 27 that was one of the problems he faced, his maps with 28 the Game Branch maps insofar as registered traplines 29 was concerned and that gave him a lot of concern. And 30 of course, the subject came up in his capacity as the 31 administrator of intestate estates and as the Indian 32 Agent dealing with estates that were the subject of 33 the Indian Act form of probate. But shortly after his 34 appointment Boys was informed by the Secretary of the 35 Kitwanga village about the crest system of trapline 36 ownership and he very quickly came to the disputes 37 that arose out of that. And that's at tab 2. There 38 are a couple of letters from a Mr. -- addressed to him 39 by Mr. -- one by Mr. Moore of Kitwanga and another by 40 Harold Sinclair. Looking at the handwriting you would 41 think that they are both the same author and one 42 suspects that Moore's letter was written on his behalf 43 by Harold Sinclair who was a well-known member of the 44 Kitwanga Band. And that bears reading. Mr. Moore 45 says: 46 47 \"Whereas I am one authorized a Councillor by 28604 Submissions by Mr. Macaulay 1 the Previous Indian Agent, Capt. Mortimer of 2 Hazelton. 3 I wish to advice, that Councillors had a 4 meeting yesterday with Chief Councillor W. B. 5 Morgan and Constable Bryant being present. 6 Subject of the meeting; Re Mrs. Thos. Harris 7 who has been causing Trouble in our Village, 8 year after year. Our Chief Councillor, Mr. 9 Morgan, pointed out readings from the Indian 10 Act. 11 That such unlawfull Trouble makers, should 12 vacate Off the Reserve, even though she or he 13 may be a Chief, So long as such is Proved to be 14 the timely Trouble maker, to other People.\" 15 16 And he goes on: 17 18 \"Now may I explain to your Office, Mr. Boys, 19 that the Game Warden, was here at Kitwanga last 2 0 Friday, November 22nd. And he gave us the 21 understanding that Mrs. Thos. Harris had 22 registered a trapline across Kitwanga which 23 does not even concern her by any means. And 24 that through her orders from her Registeration, 25 that we have been adviced not to trespass 26 thereon. To our knowledge, the fact that she 27 had registered the said trapline, without any 28 notification given to any of the villagers, 29 neither had she any witnesses to prove her 30 claim. 31 But that the registeration was issued to her 32 through her underground and false claim. 33 Now may I explain to your Office, that the said 34 trap line since from the very ancient 35 forefather's times, known definitely, the 36 property of the Eagle Clan. 37 And since registerations of trap lines, was 38 into effect that the Late Abraham Fowler, was 39 the first of the Eagle Clan to register the 40 said Property. After the death of Abraham 41 Fowler, the Registeration was transferred to 42 Charlie Sampare. 43 After the death of Charlie Sampare then the 44 Registeration was transferred to me. I am in 45 no doubt, but that Records, of the said grounds 46 is in your Indian office to date. 47 Now all of those ancient and of the previous 28605 Submissions by Mr. Macaulay 1 years, why didn't she, make her claim, in the 2 lawfull way. I refere to what Mr. Thos. Harris 3 said to me himself. That he was to obtain 4 Registeration through the Game Warden's Office 5 direct. 6 And that he will not have anything to do with 7 the Indian Agent, nor to deal through your 8 Office. That proves definitely, that they are 9 in full action to deprive our Ancient-Memorial 10 inherrited property. 11 Mr. Harold Sinclair, Councillors Secretary, and 12 a grandson of The Eagle Clan, tried to stop 13 them, causing and threatening for trouble. But 14 they made threats, to cause more trouble with 15 Mr. Sinclair. Therefor may we ask you to 16 settle this trouble at the earliest possibly 17 date. 18 Yours truly, 19 George H. Moore.\" 20 21 That may be a fair sample of what Mr. Boys was having 22 to contend with regarding the crest system and 23 disputes that arose out of it. At about the same time 24 he got a letter from Harold Sinclair, which was 25 intended to explain to the new agent the crest system. 2 6 And that's the next letter under the same tab. He 27 says: 28 29 \"As a Secretary for the Villagers here in 30 Kitwanga I have been adviced, by Village 31 Councillor;- to write into your Office, for 32 explanations. Whereas you are realized by our 33 Villagers that you are our New Indian agent, of 34 our Dept., and that you may not have the 35 understanding of our Kitwanga Band's, 36 individual trapping ground, Title Rights, 37 surrounding our Kitwanga vicinity. Since of 38 the very ancient times, that there are only a 39 certain number of clans here in Kitwanga, that 40 has any Title Rights of Trapping Grounds, as 41 ownerships. And there never was any False 42 Claim or any Dispute over their own known 43 Trapping ground Properties. But now, since the 44 last few years after the deaths of those Head 45 Chiefs, and Title holders. There seem to be 46 some People here, who are strongly Trying to 47 Deprive, such Properties by False Claims. 28606 Submissions by Mr. Macaulay 1 Because as at first of course, they knew 2 definitely that they had no grounds, or 3 anything to prove their claim. 4 We have also be given to understand, that one 5 of the Head Chiefs, of the Kitzsegula Band, 6 chief Stephen Morgan and Chief Arthur McDames 7 have Registered certain grounds west of 8 Kitwanga which shows the prove that there are 9 certain people, who are strongly working 10 underground, and at the back, of our people 11 here in kit Kitwanga. Whereas those two Chiefs 12 of the Kitzsegula came from as known 13 definitely, is from the Kitzsegula Band. And 14 befor they can take up any ground property 15 within the vicinity of Kitwanga they must get 16 the approval from our head Chiefs, sanctioned 17 by our Indian Agent. Because as you will find 18 in your office of course that they are 19 Registered, as head Chiefs of the Kitzsegula 20 Band, and they have their own Tribal Clans 21 within their Band and Properties. There are 22 others here in Kitwanga, who are also trying 23 that same path of crooket work, who certainly 24 has no grounds to prove for here. And still 25 trying to make underground application and 26 claim of trap line Registeration at the back of 27 our known ownerships; such as Mr. and Mrs. 28 Thos. Harris and others. 29 Therefor now befor any further dispute which 30 might cause serious trouble later, may we ask 31 of your kindness not to issue any more trap 32 line Registerations to anyone, untill such a 33 time when our main Head Chief, Mr. David L. 34 Wells, and Chief Joe Bright arrives back home 35 here in Kitwanga, also Chief Richard Lattie, 36 Chief George H. Moore, Chief Robert G. Harris, 37 Chief Fred Johnson who are now already here. 38 Those are the main holders of Trapline 39 Properties, being that they are the new 40 succeedor-in-Chiefs may it also be known, sir, 41 Mr. Boys, in your Office; - that since the 42 year 1922 shortly after I arrived back home 43 from School that I have been Authorized, as a 44 Secretary and Interpretor for our People here. 45 And later, I have been appointed as a Local 46 Branch President, of our Native Brotherhood of 47 B.C. Organization and still in that possition 28607 Submissions by Mr. Macaulay 1 to date. 2 Therefor the fact, that since those number of 3 years, I have experienced all Properties and 4 Ownerships within our vicinity, may I also 5 state that my Late Father is Mr. Alfred 6 Sinclair, former Chief Alfred Ackgaud, Brother 7 of Chief Wallace Laknits, former Chief 8 We-Clan-gwak, 2nd Head Chief here succeeded by 9 Chief Joe Bright now. Therefor upon your 10 visitation here for investigation, I shall be 11 very glad to help you. 12 Yours truly, 13 Harold Sinclair. \" 14 15 So the system, such as it was, was explained and it 16 was apparent that there were lots of disputes about 17 that. However, the system was working or not working, 18 it gives some idea of what the reasons for the 31 19 trips that Mr. Loring made to the K'sun Canyon and the 20 endless trips to settle disputes elsewhere. There 21 were claims made by crests that Boys had to deal with 22 and there were competing claims between heirs at law 23 and the crest claimants. And I think that the 24 documents speak -- the reference to the evidence is 25 there. At tabs nine, eleven and twelve will show. 26 That's tabs nine, eleven and twelve of the discovery, 27 but we have collected that under tab 3 of the book. 28 It's the three documents I want to refer to. One is 29 to Mr. Ray Morgan of Kitwanga and this is 1947 and it 30 reads -- it's a short letter. 31 32 \" I have your letter of November 6th 33 concerning disposal of Joshua Ridley's 34 trapline. Before any disposal of this trapline 35 can be made I shall first require to know: 36 37 1. Did he leave a Will? If so I shall require 38 a copy of it. 39 40 2. Who were his immediate relatives; sons, 41 daughters or grand-children or failing any 42 of these, brothers or sisters? 43 44 You will understand that under the 45 provisions of Indian Act where an Indian dies 46 intestate his effects and amont them his 47 trapline descend as follows: 28608 Submissions by Mr. Macaulay 1 One third to his widow 2 The other two thirds to be divided among 3 his children. 4 5 We take no cognizance of your Crest system 6 so the sooner your people agree to abandon it 7 the better it will be for the administration of 8 your Indian affairs. 9 If you will assist in determining who are 10 the heirs of this estate and if they will turn 11 the trapline over to you then there can be no 12 objection from a legal standpoint.\" 13 14 That shows in fairly brief compass the collision 15 between, in some cases anyhow, between the heirs at 16 law and the Crest heirs. 17 The next document, of course that same letter from 18 George H. Moore that we had seen before about Mr. -- 19 Mrs. Thomas Harris and her alleged shenanigans and 20 another one -- and we have also Boys' reply to that 21 letter of December 2, 1946. He says: 22 23 I have your letter of Nov.25th. I wish to 24 advise that Mrs. Thomas Harris has a legally 25 registered trap line on the South side of the 26 Skeena River near Kitwanga Reserve, transferred 27 to her by Chief Lacknits in 1943 through this 28 office. It will remain her trap line in spite 29 of any crest, and any person trespassing on it 30 is subject to prosecution.\" 31 32 So we know that Chief Laknits, who was one of the Head 33 Chiefs of Kitwanga, one of the great names of 34 Kitwanga, had transferred to Mrs. Thomas Harris this 35 trapline in 1943. This was not -- apparently not a 36 will transaction. It was a transfer by the chief to 37 Mrs. Harris for his own good reasons and there was an 38 issue being made by Chief George Moore. Boys reported 39 that a number of traplines belonged to companies or 40 crests and while the younger people preferred descent 41 of property to the family, a number of the old people 42 wanted the crest system inheritance. And I will refer 43 here to some of the evidence he gave and it's 44 collected, my lord, at tab 4. This is his -- just 45 transcripts of his evidence. I don't see that page 58 46 helps in this regard. But at 145 at the top of the 47 page it's cross-examination by Mr. Rush. Starting on 28609 Submissions by Mr. Macaulay 1 line, one question: 2 3 \"Q Now, Mr. Boys, would you agree with me that the 4 conflict with the rules of descent under the 5 Indian Act and the rules of the descent under 6 the crest system intensified -- perhaps I 7 should ask you -- began with the insistence of 8 the Indian Agents in enforcing the provisions 9 of the Indian Act? 10 A Well, I don't know where it began, but 11 certainly that was -- that was the basis of the 12 conflict at the time that I was administering 13 the affairs at the agency. 14 Q The -- this was not a new conflict to the 15 agency, was it? I mean, it pre-dated your 16 tenure? 17 A Apparently not, although my predecessor hadn't 18 done very much in the way of getting trap lines 19 registered.\" 20 21 And he goes on: 22 23 \"Q Mr. Boys, Mr. Mallinson \u00E2\u0080\u0094 \" 24 25 That's the previous agent, my lord. 26 27 \" -- had in fact, had he not, raised the question 28 of the conflict, if you will, between the two 29 systems of devolving property with the 30 superintendent, Mr. MacKay? 31 A Yeah, I think -- I think I recollect reading 32 that. 33 Q All right. Would it be your -- would you agree 34 with the statement that a large majority of 35 traplines in the Babine Agency belonged to 36 crests or sub-crests? 37 A Yeah. Well, a lot of them were marked down 38 as -- as crest areas or company areas. Very 39 often the -- the marking on the map would be 4 0 somebody and company. 41 Q All right. It would be the case, would it not, 42 Mr. Boys, that almost all of the traplines in 43 the Babine Agency were company traplines? 44 A Not in the eastern half of the agency. A large 45 proportion the of them in the -- in the 46 Skeena -- Skeena tributaries were.\" 47 28610 Submissions by Mr. Macaulay 1 And at page 148 Mr. Rush shows him a letter from Mallinson to MacKay and at the top of 148 he says -- this is line five: \"Q -- it is the case that Mr. Mallinson did not follow these policy guidelines, to your knowledge? A Well, he may have to some extent, but certainly there was a lot left undone when I succeeded Mr. Mallinson in the agency. Q And in terms of what was left undone, what you meant by or mean by that, or perhaps meant at the time, was that the property of the deceased Indian people had not been transferred in accordance with the provisions of the Indian Act? A Right.\" And then at lines 2 0 and 21: \"Q And that's the state of affairs as you found it in '46 and '47 when you were in the Babine Agency? A Yes, broadly speaking that was it.\" And then at line 23: \"Q It was your understanding that throughout the period of time of your tenure as the Indian Agent that the Indian people sought to transfer their rights or title in traplines by means of their crest system. A No, not by any means universally. A great many of them wanted them transferred to -- to the immediate family. There was a conflict between -- well, mainly between a number of the older people, who advocated the continued use of the crest system, and the younger members of the Indian society, who preferred the descent of property to the family. We got a great deal of support for that.\" And at page 157, the next page that's included here, this is still the cross-examination by Mr. Rush: \"Q And now there were, I think you've said, disputes among Indian trappers as to who was shows 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 28611 Submissions by Mr. Macaulay 1 entitled to trap on certain trapping grounds? 2 A Yes. 3 Q This was -- and it is fair to say that some of 4 these disputes arose because of the application 5 of the policy to require the devolution of 6 property in an estate in accordance with the 7 rules of the Indian Act? 8 A Yes, some of the older Indians, as I stated 9 previously, were not happy. They preferred 10 the -- the crest system rather than the -- 11 rather than the devolution of property as 12 required by law.\" 13 14 Now I'm on paragraph five of my short submission here, 15 my lord, where I say: The majority of Gitksan 16 families went to the coast to engage in commercial 17 fishing and to work in the canneries from May to 18 September. In Mr. Boys' time. And the evidence there 19 is at tab five, page 54 and 55 where he says -- and 20 this is on his examination in chief by Miss 21 Koenigsberg. He says at line 40, he says -- well, 22 page 54 line 40: 23 24 \"A Well, so far as the people resident along the 25 Skeena, the Gitksan people, the majority of 26 those people habitually went to the coast in 27 the late spring, and they went as a whole 2 8 family. The men went down, and they went to 29 different canneries that were then functioning 30 at the mouth of the Skeena. And there were, as 31 I recollect, five different canneries. And 32 these different -- these various families from 33 different reserves went to the same cannery 34 year by year, and they had -- they had duties 35 to perform when they got down there. The men 36 very largely were used in repairing boats and 37 preparing them for the gill-netting season. 