"3baf7844-04e2-4936-a726-c1455336c7d8"@en . "CONTENTdm"@en . "Delgamuukw Trial Transcripts"@en . "British Columbia. Supreme Court"@en . "2013"@en . "1990-05-07"@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/1.0018556/source.json"@en . "application/pdf"@en . " 25604 Proceedings 1 2 3 4 THE REGIS 5 6 7 THE COURT 8 MR. GRANT 9 10 11 12 THE COURT 13 MR. GRANT 14 THE COURT 15 MR. GRANT 16 17 18 19 20 21 22 23 THE COURT 24 25 26 27 28 MR. GRANT 29 30 31 32 33 THE COURT 34 35 36 MR. GRANT 37 THE COURT 38 MR. GRANT 39 40 41 THE COURT 42 MR. GRANT 43 THE COURT 44 MR. GRANT 45 46 47 THE COURT MAY 7, 1990 VANCOUVER, B.C. RAR: Order in court. In the Supreme Court of British Columbia, this 7th day of May, 1990. Delgamuukw versus Her Majesty the Queen at bar, my lord. Mr. Grant. Yes, my lord. Before I commence, I would like to raise a -- raise the scheduling for this week with your lordship, and propose the scheduling for this week. Yes. What's the date today? The 7th. Thank you. All right. What do you suggest? My lord, this is what we propose, that we would go today from 10:00 'til 4:00, and then have an evening session tonight from 7:00 to 9:00. I am proposing these, and of course if your lordship is unavailable, if we can alternate the evenings, then that's fine with us. Just let me follow through. So an evening session this evening from 7:00 to 9:00. Tomorrow going from 9:00 in the morning until 5:30. Well, there is a problem there, Mr. Grant. I made a commitment several months ago to deal with a matter at 4:00 o'clock tomorrow afternoon, which would take about an hour. There is too many people involved to change it, but I can continue on after that. My lord, as I want to be clear, is that we have tentatively made the schedule. If we can get these hours in, and of course I fully anticipate there may be some problems for your lordship, but the total hours is what we mean. As I say, I can come back after 4:00 o'clock until -- and go on for -- as long as you want after that to make up that hour. Well, that may be. So what do you suggest tomorrow? Well, starting at 9:00 and going 'til 4:00, in light of your lordship's commitment, and then if necessary come back for an hour and-a-half. That would be from 5:00 until 6:30? Depending on your lordship's -- That's satisfactory. On Wednesday, May 9th, to commence at 9:30 and go 'til 5:30, and then have an evening sitting there, 7:00 to 9:00. Yes. 25605 Proceedings 1 MR. GRANT: On Thursday commence at 9:30 and go to 5:30, and it 2 may go for 15 minutes later. 3 THE COURT: Yes. 4 MR. GRANT: 5:45 or 6:30 at the outside. On Friday go 9:30 'til 5 5:00, and Saturday 9:30 to 4:00. And then on Monday 6 the 14th solely for the purpose of the closing 7 statement of the chiefs, start at 9:00, or if that's a 8 problem, 9:15 'til 10:00, 9:00 'til 10:00. And that 9 would be just for the closing of the chiefs, and that 10 would be the completion of the plaintiffs' argument. 11 If we can get those hours in. 12 THE COURT: Yes. 13 MR. GRANT: I am not sure if your lordship \u00E2\u0080\u0094 14 THE COURT: I think what I'll do is I'll take that with me at the 15 morning adjournment, and I can put it with my 16 schedule. I presently believe it's quite 17 satisfactory, but I will confirm that at the morning 18 break. I haven't heard from any of your learned 19 friends. 20 MR. WILLMS: We'll be sure we are available, my lord. 21 THE COURT: Yes. All right. Thank you. 22 MR. GRANT: My lord, just so that you \u00E2\u0080\u0094 in the course of the 23 break what I have done is I have not given you 24 everything on the balance of the territories, and I 25 have done that, but I went from the place where I had 26 stopped, the Gwiiyeehl territory, and I had the 27 corrections made to it. So that this could replace 2 8 that part of your argument of volume 6. 2 9 THE COURT: Yes. Thank you. 30 MR. GRANT: Starting at page 60. And I am ready to commence my 31 argument there, and I believe my friend wants to say 32 something before I start. 33 THE COURT: Let me just understand what you just said. You are 34 going to replace some pages that you haven't yet dealt 35 with? 36 MR. GRANT: Not pages that I have dealt with. I understand you 37 may have used them for notes, so those ones -- those 38 will only be typos. 39 THE COURT: Madam Registrar can be doing that while I hear from 40 your learned friend. 41 MR. WILLMS: My lord, I have a judgment of the Supreme Court of 42 Canada from Friday, which I gave to my friend this 43 morning, which does touch on matters raised in the 44 plaintiffs' argument. And I just wanted to make sure 45 that my friends had a copy of that argument. It's not 46 in anybody's authorities, obviously, but it does touch 47 on issues that the plaintiffs are advancing. 25606 Proceedings 1 The second thing is that -- and I'm not suggesting 2 that my friend deals with this right now, but while 3 he's on 646-9-A and 9-B, that is the territorial map, 4 we, in order to understand the case that we have to 5 meet, we would like to know whether or not my friends 6 say that those boundaries, do they -- as part of their 7 declaratory relief do they seek a declaration that 8 other aboriginal peoples have no jurisdiction within 9 those boundaries? That's something that we've been 10 struggling with in looking up my friends' argument, 11 and these are -- I hesitate to rise in my friends' 12 argument, my lord, but these are things that if we 13 don't have something to go on before we start our 14 argument, we are going to be shooting at perhaps 15 something that we don't need to shoot at. So that's 16 one question. 17 The other issue which we wonder is do the 18 plaintiffs seek a declaration that as between the 19 plaintiffs, the house boundaries are the boundaries, 20 because my friends have proven all of these, what they 21 call internal boundaries, and we are trying to 22 understand whether or not they seek a declaration that 23 as among the Gitksan and the Wet'suwet'en those are 24 the boundaries. 25 The other point is with respect to the claim 26 against the province in respect of the provincial 27 laws. And we can't -- we don't understand whether the 28 plaintiffs are only seeking a declaration that within 29 the boundaries on 9-A and 9-B the plaintiffs -- the 30 province's laws don't have any application within 31 those boundaries, or are they only seeking that the 32 laws of the province don't apply to the plaintiffs 33 within those boundaries. That is, is it inapplicable 34 to the plaintiffs, or are the laws inapplicable 35 generally within those boundaries? 36 And the final question is in respect of the 37 declaration that provincial laws have no application, 38 do those apply to Gitksan and Wet'suwet'en people who 39 are residing outside the boundaries. In other words, 40 are they seeking it in rem in respect of the territory 41 only so that the invalidity of the provincial laws 42 that my friends advance applies only within 9-A and 43 9-B, or do they say that if a Gitksan or Wet'suwet'en 44 person lives in Prince Rupert and your lordship has 45 made some declaration in respect of a provincial law 46 that it follows the Gitksan and the Wet'suwet'en 47 person? And as I said, my friends don't 25607 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT THE MR. THE MR. COURT GRANT COURT GRANT need to deal with that today, but before they close. THE COURT: Well, I suppose you say it's part of their case. MR. WILLMS: Yes, it is, because we are trying to figure out what the declaration in respect of provincial laws is. Is it solely territorial? Is it territorial limited to the Gitksan and the Wet'suwet'en people? And the other point is do they say they have jurisdiction over all of this territory in 9-A and 9-B to the exclusion of all other aboriginal peoples? All right. Well, I am sure you have heard what your friend said, Mr. Grant, and deal with it as you may be advised. I intend that it will be dealt with as part of my argument. All right. Thank you. I have no comment on the Horseman case. I haven't had a chance to review the decision. Thank you. All right. Mr. Grant, are you ready? Yes. This morning I intend to deal in greater or lesser detail -- in lesser detail with some of the territories, but just to focus as to where they are and the evidence with respect to them. And I would like to start with Gwiiyeehl, Mr. Chris Skulsh's territory. That is, he is the head chief, Gwiiyeehl, the house territory is his house. There are two of these territories, my lord, referring to page 60, and they are both referred to in evidence of Mr. Muldoe, and are both reflected on Exhibit 486, which is the sketch -- this sketch map, my lord. That's one that I referred you to last week. And I can show them to you on the large map while Madam Registrar is getting them. These are the territories that are -- that's too high -- these are the territories in here and up here of Gwiiyeehl, in the Kispiox Valley and up at the headwaters of the Kispiox. COURT: Thank you. GRANT: Now, I just referred \u00E2\u0080\u0094 COURT: The northern one -- oh, yes, they are both on the sketch. MR. GRANT: They are both on the sketch, my lord, and that's the sketch map referred to by Mr. Muldoe. The first one, the Cullon Creek territory, which is located the southern most of the two, Mr. Muldoe was instructed by Mr. Walter Skulsh, the former holder of the name Gwiiyeehl, and he was advised it belonged to Gwiiyeehl, and he -- this is how he described that THE MR. THE 2560? Submissions by Mr. Grant 1 continuity of ownership in his evidence. 2 3 \"Well, it was owned by the former Gwiiyeehl for 4 a good many years, and they are still using the 5 same name today. That could be the Gwiiyeehl, 6 the same name a couple of thousand years ago. 7 But whenever one passed onto the next family or 8 take over the name and it keeps on going like 9 that right up to today.\" 10 11 And then Mr. Muldoe, of course, on page 61 has 12 heard this territory described in the feast hall. You 13 go to page 62, my lord. Mr. Muldoe describes where he 14 has hunted on this territory, and the territory has 15 the reference to the beaver hunting ground on the 16 sketch map, and he has hunted and trapped there. He 17 explains again who with, Johnson and Jackie Williams. 18 Johnson being Gwiiyeehl's brother-in-law, and Jackie 19 being the grandson of Gwiiyeehl. So that's that 20 grandfather's right or Amniyetxw, A-m-n-i-y-e-t-x-w, 21 being reflected there as well as a spousal right. Of 22 course if Jackie Williams is the brother-in-law of 23 Gwiiyeehl, then he's married to someone from his 24 house. 25 The next territory is the Baldy Mountain 26 territory. That's the small territory much further 27 north. And it basically comprises the territory of 2 8 the mountain and the area around the mountain. Mr. 29 Muldoe described this as well, and on page 63 of his 30 evidence quoted where he says that it's quite a high 31 mountain I'm sorry, at the bottom of the page he 32 said: 33 34 \"It's pretty steep, and it's only one way he can 35 come out of those places. The place they call 36 An Lax Leeyim Huupxwit. And that's the place 37 where during the early days I believe that some 38 of the people that hunts there, they dig a 39 place into the mountain, oh, about eight or ten 40 inches apart that goes up to about a hundred 41 yards up on the side of the mountain. That's 42 mostly grass mountain along there. No rock. 43 They dig those in so you can make a step as you 44 go along there ... if you ask me it must be 45 pretty close to 90 degrees. Pretty steep. I 46 say if you stand up three feet away from it you 47 will be falling back. When you are going up 25609 Submissions by Mr. Grant 1 that hill there with your pack on your face is 2 no longer about ten or twelve inch from the 3 mountain from the ground. And also you've got 4 to crawl on -- you've got to be pretty well 5 prepared to get out of there. You got to be 6 crawling on your hands and feet too as well. 7 It's very steep, almost like that. Like when 8 you standing you can't -- you just about 9 standing like that, and make it really hard to 10 step into all this little dugouts. If you make 11 any false move in there you down to the bottom 12 of the mountain again, so that's why they named 13 the place An Lax Leeyim Huupxwit. As far as 14 the Indian call it forehead right next to the 15 earth.\" 16 17 Now, my lord, I quoted that, and he described how 18 old the steps are on the mountain to demonstrate that 19 it's an example once again of the depth of knowledge 20 and the geographic knowledges of the people, and this 21 demonstrates the basis of the people's ownership of 22 the territory in the plaintiffs' submission. 23 Now, I would like to move to the next 24 territories -- 25 THE COURT: Can you remind me. Have I heard any other evidence 26 about those steps? Here is something physical and 27 tangible we could look at, and assess -- I take it 28 they weren't examined by any archaeologists? The steps, no. Any pictures of them in evidence? I don't believe so, my lord. This is -- these steps 32 are up the mountain, and I think that they are -- and 33 they weren't shown on the viewing, but these are the 34 steps, as I say, that were looked at on the mountain. 35 They were not -- they were -- I will check with 36 respect to photographs. I don't believe there is, but 37 I can check that. 38 THE COURT: All right. 39 MR. GRANT: On the next territory is the Wii Elaast territory, 40 and this is the territory of the House of Wii Elaast. 41 James Angus Jr. is the present chief with that name. 42 And that, once again, is shown on page -- Exhibit 486, 4 3 my lord. 4 4 THE COURT: Thank you. 45 MR. GRANT: Both of the territories. You see up near -- just 46 south of Kuldoe, you see the Wii Elaast territory. 