38 They were almost gill-net boats, two-men boats 39 that were handled with a small inboard motor on 40 them, and they were not -- they were not 41 suitable for fishing in the open ocean, but 42 only in the estuary of the river. 43 Q Okay. Now, what you're now telling us, is that 44 something that you had described to you or did 45 you observe it yourself? 46 A That's something that I know from my own 47 personal observation because I went down from 28612 Submissions by Mr. Macaulay 1 time to time and saw them at work. I saw 2 them -- I saw the women at that time repairing 3 the nets and preparing the nets for the 4 upcoming season, also preparing the 5 fish-processing area. And the womenfolk would 6 be engaged in the processing of the fish when 7 the season opened, and the menfolk were 8 bringing in the -- the fish. So I saw this 9 myself when I went down. And I saw numerous 10 people from my own agency down there and -- and 11 also the cannery operators, and I have a fairly 12 good firsthand knowledge of what went on. And 13 they stayed down there until -- the final run 14 would probably have been the chum salmon and 15 the -- oh -- probably early October, the end of 16 September or early October, and after have that 17 they would start coming back to the villages.\" 18 19 The major source, my lord, of -- I am in paragraph six 20 now -- of income for the Gitksan was the commercial 21 fishery but trapping and logging also played an 22 important part. And I'm referring again to his 23 evidence at page 58 of book A and page 256 of book F 24 and that's there collected at tab 6. Here is 58 again 25 that we saw before, and it's a little more relevant 26 here. It's an answer. He had been asked the effect 27 of children attending school on trapping and his 28 answer was: 29 30 \"It's difficult to judge because actual 31 trapping was an on-again, off-again thing. If 32 there had been a particularly good fish run and 33 a particularly good year of income from 34 fishing, then there wouldn't be the same 35 attention to trapping in the wintertime that 36 there would be in a lean year of fishing. I 37 think families enjoyed -- or trappers enjoyed 38 getting out for what they termed the beaver 39 hunt in the spring during the break-up, and 40 they tended to go out at that time, but some 41 families, if the fishing year of the previous 42 summer had been a good fishing year, there 43 wouldn't be as many leave the village to go 44 trapping.\" 45 46 And then at page 256 starting at line eleven, 47 question -- and this is examination in chief by Mr. 28613 Submissions by Mr. Macaulay 1 Plant: 2 3 4 \"Q You spoke earlier about other economic 5 opportunities for those people. Can you give 6 examples of other sources of income that the 7 Indian in the Babine Agency would have had 8 during your time there? 9 A Well, the major source of income was fishing at 10 the coast and the entire family was in the 11 habit of going to the coast towards the end of 12 May or June and the womenfolk would be employed 13 mending nets and the men would go down first 14 and overhaul boats and gear and then the men 15 would fish and when the fish came into the 16 canneries the womenfolk would work processing 17 the fish. 18 Q Apart from fishing at the coast and trapping 19 were there any other sources of income -- 20 A Yes. 21 Q -- for the Indians? 22 A There was a limited amount of logging. Mostly 23 cutting poles and then there were individual 24 occupations that are fairly numerous. There 25 may have been one or two Indians employed doing 26 surface work at the Silver Standard Mine. 27 28 And at the bottom of the page starting at line 38: 29 30 \"Q You said there was a limited amount of logging. 31 Would you describe the logging activity that 32 went on during your time in the Babine Agency? 33 A Well, mostly Indians were employed working for 34 a pole company or a logging company. And 35 logging was done either with horses or with 36 small tractors. It wasn't the type of high 37 lead log that's done around the course here.\" 38 39 THE COURT: Probably means coast, doesn't it? 40 MR. MACAULAY: The coast. He must have meant the coast. He 41 gave evidence in Victoria, my lord. 42 Now, returning to my submissions -- rather, my 43 summary of Mr. Boys' evidence. The Indians in the 44 Agency hunted for -- hunted game for food and 45 non-Indians also hunted. And Mr. Boys never heard 46 that non-Indians were limited in their hunting by any 47 crest boundaries. And I give a reference there. 28614 Submissions by Mr. Macaulay 1 And now paragraph eight. It was the policy of the 2 Department of Indian Affairs and its predecessor 3 departments to enforce the inheritance provisions of 4 the Indian Act regarding traplines although this was 5 contrary to the crest system. There was a -- thought 6 to be, anyhow, a conservation aspect to this policy. 7 There are two -- I am referring to there under tab 8, 8 I have some letters from Mr. MacKay, who would -- had 9 been referred to before, a letter of MacKay, the 10 Indian Commissioner, of June 16, 1947 and another 11 letter from the same MacKay to Mallinson, of August 12 14, 1941, which is to the same effect, about the 13 enforcement of the Indian Act, whatever the crest 14 system might provide, and then there is a letter, the 15 earliest which is the last in this collection is a 16 letter from Mallinson of August 8, 1941. And perhaps 17 we might start with Mallinson's letter where he 18 advises his superior, Mr. MacKay, as follows: 19 20 \"I wish to advise you that a large majority of 21 traplines in this Agency belong to Crests or 22 Sub Crests, for the benefit of all families 23 comprising such.\" 24 25 THE COURT: I am sorry, where are you, Mr. Macaulay? 26 MR. MACAULAY: Well, there is three letters under tab 8 and 27 that's the third, or the last one. 2 8 THE COURT: Yes. Yes, I have it. Thank you. 2 9 MR. MACAULAY: 30 31 \"They are not individually owned and the person 32 elected head to look after each trapline holds 33 that position in trust for the crest, and on 34 the death of such person a new head is elected 35 to take his place. In other words, almost all 36 the traplines belonging to this Agency are more 37 or less Company traplines, and the head has no 38 power to will the trapline unless a successor 39 is appointed during his lifetime. 40 Will you kindly advise if this 'Crest' 41 system should be continued in the future? That 42 part of the Indian Act under the heading 43 'Descent of Property' does not appear to apply 44 to such cases.\" 45 46 And he got a reply to Mr. MacKay which says: 47 28615 Submissions by Mr. Macaulay 1 \"Section 26 of the Indian Act provides that on 2 the death of the Indian his property of all 3 kinds shall descend as set out in the Act. 4 Traplines in your Agency are presumably 5 registered in the name of an individual, family 6 or group. If it is a group registration and 7 one of the group dies, his interest would pass 8 to his next of kin as required by the Act, and 9 the same would apply in the case of a trapper 10 who is the head of a family. 11 The 'Crest' system of descent or ownership 12 of property is not recognized by any Act in 13 Canada so far as I am aware. It devolves upon 14 The department, as guardians of the Indians, to 15 ensure that their estates are handled according 16 to law and the failure of an officer of this 17 Department to do so would, in my opinion, 18 render him liable to civil action by the 19 aggrieved heirs, in that he failed to comply 2 0 with the requirements of the Department and 21 clear-cut legislation on the subject. No 22 Indian Agent has power to vary provisions of 23 the Act or permit any other person to do so. 24 The only safe course is to follow it 25 explicitly, seeking clarification from the 26 Department where he is not sure of the 27 interpretation. Consequently, it will be 28 observed that local Indian custom would not 29 hold good in a court of law and should be 30 avoided.\" 31 32 And he goes on to say that one of the dangers of not 33 adhering to this policy is that when a son thought his 34 father was about to die the son would go and trap the 35 hell out of the trapline and leave it without enough 36 animals. That was MacKay's opinion. 37 The third letter which is the first one on this 38 tab, the most recent is a letter to Boys from the same 39 man, Mr. MacKay, where he says in the second 40 paragraph: 41 42 \"It is considered that a great deal of the 43 question in dispute could have been disposed of 44 in the past by a determined effort on the part 45 of the Game Warden and the Indian Agent and 46 that your predecessor,\" 47 28616 Submissions by Mr. Macaulay 1 That is Mallinson, 2 3 \"should not have permitted Estates involving 4 traplines to have drifted unattended. The 5 Indian Act and the Game Act are quite clear and 6 there was no excuse for re-registering the 7 lines of deceased trappers in the names of 8 other than those entitled to them or the 9 Administrator and it is not felt that this 10 course should be departed from unless the 11 responsible official is prepared to face, at a 12 future date, an action in court by an aggrieved 13 heir. 14 It seems to me that where the registered 15 owner of a trapline died intestate 16 administration should be applied for without 17 delay and if the rightful heir cannot be 18 immediately determined someone could be 19 designated, with the consent of the Game 20 Branch, to care for the line pending settlement 21 of the Estate. Obviously the simple expedient 22 is to require each registrant to make a will.\" 23 24 So that the crest system was very much in evidence in 25 the early '40s and the policy of a Department 26 concerning that was pretty plain as well. 27 If you would look at MacKay's letters of 1941 and 28 1947. Now, I am on item nine, this is a different 29 subject, my lord. Boys gave evidence that members of 30 the Kisgegas Band no longer lived at Kisgegas during 31 his tenure, although food fishing was still being done 32 there in 1947, at least. There were people going 33 there to food fish, according to his report which is 34 referred to in that exhibit. And pre-emption ended 35 the trapper's right to continue trapping on that part 36 of his trapline included in the pre-empted lands. And 37 there is an exhibit dealing with that. Boys gave 38 evidence also that the introduction of the Family 39 Allowance payments to mothers of children attending 40 school had the effect of breaking up the old Indian 41 family trapping unit and Boys gave evidence of that, 42 and the reference is there. 43 Boys gave evidence that fur prices were 44 disappointing in 1946 to '51, but he was talking about 45 what he recalled of the pre-war fur prices. It was a 46 curiosity in the Depression. The fur prices were very 47 high and he was comparing what he recalled of fur 28617 Submissions by Mr. Macaulay 1 prices on the Stikine before the war with prices 2 during his tenure. But in the season following Mr. 3 Boys' departure, he left in June, and in the '51 4 season there was a catastrophic fall in fur prices 5 which lasted for several years. Trapping stopped but 6 it didn't revive when prices improved. And for 7 that -- of course Boys is gone, and for that 8 proposition one has to refer to the evidence of Mr. 9 Benson, Richard Benson. Richard Benson gave 10 Commission evidence. He was not examined before the 11 court. He was one of the key witnesses for the 12 plaintiffs in the matter of boundaries of traplines. 13 He gave evidence regarding many houses and many 14 traplines, because he had spent his life as a trapper 15 and knew -- it was something like the late Stanley 16 Williams in that regard. He rather than the chief of 17 the house gave evidence where the boundaries had been? 18 For instance, he trapped on Mary McKenzie's trapline 19 in the 1930's. Mary McKenzie has never seen that 2 0 trapline. But he gave evidence about what happened in 21 1951. At the bottom of page 39, right at the bottom 22 he is being examined in chief by Mr. Rush on this 23 Commission Evidence. This is not a cross-examination 24 on an affidavit. This is one of their witnesses who 25 was not examined at the -- brought down to give 26 evidence at the trial because he was an elderly man. 27 And the question at line 46 is: 28 2 9 \"Okay. And did you remember why you stopped 30 going out there, why did you stop trapping that 31 year?\" 32 33 This is 1951. And over the page is the answer: 34 35 \"Well, see, the reason why I stopped there, you 36 know, because, you see, the Hudson Bay Company, 37 I got stuff to take out there like groceries 38 and things like that, and I was out there all 39 winter. Oh, gosh, I just about went through 4 0 the ground when I got home. The price of fur 41 went down so low there is -- I just actually 42 get nothing for all the furs that I got. So 43 that's the reason why I stopped trapping -- 44 everybody, not just me, the whole works of 45 them. 4 6 Q All right. 47 A We got nothing for what we got there. 28618 Submissions by Mr. Macaulay 1 Q Okay. Now, the next year, the next year, did 2 you go pole cutting, is that what you did? 3 A Yes. That's when I started go out and start 4 getting cedar poles. 5 Q And you did that for a number of years, did 6 you? 7 A Yes. 8 Q Okay. Now, I understand that you also worked 9 at the coast in the commercial fishery? 10 A Yes, I was -- when the sockeye season is open I 11 went down and fished.\" 12 13 And he says for about 15 seasons. Now, at page 118 on 14 cross-examination by Mr. Plant, the same subject came 15 up, towards the bottom of the page. Well, not the 16 bottom of the page. Say line -- it would be 25. 17 Unfortunately there seems to be -- the second digits 18 seem to be eliminated in the photocopying process. 19 But the middle of the page? 20 21 \"Q The fur buyer -- the Hudson Bay would lend you 22 the money so that you could buy supplies? 23 A Yes. 24 Q And then you would come back with the furs -- \" 25 26 that should be, 27 28 \" -- and pay for your supplies? 29 A Yes. 30 Q And if there was anything left over, then you 31 would get to keep that? 32 A Uh-huh. 33 Q You nod. Is that -- is that because there 34 wasn't anything left over? 35 A Yeah. Well, there is something like that, 36 that's why I quit trapping. Next time I come 37 back I get nothing. 38 Q So \u00E2\u0080\u0094 39 A I got so many hundred dollars I owe the Bay and 40 my fur was just nothing.\" 41 42 And Mr. Rush says: Some system, hey?\" 43 44 \"Q That was in 1951. 45 A Yeah. Oh, gosh. 46 Q The prices just dropped? 47 A Yeah. Into nothing. I was coming home I 28619 Submissions by Mr. Macaulay 1 figure how many hundred or thousand -- many 2 thousand dollars I will get. I didn't even 3 make a thousand with all the -- \" 4 5 And page 119 doesn't add anything to that, my lord. 6 We'll go to page 168 now, 168 and 169 where I 7 cross-examined the same witness on the same subject. 8 At line 16: 9 10 \"Q Well, when you were trapping before 1951, was 11 Chris Harris in business then? 12 A Yes. 13 Q And did he buy furs? 14 A Well, he help out some -- some people, yes. 15 Q But did you sell your furs to Chris Harris? 16 A No. 17 Q You always went to the Hudson Bay Company? 18 A Yes. That's right. There is three buyers 19 here. Sometimes the fur buyer comes around, 20 you see. That's when the fur goes up a little 21 higher. Because the Hudson's Bay don't want us 22 to let that guy get the fur. 23 Q You mean the price went up when there was 24 competition? 