4 7 THE COURT: Yes. 2 9 MR. GRANT 3 0 THE COURT 31 MR. GRANT 25610 Submissions by Mr. Grant 1 MR. GRANT 2 3 THE COURT 4 MR. GRANT 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 THE COURT 36 37 MR. GRANT 38 THE COURT 39 40 MR. GRANT 41 42 43 THE COURT 44 MR. GRANT 45 46 THE COURT 47 MR. GRANT : And then down near Kispiox you see a small territory right along the Skeena River near Kliiyem Lax Haa. : Yes, I see it. : Now, my lord, I submit that the logic of the location of those two territories makes more sense when we understand that Wii Elaast is one of the Wolf chiefs from Kuldoe. And of course that's the reason why he has a territory in the Kuldoe area. But the fact that he has a small territory along the Skeena River, which is described in the evidence, and you can see that Spagaytasx, S-p-a-g-a-y-t-a-s-w, which is a mountain that separates it from the Kliiyem Lax Haa territory, demonstrates that he is one of the Wolf chiefs from Kuldoe that came down earlier to Kispiox. That is, he's been there longer than some of the more recent ones, such as Gyolugyet. Now, with respect to the northern territory, on page 66 I refer to the cabins on Exhibit 486 of Wii Elaast, which are marked as triangles. And there is a small smoke house at the creek called Giist flowing from the mountain. Now, these were previous locations seen by Mr. Muldoe, but they are not standing today. Once again I refer you to Mr. Muldoe's evidence on page 67 with respect to the Waulp territory. That demonstrates that it is a geographic, although it's a rectangular shaped territory. It is based on geographic demarcation, being the mountains. And again Mr. Muldoe, as we saw with Mr. Williams, describes spontaneously in his evidence the boundary without any difficulty, and he knew it. Mr. Muldoe went with the former Wii Elaast in the summer and in the winter on these territories. I would like to move to the territory of Wii Muglusxw. : There is another Wii Elaast property up at New Kuldo, is there not? : Yes. I'm sorry, my lord -- : That's off this map. Are you going to deal with it separately? : Sorry, my lord. There is the territory that is on this map, Wii Elaast, the northern one is near New Kuldo. There is two territories. : I'm sorry, that is north of Kuldo? : That is -- it's just south of Kuldo -- of New Kuldo, yes . : Yes. : And both of the territories are on this map. 25611 Submissions by Mr. Grant 1 THE COURT 2 MR. GRANT 3 THE COURT 4 MR. GRANT 5 THE COURT 6 7 8 9 10 MR. GRANT 11 12 13 14 THE COURT 15 MR. GRANT 16 17 THE COURT 18 MR. GRANT 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Yes. All right. So there is only two? There is only two Wii Elaast territories. Before you leave 466. Yes, my lord. I am sure you will come back to it. Can you remind me what the evidence is about the territory north of Kliiyem Lax Haa and south of Gwii yeehl? Its got a blue boundary around the south and the east side, and a red one on the north. I see what -- I think that it was not -- that's one crossing over the river, if I recall. Just a moment. Oh, yes. That is the territory Yagosip that Mr. Steve Robinson spoke to. All right. So it's described in the evidence? Yes, it's described in the evidence, and I'll come to Yagosip's territories. All right. Okay. Now, here, my lord, there is a -- on page 69 I would like you to correct something that was missed, that there is only one territory of Wii Muglusxw. It says there are two. There is in fact only one territory of Wii Muglusxw. And this is the Skins Lake territory, which, as you can see, is a derivative from the Gitksan word, Skunsnat, and this territory is on Exhibit 486 as well. It's again a territory within the Kispiox Valley, and if you recall a few weeks ago when I was explaining the wilnadahl of Kliiyem Lax Haa, I explained that Wii Muglusxw was one of those Kispiox Wolf chiefs closely related of the -- one of the closest proximities to Kliiyem Lax Haa. And an indication of this is the fact that the Wii Muglusxw territory is only in the Kispiox area, that is in the Kispiox Valley, which are generally the territories of the Kispiox chiefs. Now, I have summarized the evidence of Mr. Muldoe on the Skunsnat territory on those two pages, and you can see that there is some of the markings, some of the place names are referred to on Exhibit 486, my lord. And I had intended under the heading of Skunsnat to have reference to Exhibit 486 as its reflected there for your lordship. I would like to move into the territories of Geel. Of course, as your lordship has heard, Geel is Fireweed chief of Kispiox. Present holder of that name is Walter Harris. And there are a number of territories of Geel. Now, the first one is Lax Didax, the first one I wish to deal with, and they are on 25612 Submissions by Mr. Grant 1 Exhibit 486, and it's of course the territory, the 2 furthest northwest on Exhibit 486, my lord, just south 3 of Antgulilbix's territory. 4 THE COURT: Yes. 5 MR. GRANT: And -- now, this territory, my lord, it's important 6 for you to note that this is different than any of the 7 other territories, in that this is a territory that 8 the evidence demonstrates is jointly owned by Geel and 9 Dawamuxw. These are both Fireweed chiefs, and this is 10 the only territory of which Dawamuxw has a claim in 11 this action. And I would like to -- I refer you to 12 the evidence of Mr. Muldoe with respect to his 13 training on this territory, and on page 72 the 14 evidence halfway down is that Geel and his family hunt 15 and trap on the territories, hunt marten, fisher and 16 beaver, and then Mr. Muldoe's son, Lloyd Muldoe were 17 opening trails in that territory, and he gave evidence 18 of that. 19 Now, Mr. Muldoe testified that the area of the 20 Nangeese River between the two Geel territories and 21 the area to the west of the Geel territory belonged to 22 the Kitwancool people. And I would just as soon deal 23 with that as I am over there. And this, my lord, is 24 pretty dramatic. You can see it's this area here 25 which is like a notch. 2 6 THE COURT: Yes. 27 MR. GRANT: Because Mr. Fred Wale was cross-examined by, I 28 believe, Mr. Mackenzie on this territory, and there 29 was a dispute relating to traplines there, but Mr. 30 Wale, who was speaking about the Gwoimt territories, 31 G-w-o-i-m-t, Mr. Wale did not make a claim to that 32 territory, but there was a trapline dispute there, and 33 there is much evidence. I'm sure you'll hear from my 34 friends on that. But the important thing is that 35 Nangeese is not part of this court action. It's 36 understood by Mr. Muldoe to be Kitwancool territory, 37 and it's not part of the claim. 38 Now, the other dramatic incident with respect to 39 this Geel/Dawamuxw territory of Lax Didax is Mr. 40 Muldoe's evidence referred to on page 73 of the chiefs 41 getting together to protect the territory and the fish 42 spawning grounds on it from logging. And he stated: 43 44 \"On that territory there anywhere from along the 45 Kispiox River and runs right up to -- to 46 Antgulilibix up to Kispiox east and upper 47 Kispiox and right into Williams Lake, that's 25613 Submissions by Mr. Grant 1 all spawning ground along there for all species 2 of lake salmon and coho, sockeye and other fish 3 that goes right up there.\" 4 5 And of course your lordship recalls that a 6 territory of many lakes, and it's obviously a very 7 prime spawning area. 8 9 \"It's a real good spawning ground up there and 10 so is right around -- right around Stevens Lake 11 there. And they started, the forestry started 12 pushing the road on the east side of the 13 Kispiox River, and they just about come right 14 up to right across from Stevens Lake there, and 15 they go that far. And they haven't logged 16 there yet but they propose to log there. And 17 also not too far from on the west side on 18 Kispiox River and they go and log right up past 19 Nangeese.\" 20 21 And reflecting here, of course, past Nangeese 22 going into this area. 23 24 \"And they have, I believe, you might see it on 25 the map just where the road is and they are 26 getting pretty close and they were supposed to 27 extend the road and going into Swan Lake, but 2 8 somewhere some way or another nobody want them 29 to go in there ... all the chiefs get together 30 and they protest. They don't want no -- no 31 logging to be done into Williams Lake, because 32 they have been destroying a lot of different 33 places where the fish been spawning, and one of 34 the best spawning grounds is up there.\" 35 36 And as the evidence reflects, Mr. Muldoe goes on 37 to explain, I've just summarized it, that three or 38 four years ago the road building stopped and logging 39 did stop there. 40 THE COURT: Which of these lakes is Williams Lake? 41 MR. GRANT: It would be \u00E2\u0080\u0094 I don't believe it's labelled on 42 this map. 43 THE COURT: Is it in the Nangeese River notch, or is it in the 44 northerly Geel property? 45 MR. GRANT: I don't want to \u00E2\u0080\u0094 I believe it was in the \u00E2\u0080\u0094 I 46 can't be sure of that, my lord. 47 THE COURT: All right. Never mind. 25614 Submissions by Mr. Grant 1 MR. GRANT 2 THE COURT 3 MR. GRANT 4 5 6 THE COURT 7 MR. GRANT 8 9 10 THE COURT 11 MR. GRANT 12 13 THE COURT 14 MR. GRANT 15 16 THE COURT 17 MR. GRANT 18 19 20 21 22 23 24 25 26 27 28 29 THE COURT 30 MR. GRANT 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 I'll check that. I can check it. It's reflected in Mr. Muldoe's affidavits. It's reflected in Mr. Muldoe's affidavit, and I will check that. I can find it on the map, I'm sure. Yes. And -- but you see Stevens Lake on there. It's just -- Stevens Lake is within the Geel -- the northern Geel Dawamuxw territory. Is it the large one on Stevens Lake? That's right. And then Swan Lake is the one just outside the very large black one. The large one? It's much larger, and it's within the Kitwancool territory. All right. Now, my lord, on the bottom of 73 I deal with the Dawamuxw/Geel relationship. Dawamuxw has the same territory as Geel. In this case the territory should be found to be held by both Dawamuxw and Geel. In fact, my lord, these are the same wilnat'ahl. Dawamuxw is not shown on the map because he's closely related to Geel's House. Now, the proximity is demonstrated through the genealogies, and rather than pulling genealogies, I've summarized and given you the references. This is how close the relationship goes. One of the sub-chiefs in Dawamuxw's House was Martha Niiyasdaxhuuk, and this should be -- Madam Reporter will need a spelling for that. On page 74. And that should be referred to as page 73A, my lord. I'll be correcting that on the disk. When Martha Niiyasdaxhuuk died, the name was taken into Geel's House, and the present holder of this name is Geel's nephew, John Heit, and that's known on both the Dawamuxw geneaology and the Geel geneaology, and it's also reflected in the cross-examination of Pete Muldoe. Not that particular point, but the other point of Dawamuxw and Geel being on the same territory. Pete Muldoe testified to that in his evidence. And so this is the only situation in which the plaintiffs are saying that with respect to this territory it is held by two houses. Now, I would like to refer to the Luu Andilgan territory of Geel on page 74, and this is is the territory to the east of Nangeese River, about forty miles north. It is the one just south of the Nangeese notch or actually south and east of the Nangeese 25615 Submissions by Mr. Grant 1 notch. And the names referred to in the third 2 paragraph are some of the key places in that 3 territory. Mr. Muldoe testified to ten of those 4 names. He's hunted goat in that territory, and the 5 place where the goat has been hunted is shown on the 6 map, Exhibit 486. He also gave evidence about 7 groundhog hunting on the very northern part of that 8 territory. Of course this is very high terrain. And 9 then beaver trapping along Sweetin River. And they 10 are all shown on Exhibit 486. 11 Now, the third territory is the Barker Creek 12 territory. This is the territory that is at the very 13 top, my lord. It's a territory acquired by Geel as a 14 result of a Tsiisxw. Walter Blackwater testified to 15 this territory, and I summarized his evidence there, 16 and it's in Exhibit 605, which is his affidavit. 17 Now, on page 76 I refer to the evidence of Martha 18 Brown. She travelled on this territory with her 19 mother and her stepfather, the former Geel, when she 20 was between the ages of 12 and 19. She stopped going 21 to the Geel territory when her stepfather died. 22 Martha explained the territory was beside the 23 Kliiyem Lax Haa territory in the north, and Geel 24 acquired this territory by a Tsiisxw with the Stikine 25 people. To the north is the boundary with the 26 Tahltans, which she refers to as the Stikene. 27 Martha Brown described some of the geographical 28 features on this territory, that they were right 29 beside each other, and she also, my lord, said that 30 this territory, there were two separate Tsiisxw with 31 the Stikine relating to these territories, that this 32 territory here was acquired through a separate Tsiisxw 33 as a different time than this Kliiyem Lax Haa 34 territory, and it was a killing of Geel's children or 35 members of Geel's House that acquired that. And 36 that's Martha Brown's evidence. 37 Now, I now wish to refer to the territory of 38 Antgulilbix, Mary Johnson. And there are two 39 territories of Mary Johnson. 40 THE COURT: Can you remind me of the reason for the difference 41 in the boundary of the Geel property and the southwest 42 portion of it as between overlay 9-A and -- what is 43 this one? 44 MR. GRANT: I'm sorry, the other was trapline. I have it. I 45 understand. Thank you. 46 Now, these two territories of Antgulilbix, one is 47 very close to the village of Kispiox on the west side 25616 Submissions by Mr. Grant 1 of the Skeena near Date Creek, and the second one is 2 up on the Upper Kispiox River 50 miles north of the 3 Village of Kispiox, and it's on exhibit -- the second 4 one is reflected on Exhibit 486, and was testified to 5 by Pete Muldoe. And there should be a notation under 6 Xsi Wis An Skit territory that it was reflected on 7 Exhibit 486, my lord. 8 Mary Johnson in her oral evidence described the 9 main topographical features as being the Upper 10 Kispiox, Mount Kologet and Andap Matx. Those are 11 shown on the map, and I can see Andap Matx on the 12 Exhibit 486, my lord. It's at the very top end. 13 Now, she -- Mr. Muldoe testified, as did Miss 14 Johnson, that Tsibassa was the main chief in the House 15 of Antgulilbix who managed and looked after this 16 territory. The present Tsibassa was too ill to 17 testify, because of his health, and Mr. Muldoe 18 testified. I believe that was explained by Mr. Muldoe 19 or Mr. Sterritt. 20 Now, in this northern territory, my lord, on page 21 79 I refer to the fact that there is no evidence of 22 logging or mining on this territory at all. And Mr. 23 Muldoe testifies that he knows the territory. He's 24 been shown the boundary, but he hasn't seen a map of 25 the territory at that time. And Delgamuukw's 26 territory joins right together with this, according to 2 7 Mr. Muldoe. 28 Now, with reference to Exhibit 17-9-B, Mrs. 29 Johnson said that there is a place where the murder of 30 Yeel took place -- on page 80. 31 THE COURT: Yes. 32 MR. GRANT: And this is how the ridge got its name. And I 33 referred you to that, but there is a tree standing 34 there smeared with blood and that's their own paint, 35 and a crest on the tree of the sun. The sun was put 36 there because it belongs to the Gisgaast, the 37 Fireweed. You recall the Sky children adaawk of the 38 Fireweed clan, and that's part of where that crest 39 arises from. And then the tree represents the 40 compensation that's an exchange of blood, and it won't 41 be taken back until the end of the world. And she 42 went on to describe the particular compensation, what 43 occurred in the murder of Yeel. Now, that territory 44 is reflected there, and it is shown on Exhibit 45 646-9-A. 46 I would like to go to the territory of Andamhl. 47 And this territory is a territory that my learned 25617 Submissions by Mr. Grant 1 friends make much of in their summary of argument. 2 First of all Mrs. Johnson tied this territory to the 3 adaawk of the one-horn goat, and I am not going to 4 repeat what was said there, because that's already 5 been referred to in evidence or in argument I should 6 say. But on page 82 she refers to the fact that the 7 village on that mountain in the adaawk is called Wilt 8 Galli Bax, and then she describes Wilt Galli Bax where 9 they hunted for groundhogs. And this is reflected in 10 the adaawk, and this is an example of where the adaawk 11 ties to the territory. 12 And if I can take you to page 84 of my argument, 13 my lord. Mrs. Johnson identifies this Andamhl site as 14 being a mountain behind Glen Vowell village. She 15 identifies Exhibit 17-9-A as a map of the territory. 16 On the other side of that boundary she described -- 17 she identified a boundary as Xsan Max Hlo'o. On the 18 other side of the boundary the territory belongs to 19 Ma'uus. 20 Now, we say, My Lord, one element of the houses' 21 knowledge of the territory, which is important for 22 defining the boundaries and for ownership, is the 23 element of presence. And Mrs. Johnson testified about 24 her great great grandmother using cedar bark for dye 25 from the territory, and her Aunt Emily Latz hunting 26 and trapping on the mountain in this territory. She 27 was told about the territory from her great great 28 grandmother. She reiterates in her evidence that this 29 was known as Antgulilbix's hunting ground, and she 30 describes the uses of the territory for hunting 31 groundhog, for berry picking. 32 Now, I refer to when she took the name on the 33 bottom of page 85 and on page 86, my lord. Mrs. 34 Johnson testified in cross-examination, she was told a 35 few days before testifying the territory on the other 36 side belonged to Johnathan Johnson, Ma'uus. Her 37 grandfather never mentioned this territory to her, but 38 she believed what Johnathan Johnson said. Now we are 39 not relying on that statement of her alone to say that 40 that's Ma'uus's territory. In fact Jeff Harris Sr. 41 gave detailed evidence about the Ma'uus territory, but 42 she knew who Johnathan Johnson was, and she agreed 43 with him. But that, as I say, isn't proof of the 44 territory of Ma'uus, and it was never intended to be 45 so. 46 MR. WILLMS: My lord, it was Mr. Sterritt that told her what 47 Johnathan Johnson said. It wasn't Johnathan Johnson 2561? Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 directly. THE COURT: That's correct. MR. GRANT: I know that, and I'm sure you recall that, my lord. I wasn't suggesting anything else. Now, Mrs. Johnson also identified Xsu Wil Masxwit, another creek on the territory, and that's a creek that flows from the mountain called Wil Masxwit. She was cross-examined between the difference of her evidence and her interrogatory affidavit, and it was suggested that she was not aware that Ma'uus's boundary was different. What she said was: \"No. I was told by my grandmother and Aunty Emily, later, that our boundary is Xsan Max Hlo'o. That's the creek and we didn't claim Ma'uus territory.\" Here referring to the territory to the north. Later by Mr. Goldie's cross-examination she verified: \"No we didn't say we owned the whole mountain, we said that -- that there is a clearing where Gyadim Lax Ts'inaast lives.\" This is that mountain where that fairly powerful and frightening person lived that you may recall I referred you to last week or two weeks ago. \"But right on top of the mountain is Ma'uus, they showed me on the map. But ... is where this mean man lives, and that's where Xsan Max Hlo'o runs down, that's our boundary.\" Now, I say, my lord, that the evidence of Mrs. Johnson on this point is consistent with the evidence that on the other side this is the territory of Ma'uus. Now, she wasn't sure whose the territory was, but she knew it wasn't her territory, and that's the point. That's what she was taught by her grandmother. Now, she was asked about the territory to the north of Andamhl, and she says: \"It's so plain, sir, this Wil Masxwit. The mountain is called Wil Masxwit. That's where our ancestors got the mountain goat, main food, and groundhog that they used the skin for the 25619 Submissions by Mr. Grant 1 feasts, and this Wil Masxwit and Xsu Wil 2 Masxwit comes from Wil Masxwit and runs into 3 Kispiox River. So they call this Xsu Wil 4 Masxwit -- Antgulilbix' Genip Jap. That means 5 that Antgulilbix' hunting ground in the ancient 6 time. So next to Xsu Wil Masxwit is Ma'uus 7 boundary ...\" 8 9 Now, she was asked then if she knew where Ma'uus' 10 territory was, and she said yes, she knew where it was 11 before she spoke to Mr. Sterritt about the map. 12 Now, again what she is reflecting is she knew it was 13 not her territory. 14 Now, Marvin George then testified to the creation 15 of 17-9-A, and I've referred you to that, because much 16 is made of that map, and he stated: 17 18 \"This is a map of Antgililbix and it's on a 19 scale of 1:50,000 also, and again a topographic 20 series, and again from the base that was 21 prepared for by Terra Surveys. And boundaries 22 from -- on this particular map different from 23 the boundaries on the previous map and would be 24 based on information that was brought to me by 25 Neil Sterritt.\" 26 27 Mr. George explained what led him to make the 2 8 change. 29 30 \"It would be previous to May 13, the day May 13 31 on this map, which would indicate that's the 32 day that I finished preparing this actual map, 33 but the information would have come to me 34 before that ... again information from Neil 35 Sterritt, his understanding of where Xsu Wil 36 Masxwit was. It was identified as Date Creek, 37 and the location of Date Creek is the -- where 38 Xsu Wil Masxwit as labelled. It's -- Xsu Wil 39 Masxwit. Date Creek on the NTS series is where 40 this particular feature is labelled on this 41 map.\" 42 43 As a result Mr. George made the alteration 44 depicted on Exhibit 646-9A, which is the claim that we 4 5 have. 46 Now, what's important here, my lord, is to 47 remember that we have other witnesses testifying to 25620 Submissions by Mr. Grant 1 this as well. 2 Mary Moore testified to the territory of 3 Luutkudziiwus immediately south of this territory, and 4 she said with respect to where it abutts on 5 Antgulilbix: 6 7 \"Here it runs east about two miles along the 8 height of land to Andamahl, and it continues 9 east to the source of Xsi Moolaa. It then runs 10 down Xsi Moolaa to Xsan. It then runs down the 11 centre line of Xsan to the starting point.\" 12 13 Now, Mrs. Moore stated in her affidavit that 14 Antgulilbix's territory was to the north. And she 15 also said Xsi Moolaa is also called Sika Doak Creek, 16 and said that was the boundary, and this is in her 17 evidence of cross-examination, between Antgulilbix and 18 Luudkuziiwus. 19 My lord, what's important about this is that when 20 any of these territorial witnesses were cross-examined 21 on the territories, you would find this, and it's 22 important because the defendants then took an approach 23 in certain cases to not cross-examine, and that's, of 24 course -- these are the ones where they are making 25 much of the apparent contradiction. 26 She also said -- on the other side of the mountain 27 bordering her territory was the territory of the 28 Kitwancool people. The name of the mountain is 29 Andimahl, and again that's consistent with the 30 evidence of Mary Johnson. There were no other 31 questions put to Mrs. Moore concerning the location of 32 the boundary with Antgililbix, or the fact that 33 Antgililbix owned the territory to the north of the 34 described boundary. And what I say, my lord, is if 35 the defendants are going to rely upon some mapping 36 discrepancy to challenge the reputation of 37 Antgililbix, they should put to that neighbouring 38 chief what she knows about that. And they declined to 39 do so, because they know full well that if they did it 4 0 would undermine their own argument. 41 Now, again what happens regarding this territory 42 is Jeff Harris Sr. spoke to the Ma'uus territory to 43 the north, and I have given you the description and 44 explanation there. You find a fascinating occurrence 45 here, because Mr. Harris was asked no questions in his 46 cross-examination about the boundary description 47 between Ma'uus and Antgililbix. He was cross-examined 25621 Submissions by Mr. Grant 1 in court. He was not examined about the ownership of 2 the territory to the south being in the House of 3 Antgililbix. And once again, any challenge to the 4 reputation of that Antgililbix territory should have 5 led to a questioning of that witness as to the 6 territory to the north, but it wasn't. 7 Now, I say, my lord, that on both the south and 8 north of the Antgililbix territory, Andamahl, the 9 defendants chose not to examine on the boundary 10 description. Hence, they must now be taken to have 11 accepted those descriptions of Mrs. Moore and Mr. 12 Harris. 13 Now, I refer back to Exhibit 17-9-A and Mr. 14 George's evidence of the 17-9-A mapping. And Mr. 15 George refers to the change on the bottom of page 91. 16 Mr. Sterritt on page 92 testified that he provided 17 information on which Exhibit 19 was drawn, and Exhibit 18 19 was different than 19-9-A. And he referred to 19 David Gunanoot and Percy Sterritt and others in his 20 evidence. Now, he went on to explain, and this was in 21 cross-examination, how the assumption he had operated 22 on that Date Creek was Xsu Wil Masxwit was wrong. He 23 said: 24 25 \"... It was -- while listening -- and I had 26 gone through interviews with Mary Johnson under 27 that assumption, and it was while listening to 28 the cross-examination of Mary Johnson in 29 Smithers, I was in the Court and listening, and 30 I realized that there was something wrong, 31 something wasn't fitting with -- and I didn't 32 know what it was. There was just something 33 didn't seem right in terms of what she was 34 explaining, because she was saying it 35 correctly, but what she was saying and what my 36 understanding was. So I did not talk to her, I 37 went to my Uncle Percy, and I asked him 'Can 38 you tell me which way -- or where Xsu Wil Masxw 39 is?' And he said 'Yes, it's Date Creek, but it 40 turns right when you go further up Date Creek.' 41 And I confirmed that, I talked to Jeff Harris 42 as well, and I asked him if he could show me 43 where Xsu Wil Masxw went. So if you -- in 44 fact, if you come up Date Creek. 45 Q Okay. Now, just let's -- to assist us here, if 46 we can start at the time at this Kispiox River, 47 where does Date Creek, the creek that's named 25622 Submissions by Mr. Grant 1 Date Creek start?\" 2 3 And then he describes where it starts on the next 4 page, and then in the second paragraph of his answer: 5 6 \"So that was a major assumption that I made, and 7 a problem -- I've encountered that kind of 8 problem before but not to this degree where one 9 creek can have over its length, three different 10 names. And I was unable to determine what the 11 balance of the name of the creek was, of Date 12 Creek, but I established that Xsu Wil Masxw 13 continued on up to the northwest. 14 Q All right. And do you recall about when it was 15 you had the conversation? \" 16 17 And he describes that. Now, in summary, my lord, 18 as a result of Mrs. Johnson's testimony, Mr. Sterritt 19 came to understand that Xsu Wil Masxw is only a 20 portion of Date Creek on the northern part of the run 21 of the creek to the mountain tops, and this was 22 confirmed by Jeff Harris and Percy Sterritt. And of 23 course this is the very boundary that Jeff Harris 24 testified to in his evidence, in his affidavit, and it 25 was this information that Mr. Sterritt subsequently 26 passed on to Mr. George, and which Mr. George mapped 27 on Exhibit 646-9-A. I submit, my lord, that the 28 information spoken about in testimony by Mr. Johnson 29 was correct. Mr. Sterritt misunderstood the 30 description and incorrectly mapped it. This was not a 31 weakness in the source or body of the information, but 32 a weakness in the mapper's comprehension. And I say 33 that's where the focus is. It's a mapping issue and 34 not an issue with respect to the territory. 35 I would like to move into the territories of Wii 36 Minosik, of which there are four, my lord. One of 37 these territories, the first one I referred to is 38 Smokee Lake. And this territory, Wii Minosik, is 39 reflected on Exhibit 486, and you can see it's on the 40 east -- the east shore of the Skeena just north of Old 41 Kuldo. It's a very small territory outlined in green, 42 my lord. 4 3 THE COURT: Yes. 44 MR. GRANT: Mr. Muldoe will be \u00E2\u0080\u0094 now, Mr. Muldoe described this 45 in his evidence, and he was instructed by Able Tait 46 and Luus and Albert Tait, Delgamuukw. He travelled 47 the territory with Able Tait and was told the 25623 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT boundaries. And he reflects that in the territory description that he gives where he says: \"Yes they tell me about the boundaries of the territory. But as we travel along, me and Able Tait, we travel along above. That's where we have his trapline. We can see all this area down here and he pointed out to me all this territory who it belonged to.