25 A Yes. That's right. 26 Q After 1951 the fur prices were low for a long 2 7 time? 28 A Yeah. That's what I was telling, you know. 29 That's when I went -- I used to make lots of 30 money trapping. I trapped all the fall through 31 the winter until spring. But this one year, 32 well, I didn't know anything about that. 33 That's why I quit. Everybody, not just me. 34 There is lot of trappers in Kispiox right here, 35 too. In Hazelton. Oh, boy, when I get back I 36 heard about the fur. Well, I went into the 37 fur -- Hudson Bay and I let them have my fur, 38 but the Bay was good. Although I didn't pay 39 all my bill, but she still give me -- he just 40 took half of what I got, but still I still owe 41 him quite a bit of money. You see, when I get 42 the money to pay for that, I go down fishing 43 and I got enough money down there. When I come 44 back I turn it into the Bay. 45 Q You went down to the coast to do commercial 46 fishing? 47 A Yes. That's why the Hudson Bay still like me 28620 Submissions by Mr. Macaulay 1 today. 2 Q And that's when you decided to go to start 3 cutting poles instead of trapping? 4 A Yes. Yes. 5 Q Did the fur price ever get better -- 6 A Well \u00E2\u0080\u0094 7 Q \u00E2\u0080\u0094 after that? 8 A They stay so low for I don't know how many 9 years. So that's why I forgot about trapping. 10 I go and cut cedar poles and you know how much 11 I got when I got 30 marten. I was cutting 12 cedar poles. I see some marten tracks so I 13 start setting the trap. So all -- gee, all the 14 traps that I sudden down I got marten on every 15 one of them. 16 Q Yes. 17 A There was so many of them. 18 Q Where \u00E2\u0080\u0094 19 A Every time I go I get 31. You know, 31 marten 20 I didn't even make hundred dollars out of that. 21 Just five for one, three dollars a piece. 22 Q Has the price for marten furs improved in the 23 last ten years? 24 A Yes. It does improve. But I still work, 25 though. 26 Q Are there many trappers working out of Kispiox 27 now or out of Glen Vowell? 28 A Yes. They all work in that mill. 29 Q Oh, they are not working as trappers? 30 A No. 31 Q Are there many people trapping now in along the 32 Nass or the Skeena? 33 A No. I hardly think. Just a very few. The 34 prices are good, but I don't know why they 35 don't go out. 36 Q Well, are there not many people who know how to 37 trap now? 38 A I think so. You see, but in other words, I was 39 surprised when I see the price of that, the 40 wolverine. When I was trapping they usually 41 give me a dollar and a half or maybe three 42 dollars for one. But now it's over three 43 hundred for one. That's wolverine.\" 44 45 My lord, I added the Benson evidence at the end of 46 Boys because it followed immediately Boys' departure 47 and it tends to explain what happened, the evidence 28621 Submissions by Mr. Macaulay 1 that follows. I will be dealing after the adjournment 2 with Mr. Mclntyre. You remember Mr. Mclntyre. He was 3 another Indian agent. 4 THE COURT: Yes. 5 MR. MACAULAY: He came into the claim area after this situation 6 with Mr. Benson. 7 THE COURT: All right. 2 o'clock. 8 9 (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON BREAK) 10 11 I hereby certify the foregoing to 12 be a true and accurate transcript 13 of the proceedings transcribed to 14 the best of my skill and ability. 15 16 17 18 19 20 Laara Yardley, 21 Official Reporter, 22 UNITED REPORTING SERVICE LTD. 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 28622 Submissions by Mr. Macaulay 1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Macaulay. 5 MR. MACAULAY: My lord, I now propose to deal with the evidence 6 of Mr. Mcintyre. 7 THE COURT: All right. 8 MR. MACAULAY: Who was the Indian Agent or superintendent as 9 they came to call him then at Burns Lake. At least 10 his headquarters were at Burns Lake. And his area 11 included the southern part of the claim area south of 12 Houston. It also included the Babine Indians on 13 Babine and Tatla Lakes and the Cheslatta. He served 14 as Indian agent from 1964 to 1969 which was almost a 15 generation later than Mr. Boyes. And he gave evidence 16 about trapping by the Wet'suwet'en and by others by 17 his bailiwick. And he gave evidence about local 18 employment. And he identified his semi-annual reports 19 from October 1965 to October '67. And my recollection 20 was that he gave -- his evidence was that they must 21 have stopped requiring the semi-annual reports about 22 that time in 1967. 23 24 Mr. Mcintyre gave evidence that there was very 25 little trapping done by the Burns Lake and Omineca 26 Band members during his tenure. And his efforts to 27 encourage them to make better use of their traplines, 28 because they had registered traplines, didn't meet 29 with success. In that connection, my lord, that book 30 I have handed up contains tabs that correspond with 31 the paragraph numbers in my notes for the oral 32 submissions. And here I'm referring in this 33 connection to volume 303 of the transcript at page 34 22880 and also at pages 22886 and 7. One of his 35 annual reports, the one for April 1, 1966 was drawn to 36 his attention. And the following, in particular, was 37 read to him. It said in this report under the heading 38 \"Fur and Wildlife\": 39 40 \"Increased fur prices this year probably 41 resulted in a slightly increased fur catch, but 42 trapping remains unpopular with most of the 43 younger Indians. Most fur is caught in the 44 immediate vicinity of the reserve where the 45 trapper can return home each evening. 46 47 The question was: 28623 Submissions by Mr. Macaulay 1 2 \"Q You reported that at the time? 3 A Yes, I did. 4 Q Did those remarks apply to the Omineca Band 5 members? 6 A Yes. 7 Q And to the other band members in the -- 8 A Yes. 9 Q -- Burns Lake area? 10 A Yes.\" 11 12 The second portion of his evidence that I want 13 to -- to which I want to refer your lordship has got 14 to do with another entry on another of his annual 15 reports, semi-annual reports under the heading \"Labour 16 and Placement\". And the particular portion of that 17 report that was drawn to his attention was as follows, 18 and I quote: 19 20 \"In addition to this we will also try to 21 encourage Indians to make better use of their 22 traplines. We have not been too successful in 23 this regard in past seasons, but I believe the 24 amount of fur that exists on most Indian 25 traplines certainly justifies our efforts in 26 trying to get Indians out to trap.\" 27 28 And the question asked of him was at line 16: 29 30 \"Q Could you tell by going around your bailiwick 31 or speaking to the band members how many of 32 them were trapping? 33 A I couldn't tell on pure, you know, in real 34 accurate terms. All I could go by was my 35 perception that they were not -- that they were 36 not trapping a great deal. I obtained those 37 perceptions because I saw very few traps. I 38 saw very little evidence of people out setting 39 traps. In my visits to their homes I almost 40 never noticed any fur being prepared. I heard 41 very little discussion about trapping success 42 or lack of trapping success or anything to do 43 with trapping and yet I was aware that these 44 people possessed traplines. And I was -- I was 45 told, and it seemed obvious from trapline maps 46 that occasionally attracted my attention, that 47 these people had traplines in over -- over 28624 Submissions by Mr. Macaulay 1 remote areas arched that there must be some fur 2 there and that maybe I as Indian superintendent 3 ought to be doing something to encourage 4 trapping.\" 5 6 Now, over the page at line 6 I asked: 7 8 \"Q Did you have any success in getting more 9 trapping going while you were superintendent at 10 Burns Lake? 11 A Oh, in retrospect I don't think so.\" 12 13 Then, my lord, at paragraph 3 I point out that Mr. 14 Mcintyre was in almost every Indian home at one time 15 or another. He saw few traps, showshoes, furs being 16 prepared; he heard little discussion about trapping. 17 We have seen those entries just now. But there is an 18 additional one at volume 304 at pages 23009 and 10. 19 And that's under tab 3. We have the one we just read. 20 But the next volume, volume 304, this is 21 cross-examination by Mr. Grant. The long question 22 starting at line 29: 23 24 \"Q One of the things that you said in answer to a 25 question of Mr. Macaulay was you talked about 26 your visits to people's homes. And you said in 27 your visits to homes you didn't notice fur 28 being prepared. The way you described it it 29 appeared to me, and I may be wrong, that you 30 had a picture in your mind of what you were 31 thinking of when you gave that answer 'cause 32 you explained it fairly clearly. Where were 33 you thinking of that you went? Whose homes are 34 you thinking of that you went to that you 35 didn't see any evidence of fur -- of trapping? 36 I'm not -- if you can't remember individuals 37 that's fine, but really I'm asking are you 38 talking about people in Woyenne and Burns Lake 39 reserve that were proximate or are you talking 40 about people at Cheslatta? 41 A I was in most everyone's home at one time or 42 another at various times of the year throughout 43 the agency and throughout my time there.\" 44 45 And over the page he says: 46 47 \"During the course of my visits I saw greater 28625 Submissions by Mr. Macaulay 1 evidence of fur preparation being done at 2 places like Smithers Landing and Fort Babine 3 and Topley landing than I did --than I did 4 elsewhere.\" 5 6 And then he continues: 7 8 \"A And if I didn't see fur being prepared I saw 9 other subtle signs of trapping activities such 10 as snowshoes leaning against the back door or 11 traps hanging in the veranda or things of that 12 nature. 13 Q From my -- from my following, and I roughly 14 sketched, this isn't to bind you, but you 15 described as your area that Smithers Landing 16 would be one of the northern most villages? 17 A The main village was, of course, at Babine, or 18 as I had been referring to Fort Babine right 19 there.\" 20 21 And at the bottom of the page, line 41. Starting at 22 line 41, Mr. Grant persist in the question: 23 24 \"Q Okay. Now, so it's in these northern -- your 25 clarification assists, but I just want -- I 26 think that my point -- my understanding may 27 still be correct that it was in these northern 28 more villages that you saw more evidence of 29 trapping and fur as you've described? 30 A Yes.\" 31 32 And, of course, Old Fort and Fort Babine and 33 Smithers Landing and so on are outside the claim area. 34 Those are the villages of the Babine Indians, the 35 Babine Band. 36 37 And I am on paragraph 4 now. There was 38 practically no fishing in that part of the Burns Lake 39 agency that lies within the claim area. And I rely 40 here, my lord, on volume 303, page 22883 and 4. And 41 at tab 4 of my book there is that excerpt. At the top 42 of the page I drew his attention to something that 43 appeared in one of his reports which read: 44 45 \"We have had discussions with Provincial 46 authorities concerning a proposal to allow 47 Indian to fish local lakes for whitefish and to 28626 Submissions by Mr. Macaulay 1 sell them locally. 2 3 You see that? 4 A Yes. 5 Q What lakes were you talking about? 6 A The main focus and only focus of this -- of 7 this particular proposal related to Francois 8 Lake and specifically involved a few members of 9 the Omineca Band. I discovered some months 10 previous to this that certain members of the 11 Omineca Band were catching commercial grade 12 whitefish, which I believe, and I am not an 13 expert in this, but I believe they are a specie 14 exactly the same as the commercial type of 15 whitefish found in northern Saskatchewan and 16 Manitoba. As my report says, I saw here an 17 opportunity perhaps where this resource could 18 be -- could be developed and I asked for and 19 obtained a feasibility study on the -- on 20 developing this fishery. This was in fact -- 21 it was in fact an ARTA program that undertook 22 the study. The outcome of the study was that 23 the reproductive capacity of Francois Lake in 24 respect to this particular fish species was 25 not -- was not suficient to support a 26 commercial fishery. And so it never went 27 beyond the feasibility study stage. 28 Q Who were the people catching these fish in 29 Francois Lake? 30 A Mainly a lady by the name of Mary Jane Morris 31 and immediate family who were members of the 32 Omineca Band and in fact Mary Jane, either then 33 or shortly before or shortly thereafter, was 34 chief of the band. 35 Q And you knew her? 36 A Oh, yes. Very well. 37 Q And her family? 38 A Uh-huh. 39 Q Do you know anyone else who is catching those 40 fish in Francois Lake? 41 A No. I know of no other person that caught 42 them, although it's possible that there were 43 other members of the band who -- who set nets. 44 The reason I say that I believe that Mary Jane 45 was the only one that caught the fish was that 46 to the best of my knowledge she's the only one 47 that had a boat on the lake. And the place 28627 Submissions by Mr. Macaulay 1 where she used to catch the fish was 2 immediately off-shore from her home. 3 Q And the other band members didn't have boats -- 4 A No. 5 Q -- who were living on the lake? 6 A Well, there weren't that many of them actually 7 living on the lake.\" 8 9 He is talking about Francois Lake now. 10 11 \"Most of the reserves of the Omenica bands are 12 not located on the lakes. Rather, they are 13 located, you know, off -- you know, off from 14 the lake. Not -- not far from the lake, but 15 they are not lake-using people. There was no 16 reason for them to use the lake like there was 17 reason for members of the Lake Babine band to 18 use the lake. The lake provided transport -- a 19 transportation route for members of the Lake 20 Babine band and the Omineca and Cheslatta 21 people were able to travel by road. 22 Q Were any of the four bands heavily engaged in 23 fishing? 24 A The lake babine band, of course, was very 25 heavily involved. They were involved in mainly 26 in salmon, in the Babine river which is -- 27 which flows out of Babine lake and is a 28 tributary of the Skeena. It was not my 29 perception that members of the Omineca, 30 Cheslatta or Burns Lake band were as reliant or 31 as dependent, if you like, on the salmon 32 resource as members of the Babine band were. 33 Q When you went to Lake Babine band reserve, 34 could you tell whether or not they were -- just 35 by looking around whether they were fishermen? 36 A Oh, yes. You could see nets hanging up. You 37 could see their smokehouses. In salmon season 38 these smokehouses would be used. You would see 39 people preparing fishing, smoking them. That 40 sort of -- sort of thing. I did not see the 41 same kind of activity in respect to the members 42 of the Burns Lake, Cheslatta or Omineca bands.\" 43 44 My lord, the Omineca Band, if you remember, was 45 ultimately split into the Broman Lake and another 4 6 band. But at that time it was all one band. And many 47 of the Plaintiffs, the Wet'suwet'en Plaintiff belonged 28628 Submissions by Mr. Macaulay 1 to that band, the who lived down in that area. 2 3 Now, I am on paragraph 5. There was a lot of 4 Indian hunting. But Mr. Mcintyre said that 5 non-Indians hunted, too. And there was no exception 6 to that except in the case of trophy hunters. The 7 Indian, he heard, objected to people who took the head 8 and left the carcass to rot in the bush. 9 10 And paragraph 6, employment was mainly in the 11 forest industry. And there were also some prospects 12 of jobs in the Granisle Mine. I am turning here 13 again. If your lordship looks at tab 6 there is an 14 excerpt from volume 303, page 22878 and the following 15 pages about that. The first question that I want to 16 refer to is at line 5 on page 22878: 17 18 \"Q Was there no shortage of work for the Indians 19 in your agency? 20 A Except for those people who lived in the remote 21 areas along the northern -- or at Fort Babine, 22 which is at the northern end of Fort -- of 23 Babine Lake. It was my -- my opinion when I -- 24 when I wrote the report that those -- those 25 Indian people who lived in and south of Burns 26 Lake had employment opportunities. It was 27 something else in my opinion as to whether or 28 not they chose to exploit those opportunities 29 and many of them did not choose in my opinion 30 to exploit those opportunities. The 31 opportunities were mainly in the forest 32 industry, almost entirely in fact in the forest 33 industry. Either in sawmill -- in sawmill 34 employment or in bush operations. 35 Q Did you -- now, those employment opportunities 36 were available to the Omineca band members? 37 A Yes. Yes. 38 Q As well as to the Cheslatta and Burns Lake? 39 A To the Cheslatta and to those members of the 40 Lake Babine band who, of course, had by then 41 moved into Burns Lake. 42 Q Yes. And you met with officials of the 43 Granisle Mines Limited? 44 A I am not -- I'm not sure that Granisle Mines 45 was underway at that point in time. In any 46 case -- 47 Q I am drawing your attention to the last 28629 Submissions by Mr. Macaulay 1 paragraph on that page two.\" 2 3 That was a page of his report, my lord. 4 5 \"A I guess it was. Yes, I can recall -- I can 6 recall having discussions with officials of 7 Granisle Mine. 8 Q And what was -- I don't want you to tell his 9 lordship what you said, what they said to you, 10 but what was the purpose of your discussion, 11 the general purpose? 12 A To determine the measure of employment 13 opportunities that would then exist or were 14 likely to exist in the future beyond that 15 point.\" 16 17 And 22881. No, that's about hunting, my lord. I have 18 already dealt with that. 22882 at line 6: 19 20 \"Q Was there -- what was the level of employment? 21 A Well, I don't know that I could use the term 22 substantial, but I think a term I would prefer 23 to use would be significant number. The nature 24 of logging activities in that area was -- it's 25 much easier to log in that area during the 26 winter when ground -- or when ground conditions 27 are frozen than it is at any other time of the 2 8 year. And so the main removal of wood from the 29 forest at that time and even now still tends to 30 be during the winter months when equipment can 31 work on frozen ground or on frozen swamps or 32 whatever. 33 Q Could you refer to tab three, witness. My 34 lord, I will refer the witness now to his 35 report dated October 1, 1966. Is this another 36 of your reports? 37 A Yes. 38 Q And under the heading \"Labour and Placement\" 39 you report here that -- and I read from the 40 first -- the first sentence: 41 42 'There have been good employment 43 opportunities available for local Indians 4 4 this summer.'. 45 46 Did that apply to the Omineca and Burns Lake 47 bands? 28630 Submissions by Mr. Macaulay 1 A I think it applied mainly to -- to members of 2 the Lake Babine band who were living in -- who 3 were living at Pendleton Bay at Babine Lake or 4 those who may have been living in Burns Lake 5 who chose to commute to Pendleton Bay. At this 6 point in time, as my report says, there were -- 7 this was -- there were an increase in mill 8 capacity at Pendleton Bay. In the area of the 9 Omineca and Cheslatta people, on the other 10 hand, that there was no such increase in 11 capacity. So my recollection is that there was 12 no -- that there was no significant increase or 13 decrease in employment opportunities for these 14 people at that time.\" 15 16 And, of course, we were dealing, my lord, with the 17 Omineca as those Plaintiffs who lived in the southern 18 part of the claim area were members of the Omineca 19 Band in Fort Kuldo. 20 21 And now I am going to tab 7. And this is in 22 connection with Mr. Mclntyre's change of career. And 23 he was the ARDA representative in the claim area from 24 1987. In that capacity he received applications from 25 and conducted interviews with several Gitksan and 26 Wet'suwet'en applicants for funding regarding their 27 trapping proposals. The relevant application -- 28 applications, interview notes and correspondence is 29 Exhbit 1231, tabs 39 to 50. And Exhibits 1235-A, B, C 3 0 and D. 31 32 The personal interviews and other information and 33 other information gathered while Mr. Mcintyre was 34 processing ARDA applications produced evidence of 35 three or four active Gitksan and Wet'suwet'en trapping 36 operations, but the highest reported season's catch 37 and that was the one of Mr. Robert Jackson's, doesn't 38 approach the volume reported by Lou Gelly for the 39 1946/47 season. Now, whether that was because Lou 40 Gelly had a particularily good trapline or not by 41 comparison with the others, that may be the 42 explanation. 43 THE COURT: What is ARDA stand for again, area? 4 4 MR. MACAULAY: That was \u00E2\u0080\u0094 45 THE COURT: I think RD is Regional Development. Assistant 46 Regional Development? I am guessing. 47 MR. MACAULAY: I will get that for you, my lord. You asked the 28631 Submissions by Mr. Macaulay 1 witness that. 2 THE COURT: I think I did. I have forgotten already. 3 MR. MACAULAY: The acronym is now the word itself. 4 THE COURT: Yes. 5 MR. MACAULAY: And it is treated as a noun now. And I'm sorry, 6 I don't know that. 7 8 But at any rate, the funds were to be used to 9 support worthwhile trapping operations, and a number 10 of people, Gitksan and Wet'suwet'en. And that brought 11 Mcintyre up into the Gitksan area. A number of people 12 applied for funds for trapping activities. And one of 13 the things he had to look at was where their trapline 14 was and whether it was economic. And also their 15 degree of expertise of trapping. 16 17 If you turn to page -- to tab 7, the first page. 18 The first page is his notes of an interview of Ed 19 Morris. The trapper number is given there. Trapline 20 number, I'm sorry. And he reports that the: 21 22 \"Area covers about 120 square miles at the 23 north end of Whitesail Lake. An area that 24 may be difficult to access.\" 25 26 And the applicant's home, as he pointed out, was 100 27 miles away. As to activity, the applicant, his notes, 28 that is, Mclntyre's notes are: 29 30 \"Not trapping now due to the applicant having 31 no equipment. The trapline has not been 32 trapped within the past 10 years since Eddie 33 obtained it from his father, the late Steven 34 Morris.\" 35 36 So that there was -- Eddie Morris had never trapped 37 there which was 100 miles away. 38 39 Another application was David Blackwater. The 40 Blackwater family were famous trappers. In fact, they 41 were one of the trappers who bought Lou Gelly's 42 trapline, and that was in the evidence. If the 43 government advanced the money. But James Blackwater 44 had bought the Lou Gelly trapline which had been such 45 a fertile line for Gelly in 1947. And the notes are 46 first that he had a trapline for about 20 years. And 47 that he, that is David Blackwater Sr. and his son were 28632 Submissions by Mr. Macaulay 1 the main trappers, John Sebastian -- Jack Sebastian, 2 rather, assisted with the application, Part II 3 application. The applicant was an experienced logger 4 and backhoe operator from Kispiox. And he was looking 5 for work up in the Klappan Coal development. And the 6 trapline is near the Klappan Coal development. So he 7 is talking about a trapline way up north near the top 8 end of the claim area. And there is a note that 9 Blackwater also traps on Jasper Jack's trapline. His 10 brother Walter traps on the adjoining line. That was 11 rather in contrast to the trapline that Eddie Morris 12 talked about. 13 14 Another, my lord, is the application of Jeffery 15 Harris. If you remember Fitz Harris had bequeathed 16 his trapline to Christopher and Jeffery. This is 17 Jeffery. He is the one who gave evidence to your 18 lordship about the murder of his mother and that being 19 the reason why he was trapping on his father -- or he 20 inherited his father's trapline. 21 22 Now, this proposal was for a trapline 62 miles 23 north of Kispiox near Old Quldo. In fact, from Quldo 24 to Luus Mountain is 60 miles and the trails may be 25 that long. And the note 6 here is that: 26 27 \"Jeffery Harris would like to open up an old 28 trapping area. He will be assisted by his son 29 and perhaps his nephew.\" 30 31 In the area traditionally owned there. So this is not 32 a trapline having been used. 33 34 Mr. Mcintyre says that it was an elderly 35 gentlemen, as he recalled it, quite an elderly 36 gentlemen. And your lordship might recall also that 37 he was an elderly man who was going to be doing this. 38 Then the next part of this is exhibit is a letter to 39 Mr. Mcintyre from Mr. Harris, Mr. Jeffery Harris. And 40 he describes himself as page 76. Lifetime trapper. 41 And Jeff Harris Jr. being ago 46 years. Experienced 42 trapper. He said he had not trapped for the previous 43 five years because his wife was an invalid. And over 44 the page he said he had a registered hunting ground at 45 Ironsides Creek which was his active trapline before 46 his wife's illness. So the elderly Mr. Harris had 47 been a -- had been an active trapper, but at another 28633 Submissions by Mr. Macaulay 1 place at Ironsides Creek. 2 3 The next application that the witness smoke of, 4 this is Mr. Mcintyre spoke of is James Morrison. And 5 to sum up James Morrison, he said James Morrison was 6 an experienced trapper and had meticulous records. He 7 recalled that. And that he recalled the -- that. 8 Another of the trapping records had to do with Simon 9 Muldoe. And the notes of the interview on May 13, 10 1985 are there. That is after the green divider after 11 you leave the -- 12 THE COURT: I have it. 13 MR. MACAULAY: This was an application prepared with Jack 14 Sebastian again. And there is a mention of Richard 15 Muldoe, ago 22, single, lives in Hazelton. And has 16 been employed with Rim Forest Products. And Andy 17 Muldoe, ago 21, single, who lives with Mrs. Elsie 18 Michel. Unemployed and had been employed with Rim 19 Forest Products. Mr. Muldoe said he had not trapped 2 0 for 15 or more years. And he didn't know whether 21 there was any logging in the area of his trapline. He 22 referred to Delbert Turner catching 50, over 50 23 marten. Mr. Muldoe had no equipment. He was born in 24 1916. It was proposed to him, and this Mr. Mcintyre 25 gave evidence of this, but that he join forces -- 26 there is logging going on out there, my lord. 27 THE COURT: It wasn't trapping. 28 MR. MACAULAY: That he join forces with Delbert Turner, who was 29 of the same clan and has an adjoining trapline, 30 because neither trapline was very large in the opinion 31 of Mr. Mcintyre. But Mr. Muldoe would have nothing to 32 do with that proposal. He was not going to join 33 forces. 34 THE COURT: Mr. Muldoe wouldn't join forces? 35 MR. MACAULAY: With Mr. Turner. 36 THE COURT: So Mr. Mcintyre suggested it? 37 MR. MACAULAY: He said: Why don't you get together with the 38 neighbouring trapline Delbert Turner and join forces 39 and make an application. Then you will have a larger, 40 more viable trapline. But he wouldn't do it. 41 42 After the divider -- I've been handed up the 43 transcript, volume 305, at page 23048, my lord. 44 THE COURT: I'm sorry? 45 MR. MACAULAY: 305. 4 6 THE COURT: Yes. 47 MR. MACAULAY: 23048. At the bottom of that page your lordship 28634 Submissions by Mr. Macaulay 1 asks: 2 3 \"Q What does ARDA stand for? 4 A Agriculture Rural Development Act.\" 5 6 THE COURT: Thank you. 7 MR. MACAULAY: I am grateful to Ms. Sigurdson for that. 8 THE COURT: Thank you. 9 MR. MACAULAY: 10 Q Over the green divider there is a letter to Mr. Muldoe 11 requesting certain information. It's a letter from 12 Mr. Mcintyre. And he asks for the names and ages of 13 the trappers who will benefit from the assistance 14 that's been requested. And trapping experience of 15 them, of each trapper. And what equipment is 16 available now. And the quantity and species of furs 17 caught by each trapper in the past trapping season and 18 where this was sold and the like. Well, to the first 19 question there is an answer. There was an answer by 20 Mr. Muldoe to the first questions. The answers for 21 the other trappers are Richard Muldoe and Andy Muldoe, 22 both sons of Simon Muldoe who will benefit. They are 23 in their early twenties, very little experience. He 24 was planning to share his knowledge with them. To the 25 second question the answer was there was no equipment 26 and no cabins. There was nothing. To the third 27 question the quantity by species of fur caught by each 28 trapper during the past trapping season, the answer 29 was nil. The fourth question was what other 30 employment does each trapper have during the 31 non-trapping season. The answer was: 32 33 \"Simon Muldoe, Pensioner, Richard Muldoe, 34 Millworker, Andy Muldoe, Millworker.\" 35 36 And the fifth question was about a statement of assets 37 and liabilities and it enclosed a form. And the 38 answer was: 39 4 0 \"Richard Muldoe and Andy Muldoe own very little 41 and few assets. Too little to mention 42 statement of assets for Simon Muldoe. Enclosed 43 is net worth statement.\" 44 45 That was the last document on that application other 4 6 than a recommendation. 47 28635 Submissions by Mr. Macaulay 1 Another one over the divider is the Doris Morrison 2 who had the name Li-Gi-Nil-Ah Trapping Company pn the 3 trapping application. And Doris Morrison is the 4 daughter of David Wells. And amongst other things, he 5 left her his trapline and his title. This is a few 6 years later. We find those in the wills, my lord 7 under the heading David Wells. Doris Morrison is 8 applying for this. The transcription is set out in 9 the part 2 of the application which was handwritten. 10 And apparently in Mrs. Morrison's handwriting. She 11 says: 12 13 \"This trapping project will help train family 14 members in trapping and associated bush skills. 15 The trapline is located in an isolated area 16 requiring boat access. A good harvest of furs 17 is expected this year, particularly marten, 18 lynx, fox and coyote.\" 19 20 And she goes on to say: 21 22 \"Assistance would be helpful because my husband 23 and I who inherited the trapline are receiving 24 Unemployment Insurance benefits, and cannot 25 afford to acquire the equipment necessary for 26 trapping. My father who trapped the line, now 27 deceased, had his cabin broken into and all 28 traps and other equipment were stolen. We now 29 have to replace the equipment that was stolen.\" 30 31 And she he goes on: 32 33 \"My husband and I are the members of the 34 company. I have had ten years experience 35 trapping, and my husband has had 15 years 36 experience. 37 My husband would be responsible for the 38 maintaining of equipment. He has had many 39 years experience maintaining bush equipment - 40 chainsaws, etc. 41 We plan to sell our furs to the Edmonton Fur 42 Sale. We were not trapping last season because 43 our trapping equipment was stolen.\" 44 45 Well, that was stolen in David Wells' time. She ends 46 off by saying: 47 28636 Submissions by Mr. Macaulay 1 \"I will be the manager of this trapping company 2 as I am the Chief of the Eagle clan, have had 3 trapping experience.\" 4 5 And she says under heading G: 6 7 \"Yes, we see a need for a training program to 8 be training two family members this year in the 9 skills necessary for trapping. Next year we 10 would be training two more young village 11 residents interested in learning about 12 trapping.\" 13 14 That seems to be the same trapline of some of those 15 zingers of letters that were written to Mr. Boyes 16 about the Eagle trapline, the Eagle clan trapline. 