\" In describing the territory thus he pointed to the boundary around the Wii Minosik territory. And he testified that he heard this described in the feast, and he testified when he travelled along the foot trail on the west side, west of the Skeena River on the way to Shaladamus, he could observe the Smokee Lake territory from there. The next territory is the Xsandap Matx or Fort Creek territory. And Mr. Morrison was permitted to speak by Robert Stevens on this territory. It's about 48 miles northeast of Kisgagas, and is to the east of the Ant Gilek territory of Waiget. I would like to pause there, because I don't believe I am coming back to Exhibit 486, and I would like to refer you, my lord, to answer a question you raised on Friday -- Friday a week ago to page 45 of my written argument earlier. And this is with respect -- : In this volume? : Yes. Should be in that volume, my lord. This is with respect to the Wii gyet territory. As you recall, you asked and questioned why this territory was so oddly shaped and elongated. And then the second paragraph on 45 I have summarized the evidence which explains it. In fact, my lord, this Wiigyet territory is comprised of three different parts. The northern part was originally owned by people of Kuldoe, by Luu Goo Mx of the House of Wiigyet. The part of the territory at Deep Canoe Creek, which is the middle part of the territory, my lord, and you can see Deep Canoe on Exhibit 486 was owned by Wiigyet and Am Mayt Lilixws, and the south eastern portion of the territory, that area closest to Kisgagas, was owned by Wii Seeks and Waiget. Now, these houses, I am referring here to Wiigyet, Wii Seeks and Waiget, were separate, but are now combined, and of course they are all Fireweed. So what you have in fact here is something that could 25624 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 look and it could have been drafted as well like the Gyolugyet territory, where you see the Gyolugyet territory has three divisions reflecting it. And the Wii gyet territory -- yes, this territory here could equally have been divided here and in this area and have the three portions. And that explains the discrepancy. And you will find -- and I come to the Wii Gaak territory, the same kind of thing happens with Wii Gaak. It's divided actually amongst different chiefs among the house. That was the reference I had intended to refer you to last Friday and hadn't found them. THE COURT: Thank you. I notice on the 46 there is another territory that doesn't seem to be assigned. That's immediately south of that most south easterly portion of Wiigyet's territory. MR. GRANT: Yes. THE COURT: West side of the Skeena. MR. GRANT: Yes. The reason those aren't shown is because the only territories depicted were the ones that Pete Muldoe spoke to, and that particular territory there is -- that appears to be -- that's part of the Gwoimt territory, but you see Gwoimt crosses over the Skeena River. The major part is on the side -- the east side of the Skeena River, but it crosses over there. So that's part of the Gwoimt territory. And that territory was testified to by Fred Wale. THE COURT: Thank you. MR. WILLMS: My lord, does my friend have evidentiary evidence to the three different parts of the territory that he just referred to? MR. GRANT: It's cited on page 45. Volume 103, pages 65-20 to 65-23. I would like to refer to the second territory of Wii Minosik, the Xsandap Matx territory. And that's reflected on Exhibit 379, my lord, map A. And it's this inverted L-shaped territory that is here, my lord. THE COURT: Yes. Thank you. MR. GRANT: Now, this territory was spoken to by James Morrison, and as I say, it's located 48 miles northeast of the village of Kisgagas and to the east of the Antgililbix territory of Waiget. Now, that, of course, is a territory that is now claimed by Weget, but the chief within the Weget House is Wiigyet that is responsible for it, and I referred you to that last week. 25625 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 THE COURT 14 MR. GRANT 15 THE COURT 16 MR. GRANT 17 THE COURT 18 MR. GRANT 19 THE COURT 20 MR. GRANT 21 22 THE COURT 23 MR. GRANT 24 THE COURT 25 MR. GRANT 26 27 28 29 THE COURT 30 MR. GRANT 31 32 33 THE COURT 34 MR. GRANT 35 36 37 38 39 40 41 42 43 44 45 46 THE COURT 47 Now, on the bottom of page -- or Mr. Morrison's knowledge, of course, came from his father, Simon Morrison, as well as the other persons listed at the top of page 97. He hunted on the territory with the permission of Wii Minosik, and he hunted goat on the territory beyond Fort Creek. He described the trail that he went up at shown on Exhibit 37 9-A, and you can see the route of that trail, and he went to the camp indicated by the triangular marker, which is Wii Minosik's camp on the -- right in the elbow, the inside of the elbow of the map. Do you have that? Yes. Exhibit 379, the sketch map, my lord. I don't think so. 378, 379. Is it here? Oh, thank you. Then you can see the trail. Yes. I have it. There are two. One's coloured and the other isn't. And it's map A, my lord. Is this the A, B series? It's the A, B series. I didn't think it was. Yes, Now, you can see, of course, Gitangasx, which is identified on map A of that series, and that was identified by Mr. Morrison in his evidence. You said Gitangasx? Gitangasx. It's outside the territory but it is reflected on the map. And on the bottom left-hand corner, my lord -- Yes. -- Mr. Morrison identified a photograph of the -- of this territory, and he named 18 land features by Gitksan names on this territory. The next territory I would like to refer you to is from the B map, and it's another territory of Wii Minosik. It's the Gwin Dak territory. And it's the small territory surrounded by Tsa Bux on two sides and Wiigyet to the north. This territory is -- this territory here that's being referred to, my lord. So it's much closer to Kisgagas area, and it's the area where they go on the mountains, and then this small territory, which is a small mountain -- Where is -- not Kisgagas, the other one. The one we just mentioned. all right. there the village of 25626 Submissions by Mr. Grant 1 MR. GRANT 2 3 THE COURT 4 MR. GRANT 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 THE COURT 30 MR. GRANT 31 THE COURT 32 MR. GRANT 33 34 THE COURT 35 MR. GRANT 36 THE COURT 37 MR. GRANT 38 39 40 41 42 43 44 45 46 47 Gitangasx would be up in this area here. Gitangasx Creek is there. Yes. Thank you. Now, this, as I say, is located eight miles north of Kisgagas above Sperry Creek, and the main feature of the territory is the mountain called Gwin Dak, and that's why the territory is, of course, referred to that way. And it's an example where everybody knows, that is knowledgeable chiefs in the feast know when Gwin Dak is referred to, they know the territory that is being referred to. And this is the one where there is significant goat hunting, and Mr. Morrison's son described where he has hunted goat on that territory. I refer to on page 100 of my argument, I refer to all of that. And I would ask you to note, and I don't need to read it, but the evidence of Mr. Morrison of his presence, and the knowledge of the training regarding hunting on page 100 and 101. And the final territory of Wii Minosik is the Dam Tutsxwhl Ax, Blackwater Lake territory of Wii Minosik, and this is a territory described in evidence by Walter Blackwater of the House of Niist. And he had permission. He was instructed about this territory by his father, Jimmy Blackwater, who was the former Wii Minosik, and by his grandfather Moses Stevens, the former holder of the name Dawamuxw, and his grandmother Esther Stevens. And he goes on to describe who else referred him to that territory. That is north still of map A, is it not? Yes, my lord. Not shown on this map. Not shown on that map. It's the small area, I believe, that I referred you to over here. Yes. It's this large area here. Yes. All right. It's much further north. That's said to be 55 miles north of Kisgagas? Yes. It's a large territory, and of course the reason Walter Blackwater gave evidence of it was because -- and was given permission to, is because he was brought up on this territory, and it being his father, the former holder of the name Wii Minosik. In cross-examination Mr. Blackwater stated that Mr. Stevens was familiar with the boundaries, but didn't know the names of these places and mountains. And he -- Robert Stevens traps on the territory with David Blackwater, and they did that up to two years ago. And this is the territory that Mr. Blackwater 25627 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE THE MR. THE COURT GRANT COURT COURT GRANT COURT MR. GRANT my book. I see it up testified that his parent's house is behind the lake on this territory. And he testified that between 1948 and 1966 he trapped with his father in the area of Blackwater Lake. So he named 26 features on this territory that he knew. I am going to come back to the territory to the south of that, and we'll return to Moses Stevens at that time. The next territory I wish to deal with, or the next house territories, are those of Wii Gaak. And the first territory is the Barker Creek territory, which was testified to by James Morrison. This is the territory 65 miles north of the village of Kisgagas. And it's shown on Exhibit 379, my lord, the sketch map, and it's the furthest north of the Wii Gaak territories. It's this one here. Yes. I don't know that it's on 39. Well, it's on map A. Is that 378 on your copy, lord? Oh, 378. I'm sorry. Did you say 379? Yes. I don't know that that's in this I'll leave that for your reference. Thank you. Thank you. Yes, all right here. Yes. Thank you. Now, there is an interesting -- in terms of the legal proposition that is being argued in this case, there is an interesting twist to this territory, my lord. If you go to page 105, you can see the evidence of my argument -- the evidence of Mr. Morrison as to the acquisition of this territory by Wii Gaak. It was previously held by Wii Minosik, but was transferred to Wii Gak by Jack Wright because Wii Gaak had helped the House of Wii Minosik, and he stated: \"He helped him at the feast; he helped him also other things.\" He goes on to describe him on the trail. \" ... and they both working together on Wii Minosik so the only way they can thank him is to give him a portion of land, and another thing is why they were given that land, portion of land to them, because they have the land of themselves, hunting ground. So the way they change these people is give something which is the livelihood in those days where they can get 2562? Submissions by Mr. Grant 1 food, and this is why they were given this 2 portion of land because Wii Minosik has large 3 portion of land himself so that's the reason 4 they are given to Ax Moogaasxw, which is Jack 5 Wright, and also the witness of the Clan 6 Fireweed, Frog Clan and the Wolf clan, also the 7 witness to approve what was taken in that feast 8 hall. That is why it's important in the feast 9 hall and what was taken place in the feast 10 hall.\" 11 12 Now, Wii Minosik held the territory, according to 13 the evidence of -- and that should be volume 93. 14 THE COURT: You said 83? 15 MR. GRANT: You see -- yes, in the second paragraph I say volume 16 83. It should be 93, page 5196. 17 THE COURT: Yes. 18 MR. GRANT: According to James Morrison's evidence Wii Minosik 19 held the territory for thousands of years, and -- but 20 it was during Jack Wright's lifetime it was transfered 21 to the House of Wii Gaak. And you can see with 22 respect to that territory on Exhibit 646-9A that under 23 the name Wii Gak you have the sub-chief's name Ax 24 Moogsxw, because that's who Wii Minosik gave to within 25 Wii Gaak's House, but it's within the understanding 26 that it's in Wii Gaak's House. 27 Now, it's our submission this is evidence of the 28 internal authority of the chiefs in dealing with the 29 territory. 30 The evidence is clear that at the time of contact 31 this was Wii Minosik territory. So if your lordship 32 finds that that is a triggering event in terms of 33 declarations of ownership of house territories, the 34 territory is Wii Minosik's at that time, but it was 35 later transferred to Wii Gaak. And I say that this is 36 an example of the internal authority of the chiefs, my 37 lord, that I have described in evidence and in 38 argument before. And it allows such transfers to 39 occur internally. And that's why it's referred to as 40 the Wii Gaak territory. 41 On page 106 Mr. Morrison testified about his 42 meaning of the caretaker role in relation to this 43 northern territory of Wii Gaak, and he said, and I 44 quote him, and I don't need to repeat that, but I say, 45 my lord, and he said that it's a law -- that there is 46 a Gitksan law that permits the transfer of territory 47 from the chief of one clan to the chief of another. 25629 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT And I say, my lord, in this case the transfer is witnessed in the feast. And I say, my lord, that this is very unusual that this has happened in this way, but it did happen in this case, and it's not an ad hocery to the system, but it is dealing with different types of circumstances and how they are handled by the chiefs together. It was clear from Mr. Morrison's evidence, my lord, that if it had not been announced at the feast, that this transfer would not have been recognized in the same way. Do we know when Mr. Jack Wright was alive? Yes, my lord, through the genealogies of Wii Gaak we know. I believe Mr. Jack Wright died -- it's either the late -- mid or late seventies, as I recall. So it's about that time. And he was -- he was Thomas Wright's -- I believe he was his brother, if I remember rightly. So it's around that period of time. So he -- this would have occured in the earlier part of the century. I would like to refer briefly to the An Gil Galanas and Xsu Wii Ax or Sustut River territory. Perhaps we'll take the morning adjournment before you do that. Sure. THE REGISTRAR: Order in court. Court stands adjourned for a short recess. (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS) I HEREBY CERTIFY THE FOREGOING TO BE A TRUE AND ACCURATE TRANSCRIPT OF THE PROCEEDINGS HEREIN TO THE BEST OF MY SKILL AND ABIILTY. THE COURT MR. GRANT LORI OXLEY OFFICIAL REPORTER. UNITED REPORTING SERVICE LTD. 25630 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 (PROCEEDINGS RESUMED AT 11:35) THE REGISTRAR: Order in court. THE COURT: Mr. Grant, the schedule you suggested, as I have it, is satisfactory, except that I'm not sure that I can be ready to start tomorrow after my other commitment until 5:30, and I think that that should be 5:30 to 7:00 if you want to move an hour ahead, if that's convenient. MR. GRANT: I'll discuss that at noon with counsel doing that, and of course we'll try to move it as close to 4:00 o'clock. THE COURT: I think the best I can do is say 5:30 to 7:00, something like that. MR. GRANT: Yes. That would be \u00E2\u0080\u0094 my lord, I'm not sure what I said today, whether we'll go to 4:00 or 5:00. THE COURT: Today you said 4:00. MR. GRANT: Yes. It may be that we need to go until 4:30 in light of what's happened, but -- THE COURT: All right, 4:30, sure. MR. GRANT: I was referring to Sustut River territory, which belongs to the House of Wii Gaak. Wii Gaak, as you may recall, my lord, is a Wolf Clan chief from Kisgegas, and this territory is located along the Shelagyot, Sicintine, Squingula, Sustut and the Skeena River north of Kisgegas. I'm on page 107. THE COURT: Yes. MR. GRANT: Now, once again, my lord, this is territory similar to Wii Gaak's territory that is very long and elongated, and in fact, encompasses a number of different groups of chiefs within that territory within the house. Now, this territory was described by the present holder of the name Wii Gaak in Exhibit 601, and he was cross-examined on that. Now, if you go to page 108, my lord, I explain once again that, and the reason I listed all those rivers is that because the territory is actually subdivided. Different parts of the territory are looked after by other chiefs in Wii Gaak's house. Mr. Sterritt's part was close to Sustut River, where his mother's side of the family traps, and that's reflected in his evidence. It's all one territory with different names. Mr. Sterritt identifies a smaller Wii Gaak territory, and this is the Barker Creek territory that I've referred you to already, and he described the boundary around the Barker Creek territory. Now, Mr. Sterritt dealt with a timber 25631 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT supply area north of Sustut because that area is in his house territory, and that was elucidated in cross-examination. Now, Mr. Sterritt, on page 109, described going out on the territory, and I think this demonstrates how the different parts of territory were used and how they were accessed. He said: \"Wii Gaak has a trail out from Kisgegas\" -- Now, if you look at Exhibit 378, by the way, my lord, you will see the Wii Gaak cabin right at the very southern end of the map. It's outside of those territories, but you can see it. This is on the south of the Wii Minosik territory. : Yes. : And that of course is reflective -- that's quite far up in the territory up in here in the northern area, and that's where the evidence is of him going up, how they access the territory through going through it. Now, before 1984, Mr. Sterritt had regularly hunted on that territory: \"Wii Gaak has a trail out from Kisgegas, and it goes up An Makhl\" \u00E2\u0080\u0094 I'm quoting from page 109: \"-- they call it and this is in the olden days, if you are going to put a trail through somebody's territory, you get their permission and you use it as a trail only. And Wii Gaak did this, take a short cut up into the sort of southwest corner of his territory. Now, this trail, which I think I have described on a part of the territory, it goes up into the mountains, Tsim an Makhl, where you go through sort of a valley and you cut over a pass down in towards Shelgyote. Now this trail continues right on up to Sicintine and it goes to the valley of Tsuusgwin Xsi Gwin Gwila'a which flows more or less south. That's a tributary of Xsi Gwin Gyila'a...so that pass is where the trail goes through down into Wii Gaak's, where he lived on the north side of the Sustut River....There is a cabin, it's about half a mile or three quarters of a mile going north on 25632 Submissions by Mr. Grant 1 the Skeena. There is sort of a low land closer 2 to Sustut, so they go up on a height of land, I 3 was there when my father had a cabin there. He 4 was trapping with my brother, and that's where 5 Wii Gaaks, that's where they usually camp and 6 work out from there. So in this area I am 7 talking about that was the height of land 8 between Wii Gaak and Tsabux. And so we used to 9 go into it to hunt goat and moose around in 10 that area. So it's for years and years we have 11 a cabin up in that area.\" 12 13 Thomas Wright also trapped on the Wii Gaak 14 territory, and he gave evidence, Thomas Wright in his 15 commission evidence referred to that. His older 16 brother, Simon Wright, took the name of Wii Gaak, and 17 he died in 1966. Now, I have here the reference to 18 Jack Wright, who took care of everything on Wii Gaak's 19 territory. He didn't hold the name because he was 20 quite bedridden, and when he died in 1982 Mr. Sterritt 21 took the name. Now, that was 1982. That was Jack 22 Wright who I referred you to earlier, my lord. 2 3 THE COURT: Yes. 24 MR. GRANT: Nii Kyap has the territory to the east of Wii Gaak, 25 but both chiefs came out of the same house and came 26 from Gitengas. And this is a reflection on both Wii 27 Gaak and Nii Kyap are both Wolf chiefs with the same 28 ancient origin, so they're part of the same Wilnadahl 29 but their territories are separate, they're seen as 30 separate houses, now they're understood to be separate 31 houses. 32 On page 111 I refer to the fact that Mr. Sterritt 33 confirmed that he has not completed the name, and on 34 the bottom of page 110 and the top of page 111, my 35 lord, in cross-examination Mr. Sterritt was directly 36 asked -- this is one of the defence theories that was 37 put to him, whether an earlier Wii Gaak got the 38 territory after the Hudson's Bay Company came in in 39 1820, and he said in answer in cross-examination: 40 41 \"Now, there's a lot of people living there, 42 years and years ago, long before the Hudson's 43 Bay people. Why would a territory like that 44 just be sitting empty, nobody claiming it and 45 if Thomas said that the land was unoccupied Mr. 46 Sterritt said he didn't know his exact 47 meaning.\" 25633 Submissions by Mr. Grant 1 Now that, my lord, I'll check the exact quotation 2 because that last part is clearly not a quote, but 3 that is the reference in the evidence. 4 THE COURT: What is that, page 48 and 49? 5 MR. GRANT: Yes. I'll give that to you. That is Exhibit 601-A. 6 THE COURT: 601-A page 48 and 49. 7 MR. GRANT: Yes. That's the cross-examination of Neil Sterritt, 8 Sr. 9 THE COURT: Thank you. 10 MR. GRANT: I would like to move now to the territory of Tsabux, 11 and there are three territories of Tsabux. The first 12 one is the territory reflected on Exhibit 378, map B, 13 and this is a territory -- this is a territory about 14 25 miles north of Kisgegas, and it's a small 15 territory, my lord. There's two territories referred 16 to on that map. 17 THE COURT: Is the northeastern \u00E2\u0080\u0094 18 MR. GRANT: This is the northeastern of the two, and it's this 19 small territory in here, and then there's another one 20 that's longer. Now, I'm not going -- I've reviewed 21 the evidence there, and I only say that with respect 22 to this, that the territory, as Mr. Morrison says, he 23 described: 24 25 \"Where the snow is hard and it is like cement... 26 during the hunting season it's just really 27 solid. It is not a crust, it is something in 28 between this mountain that is really solid.\" 29 30 And this is the meaning of the name of this territory. 31 And there's a cabin on the territory that he 32 describes. 33 Now, I would like to refer you to the Shelf Ridge 34 territory, which is the -- also depicted on Exhibit 35 378, and it's the territory that comes down and 36 encompasses Kisgegas south, and again, James Morrison 37 described that in his evidence. He was told about 38 this territory by Alec Brown, Thomas Wright, Henry 39 Wright, Simon and Jack Wright, David Gunanoot and 40 Simon Morrison. Now, the major features of this 41 territory are Lax An Hakw or Shelf Ridge, my lord, and 42 you observed that in the course of the viewing. If 43 you can go to page 115 and if you have Exhibit 378, my 44 lord, as well, you can see the prime area of Tsim An 45 Gokhl, which is the mountain on the easterly side of 46 this territory, which was used for goats, and this 47 particular mountain, which is marked out, was held by 25634 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. COURT GRANT THE MR. THE MR. THE MR. COURT GRANT COURT GRANT COURT GRANT THE MR. THE COURT GRANT COURT Wii Gaak. So that is like an enclave within the Tsabux territory that is held by Wii Gaak, and it's shown there, and I think you have that. Yes. I refer to that on page 115, my lord. Now, I would like to go to page 117, because something was made of the common hunting area around Kisgegas, and Mr. Morrison described this in his evidence. On page 117 I've summarized it. It was agreed by the people of Kisgegas there would be a common hunting area open to the people of the village. There was also a common trapping area. All the high chiefs of Kisgegas decided to create this common area. They comprised the Fireweed, Frog and Wolf clans, and it's depicted of course in the -- on 378. Where are you in your text? Sorry, my lord, I'm on page 117. Thank you. In that middle paragraph. Yes. And all of the high chiefs of the Kisgegas village decided to create the common area. They comprise the Fireweed, Frog and Wolf clans. Smaex, of the House of Tsabux, agreed with the creation of a common area. However, it was -- it was understood that this common area still belonged to Tsabux. So this is a territory that the chiefs agreed to but it was within the Tsabux territory. In this case, it was as a result of agreement that Tsabux would let all of the chiefs utilize the territory, and that's different than some of the other common areas which Miss Mandell referred you to the other day. I would like to refer you now to the next territory of Tsabux, which is the Red Creek territory. This is 60 miles northeast of Kisgegas to the north of Bear Lake, and there are 13 topographical features attested to by Mr. Sampson, and Mr. Sampson of course was born at Bear Lake in 1934. He's the present holder of the name Haimadimtxw, a chief within Nii Kyap's house, and he's describing in this area he's describing this territory here on the eastern border north of Nii Kyap territories and east of Wii Gaak. Tsabux is spelled T-S-A-B-U-X? That's right. It's spelled different ways in -- no, I'm sorry, it's spelled the same way, it's just two words in one place, one word in the other. 25635 Submissions by Mr. Grant 1 MR. GRANT 2 THE COURT 3 MR. GRANT 4 THE COURT 5 MR. GRANT 6 THE COURT 7 MR. GRANT 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 THE COURT 34 35 36 MR. GRANT 37 THE COURT 38 MR. GRANT 39 40 41 THE COURT 42 43 MR. GRANT 44 45 THE COURT 46 MR. GRANT 47 I believe it's one word in the pleadings and -- It may be one word here too. Right. It's a large space. It's spread across. Yes. It's one word, is it? Yes. I'm not going to say anything further about that, subject to hearing anything further in terms of the defendant's position. I've summarized the evidence in this section on that particular territory, and it was testified to by Mr. Sampson, who was cross-examined. Then I would like to go to the Nii Kyap territories, my lord. And of course these -- the first one, the Babine River territory was described by O'Yee, Joshua McLean, and he was cross-examined. He described 15 geographical features and on the boundary within the territory in their Gitksan names, and he described -- I've summarized there, he described the feast that he put up. Now, in cross-examination Mr. McLean was asked if he knew when the house of Nii Kyap left Gitangas. I'm at page 121, my lord. To this he replies: \"The way it was told to me it was 100's and 100's of years ago that they left Gitangast. They found a fishing site at Kisgagaas, and that was one of the reasons why they moved.\" And that's of course that whole migration. You heard David Gunanoot's evidence of where he talks about the move from Gitangas down to Kuldo and over to Kisgegas. Well, that's not what Mrs. McKenzie describes though, is it; didn't she describe the migration from Gitengas to Kuldo and then to Kispiox? And then to Kisgegas, oh, yes, yes, that's right. I don't think she mentioned -- Gyolugyet did not go to Kisgegas, Gyolugyet went straight to Kispiox. Nii Kyap went a different route from the Kuldos, he went to Kisgegas. Is Joshua McLean the person at this time who lives at Kisgegas? Yes. Joshua is one of the people that traps at Kisgegas. Thank you. He lives there probably over six months of the year. And then he described a territory at -- on the north 25636 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT side of the Babine River, and he's here referring to a fishing site of Nii Kyap, which is within the territory of Miluulak, and that's described in his cross-examination. Now, the next territory of Nii Kyap is that described by Mr. Jack in his affidavit, Exhibit 596. And Mr. Jack travelled with Peter Wilson, who formerly held the name of Haimadimtxw, on his territory. He was also taught it by David Gunanoot. Mr. Jack -- this is one of the witnesses who moved to Burns Lake and stopped going to Sguingula around 1950, but he did go to the Bear Lake territory twice a year between 1950 and 1982, and this is -- this is the territory to the west of Bear Lake. And Thomas Jack, of course, is one of those persons from the house that -- his knowledge, because he lived at Bear Lake, he knew this territory, but the -- but it's an example of where the persons related by house are the -- are the proper plaintiffs and not those who are members of particular bands or band membership. The Bear Lake territory was also depicted by Thomas Jack in his affidavit, and as I say on page 123, my lord, he was born at Bear Lake in 1929. He speaks both English and Gitksan and is a member of Nii Kyap's House. He trapped at Bear Lake until 1982, and he explained in cross-examination the boundaries of the Dam Smaex, that's the Bear Lake, of course, \"Smaex\" being Gitksan for \"lake\" -- or for \"Bear\", territory is the same as the Paul Jack registered trapline, but he agreed that he learned the territory from his brother Paul Jack. Now, the house of Nii Kyap owns the territory 40 miles northeast of the Village of Kisgegas, and I go to page 124 and again we see that Thomas Jack described 14 features of the territory at Bear Lake. Now, this is, of course, an area that was described at the Burns Lake feast as belonging to Nii Kyap, and James Morrison testified to that. The next territory of Nii Kyap, the fourth one, is the Tutadi territory. So what I've covered now is these territories down in this area, along in here and here, and I'm moving up into this Tutadi territory. : The other two territories