17 18 The following document after the next green 19 divider deals with this trapline, too. She is 20 described in Mr. Mclntyre's memorandum of March 13, 21 1986. 22 23 \"Doris Morrison, age 53 and her husband, age 64 24 are residents of Kitwanga. Mrs. Morrison has 25 been a teacher of handicapped children and has 26 eight years experience in this profession. Her 27 husband is presently a janitor of the Kitwanga 28 school. The Morrisons have a 29 year old son 29 who is a sawmill employee at Kitwanga and a 19 30 year old son who is presently unemployed. They 31 expect that their sons will assist them to some 32 extent in operating the trapline.\" 33 34 And then over the page under the heading 35 \"Buildings\" there is the following notation. 36 37 \"Mrs. Morrison claims that her late father had 38 two trapline cabins located at Doreen and at 39 the headwaters of Fiddler Creek. She believes 40 these cabins are now beyond repair and will 41 have to be replaced.\" 42 43 It is quite clear from this application, my lord, 44 that no trapping had been done after David Wells' 4 5 time. 4 6 THE COURT: Do we know when he died? 4 7 MR. MACAULAY: Yes, my lord. 28637 Submissions by Mr. Macaulay 1 THE COURT: That will be in the genealogy, perhaps. 2 MR. MACAULAY: Yes. Well, we don't have to go that far. 3 THE COURT: Don't trouble to look it up now. 4 MR. MACAULAY: I will look for that for you in a minute because 5 we have his will. And the accompanying document will 6 have his dates of death. There was a bit of a row, an 7 intermarriage row at Kitwanga over that one. 8 9 The next one, my lord, after the next green 10 divider is Joshua McLean's trapline. Mr. McLean did 11 give evidence. He was cross-examined, rather, on a 12 territorial affidavit. Although he lives at Hazelton, 13 he also lives -- now he is a resident and I think 14 perhaps the sole resident of Kisgagas. So he is a 15 northern man. He certainly had the kind of equipment 16 that would be needed by a -- or some of it. He shows 17 his trapline, a map of his trapline along the Babine 18 River. 19 20 There is a note of an interview of Joshua McLean 21 after the following divider. He was applying for 22 money for a trapper's cabin and for machinery and 23 supplies including nine dozen traps and a dozen wolf 24 snares. Nine dozen traps. He already had, according 25 to this interview, 20 traps and a cabin. And another 26 not completed. In 1986/87 in response to the usual 27 question about what had he trapped in the previous 28 season it was 3 marten, 5 squirrel and 1 beaver. He 29 got $95 for the three marten, $5 for the five 30 squirrels, and $8 for the beaver. So that that had 31 not been a very active year for him. 32 33 The next application is Robert Jackson. And the 34 evidence was that Robert Jackson was an active trapper 35 and a resident of Hazelton. On June 21, '83 Jackson 36 wrote to Mcintyre saying he had trapped 50 marten, two 37 wolverine, two otter, 24 beaver the previous season. 38 That was the season of 82/83. And then he wrote in 39 May '84 saying he had caught 70 marten, 50 squirrels, 40 30 weasels, 1 fisher and one wolverine caught in the 41 Kisgagas reason -- region where his trapline was. 42 That was an active trapper. Is an active trapper. 43 44 The next document is the document that -- it is in 45 the file, that is in Mclntyre's file. He remembered 46 having received it. And he -- this was about 1982. 47 And he said that this was about the time he first 28638 Submissions by Mr. Macaulay 1 received the kind of information that is set out in 2 that document. The undersigned recognizing Robert 3 Jackson, witness to the feast and so on, received the 4 name Malulek and so on. He had never heard of a House 5 in his days in Burns Lake. 6 THE COURT: Mr. Mcintyre hadn't? 7 MR. MACAULAY: Mr. Mcintyre hadn't. 8 THE COURT: Yes. 9 MR. MACAULAY: Well, Mr. Boyes hadn't \u00E2\u0080\u0094 Mr. Boyes had heard of 10 clans. 11 12 You recall, my lord, I was referring to the catch 13 in the old days, that is before 1951. The next tab, 14 tab 8 shows -- the transaction here has to do with the 15 purchase of Lou Gelly's trapline for one of the 16 Blackwaters. And in part it says: 17 18 \"On his return after the War Mr. Gelly decided 19 to trap during the winter of 1946/47 and in 20 order to have a partner with him he permitted 21 the registration of the north portion from 5th 22 to 6th cabin in the name of Marty Allen. By 23 agreement with Mr. Gelly it was later 24 transferred to Mr. Love, but it is still 25 acknowledged by Mr. Love as Mr. Gelly's 26 property. The following is a list of catch in 27 1946/47, the last full season in which it was 28 trapped. It is 15 Beaver, 15 Fisher, 15 Fox, 29 29 Marten, 18 Mink, 12 Muskrats, 200 Squirrels, 30 272 Weasel, 3 Wolverine, 3 Coyote, 5 Wolf.\" 31 32 The letter is written in February '51, that was 33 before the collapse in the prices. I can't say that 34 that is a benchmark, that that's the kind of catch you 35 might expect. But it might be contrasted with Joshua 36 McLean's take for the previous season. 37 38 My submission on all of that material of course is 39 that there were very few trappers, people who were in 40 the trapping business in a serious way who were 41 located by Mr. Mcintyre. And Mr. Mclntyre took great 42 pains in order to determine just what the situation 43 was. And one of the things that he did was to go and 44 see each trapper and talk to him. 45 46 Oh, yes, the evidence about not hearing about a 47 House, a Wilp or a House until 1982 is to be found 28639 Submissions by Mr. Macaulay 1 at -- that's volume 304 of the transcript, page 22974. 2 Tab 10 has the extract. The question was line 4: 3 4 \"Q During your time as superintendent at Burns 5 Lake did you ever hear of clans in which the 6 various band members were divided? 7 A Oh, yes. I knew of the existence of clan -- of 8 clan membership. 9 Q Yes. 10 A I don't recall who belonged to what clan, but 11 the names of clans, the frog clan, the wolf 12 clan, the bear, the grouse. And there may have 13 been others, but I was certainly aware of the 14 existence of these clans, yes. 15 Q And did you know of any -- a subdivision -- 16 another kind of division into houses? 17 A No. Houses is not a term that I -- that I -- 18 that I had heard until I -- until many years 19 later when I was -- until, in fact, I was doing 2 0 my work with -- with the special ARDA programme 21 and came into contact with the people up in the 22 Hazelton area and then I heard the term houses. 23 But that was not a term that was mentioned by 24 people of the Burns Lake area. But clans 25 were.\" 26 27 My lord, this may be an appropriate time for an 2 8 adjournment. 2 9 THE COURT: Yes. Thank you. 30 THE REGISTRAR: Order in court. Court stands adjourned for a 31 short recess. 32 (PROCEEDINGS ADJOURNED At 3:00) 33 34 35 I hereby certify the foregoing to 36 be a true and accurate transcript 37 of the proceedings transcribed to 38 the best of my skill and ability. 39 40 41 42 43 Lisa Franko, 44 Official Reporter, 45 UNITED REPORTING SERVICE LTD. 46 47 28640 Submissions by Mr. Macaulay 1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT) 2 THE REGISTRAR: Order in court. 3 THE COURT: Okay, Mr. Macaulay. 4 MR. MACAULAY: My lord, I've turned up the David Wells will. 5 And Tab 141 of Exhibit 1237C there is a copy of the \u00E2\u0080\u0094 6 THE COURT: What's the number? 7 MR. MACAULAY: Exhibit 1237C, Tab 141. The application for 8 probate shows that he died on February 11th, 1970 at 9 Seattle. He was then 76 years old. 10 THE COURT: When did he die again? 11 MR. MACAULAY: 11th of February, 1970, at page 76. 12 THE COURT: Thank you. 13 MR. MACAULAY: His will is an interesting one. It reads as 14 follows: 15 16 \"I give the property of which I die possessed 17 as follows: My name, Liginhila, and the 18 chieftainship of the eagle tribe, and all my 19 property to my daughter Dora Lilia Morrison.\" 20 21 My lord, you will recall that the purpose of the 22 application was to teach two younger members of that 23 chief's family how to trap and perhaps teach two 24 others the following year. 25 Mr. Mclntyre's viva voce evidence concerning that 26 particular application is found near the end of Tab 8 27 of the book. It's in Volume 304 of the transcript at 28 page 22966 and at line 32. That's Tab 8. And it's 29 really near the end. Right towards the end of Tab 8 30 there's some transcripts. It's the big -- 31 THE COURT: I don't have it, Mr. Macaulay. I put it all away 32 now. 33 MR. MACAULAY: It's the one you have, I think, my lord. Has it 34 got a Tab 8 there? 35 THE COURT: I'm sorry. I was looking for the will. Tab 8. All 36 right. 37 MR. MACAULAY: And right towards the end of Tab 8 there's some 38 transcripts of evidence. 3 9 THE COURT: Yes. 40 MR. MACAULAY: And one of the \u00E2\u0080\u0094 it's Mclntyre's evidence about 41 these applications. And one of the pages is 22966. 42 THE COURT: Yes. 43 MR. MACAULAY: And it has to do with this trapline. 44 THE COURT: I have it. Thank you. 45 MR. MACAULAY: At page \u00E2\u0080\u0094 that page and at line 36 I asked about 46 Mrs. Morrison's application. 47 28641 Submissions by Mr. Macaulay 1 Q \"And had she been trapping there in recent 2 years, that is before your interview? 3 A She was very vague about that. And I 4 can -- I was left with the impression 5 resulting from my discussion with her 6 that -- that because of the location of 7 this trapline that it was very, very 8 difficult for her to trap it. And I say 9 that because the map -- the map shows that 10 this trapline is located across the Skeena 11 River down river from the village of 12 Kitwanga, and to obtain access to this 13 trapline requires either that the trapper 14 travelled down the northwest side of the 15 Skeena River, and there is only rail access 16 on that side of the river, or alternatively 17 go across the river by boat. And to cross 18 that river by boat in trapping season 19 when -- when the river may -- may have ice 20 chunks floating down the river is a very 21 risky proposition. And, in fact, within 22 the items of assistance that Mrs. 23 Morrison listed that she would require to 24 access this trapline she listed a boat.\" 25 26 And then I asked line 23 on that page: 27 28 Q \"Did Mrs. Morrison tell you her own 29 trapping experience through her life or in 30 her lifetime? 31 A I can't recall the details of my discussion 32 in that regard.\" 33 34 By the way, the following page is a matter of 35 interest. The following page is in his evidence 36 that -- the following page in that tab at 22968 he 37 describes Joshua McLean's application. And over the 38 page again he refers to the -- the season, 22969, the 39 catch for the previous season, trapping seasons 1986 40 and 1987. At line 34 he says: 41 42 A \"I've got\". . . 43 44 This -- this is his notes. 45 46 \"I've got three marten for a total value of 47 $95 and five squirrels for $5 and one 28642 Submissions by Mr. Macaulay 1 beaver which he says he got $8 for. 2 Q That's information he gave you. 3 A Yes.\" 4 5 And then you asked the question and he just repeat it. 6 My lord, in these excerpts another that may be of 7 interest has got to do with Mr. Muldoe's application 8 that we were looking at, Simon Muldoe Sr. If you go 9 back three or four pages to 22963, in the middle of 10 the page starting at perhaps line 2 at the top of the 11 page: 12 13 A \"It was Simon Muldoe Sr. I believe he's 14 referred to. Quite an elderly man again. 15 Q Yes. And did he tell you what his trapping 16 activities had been on this particular 17 trapline that he was dealing with? 18 A Yes. That is my notes refer to that. I 19 believe it's item 4 of my notes where I -- 20 I noted that he had told me that he had not 21 trapped for approximately 15 years. He 22 also told me that there were roads into the 23 trapline, and that he did not know if any 24 logging had occurred within the boundaries 25 of his trapline. 26 Q And what did he tell you about his -- I 27 take it these are sons, are they, Richard 28 and Andy, or were they sons or nephews 29 or -- or would you have to look at the 30 file? 31 A I would have to look at the file. I'm 32 inclined to answer that they are his 33 grandsons, but I would have to refer to the 34 file again. 35 Q And he told you about them? 36 A Yes. They did not appear at the interview 37 although Mr. Muldoe seemed to feel that -- 38 that it was important that this application 39 was important to their trapping activities. 40 Q Did you gather from what Mr. Muldoe said 41 that he had trapping experience? 42 A I wasn't really able to determine that. He 43 was -- he was rather vague in that regard. 44 Q Is that -- do you in the ordinary course of 45 events ask about the trapping experience of 46 applicants and their -- and their children 47 or grandchildren who are said to be 28643 Submissions by Mr. Macaulay 1 involved in the application? 2 A Yes.\" 3 4 And if you turn two pages farther, three pages back 5 again to page 22959, he's talking about Mr. Harris' 6 application. Mr. Harris, my lord -- you'll recall Mr. 7 Harris was the son of Mr. Fritz Harris, and also an 8 elderly man. At line 15 I ask him: 9 10 Q \"What did -- What were you told about the 11 previous use of this particular trapline? 12 A I don't have my notes here now, but as best 13 I can recall Mr. Harris or his family had 14 -- did not indicate to me that they had 15 been in any -- that there had been any 16 recent use of this trapline. And the -- I 17 think the reason for this was that the 18 location of the trapline was somewhat 19 distant north of their home of which is 20 located at Kispiox. Also, Mr. Harris, as I 21 discovered when I arrived at his home, was 22 an elderly man, and I would judge his age 23 to be in the late seventies or perhaps even 24 the early eighties, so there was the 25 question that arose in my mind as to his -- 26 as to his physical ability to go out and 27 trap. 28 Q How about the son? 29 A The son who arrived, and he was the only 30 other person that arrived and participated 31 in the discussion, seemed to be unaware of 32 his father's application and was not -- 33 didn't lead me to understand that he was 34 really terribly interested in his father's 35 application. He revealed to me that he 36 made most of his living in the commercial 37 fishing operation or in a commercial 38 fishing operation and really didn't have 39 very much to say at all that I could 40 interpret to be in support of his father's 41 application. 42 Q Did the son tell you that he had been a 43 trapper? 44 A That was -- no. That was very vague to me. 45 And to this day I'm -- it's not clear in my 46 mind whether his son has ever trapped or 47 not. 28644 Submissions by Mr. Macaulay 1 Q There is reference in the application to 2 perhaps a nephew joining in the trapline. 3 Was that discussed with -- 4 A Yes, it was discussed. But the nephew did 5 not appear at the interview and -- well, I 6 didn't make any attempt to contact the 7 nephew after my discussions with Mr. Harris 8 and his son.\" 9 10 And then he describes the trapline as being 62 miles 11 north of Kispiox near Old Kuldo. You will recall, my 12 lord, perhaps the David Wells will and Mrs. Doris 13 Morrison's ARDA application are a paradime of the 14 trapping situation. It may be doubted whether David 15 Wells reached that -- went to that very inaccessible 16 trapline across the Skeena River in his late sixties 17 or his seventies. 