really could be one, couldn't they, they're contiguous with only -- : Yes, that's right. There's basically a delegation within the house situation, and in this case, as in the Gyolugyet case, they're split, as you recall on Exhibit 5, Gyolugyet, these lines were not separated 25637 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. THE MR. THE MR. THE MR. THE MR. GRANT COURT GRANT COURT GRANT COURT GRANT COURT GRANT and they could -- it would not have any effect on the action or the declaration of your lordship if this line wasn't here, it's just an internal house matter more than anything else. The lake itself seems to be the boundary between those two territories. That's right. Yes, all right. That's right. Thank you. And of course the other Nii Kyap territory is the one south of Kisgegas. That's the one Joshua McLean utilizes and O'Yee utilizes and is still on. The Tutadi property is the one that has been excluded from time to time in the claim area? It's the one Mr. Macaulay marked with yellow, I believe, yep. Yes, thank you. Now, this is a territory owned by Nii Kyap, it's northeast of Bear Lake 70 miles from Kisgegas. On page 125, my lord, with respect to this territory, I refer to the evidence of Mr. Morrison, who testified about the split bear and the ptarmigan in relation to the Tutadi Lake territory, and I've already referred you to that and the utilization of crests as establishing the territory and the uniqueness of this ptarmigan that is up in that northeastern section. Now, on page 126 Neil Sterritt, Sr., Solomon Jack, Steve Robinson and Robert Jackson all spoke of the Nii Kyap territory at Tutadi and said that it belonged to Nii Kyap. David Gunanoot gave the history of his great crest at the meeting of Carrier-Sekani chiefs in Burns Lake. Now, what I say with respect to this evidence, my lord, is that of course you have sworn evidence of -- you have sworn evidence of the territory by Neil Sterritt, who testified by way of affidavit and otherwise, but also the reputation is demonstrated through the knowledge and agreement of these other chiefs. Now, Mr. Morrison, in his evidence, did say that there was a dispute within Nii Kyap's house as to who owned the territory, but that was because the people did not understand that they were all in Nii Kyap's house, and this of course is -- this is what came out in the Burns Lake feasts and also in the evidence that your lordship heard, that in fact of course these people were in Nii Kyap's house, and that was that confusion that was -- arose as a 2563? Submissions by Mr. Grant 1 result of band membership. And none of the chiefs 2 disagreed. Now, I have reiterated or referred to both 3 Mr. Morrison's evidence on the feast with respect to 4 this territory as the Burns Lake feast did focus on 5 this territory, amongst others, and that's on page 6 127, and I'm not going to repeat that except that the 7 photograph of -- there's a photograph of the crest on 8 the blanket, which is the crest of the Tutadi Lake 9 territory. That's Exhibit 381. 10 Now, the last territory, the fifth territory of 11 Nii Kyap, is in the far northeast corner, and it's the 12 notch that protrudes north of Nii Kyap in this area 13 here, and Mr. Sterritt testified to this. 14 Unfortunately, Mr. Gunanoot passed away before the 15 affidavit process was completed and was unable to give 16 the evidence. Once again, you see on page 128 that 17 this is a territory used by Muut of the House of Nii 18 Kyap and was also used by Haimadimtxw, a member of the 19 Wilnadahl of Nii Kyap. Now, in fact, Haimadimtxw is a 20 member of the House of Nii Kyap, my lord, and this was 21 reflected in the evidence of Mr. Sampson. A portion 22 of the territory runs through the centre of Kluatantan 23 Creek to the Kluatantan River. 24 I would like to go over to the far northwest to 25 the territory of Skiik'Mlaxha, who is presently Johnny 26 Wilson. And this is the territory of Awigii or Bowser 27 Lake. Now, this territory was previously owned by the 28 Stikine people and was transferred by them to 29 Skiik'Mlaxha in a peace settlement at an undetermined 30 date, and I say, my lord, it was probably at a time of 31 indirect contact in the early 1800's. Hence, the 32 Stikine though are predecessors to this territory. 33 The evidence though indicates that through the adaawk 34 this territory was previously owned by the Gitksan. 35 And I'm referring here to the Gunanoot evidence, and 36 that would be the commission evidence of Neil 37 Sterritt, Sr. -- I'm sorry, of Jessie Sterritt, that's 38 right. That should be Jessie Sterritt. 39 THE COURT: I'm sorry, where should that change be made? 40 MR. GRANT: You see on the bottom of the first paragraph under 41 Awigii, it says \"Sterritt Commission\", that's the 42 evidence of Jessie Sterritt. 43 THE COURT: Oh, yes. 44 MR. GRANT: Both David Gunanoot and Jessie Sterritt described 45 the Xsiisxw and they also referred to this territory 46 as formerly belonging to the Gitksan, and this is 47 consistent with the analysis of the adaawk by Miss 25639 Submissions by Mr. Grant 1 Marsden. So I say, my lord, that this territory is a 2 legitimate part of the Gitksan claim. And of course, 3 if your lordship finds that -- your lordship finds 4 that the exercise of soveriegnty is a key date in 5 terms of the findings, I say that the evidence -- 6 certainly there's indirect contact, there's evidence 7 of a gun, but the evidence is that -- and that's 8 consistent with the Stikine getting access through the 9 Russians or through earlier times from the coast, but 10 that it's before 1846 that this happened. Now, this 11 territory was confirmed by James Morrison in his 12 cross-examination, because he was cross-examined on 13 the Kitwancool territory. I just want to point out, 14 my lord, that the territorial boundary of Kitwancool 15 as shown in the histories, territories, and laws of 16 Kitwancool does not run in a straight line, and this 17 was testified to by Mr. Morrison and by Mr. Solomon 18 Marsden. Gerald Gunanoot, who had trapped in this 19 territory and learned its boundaries from his uncle, 20 the former Nii Kyap, testified to the boundaries. On 21 page 132 I refer to Mr. Gunanoot's evidence, and this 22 is important in terms of why these certain witnesses 23 were the ones who gave evidence. Mr. Gunanoot said: 24 25 \"When the Beaver were getting to be medium size 26 then we start getting leery about trapping 27 anymore in that part of the area so that they 28 will grow again so we move to a different 29 location. Then we get the big ones, and that 30 will give the younger ones a chance to 31 increase. And this is why we do cover our 32 territories, the area. And from year to year 33 we move around. Okay. We might end up with 34 seven areas for example this winter. Next 35 winter we are in a different seven areas.\" 36 37 And Mr. Gunanoot himself had travelled there in the 38 fall of '87 and January of '86, and Johnny Wilson 39 knows the territory as it's described. 40 Now, Gerald Gunanoot explained that he testified 41 about being more familiar with the territory because 42 he was born there and was raised among the elders, and 43 he described the boundary around Treaty Creek, which 44 your lordship observed in the viewing, and this was -- 45 and he confirmed that -- it's clear that Gerald 46 Gunanoot is unsure as to whether the peace settlement 47 occurred, his evidence was, very early 1900's, 1800's 25640 Submissions by Mr. Grant 1 or maybe late 17's, but the evidence of David Gunanoot 2 and Jessie Sterritt, I say, pushes it back, although 3 it's certainly a proto-contact or early contact time. 4 And this is one of two territories, my lord, we agree 5 it was acquired post -- proto-contact at least. 6 On page 133 I refer to the -- 7 THE COURT: Well, does the passage on page 130 relating to early 8 1800's relate to the same territory as the passage on 9 132, which refers to the very early 1900's, 1800's or 10 maybe 17's? 11 MR. GRANT: That's the same territory. That's the passage from 12 Gerald Gunanoot. The passage earlier is from David 13 Gunanoot, his uncle, and Jessie Sterritt, both of whom 14 are more elderly and knowledgeable about that. This 15 goes to the whole concept of the specialty. Gerald 16 Gunanoot knew the territory, he was less sure about 17 the time of acquisition, clearly from that answer. 18 MR. MACKENZIE: Excuse me, my lord, my friend was speaking about 19 this being one of two territories which the plaintiffs 20 agree was transferred in a post-contact period. Is my 21 friend referring to the reference in the Statement of 22 Claim to territories, the Amendment to the Statement 23 of Claim at particulars? 24 MR. GRANT: I'm not referring to particulars, I'm speaking from 25 memory. I don't have the statement in front of me if 26 my friend has some concern. 27 THE COURT: What do you say is the other one? 28 MR. GRANT: Well, I don't have the particulars in front of me, 29 and I realize that was my friend's or your 30 lordship's -- 31 THE COURT: Mr. Mackenzie will know what the other one is that's 32 in the particulars. 33 MR. MACKENZIE: Well, I'm instructed, my lord, that the two in 34 the particulars are Kliiyem lax haa and Niist, and 35 that's why I rose, to ask whether or not my friend is 36 adding this one here, Skiik'mlaxha, to those. 37 MR. GRANT: That's right. I think my friend is referring to \u00E2\u0080\u0094 38 I want to go back to that, my lord, because I think I 39 said that it wasn't referred to in here. It's 40 certainly a territory referred to in the 41 proto-contact, and I want to go back to those 42 particulars. I don't disagree with what my friend 43 says, but I probably spoke a little too -- 44 THE COURT: All right. 45 MR. GRANT: Without the particulars in front of me. But this 46 territory, what we say was acquired in the 47 proto-contact, and I think as my friend's framed it 25641 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. COURT GRANT COURT GRANT THE MR. COURT GRANT THE MR. COURT GRANT up, the question was related to post-contact, and this we say was in the proto-contact period. So it's not included in that list. : Well, it is post-proto if it's 1900's. : Yes -- oh, yeah, but, my lord, what I say is that, you see, Mr. Gunanoot, really when he says very early 1900's, 1800's and maybe late 1700's, he didn't know. : No, obviously. : Okay. But David Gunanoot, his uncle, and Jessie Sterritt know, and what's clear is that there is a gun involved in that Xsiisxw, so it's clearly there is some -- it's in the proto-contact period is our argument. : Thank you. : Now, on page 134, Jessie Sterritt confirmed that Johnny Wilson uses the Bowser Lake territory today, and described the nature of its use. It's used right up to the present time. And David Gunanoot, in his commission, also testified to that. I'd like to refer you now to the territories of Miluulak, and there are four of those territories. The present chief is Alice Jeffrey. Two of these territories are close to Kisgegas and the third is south of Tutadi Lake, and the fourth is just north of Chipmunk Creek. So there is some disparity, although they're all northern Frogs' territories, of course, there's this one here Tutadi, there is this one here, and then there's this one very large one, very close to Kisgegas, and this one that goes right up the draw from Kisgegas right up in this area. The Wii Tax or Gunanoot Lake territory was described in evidence by Robert Jackson, Sr., who was the present holder of the name Xsem Gitgiigeenix. It is set out on page 135 of my argument. He named 22 land features by their Gitksan names. On page 136, Mr. Jackson was born on the Haiwas territory at Dgil Dgila in the Driftwood Range. His grandmother held the name Miluulak and his grandfather held the name Wii Seeks, and he hunted and trapped on this Gunanoot territory. My lord, I have set out and summarized the evidence there, and I don't think I need pursue it further with respect to that territory, the acquisition, transfer at feasts, et cetera. Now, that's the large territory southeast of Kisgegas. : Yes. : Now, on page 138 I refer to the Sam Green Creek territory, which of course was the subject of the 25642 Submissions by Mr. Grant 1 other matter in this court, and that is on the other 2 side of Shelf Ridge, and it's that very narrow 3 territory that goes up the draw. Mr. Jackson and his 4 son, Vince Jackson, hunt and trap in the territory, 5 continue to do so to the present day, and that's 6 described by Mr. Jackson in his evidence. 7 Then the third territory is the Two Lake Creek 8 territory. This is the one that is 80 miles northeast 9 of the village of Kisgegas on the north side of the 10 Sustut River, and that's a territory just south of 11 Tutadi. Mr. Sterritt has testified to this territory, 12 and again, he was instructed by the former Nii Kyap, 13 David Gunanoot, and by John Green and by Arthur 14 Sampson. John Green was a member of the House of 15 Miluulak. To the south of that territory, my lord, is 16 the territory of the Carrier-Sekani. He's heard this 17 territory described in the feast as belonging to the 18 House of Miluulak. I'm on page 139, my lord. 19 And the final territory of Miluulak is the Duti 20 River territory, Mika Dee Aa, which Sam Morrison 21 testified to. Sam Morrison is from the same -- he is 22 the brother of James Morrison, and he is of the same 23 house as James Morrison. He is now blind, my lord, 24 and he gave his evidence by way of commission -- 25 sorry -- by way of affidavit, and he was 26 cross-examined in Hazelton out of court. And Sam 27 Morrison and his father, Simon, who held the name 28 Waiget, hunted and trapped on the territory of Wiigyet 29 to the south of the Duti River. James Morrison 30 described the boundaries of the territory at Chipmunk 31 Creek. Now, Sam Morrison testified that Duti River is 32 managed by Robert Jackson from the House of Miluulak, 33 and that's in his cross-examination on his affidavit. 34 He also referred to the feast being held by Alice 35 Jeffrey. Sam Morrison's father taught him that 36 territory when he was about 23 or 24. Now, you can 37 understand it a bit better when you look at the 38 geography, because here's the Wiigyet territory that 39 they would have worked in, Sam Morrison and James 40 Morrison, with his father, and the north side is the 41 Miluulak territory. And Sam Morrison was taught the 42 boundaries of the Miluulak territory by his father. 