18 You'll recall, my lord, that the fur prices also 19 suffered a catastrophic fall in 1951 and that Mr. 20 Benson's evidence was that pretty well everybody 21 stopped trapping then. You will recall that in 22 connection with the David Wells and Mrs. Morrison 23 trapline inherited by Mrs. Morrison's daughter, that 24 the object of the exercise in 1982 or '83 was to teach 25 younger members of the family how to trap. The 26 evidence of the -- and it's interesting to note that 27 the -- the chieftainship of the eagle clan and the 28 name Liginhila was bequeathed by David Wells to his 29 daughter. That supports my submission, my lord, on 30 this question of trapping that there was indeed a 31 crest system of ownership of traplines up to a certain 32 point, but it was by no means a universal system; that 33 by the nineteen thirties and forties and fifties, as 34 the wills show, there were many, including people who 35 had the highest names in the -- their clans and 36 houses, considered the trapline their own property and 37 considered themselves free to bequeath the trapline to 38 their son or daughter or to whoever else they cared 39 to. 40 The evidence also tends to show -- the evidence 41 especially of Mr. Mclntyre tends to show that trapping 42 in the southern area, and that would apply also to the 43 northern area, simply wasn't going on anymore among 44 the Wet'suwet'en, and the evidence of Mr. Benson shows 45 that trapping wasn't going on among the Gitksan, and 46 for a perfectly good and logical reason the trapping 47 didn't pay for many years. You couldn't earn your 28645 Submissions by Mr. Macaulay 1 grub-stake trapping. Who would trap if he couldn't 2 earn his grub-stake in all seasons? You spend the 3 fall and winter without being -- coming and having 4 suffered a loss. 5 After prices improved, the trouble then is, of 6 course, what we see here with the Liginhila trapline, 7 Mrs. Morrison's trapline. The younger generation no 8 longer knows how to trap and is not inclined to go out 9 when there are sawmill jobs available or other forms 10 of occupation, commercial fishing, whatever they may 11 be, not inclined to launch out into the wilderness in 12 extremely harsh conditions on an enterprise that 13 requires, it seems now, a certain amount of capital 14 and that has an uncertain -- a very uncertain return. 15 It is a way of life that for practical purposes ended 16 with the collapse of fur prices in 1951. And the fact 17 that Mr. Jones or Mr. Smith may be the registered 18 owner of the trapline or Jones and Company and Smith 19 and Company may be the registered owners of the 20 traplines doesn't establish anything other than that 21 the game branch and the Indian agent carried on their 22 policy as it was to preserve Indian traplines. 23 When Mr. Mclntyre tried to get the Indian holders 24 of traplines to make more use of their traplines, he 25 did not succeed and he did not succeed because there 26 was an alternative way of life that the majority -- 27 the great majority of the people in -- under his 28 supervision had available. And it may be questioned 29 how many would know how to do any fishing, trapping 30 anyhow, not having been out with their parents and 31 their grandparents. Those are my submissions, my 32 lord, arising out of the review of the evidence of the 33 two agents and the wills. There it leads us to the 34 last subject that we want to tackle today, and Ms. 35 Russell will deal with that. That is the employment 36 histories on some of the plaintiffs, which fits in 37 with the submissions that I have made. I'll ask Ms. 38 Russell now. 39 MR. JACKSON: Before Miss Russell does that, my lord, perhaps I 40 could ask Mr. Macaulay for some clarification. Are 41 the plaintiffs to understand -- trying to relate Mr. 42 Macaulay's submissions to the summary of argument the 43 Federal Government has filed, are we to understand 44 that the collapse of the fur prices in 1951 and the 45 asserted rusting consequent thereto of trapping skills 46 constitute in law an abandonment, a loss of any 47 aboriginal title to the areas which have been the 28646 Submissions by Ms. Russell 1 subject of trapping or hunting? 2 MR. MACAULAY: The submissions we intend to make on abandonment 3 don't rely solely on that evidence, but that is part 4 of a factual background on which your lordship will be 5 asked to draw certain conclusions, findings of fact on 6 whether or not there has been abandonment or not, yes. 7 THE COURT: Thank you. 8 MS. RUSSELL: My lord, earlier today I handed up and handed to 9 my friends two new pages for our summary argument Part 10 X. Those new pages are pages 114 and 115 and they've 11 been inserted in your binder already. And I've also 12 handed up a new Appendix X, which follows Roman 13 Numeral Part X and is marked in your binder. You 14 don't need to find it at this time. I'm just putting 15 it on the record that we have handed those in and 16 they've been changed in your binder. Those are -- 17 THE COURT: The two pages are the first two pages. 18 MS. RUSSELL: No. Pages Part X, Roman Numeral Part X of our 19 summary argument, my lord, which you have the 20 employment histories in front of you. 21 THE COURT: Yes. 22 MS. RUSSELL: And I will be referring to those. That's why I 23 mentioned them to you now. I'll be referring to them 24 in a few minutes. And the new pages have been 25 substituted in there already, my lord. I handed them 26 to Miss Thompson and she has placed them in for me and 27 I've also -- sorry. I'll give you a chance to find 28 those. 29 THE COURT: Where are they again? 30 MS. RUSSELL: Pages 114 and 115. They are in \u00E2\u0080\u0094 they are at \u00E2\u0080\u0094 31 Roman Numeral X Part III. See that? Pages 114 and 32 115 are new today. 33 THE COURT: My part X seems to start at page 116. 34 MS. RUSSELL: Roman Numeral Part X, my lord. 35 THE COURT: Oh, I've got two Roman X's. 36 MS. RUSSELL: You have a Roman X and then you have cleverly an 37 Appendix X which follows it. I've also substituted a 3 8 new Appendix X. 39 THE COURT: Mine starts at page 114, or does it? 40 MS. RUSSELL: Part X, my lord. 41 THE COURT: I'm sorry. I found 1415 at the end of \u00E2\u0080\u0094 at the end 42 of Roman X Part II. 43 MS. RUSSELL: Yes. That's correct, my lord. Sorry. I was one 44 part out. And then I have substituted as well a new 45 Appendix X, which follows the section beginning at 46 page 116. 47 THE COURT: Yes. But I don't see it labelled as Appendix X. 28647 Submissions by Ms. Russell 1 Does it start about page 116? 2 MS. RUSSELL: No. It's labelled Appendix X, my lord. 3 THE COURT: Where do I find it? Oh, yes. I see it, Appendix X. 4 Yes. I see it. I've got three Roman X's. 5 MS. RUSSELL: Sorry. 6 THE COURT: All right. Thank you. 7 MS. RUSSELL: And that is simply a more up-to-date list of 8 references which I've substituted in that section 9 there. 10 THE COURT: This is a list of references about where employment 11 evidence was given by or about these various named 12 persons, is that it? 13 MS. RUSSELL: That's correct, my lord. 14 THE COURT: Yes. All right. 15 MS. RUSSELL: My lord, this material in these two volumes we 16 will rely on to show the capable way in which the 17 plaintiffs have adapted to any economy in which they 18 no longer rely as much on traditional ways of making a 19 living. 2 0 THE COURT: All right. 21 MS. RUSSELL: Loring and then Mclntyre and Mr. Boys all describe 22 this kind of trend, and this kind of evidence will 23 continue to illustrate that trend. 24 THE COURT: What is the text you're going to work from? 25 MS. RUSSELL: I'm going to work from Volume I now of the 26 employment histories, my lord, Volume I of II. 27 THE COURT: Yes. All right. 28 MS. RUSSELL: In the beginning of that document, my lord, you'll 29 see a short introduction. 3 0 THE COURT: Yes. 31 MS. RUSSELL: These two volumes represent the data for a set of 32 conclusions based on the testimony of 55 Gitksan and 33 Wet'suwet'en witnesses concerning their employment and 34 income histories. 35 This defendant referred to this analysis at page 36 114, 115 of Part X of the summary as filed April 12th, 37 1990 and I will be referring to those conclusions. 38 The basis for that material was in Appendix X, which 39 follows Part X. 40 The material and the conclusions have now been 41 updated to include 55 witnesses instead of 50 42 originally considered and to delete any reliance on 43 material not exhibited, such as interrogatories or 44 discovery material. 45 We did not include several witnesses in this 46 analysis and I've set out following why they were not 47 included. The first group we did not include were 28648 Submissions by Ms. Russell 1 non-plaintiffs who either did not give evidence 2 regarding their economic activities or who were not 3 part of the Gitksan/Wet'suwet'en traditional economy. 4 And I've listed those witnesses following, my lord. 5 I've also listed the witnesses -- the Gitksan and 6 Wet'suwet'en witnesses who were excluded from the 7 analysis. The first two were Mary Joseph and Walter 8 Joseph, and their data quite simply was too scanty to 9 draw conclusions from. And also Florence Hall, as you 10 know, are Kweese. Her data were nonexistent following 11 1945 in such matters as hunting, trapping and other 12 occupations. 13 Now, my lord, what I propose to do is to read you 14 several samples of these histories. You'll be 15 thankful to know I won't read you very much. But 16 these samples that I read you I believe will 17 illustrate the diverse ways in which the plaintiffs 18 now earn their livings. But even those plaintiffs who 19 rely to some degree on trapping don't rely on it 20 exclusively, or hunting or food fishing. They do not 21 rely on those methods exclusively to earn their 22 livings. 23 I'll start, my lord, in Volume I, Tab 22, is 24 Joshua McLean. For reference purposes, my lord, I've 25 also included the chief's name and the house and the 26 clan of the witness involved. Mr. McLean was born in 27 1930. 2 8 THE COURT: What is Exhibit 603A? 29 MS. RUSSELL: Sorry, my lord. That is either an examination on 30 the cross-examination on a territorial affidavit or 31 commission evidence. From that number I would expect 32 that's a cross-examination on territorial affidavit. 33 The references follow each of these tabs, my lord. 34 THE COURT: Yes. All right. 35 MS. RUSSELL: The actual pages. 36 Mr. McLean was taught to trap by his father when 37 he was seven. He has trapped annually each year since 38 then, except one year in the last 10 when he was ill. 39 He testified it was possible to earn a living if your 40 time is spent exclusively trapping. He did make an 41 application for ARDA funding, as you heard from my 42 colleague Mr. Macaulay. He later abandoned that 43 application and his brothers assist him on the 44 trapline when they were not employed. 45 He did also, my lord, have supplementary income 4 6 from nontraditional employment. He worked for the CNR 47 just for a year, probably for the summer, and he also 28649 Submissions by Ms. Russell 1 trapped that year. 2 In 1946 he began working summers in the logging 3 industry and he trapped during the winter. He worked 4 three years for Arthur Hankin cutting poles and 15 5 summers for Hobenshield as a faller. 6 He also food fishes up at Kisgegas. And you'll 7 recall that we saw his residence when we did the view. 8 He says he resides at Kisgegas year-round. He did not 9 participate in the commercial fishery. 10 If you'll turn the page over, my lord, we've also 11 included -- we try to include recent evidence of 12 hunting, trapping, gathering and food fishing in the 13 1980's. 14 Mr. McLean fishes at Kisgegas. He says he's 15 trapped each winter of his life since he was seven, 16 but he has also, of course, supplemented his income 17 through nontraditional employment. 18 As my colleague Mr. Macaulay pointed out, in the 19 1986-87 season he caught three marten, five squirrels 20 and one beaver, for a total of $108 in monetary 21 returns. That was in the material Mr. Macaulay read 22 you earlier today. 23 THE COURT: Now, is that information contained in this tab or do 24 I have to go back to Mr. Mclntyre's -- 25 MS. RUSSELL: My lord, it is in the ARDA material. 2 6 THE COURT: It's \u00E2\u0080\u0094 27 MS. RUSSELL: I'm sorry. It's not included in here. 2 8 THE COURT: What year was that? 29 MS. RUSSELL: The ARDA material was related to trapping in '86, 30 '87. 31 THE COURT: Thank you. All right. Thank you. 32 MS. RUSSELL: 33 Q I'd like to move into Volume II, my lord. And at Tab 34 32 of Volume II you'll find James Morrison. Now, Mr. 35 Morrison is perhaps a very good example of someone who 36 does make part of his living from trapping. You heard 37 from my colleague again this afternoon of his ARDA 38 application and of Mr. Mclntyre's endorsement of Mr. 39 Morrison's efforts as a trapper. He was highly 40 accomplished in that field, according to Mr. Mclntyre. 41 This is a fairly detailed summary, my lord, and I'll 42 just hit some of the highlights in it. 43 Mr. Morrison was born in 1928. His father was a 44 commercial fisherman. And he also accompanied his 45 father trapping for several years. 46 After 1948 or '49 Mr. Morrison began going out 47 trapping by himself or with others. He's been 28650 Submissions by Ms. Russell 1 hunting/trapping off and on and on many different 2 territories since then. He hunted on Tsabux's 3 territory in 1948 and in the fifties. Today he has a 4 territory. He's known as Txaaxwok. And he traps on 5 that trapline where he is quite successful, as we have 6 heard. 7 He is also a commercial fisherman and he takes 8 part in the commercial fishery at Prince Rupert from 9 the end of June or July to the end of August. He does 10 not agree that commercial fishing is the principal -- 11 and, my lord, that's a typo. That should be p-a-1 12 principal source of his income, but he has followed 13 that occupation for many years. 14 He does not go fall fishing, but he returns to 15 Hazelton, and while he's waiting to begin trapping, he 16 logs. And he also takes jobs in the logging industry 17 in the spring while he's waiting to go back to the 18 commercial fishery on the coast. And he's been 19 following this pattern since he's about 20 years old. 20 He's also had his own operation, his pole cutting 21 operation. He also uses the fishing on the coast to 22 do his food fishing. And he doesn't fish in the 23 Skeena. 24 There's a very short summary on the next page, my 25 lord, of his trapping, gathering and food fishing in 26 the 1980's. Mr. Morrison has engaged in hunting and 27 trapping activities on a fairly regular basis over the 28 years, including the 1980's. He has trouble 29 remembering specific dates, but says that he has gone 30 hunting and trapping at various locations in his 31 territory and in other territories as well within the 32 last two to five years. He says he uses the moose, 33 beaver and other kinds of meat taken from the 34 territory. He does his food fishing at the coast. 35 Mr. Morrison, I think we have seen evidence of today, 36 is a very successful trapper and he seems to 37 supplement those income in a number of -- that income 38 in a number of other ways. 39 The next person I'd like you to review with me is 40 at Tab 35, my lord. This is Peter Muldoe, Gitludahl. 41 Mr. Muldoe was born December 9th, 1909. He began his 42 working life by cutting trees and making ties. 43 He also went trapping in 1930-31 and then he began 44 his commercial fishing career. 45 He also then became a entrepreneur and started his 46 own sawmill across the river from Kispiox. This is a 47 small portable sawmill operation. And I believe you 28651 Submissions by Ms. Russell 1 heard earlier -- that was with Chris Harris -- he also 2 had a number of timber sale contracts with the 3 Province. 4 Mr. Muldoe has been a trapper for many years. 5 He's trapped around New Kuldo, Shaladamas. That was 6 many years ago in 1936 and 1937. And he's trapped in 7 other areas as well. 8 He registered a trapline in 1956, and he stated 9 that he has sold furs to the Hudson's Bay Company. 