43 Sam Morrison -- well, Mr. Morrison trapped Chipmunk 44 Creek area until 1959 or 1963. I just -- this is an 45 interesting point: Miluulak's adaawk, supposedly 46 recorded by Barbeau, concerning the sighting of the 47 first white man at Bear Lake, was read to Mr. Sam 25643 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 THE COURT 24 25 MR. GRANT 26 THE COURT 27 MR. GRANT 28 THE COURT 29 MR. GRANT 30 THE COURT 31 MR. GRANT 32 33 THE COURT 34 MR. GRANT 35 THE COURT 36 37 MR. GRANT 38 THE COURT 39 40 MR. GRANT 41 42 THE COURT 43 MR. GRANT 44 THE COURT 45 MR. GRANT 46 THE COURT 47 MR. GRANT Morrison, and his response about whether he knew it was : \"I don't even know what this is. It's just a joke. The name of Waiget's totem pole was Milkst and on it was the grouse. The carving on the totem pole was the night robin, but -- okay. Night drummer, that's the grouse. And he acquired this crest when there was a fight with -- there was a war with him and Xsuwii Guus.\" In other words, what you see here, my lord, is Mr. Sam Morrison knew the Xsuwii Guus adaawk and refers to that of Waiget; Waiget, as you remember, being his father. But he -- but the reference to Miluulak's adaawk to the first white man at Bear Lake is something he did not know, and that's not surprising because it's a very recent recording, relatively recent. Also, he's not connected or related to Miluulak, so there would be no reason for him to be taught that adaawk about the first sighting. : Could you show me again, please, the Chipmunk Creek property, territory. Mm-hmm. It's this one here, my lord. Yes. Chipmunk Creek is right along the border. Between Miluulak and Waiget? That's right. Yes, all right. So they actually work this territory, but his father taught him this northern Miluulak territory. Yes, all right. They had a long presence there. I'm sorry. And the Duti River territory -- I'm sorry, no. That is the same. Is it, or is that not the one that's immediately south of Nii Kyap? No. Just a moment, my lord. No. This is Duti River right here, this is the Duti River territory. All right. Okay. So when you refer to this -- What are you calling the one south of Nii Kyap? This one here is Two Lake. Two Lake? Two Lake territory. 25644 Submissions by Mr. Grant 1 THE COURT 2 MR. GRANT 3 4 THE COURT 5 MR. GRANT 6 7 8 9 10 11 12 13 14 15 16 THE COURT 17 MR. GRANT 18 THE COURT 19 MR. GRANT 20 21 22 23 24 25 THE COURT 26 MR. GRANT 27 28 29 30 31 THE COURT 32 33 MR. GRANT 34 THE COURT 35 MR. GRANT 36 THE COURT 37 MR. GRANT 38 THE COURT 39 MR. GRANT 40 41 42 43 44 45 46 47 Oh, yes. And I've listed it and it's been described by Mr. Sterritt. Yes, all right, thank you. Now, I would like to move to the territory of Haiwas, and there's only one of those territories. I'm on page 142. Now, Haiwas is a separate house but of the same clan as Miluulak. They're both from Kisgegas, they're both of the same Wilnadahl, they now have separate territories, and Haiwas originated in Miluulak's house. The Haiwas territory, which was testified to by Robert Jackson, Sr., is east of Kisgegas and bounded by the Driftwood -- that should be the \"Driftwood Range\", my lord, not the \"Driftwood Theatre\", and west of the Kotsine Mountain. Yes. And this is this territory here. Yes. Directly to the east, and it moves up, as you can see, comes within -- it's surrounded on two sides by Nii Kyap, and that looks rather strange, but what you can see is there's this mountain in this range here, and this draw, and there's actually a height of land that goes around like that. Yes. So it's logical -- it's not logical on a map, but it's logical on the land, and that of course is something to be remembered with respect to all of these boundaries. They may look strange, but they make a lot of sense when people are travelling them. On our view did we -- we stopped on Kotsine Mountain first and then went on to Bear Lake? That's right. Yes, all right. That's right. And we overlooked Bear Lake. On the second stop. Yep. Yes, thank you. Now, Mr. Jackson was directly questioned about the Carrier-Sekani claim to the Driftwood Range territory, and he answered: \"I explained to them -- that once belonged to, or did belong to Lax Seel, which is a Frog Clan. And William Charlie is Lax Gibuu. So there is no way Lax Gibuu can look after Frog territory. And he understands that, but 25645 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT THE COURT MR. GRANT nevertheless they still say that's their boundary, which is Sekani didn't come from -- from William Charlie. When I stated at this Frog, to William Charlie he never answered me or comment about it. The only thing I ask him was -- was one question. I ask him whose territory that was and his answer was that it was Lax Seel territory (Driftwood Range)...1 know he knows that -- who's the rightful owner on that territory. And it's clear to my mind he knows -- he's got the knowledge that rightfully belong to Miluulak.\" Now, that is with -- that is with respect to this territory. And you must recall that here what's being referred to is that Haiwas originated from Miluulak, but in his evidence Mr. Jackson was clear that Haiwas was a separate house. And I've given the reference to that on the bottom of page 142. And he also was clear in his cross-examination that Haiwas was responsible for this territory. So -- but it's from the Miluulak Wilnadahl, if you follow that point, because they are -- they originated out of the same house. Now, the House of Niist owns two territories north of Kispiox, and the present holder is David Blackwater. Now, it's very important to remember that Niist is the Wolf clan and that Walter Blackwater, who testified to these two territories, is from the House of Niist. Now, Walter Blackwater was born at Blackwater Lake, Damdochax, and he grew up and his grandfather took him to the Niist territory at Kotsine Creek. He moved -- he didn't move to Kispiox until 1956. Until that time he lived at Blackwater, and after that time he moved back and forth between the territory and Kispiox. : I'm a little surprised by the reference to the fact that they're north of Kispiox. They're a long way north of Kispiox. : Long way north of Kispiox, and you're right. It could be in the affidavits, it's a geographical connection, but yes, it's way up in here. : Yes, that's fine. : Of these two territories. And it would equally make sense of relating them to Kuldo and Kisgegas on other affidavits. Now, the Kotsine Creek territory, my lord, the significance of that -- that northern one is that it's a border territory of Gitksan with the 25646 Submissions by Mr. Grant 1 Taltan. I've referred to the sources on page 145, and 2 the fact that Mr. Blackwater referred to photographs 3 of the territory, those at volume 2 is with reference 4 to Mr. Sterritt's photo albums. And Mr. Benson, 5 testifying to the Gyolugyet territory, confirmed that 6 the territory to the east of Gyolugyet on the north, 7 the northern Gyolugyet territory is Niist territory. 8 Now, again, Mr. Blackwater demonstrates his knowledge 9 of this distant territory by his description of the 10 features at 146. He explained how Kotsine Creek got 11 its name: 12 13 \"And the reason why they -- it's called Maxhla 14 Nihl Tsenden is because there is two creeks 15 coming from both ends, and Maxhla means over, 16 and that's one going to the Skeena and one 17 going to the Nass, and that is why it is called 18 Maxhla Nihl Tsenden.\" 19 20 And what he is referring to there is that the 21 territory, the creeks going both ways. The 22 responsibilities within the House of Niist are with 23 Gibeumgyet a sub-chief within the house, to look after 24 it, and again Mr. Blackwater confirmed that: 25 26 \"It's a vast territory, but they are different 27 people that hold -- that are responsible for 28 different parts of the territory in the House 29 of Niist.\" 30 31 Then there is a part of the territory in the northwest 32 corner given to the House of Niist by way of a peace 33 settlement called Xsiisxw. This territory is in a 34 bulge because: 35 36 \"It didn't belong to us to begin with, but 37 because of the murder it was a payment from the 38 Stikine people.\" 39 40 And he described this in re-examination and explained 41 that the territory does not go past Maxhla Biluust 42 Maawxs. Now, this is the area that I'm referring to 43 in the particulars as post-contact Xsiisxw, my lord, 44 not the whole territory, but you see this bulge that 45 comes over here, so this area in here was acquired as 46 a result -- -- it was acquired as a result of a 47 Sxiisxw, and this was a later Sxiisxw, the evidence 25647 Submissions by Mr. Grant 1 demonstrates. That's just this part, not the entire 2 territory. And again, that's a huge territory but 3 it's subdivided within the house, and we could have 4 easily depicted on 646-9-A, as we did with Nii Kyap 5 and Gyolugyet by having subdivisions, but we did not 6 do so. The next territory is that of Taax Tsinihl 7 Denden on page 147, and again Mr. Walter Blackwater 8 described this. It's 16 miles north of Kuldo. 9 Eighteen geographical points are referred to here, and 10 I've pointed that out to your lordship on the map. 11 The next territory is that of Gyolugyet, Mrs. 12 McKenzie's territory. As I set out on the beginning 13 of 148, each of the chiefs of her house share a 14 portion of the territory. These are Madeek, Hla'oxs, 15 Kwamoon and Gadilo'o. They're all in her house at 16 this time. I've summarized the history of her 17 acquisition of the name, and I go to page 149, my 18 lord, and she explained -- although she herself had 19 not travelled on the territory, she explained the 20 maintenance of the boundaries in her evidence. She 21 said: 22 23 \"Because there are witnesses there, the Head 24 Chief is there to witness it and another thing 25 too, where our territory is, there are other 26 territories that he has to go through to get to 27 our territory. So this has to be explained in 28 the feasting that the people up there, my 29 neighbours, our neighbours around our territory 30 if they see him they know where his destination 31 is, where he is going to go and trap.\" 32 33 And this is with respect to announcing at the feast 34 that her husband would be allowed to go up on that 35 territory. Now, in 1978 Albert Tait talked to Mrs. 36 McKenzie specifically about the mountains, creeks and 37 rivers on this territory, and in 1983 he told her he 38 wanted to leave her with everything he knew and 39 understood -- that should be not \"his\", my lord, but 40 \"this territory\" from his father Luus. And then she 41 describes the importance of the adaawk. As I say on 42 the next page, she had not been on this territory but 43 travelled to her husband's. And on the second -- on 44 page 150 she says, I refer to her evidence, that she's 45 maintained contact or been kept informed about what's 46 happening on the territory in the last 20 years. The 47 neighbours, like Delgamuukw and Djogaslee have gone 2564? Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 THE COURT 10 11 12 MR. GRANT 13 THE COURT 14 MR. GRANT 15 THE COURT 16 MR. GRANT 17 18 19 THE COURT 20 MR. GRANT 21 22 23 24 THE COURT 25 26 MR. GRANT 27 THE COURT 28 29 MR. GRANT 30 THE COURT 31 MR. GRANT 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 through her territory to get to their own, and that is apparent when one sees the relationship of these two. Djogaslee territory is in along the side here to acquire going this way, and the Delgamuukw territories are also to the east, so that they travel in these territories and they watch this one. Now, this is one of the less accessible territories at this time, my lord, that is accessible by contemporary routes. I have a recollection that someone told me that this territory, Gyolugyet, was nearly 5,000 square miles. That couldn't be right? No. That didn't seem to be right. I think that -- I'd like to try to remember that. I don't have the reference, but as I recall, during the cross-examination of Mrs. McKenzie, she didn't know the size. Mm-hmm. And I can't recall if she was -- if some very large figure was put to her on cross that was clearly not correct. I recall something about that as well, my lord, and I can -- That would be 20 percent of the total territory, it's not even close to that. It's certainly not that size. There were bigger territories than that too, I think. That's right. All right, thank you. Now, Mr. Benson, on page 151, was given permission by Mrs. McKenzie to describe and speak in respect to the Gyolugyet territories, and he was a member of the House of Luus from the village of Kuldo, and he gave it by way of affidavit. And in his evidence he divided the Gyolugyet territory into three parts, and each part was described separately in the affidavit. So there's that distinction between how he described it and how it was on Exhibit 5, but subject to what I'm going to say, I -- on that, the division isn't really important in terms of your findings, because all three portions are Gyolugyet's. He described that he actually went out there with Marianne Jack, and I referred to -- refer to that on page 152. Now, if you look at the three sections of the territory, my lord, the Kuldo Creek section is the southern most one, and he was instructed about this territory by Abel Tait, 25649 Submissions by Mr. Grant 1 the former Luus, on page 152. Now, Mr. Benson 2 identified land features, including Kuldo Mountain, 3 and he testified that to the west of this territory is 4 the territory of Antgulilbix. And in 5 cross-examination he corrected his affidavit to say 6 that the territory of Gyolugyet is on both sides of 7 Xsagan Gaxda, that's Kuldo Creek, my lord, and that 8 the boundaries are the mountains on the left side. He 9 learned about the territory of Kuldo Creek from 10 Mathias Wesley and not from Phillip Brown. However, 11 Phillip Brown told him that this territory belonged to 12 Gyolugyet. Now, the provincial defendants, in their 13 summary of argument focus on the southern territory of 14 Gyolugyet and the apparent discrepancy between Mary 15 McKenzie and Richard Benson's evidence. Now, if you 16 look at Mary McKenzie's evidence, my lord, she 17 described this entire territory with reference to 18 certain geographic place names, and the very first 19 name she refers to is Xsagan Gaxda or Kuldo Creek. 20 She goes on to explain -- and I've given you the 21 citation -- that all of these creeks, including Kuldo 22 Creek, are inside the territory. She then goes on to 23 explain the territory goes with the adaawk. She did 24 not describe the adaawk in detail in her evidence 25 relating to this territory. However, you subsequently 26 heard an example of a detailed adaawk in the evidence 27 of Art Matthews that I've referred you to earlier. 