10 And on the next page, my lord, you'll see a very 11 short summary as well. Mr. Muldoe trapped on this 12 territory as recently as January of 1988. He also 13 went moose hunting in 1987, about which he says: \"I 14 hunt moose pret'near, just about pret'near all that 15 area. It's all beginning from 1932 and right up to 16 date. I don't go in there every year or every week or 17 anything. Whenever I have a chance I go in. Not all 18 the territory.\" He also does some berry picking with 19 his wife and his family. 20 Mr. Muldoe again is another example of someone who 21 has had many sources of income in his life. He has 22 maintained his trapping throughout, but clearly he's 23 relied on other sources, nontraditional income as 24 well. 25 I'd ask you to look next, my lord -- I'm sorry -- 26 at Volume -- at Tab 54 of this volume. This is Mr. 27 Walter Wilson's summary. Mr. Walter Wilson was 28 Djogaslee. And this is the summary from his 29 cross-examination on territorial affidavit. The 30 references again, my lord, follow that. 31 Mr. Wilson was born in 1927. He worked with his 32 father in pole camps and then he moved to Prince 33 Rupert to work as a drydock waterboy. He returned to 34 Hazelton in the early forties and began a long period 35 of employment in a wide range of occupations. He 36 worked in the CNR. He was involved in mining and 37 logging. He was a labourer with the government 38 telegraph and B.C. Telphones and he worked as 39 maintenance with the school board. This in turn led 40 him to a job with D.I.A. and maintenance work and he 41 eventually took a construction foreman's position. 42 When this position was eliminated, he retired three or 43 four years ago. 44 He was also engaged in the commercial fishery for 45 a brief time. 46 He's a member of the band council. 47 As far as his trapping and hunting was 28652 Submissions by Ms. Russell 1 concerned -- were concerned, he went with his 2 grandfather -- he tried to go to his grandfather's 3 territory at Irving Creek when he was a little boy. 4 He referred again to trapping and described an 5 encounter with MacKenzie while trapping three years 6 ago. He has never trapped on the territory which he 7 inherited when he took the name Djogaslee. He states 8 that he was fishing and trapping but says that he 9 traps weekends. 10 He also gave evidence about food fishing in two 11 instances. First, in the commercial fishery when he 12 applied for a food fishing licence and, secondly, he 13 was charged in 1985 while fishing with a net in the 14 Skeena River without a permit. 15 On the next page you'll find a very short note on 16 his hunting and trapping efforts. His evidence on 17 hunting and trapping indicates that these activities 18 are pursued part time on weekends and only during the 19 last four years since his retirement from the wage 20 economy. He testified: 21 22 Q \"I take it it's only recently that you have 23 had time to spend a lot of time trapping? 24 A I spend weekends.\" 25 26 I'll ask you to turn next, my lord, to Tab 52, 27 which is Mr. Stanley Williams. I won't read this 28 whole document to you, my lord, but I will point out 2 9 to you that Mr. Williams, whom we heard evidence from, 30 was known as a hunter in his time, but his real 31 occupation, it would appear from his evidence, was 32 really as a commercial fisherman. And in that 33 occupation he was following from his father, who had 34 gone out fishing before him. And Mr. Williams 35 testified about buying a boat and acquiring a fishing 36 licence. 37 Mr. Williams was also a logger and he worked for 38 Hobenshield for over 32 years. He also worked for the 39 CN. And he reflects, among a number of the 40 plaintiffs' witnesses, this trend towards having a 41 number of different occupations during their lives, 42 including trapping and hunting, but often basing their 43 actual living on logging and commercial fishing, 44 particularly the Gitksan, their commercial fishing. 45 MR. JACKSON: My lord, am I right in assuming that the 46 references to Stanley Williams there do not purport to 47 contain any references to his hunting? 28653 Submissions by Ms. Russell 1 MS. RUSSELL: You're correct. 2 MR. JACKSON: Is there some reason for that given that the other 3 references did seek to do that? 4 MS. RUSSELL: No. There is not a reason for that. It is that 5 Mr. Williams' references concerning hunting were only 6 occasional. They were not included as his main 7 occupation, which appeared to be commercial fishing 8 from his evidence. 9 THE COURT: Want to take another adjournment now? 10 MS. RUSSELL: My lord, I'll be about another five minutes. 11 Would you like to break now? I'm in your hands. 12 THE COURT: I think we'll break now. 13 THE REGISTRAR: Order in court. Court stands adjourned. 14 15 (PROCEEDINGS ADJOURNED) 16 17 I hereby certify the foregoing to be 18 a true and accurate transcript of the 19 proceedings transcribed to the best 20 of my skill and ability. 21 22 23 24 Kathie Tanaka, Official Reporter 25 UNITED REPORTING SERVICE LTD. 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 28654 Submissions by Ms. Russell 1 h2 Submissions by Ms. Russell 2 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 3 4 THE COURT: Miss Russell. 5 MS. RUSSELL: Thank you, my lord. I'd ask you to turn to tab 6 30, my lord, to Roy Morris. There seems to be a 7 typographical error in his title. I am sorry, my 8 lord. That's in Volume 1. 9 THE COURT: Yes. 10 MS. RUSSELL: His chief's name is Woos, not Wood. 11 THE COURT: W-o-o-s? 12 MS. RUSSELL: Yes, my lord. 13 THE COURT: Yes. 14 MS. RUSSELL: And this material is taken from his 15 cross-examination on his territorial affidavit. Mr. 16 Morris is born in 1936. He trapped with his father as 17 a child. He trapped then with Alec Michell near 18 Nadina Lake. He then moved to live with Noralee 19 Matthew Sam and probably trapped with him then. The 20 evidence is not entirely clear, but he probably 21 trapped with him during that period of time. He then 22 moved back to Moricetown and also was trapping during 23 that time with Noralee Matthew Sam at Taatl'aat Lake. 24 This is the line that Mr. Morris inherited under the 25 will of Noralee Matthew Sam. He continued trapping 26 this line after taking it over in his own name. And 27 testified that he still uses it, although it has been 28 leased to non-Indians on at least two occasions, the 29 latest of which was for a ten year period. The 30 commencement of this ten year period is not known with 31 certainty. He often speaks of the lease as though it 32 were still current, but when asked why he granted the 33 lease he explained his nephew was killed in a car 34 accident. He is currently using a portion of 35 trapline near Tsichgass, Indian Reserve No. 2. He 36 fishes for food. He has also worked in the logging 37 industry from 1957 when he went to work at the 38 Moricetown Band sawmill. He worked there until he was 39 injured in a car accident in 1981 or '82. He also 40 appears to have done some logging on his own since he 41 acquired a skidder in 1979. His employment was 42 interrupted in 1976 and it's not clear now if he works 43 at all. His testimony I think is quite illuminating. 44 He says: 45 46 \"I worked wherever I can find employment.\" 47 28655 Submissions by Ms. Russell 1 This is despite the fact that he did do some trapping. 2 He says: 3 4 \"I...during spring breakup, just go out hunting 5 and trapping when there is no work...\" 6 7 \"So we went out trapping in the fall, spring, 8 and whenever we get laid off we went 9 trapping... We went trapping on weekends and 10 my way of life was still the same now.\" 11 12 I won't read the summary that follows on the next 13 page, my lord, which simply echoes that sentiment. He 14 found employment where he could and where he was 15 unable he did some trapping and some hunting. 16 I'll ask you to turn now, my lord, to tab 31 which 17 is Mr. Stanley Morris. Mr. Morris gives his 18 occupation as logger. He worked in the Moricetown 19 sawmills. He worked at Fink's Sawmill. He worked at 2 0 Hagman's Sawmill. And then when it became Houston 21 Forest Products, he worked there. He has not done any 22 commercial fishing. He knows his house as a fishing 23 site at Moricetown, but does not know anything about 24 it. He has never gaff fished at Moricetown and he has 25 never fished at Hagwilget. He has trapped some, but 26 not on his own. He trapped up on Telkwa before he 27 started his career in logging. So Mr. Morris is 28 slightly different from some of the witnesses that 29 we've pointed out before now. Mr. Morris is someone 30 whose occupation, he says, is logger. And he doesn't 31 seem to do much fall-back trapping from his evidence. 32 I'll ask you to -- sorry. The next person to whom 33 I'll refer you, my lord, is at tab 41. This is Abel 34 Sampson. Mr. Sampson says about trapping that it got 35 so bad \"that they had the store up there, and pretty 36 soon you can't afford to get the airplane in to pay 37 for stuff and we had to move to town.\" He moved to 38 Hazelton in 1949, and his father began working in the 39 sawmills. At that time, in 1949, he would have been 40 about 15 years old from his birth date. About. He's 41 presently a millwright, a job which he has held for 42 the past 15 years, working for Weststar and Hazelton. 43 And before that he worked in a sawmill. He says. 44 \"I've been at the sawmill all my life.\" And the 45 little summary that follows on the next page, my lord, 46 I won't read to you. It's very short. He doesn't 47 mention that he's done any hunting or fishing or 28656 Submissions by Ms. Russell 1 trapping, since he was 14 or 15 years old, out with 2 his father at Bear Lake. 3 THE COURT: Of course that mill is closed now, isn't it? 4 MS. RUSSELL: The \u00E2\u0080\u0094 ? 5 THE COURT: The Hazelton mill. 6 MS. RUSSELL: The Hazelton mill. I am sorry, my lord, I am not 7 aware of that. 8 THE COURT: I am not either there was several. 9 MR. MACAULAY: I thought it was the Kitwanga mill. 10 THE COURT: No. With respect it's still there. 11 MS. RUSSELL: It's having its problems. 12 THE COURT: It's having its problems. But I think the Hazelton 13 mill was closed. 14 MS. RUSSELL: Well, my lord, this is from \u00E2\u0080\u0094 this is from a 15 couple of years ago. 16 THE COURT: Well, I notice the evidence was in December '88 and 17 I think that we were up north in December of '88. 18 MS. RUSSELL: Oh, yes, my lord, we were. 19 THE COURT: It was working then, but I think it's closed since 20 then, but I am not sure. 21 MS. RUSSELL: It may have closed since then. I am sorry, I 22 don't know. I can find out. 23 THE COURT: Ask Mrs. Brower. She will tell you. 24 MS. RUSSELL: Okay. 25 THE COURT: She has to get a counsel fee, too. 26 MS. RUSSELL: My lord, I will ask you to turn next to Vernon 27 Smith who is at tab 42 following. Vernon Smith was 28 born in 1944. When he moved back to Kitwancool from 29 the Edmonton Residential School, he logged for three 30 or four years. He then worked in the Hobenshield 31 Bros. Sawmill in Kitwanga Valley. He's also a 32 commercial fisherman and he participates in the 33 herring fishery in February to March. He also spent 34 one year at Camosun College in Victoria and he drives 35 a school bus part-time for Farwest Bus Lines. In 1987 36 he went mushroom picking. He has not done any 37 trapping since his father died in the 1970s and he 38 does not have a registered trapline. 39 On the next page, my lord, Mr. Smith says that he 40 still hunts deer today, but does not specify when his 41 last hunting expedition was. He says he has not done 42 any trapping since his father died in the 60s. He 43 says he goes sport fishing where he sets the net out 44 on Xsi gallii gadsit, but he does not mention berry 45 picking. 46 My lord, if I could ask you to switch to the other 47 volume for a moment. The next person to whom I will 28657 Submissions by Ms. Russell 1 refer is at tab 24, This is Art Mathews Jr. Mr. 2 Mathews was born in 1940. And as you recall his 3 evidence, my lord, he's really involved in the 4 forestry industry as a saw filer. He has worked at 5 Westar for many years. He's complete his 6 apprenticeship at the Pacific Vocational Institute and 7 he's worked as a commercial fisherman at the coast in 8 the summers. Now, in addition to these occupations 9 Mr. Mathews has a registered trapline and he's done 10 some weekend trapping with his sons and he has sold 11 three or $400 worth of pelts to the Hudson's Bay 12 Company in 1978. And again Mr. Mathews is someone 13 whose full-time occupation is clearly in forestry and 14 some commercial fishing time as well in his past. 15 The next page, my lord, gives a short summary of 16 his traditional activities. He has been involved in 17 traditional activities, though only since taking the 18 name Tenimgyet in 1981. The last time he was goat 19 hunting was two years ago. He made another trip the 20 year before that. When asked by Mr. Plant if he does 21 weekend trapping he answers: 22 23 \"Well, if you disturb it... visit it once a 24 week, yes.\" 25 26 He began building a smokehouse in 1981, which is now 27 run by his mother, which, of course, your lordship 28 will recall we visited when we took our view. He 29 talks about annual food fishing at his territorial 30 sites, but does not give any further details. Since 31 1981, he has gone back to his territory every year to 32 pick berries with members of his family. 33 My lord, I'll also refer you to tab 15 in this 34 volume, a very short summary here. This is Ernest 35 Hyzims, Gwagl'lo. He was born in 1922. Mr. Hyzims 36 says that for five years he went commercial fishing 37 and worked at mending nets. He also worked for the 38 CNR for five years beginning in '41. Following this 39 he just worked around at home and did some fishing and 40 cutting wood. Around 1966 he worked as a janitor at 41 the school in Kitsegukla and did this for five years. 42 And on the next page, my lord, you'll see his 43 traditional activities summarized. Mr. Hyzims says: 44 45 \"In my younger days I would go out trapping\", 46 47 The last time he went out on his trapline was 1947. 28658 Submissions by Ms. Russell 1 He didn't go after that, he said, because of 2 afthritis. He has done some fishing. After leaving 3 the CNR in the mid-forties he did some fishing and he 4 seems to have fished in the Skeena from spring to 5 early summer of 1988. 6 The last one to whom I will refer you, my lord, is 7 at tab 3 in this volume, and this is Charlie Austin. 8 Mr. Austin turned 68 on October 24, 1988. During the 9 war he was a construction worker. He then worked on a 10 CN work train and also became a section hand -- 11 section man on CN. He fished on the coast around 1942 12 and he worked on portable sawmills in 1945 to 1946 13 skidding with horses. He also worked in Hazelton 14 sawmills. He trapped and hunted while he lived with 15 his parents. He was the chief councillor at Hagwilget 16 and was also the representative to the Gitksan-Carrier 17 Tribal Council. He holds a registered trapline which 18 he has never used because of illness. He received the 19 trapline in 1977. He's driven down to try to see it, 20 but it's too far on Morice Lake for him to see him. 21 The trapline is not in his clan's territory. He 22 hunted in the early or late 50s in Bulkley Canyon 23 area. Other than fishing on the coast there is no 24 other mention of fishing in the transcript. 25 My lord, if you would now turn to pages 114 -- 26 page 114 in the Summary of Argument for the Attorney 27 General of Canada. This is Part X, that's Roman 2 8 numeral X. 29 THE COURT: Do I understand, Miss Russell, that there is a 30 summary for each of the plaintiffs' witnesses? 31 MS. RUSSELL: Yes, my lord, there is, except for the ones we've 32 indicated. 33 THE COURT: Yes. Yes. All right. Thank you. What page do you 34 want me to go to? 35 MS. RUSSELL: Page 114, my lord, and it follows the tab which is 36 Part X, Part 2, page 39. 37 THE COURT: Thank you. 38 MS. RUSSELL: At the bottom of page 114, my lord, it's headed \"A 39 Sketch of Gitksan and Wet'suwet'en Economy at the End 40 of the Twentieth Century.\" 41 The Gitksan and Wet'suwet'en ecomonies in the 42 1980's were very different from what they were at the 43 beginning of the 1800's. The major components of 44 these economies are forestry, various professions such 45 as teaching, commercial fishing on the coast, and 46 various kinds of income assistance programs such as 47 pensions. In the 1890's, hunting, gathering, 28659 Submissions by Ms. Russell 1 trapping, and/or food fishing (beyond an occasional 2 weekend or recreational aspect) is a component of the 3 economic strategies of very few of the group of 4 witnesses considered, and this group because it is 5 probably older than average, may overemphasize 6 traditional activities in the total population. 7 Furthermore, if we look at the end of the 80's, an 8 even smaller group follows economic strategies in 9 which traditional pursuits are a major component. And 10 my lord, you may wish to refer to Robert Jackson Sr. 11 for an example of that kind of witness. As the older 12 group of the population dies, it seems likely that the 13 trend away from reliance on traditional activities 14 will increase. 15 Among the 55 witnesses whose testimony was 16 analyzed, in addition to the few who rely on 17 traditional activities, a larger group mentioned 18 hunting, trapping, gathering and/or food fishing as an 19 occasional weekend or recreational activity. Slightly 20 more than half the witnesses participate in 21 traditional activities to some extent. In the Tribal 22 Council's own census, Exhibits 901-2, 3 and 4, less 23 than half the respondents replied that they 24 participated in these traditional activities in any 25 way, even as an occasional weekend or recreational 26 activity. It is not clear, my lord, I submit, that 27 Gitksan and Wet'suwet'en participation in hunting, 28 trapping, gathering, or food fishing in the 1980's 29 differs from any non-Native rural community in western 30 Canada. 31 It is also not clear just how much income 32 traditional activities represent, but the impression 33 from reading the statements of witnesses is that they 34 contribute relatively little to the total income of 35 the 55 witnesses surveyed. 36 As Loring foresaw, the Indians' movement into 37 non-traditional activities such as logging, has to a 38 large degree supplanted their economic dependence on 39 hunting, gathering, trapping, and food fishing. 4 0 THE COURT: Are you able to provide me with a reference to 41 Loring? 42 MS. RUSSELL: Oh, my lord, would you like them all? 43 THE COURT: No. But I remember the prediction he made. 44 MS. RUSSELL: I certainly can, my lord. 45 THE COURT: It would be useful to have it noted here, if you 46 want to look for it. 47 MS. RUSSELL: I will, my lord, provide it to you. 28660 Submissions by Ms. Russell 1 THE COURT: Is there any problem with your reference to Exhibits 901-2, 3 and 4? This is the itchy trousers question again, and I don't remember if it was ever resolved. Seems to me that there was some -- MS. RUSSELL: I know there was a great deal of discussion about it, my lord. THE COURT: I am not sure what the status of those exhibits is. MS. RUSSELL: I believe that they were admitted but for a limited purpose. I will look at this transcript, my lord, and perhaps provide that transcript reference to you tomorrow. THE COURT: All right. Thank you. MS. RUSSELL: Those are my submissions, my lord. Thank you. THE COURT: All right. Thank you. MR. MACAULAY: My lord, one thing I forgot this morning, before launching into the subject of the wills, was the submissions that I would have made on Thursday night had it not been for the lateness of the hour, and that had to do -- it's at the conclusion of the Loring material. You remember I handed up 22 pages of Loring material. THE COURT: Yes. MR. MACAULAY: And there are certain submissions there which perhaps I ought to draw to your lordship's attention. At page -- starting at page 21, they run from A to G. One could make more submissions than that, but those are the ones that perhaps are the most important ones. The first is that the Gitksan traditional economy wasn't providing adequate subsistence for the population of the central and western villages by 1890. And we reviewed -- I reviewed Loring's observations in 1890 about the destitution that was prevalent in all the villages that he had visited and that I had referred to at the bottom of page two of my -- of that submission. And of course, the very fact that there were head chiefs and people with famous names who found themselves destitute and on the welfare roles. The northern villages, Kisgegas and Kuldo, where the traditional economy was still in place, were starting to lose their population in 1902. The winter hunting and fishing villages, and the outlying canyon fisheries were abandoned, as were those of Kisgegas and Kuldo, but after Loring's time. It's a curious thing that the -- what appears to have been the principal fishery was not only abandoned - I'm talking about K'sun and upper K'sun, which are 23 and 29 miles our 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 28661 Submissions by Mr. Macaulay 1 respectively above Hazelton on the Skeena River in the 2 canyons, but that the plaintiffs had no recollection 3 of them. If the plaintiffs -- do you remember what 4 the fisheries expert said about how he determined 5 where the traditional fishing places were when he drew 6 his map 22. That's the map 22 of the plaintiffs' 7 series of maps. He and his researchers, his staff, 8 interviewed the elders and none of those interviews 9 produced any information at all about K'sun or upper 10 K'sun. 11 THE COURT: That was Mr. Morrell, was it? 12 MR. MACAULAY: That was Mr. Morrell. I'm not faulting Mr. 13 Morrell or anyone else for it. I am just making the 14 observation that there is a -- that it's not 15 remembered. It's commentary rather on the collective 16 memory about matters that aren't so ancient at all. 17 Matters that must have stretched beyond 1920 when we 18 know that the older people were still up there gaff 19 fishing. 20 THE COURT: Mr. Morrell was actually asked about that, was he? 21 MR. MACAULAY: I beg your pardon, my lord? 22 THE COURT: Was he actually asked about K'sun? 2 3 MR. MACAULAY: No, he wasn't. 24 THE COURT: I see. 25 MR. MACAULAY: There was nothing there. He didn't mark anything 2 6 about K'sun. We didn't find out about K'sun. 27 THE COURT: No, I am just wondering whether this -- what you 28 have just said is a reference to the evidence or it's 29 your submission. 30 MR. MACAULAY: This is my submission. I'm referring \u00E2\u0080\u0094 31 THE COURT: Yes. You are not saying that Mr. Morrell was 32 cross-examined and asked if any of the elders 33 mentioned K'sun or anything like that? 34 MR. MACAULAY: No. What I am saying is he described his method, 35 his modus operandi. He said that he and his 36 researchers interviewed the elders and that is how all 37 those names and dots got on the map. 3 8 THE COURT: Yes. 39 MR. MACAULAY: What didn't get on the map was any sign of K'sun 40 or upper K'sun or for that matter Ilie-san-dalgh, 41 which was a little farther up the Skeena, and 42 Lac-an-dalgh, which I think that was 34 miles up the 43 Skeena. That would be beyond K'sun. There were other 44 places there too that Mr. Loring had visited in the 45 1890's but not after that. However, K'sun stands on a 46 different footing. He was up there until 1920. The 47 other villages, fishing villages may have disappeared 28662 Submissions by Mr. Macaulay 1 in the way that Kuldo seared. They just 2 vanished. The population clearly withdrew from the 3 northern and western areas, and it withdrew largely to 4 Hazelton which had a very small local indigenous 5 population but soon became the largest village, the 6 metropolis, and for obvious reasons. 7 The next thing that arises out of the Loring 8 reports is that the traditional economic activities of 9 fishing and hunting and trapping were losing their 10 central position then in the lives of the Gitksan and 11 the Wet'suwet'en, as other economic alternatives were 12 being taken up large scale. I'm talking now about 13 the -- not only the fishery on the coast and the 14 freighting and packing, but the work on the railroad, 15 the work in logging. They had three sawmills. If 16 your lordship will recall by 1910 or '12 they 17 themselves had three sawmills. One at Kispiox, 18 another at Andamahl, another at Glen Vowell. So the 19 process had already started -- well, started. It had 20 got very very largely under way and it was because 21 Loring saw this tendency, saw how popular -- and he 22 reports on that, how popular wages were with the 23 Indians. He mentions some of the best hunters from 24 Kisgegas were coming down. They preferred earning 25 wages to the hardships of their own profession. 26 And another thing that arises out of the reports 27 is the disputes between families and crests over 28 fishing stations and trapping and hunting grounds were 29 frequent and continued throughout the period of 30 Loring's tenure. He was always going out to settle 31 disputes over fishing grounds and hunting grounds. He 32 was not only going out to these -- all these winter 33 villages that have now disappeared, but to the main 34 villages and to the -- all the little stations along 35 the Skeena River between Hazelton and Kitwanga. The 36 traditional methods of dealing with ownership and 37 claims to ownership of fishing stations and 38 smokehouses and trapping and hunting grounds were no 39 longer employed. Or it appears that is a conclusion 40 one could reach from the frequency of the disputes and 41 the calls on his services to settle them. 42 The next submission is that the Gitksan of the 43 central and western villages, that is Gitinmaax, 44 Kispiox, Kitsegukla and Kitwanga, and later the 45 Wet'suwet'en, joined the cash wage economy with 46 alacrity. And finally the society in the central and 47 western villages, and later in Hagwilget and 28663 Submissions by Mr. Macaulay 1 Moricetown, were increasingly based on family units, 2 housed in single-family dwellings. Now, I say that is 3 perhaps the most significant development of all. It's 4 as significance as the collapse of the fur price in 5 1951. Because the longhouse was the temple of the old 6 structure. The longhouse had within it several 7 families and several generations, three and four 8 generations ruled by a chief and sub-chiefs, wings. 9 It's quite easy to understand how people living the 10 longhouse life in a longhouse might carry on under the 11 rules and regulations and laws and customs that have 12 been described by the plaintiffs' witnesses existing 13 now. But once the wage earner, if I can call him 14 that, got himself a single-family dwelling where his 15 wife and his children lived with him, and where he was 16 responsible for the building of that house, buying the 17 windows and the nails and all the things that they 18 reported as bringing up from the coast and sawing up 19 the lumber for it, his focus would turn entirely to 20 that unit. That's not to say he would neglect as a 21 matter of course his parents if they were elderly. 22 But the connection, the connection with the other 23 families in the longhouse and the other generations in 24 the longhouse are broken now. And he is a wage 25 earning citizen who is in the same position insofar as 26 his obligations are concerned as anyone else. And 27 that change must have -- must have had the most 2 8 fundamental importance in the development that we see 29 from 1890 to 1980 in the changeover. It happened much 30 sooner than that. 31 MR. JACKSON: My lord, is my friend pointing to some specific 32 evidence in the record for that proposition or is this 33 his -- 34 MR. MACAULAY: Lots of evidence. 35 MR. JACKSON: \u00E2\u0080\u0094 his submissions? 36 MR. MACAULAY: Specific evidence, it's my submission. 37 THE COURT: Well, there is a good deal of evidence about the 38 movement into private homes in the reports of Mr. 39 Loring. 40 MR. JACKSON: Yes, my lord. I was thinking more of the 41 conclusion that the shift had significance in terms of 42 the way of life and the system of reciprocity between 43 house members. I am endeavoring to find out whether 44 there is particular evidence my friend will point to 45 in relation to that proposition. 46 MR. MACAULAY: Well, my lord, you remember that Loring noted 47 that the old people could no longer count on the 28664 Submissions by Mr. Macaulay 1 support of the lodge where three or four generations 2 lived and that for that reason they were the people 3 who had to rely on welfare and I think I made a 4 particular reference to that. 5 THE COURT: Yes. 6 MR. MACAULAY: And referred your lordship to particular exhibits 7 in that connection. There are hundreds -- I say 8 hundreds. There is at least one a month and sometimes 9 two and three a month from 1893 to 1913, the details 10 of relief payments. And they are almost invariably to 11 old people. It's the old people who are ill and 12 destitute. Now, that state of affairs simply wouldn't 13 exist in the society that the plaintiffs' have urged 14 on your lordship as existing today - not only then, 15 but today. Whatever system there was was broken up 16 into other units. That's my submission. And crests 17 are mentioned in Loring's time and crests are 18 mentioned in Boys' time and crests are mentioned in 19 Mclntyre's time, but there is no mention of a house. 20 The only thing that could possibly refer to a house is 21 that one expression of Loring's: the lodge. When he 22 was talking about the old people no longer being able 23 to rely on the lodge for their support. 24 Well, those are my submissions, my lord, on 25 Loring. They come at an awkward time. I should have 26 made these submissions early this morning at the 27 latest. But -- and they are set out there. And of 28 course, they dove-tail I say with the -- with the 29 descriptions of these people, these particular 30 plaintiffs, by the agents 40 years ago and 20 years 31 ago. It's no surprise to see that continuity of 32 development. There isn't any sudden change. The only 33 sudden change there was was in the field of trapping 34 in all the story. Those are my submissions for this 35 afternoon, my lord. I wonder if this is a good time 36 to adjourn. 37 THE COURT: Yes. I think it's a wonderful time to adjourn. 38 What time do you want to start tomorrow? 39 MR. MACAULAY: 10 o'clock. Could we start at 10 o'clock? 40 THE COURT: Oh, yes, we can start at 10 o'clock. It's your 41 time. 42 MR. MACAULAY: Yes, our time. 43 44 (PROCEEDINGS ADJOURNED UNTIL TUESDAY, JUNE 19, 1990 AT 45 10:00 A.M.) 46 47 28665 Submissions by Mr. Macaulay 1 2 I hereby certify the foregoing to 3 be a true and accurate transcript 4 of the proceedings transcribed to 5 the best of my skill and ability. 6 7 8 9 10 11 Laara Yardley, 12 Official Reporter, 13 UNITED REPORTING SERVICE LTD. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47"@en . "Pagaination restarts from 28574."@en . "Trial proceedings"@en . "British Columbia"@en . "KEB529.5.L3 B757"@en . "KEB529_5_L3_B757_1990-06-18_01"@en . "10.14288/1.0018540"@en . "English"@en . "Uukw, Delgam, 1937-"@en . "Indigenous peoples--Canada"@en . "Oral history"@en . "Wet'suwet'en First Nation"@en . "Vancouver : University of British Columbia Library"@en . "Vancouver : United Reporting Service Ltd."@en . "Images provided for research and reference use only. For permission to publish, copy, or otherwise distribute these images, please contact the Courts of British Columbia: http://www.courts.gov.bc.ca/"@en . "Original Format: University of British Columbia. Library. Law Library."@en . "[Proceedings of the Supreme Court of British Columbia 1990-06-18]"@en . "Text"@en .