28 Now, Mrs. McKenzie confirmed that when her grandmother 29 taught her the adaawk she described the territory by 30 the creeks and the mountains. These were the same 31 creeks and mountains described by Mrs. McKenzie in her 32 own evidence, and this was her cross-examination by, I 33 believe, Mr. Plant. Mrs. McKenzie went on to explain 34 that this very large territory was actually divided 35 between sub-chiefs within the house. Hlo'ox utilized 36 and managed the territory around Kuldo Creek, Madeek 37 utilized the territory around Xsa'an Lo'op, and 38 Kwamoon utilized the territory around Sankisoots. 39 Therefore, although it's very large, it's subdivided 40 between the three chiefs, and this is what you see in 41 646-9-A and in Mr. Benson's affidavit. 42 THE COURT: I think, Mr. Grant you've got quite a ways to go in 43 this territory. I think we should adjourn until two 44 o'clock, please. 4 5 MR. GRANT: Yes. 46 THE REGISTRAR: Order in court. Court stands adourned until two 47 o'clock. 25650 Submissions by Mr. Grant 1 (LUNCHEON ADJOURNMENT TAKEN AT 12:30) 2 3 I hereby certify the foregoing to be 4 a true and accurate transcript of the 5 proceedings herein transcribed to the 6 best of my skill and ability 7 8 9 10 11 Graham D. Parker 12 Official Reporter. 13 United Reporting Service Ltd. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 25651 Submissions by Mr. Grant 1 (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT) 2 3 THE REGISTRAR: Order in court. 4 THE COURT 5 MR. GRANT 6 THE COURT 7 MR. GRANT 8 THE COURT 9 MR. GRANT Mr. Grant. Thank you, my lord. I am on page 154, Mr. Grant. Where are you? I am on page 154. All right, thank you. My lord, I was talking about this territory of 10 Gyolugyet and of course this territory here that I 11 focus on, the Kuldo Creek territory, is the southern 12 most of those three territories on this map. It is 13 the one that has Kuldo Creek and there is two 14 territories with the name of Kuldo Creek, this is one 15 of them, and Mauus is the other one. But the 16 significance here, my lord, is -- of this whole 17 proposition made by the other side is whether Kuldo 18 Creek itself is the boundary or the height of land and 19 the boundary described here shows the height of land 20 as belonging to Gyolugyet and it includes the height 21 of land, the watershed of Kuldo Creek, rather than 22 Kuldo Creek itself. 23 Now, I'd like to go through this because this is 24 one of the -- this is one of the three examples 25 utilized by the Provincial Defendant challenged, the 26 territorial ownership. Now, the affidavit -- the 27 Provincial Defendants in their argument make a major 28 issue of this boundary of Kuldo Creek, and the 29 affidavit of Mr. Benson does appear to be different 30 from his evidence, but Mr. George did not rely on the 31 affidavit but on the evidence of cross-examination to 32 map Exhibit 646-9A. Now, this distinction is that 33 distinction between the creek itself, the boundary, or 34 that height of land. And Mr. Sterritt explained his 35 misunderstanding with respect to the mapping at Kuldo 36 Creek. 37 38 \"Q...Now, Mr. Sterritt, if you'll look at the 39 southern portion of the territory...\" 40 41 This is of course in cross-examination: 42 43 \"...and I would ask you if you see any 44 adjustment in the boundary referred -- in the 45 southern portion as a result of information 46 came to you after that map was prepared? 47 25652 Submissions by Mr. Grant 1 A. Yes. Here is where I was having --\" 2 3 I am sorry, this I believe is in direct at this point: 4 5 \"Here is where I was having -- personally was 6 having a great deal of difficulty in getting 7 this straight, partly because of the name of 8 the creek, Xsagan Gaksea....Which is Kuldo 9 Creek. It was -- as you go up that creek and 10 swing around to the left, that's what's known 11 on the map as Kuldo Creek, and it's what I 12 talked about this morning in relation to Mary 13 Johnson's, the map of Antgulibix and Tsibasaa, 14 Dam Ansa Angwas....Richard Benson had clarified 15 that there was a name change at the junction 16 downstream from that river -- or from that 17 creek when it entered Xsagan Gaksea....In any 18 event, I was having trouble determining where 19 the boundary of Gyolugyet went in this area, 20 and subsequently, during the commission of 21 Richard Benson, he identified that the boundary 22 continued along the height of land south of 23 Kuldo Creek, down to the junction of Kuldo 24 Creek and what is locally known as Little Kuldo 25 Creek or Gwiis Xsagan Gaksea....And that's 2 6 under the name of Mauus...on the map. 27 28 Q. That is on the map that's in front of you? 29 30 A. Yes. So there is a change to go 31 approximately through the name Mauus and on 32 down to the junction of Little Kuldo Creek and 33 Big Kuldo Creek. 34 35 Q. And did that change conform to the evidence 36 of Richard Benson? 37 38 A. Yes, it did.\" 39 40 And then he says: 41 42 \"A. And the other change is that the line 43 should go through the lake at the head of Kuldo 44 Creek, which I described this morning. 45 4 6 Q. All right. Apart from the evidence of 47 Richard Benson on commission, was there any 25653 Submissions by Mr. Grant 1 other information about that change...\" 2 3 And he refers to the information from Pete Muldoe and 4 Jeff Harris Senior. Then he is asked if Exhibit 9-A, 5 646-9A, the map, reflects the changes he's been 6 informed, and he says: 7 8 \"A. Yes. The area that we are talking about is 9 very close to New Kuldo, and this black line of 10 9-A corresponds to the changes that I am 11 talking about, as well as the change in 12 Gyolugyet's territory to exclude Xsu Wii Luu 13 Dagwigit....at the head of Taylor River\". 14 15 Now, what I say, my lord, is Mr. Sterritt clearly 16 delineated the distinctions in the mapping process. 17 The evidence of Mr. Benson and Mrs. McKenzie is not 18 inconsistent on this point. The Province makes much 19 that it is. I say Mrs. McKenzie indicated that Kuldo 20 Creek was one of the principal creeks within her 21 territory. Mr. Benson clarified in his evidence on 22 cross-examination that the boundary followed the 23 height of land to the west of Kuldo Creek. This is 24 the evidence relied upon by Mr. George to depict the 25 territory on 646-9A. Now, of course Mrs. McKenzie 26 gave her evidence in May 1987, and Mr. Benson gave his 27 evidence in November of 1987, and Mr. Sterritt gave 28 his evidence on September 14, 1988. 29 The defendants did not cross-examine Jeff Harris 30 Senior who testified as to the territory of Mauus at 31 Kuldo Creek on this boundary. Mr. Harris' affidavit 32 is consistent with the evidence that I have described 33 of Mrs. McKenzie, Mr. Benson and Mr. Sterritt. In 34 fact, the Provincial Defendant raised nothing in 35 cross-examination with respect to the Kuldo Creek 36 territory, Mauus, that is in cross-examination of Mr. 37 Harris Senior. 38 Now, it is significant that Mr. Sterritt obtained 39 information on the boundary from Jeff Harris Senior, 40 and of course this was known to the defendants when 41 they cross-examined Mr. Harris. That would have been 42 in December 1988, and Mrs. McKenzie goes on to 43 indicate that she identified the territories mapped 44 and exhibited 5 in the proceedings. So the 45 distinction is when a person says that the territory 46 includes Kuldo Creek it's understood, and when Mrs. 47 McKenzie says Kuldo Creek is within the territory it 25654 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. THE MR. THE MR. COURT GRANT COURT GRANT COURT GRANT COURT GRANT is understood that this is the -- is it understood that this is the boundary or that that's included within. The evidence -- the overwhelming evidence of all of these witnesses is that it follows the height of land and clearly there are small creeks going into Kuldo Creek which are part of that territory as they are part of the watershed of Kuldo Creek, and that was where the apparent discrepancy may have appeared. But I say on the sworn evidence of all four witnesses, Jeff Harris Senior, Mary McKenzie, Richard Benson, and Neil Sterritt, the evidence on the whole is consistent with that boundary. There are two additional territories, the Shanalope Creek territory and the Taylor River territory. Now, Mr. Benson gave evidence of these as well and of course Marianne Jack, the relation of Mrs. McKenzie. She -- Mr. Benson travelled on the territory with her. Now, on page 159, I -- it is significant, my lord, that Mr. Benson referred to -- referred to the neighbours of the Gyolugyet territory as being Niist -- Niist, Skiik'm Lax Haa and Djogaslee. I am on page 159. Is this the centre of the three? No. Is the -- The centre one is Shanalope Creek, it is on 158. It is the centre one. Yes, the northern one is Taylor River. All right. And so Mr. Benson testified that Niist being a neighbour here, which is consistent with the evidence of the other witness, testified his evidence of Skiik'm Lax Haa is consistent with Jerry Gunanoot's evidence. This is consistent with Walter Blackwater's evidence, and this is consistent with -- come back to this, I believe it's Walter Wilson testified to this if I remember rightly, and Djogaslee. And so he describes each of the ones surrounding this northern territory which is the Taylor River territory. Taylor River is up in here. Now, once again at page 159, I have put in the reference of Mr. Sterritt's cross-examination on the difference between the interrogatory map and the boundary as depicted on 646-9A. He said, in answer to a question: \"I just want you to look at this map and ask you 25655 Submissions by Mr. Grant 1 if you received subsequent information from a 2 hereditary chief or hereditary chiefs, which 3 led you to conclude there was a change in the 4 boundary as it's described in this map?\" 5 6 Mr. Sterritt said: 7 8 \"A. Yes. I had always been told that the 9 creek, Xsihl Guugan....which appears on 10 topographic maps as Taylor River, that that 11 belonged to Gyolugyet. And the extrapolation 12 that I made was that the territory of Gyolugyet 13 went to the very headwaters of the Taylor 14 River. 15 16 Q. And that's what is shown on this exhibit?\" 17 18 That's the interrogatory map, my lord. 19 20 \"Q. Did subsequent information you received 21 alter that boundary? 22 23 A. Yes, it did. I had been told about a creek 24 named Xsu Wii Luu Dagwigit....A creek named Xsu 25 Wii Luu Dagwigit was somewhere in the north end 26 of this territory, and David Gunanoot actually 27 first described that creek to me as a trail 28 route that he had taken from the Bell-Irving 29 River over to the Upper Nass River. And in -- 30 I eventually located where that was, and in 31 doing that, I also had discussions, 32 subsequently, that explained that Xsu Wii Luu 33 Dagwigit was the territory of the House of 34 Niist. 35 36 Q. And from whom did you obtain those 37 instructions? 38 39 A. Walter Blackwater. 40 41 Q. Niist is the hereditary chief who has 42 territory north of Gyolugyet? 43 44 A. And east.\" 45 46 And so he says -- on page 160 near the end of that 47 quote: 25656 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT \"Q. Now, in -- was there a change in the boundary in the northern portion of Gyolugyet's territory that borders with Niist? A. Yes. The boundary followed the height of land south of Xsu Wii Luu Dagwigit until it crossed where -- just below where Xsu Wii Luu Dagwigit entered the main Taylor River. Q. All right. And can you tell us at about what time it was that you received the information that led to that change? A. In 1987, Now, this change, my lord, is reflected from the interrogatory map, is reflected in 646-9A, and it is apparent once again the description given by Mr. Sterritt that the reason for the discrepancy between the interrogatory map and 9-A at this point is as a result of a misunderstanding by Mr. Sterritt in which he extrapolated with respect to the Taylor River belonging to Gyolugyet. And this mistake is reflected in the final map. And then Mr. Benson goes on to describe that he went through all three of these Gyolugyet territories with Marianne Jack in the 30s and 40s and this is how he learned about the territory. And he testified in 1935 going for four days up the right side of Taylor River, and this is where they are talking about here is actually quite far north, they go right up along the Taylor River up into this area here and they went for four days up there. Does the Taylor flow southward into the Nass? Yes, the Taylor flows -- that's right, it flows down here to the Nass at this boundary and of course the Nass is the boundary between the northern and the central Gyolugyet territory. And then again it is consistent on page 162, Mr. Benson, in his cross-examination I think by Mr. Plant, confirmed that the territory north of Xsihl Guugan was Charlie Sampson, that is Niist, and so he went right up into that area and was told across there is where Niist is. And Mr. Benson -- the last quote, he goes on and describes his travel through the territory and the place that he knew, and on page 163 part-way down that 25657 Submissions by Mr. Grant 1 quote he says -- I am sorry, the top: 2 3 \"I know all these place on these mountains and 4 you see what they told me, that's what I really 5 like to tell, you see, because I supposed to 6 tell the truth. That's what you said when I 7 began. Nothing but the truth. That's what -- 8 that's what I am doing...1 am telling what I 9 already been -- I walked through and I see 10 these creeks and I walk through there and I 11 know where they are and I know who it belongs 12 to. They tell me right beginning before I 13 start even my uncle. Well, they had a story 14 what spread out, you know, about Gyolugyet and 15 they start telling me, but I can't remember 16 them all. But the only thing that I remember, 17 that's when I go on it and trap through there 18 and I really been many times on it. And just 19 that one I really know, that's what I am trying 20 to tell the truth about it and nothing but the 21 truth. That's true. That's what I am \u00E2\u0080\u0094 I'm 22 doing the best I could.\" 23 24 What he is describing in that quote in 25 cross-examination is that he is saying as Stanley 26 Williams did, I have walked it, I know it and I know 27 who it belongs to, and of course that's why he 28 testified on behalf of Gyolugyet because he knew the 29 territory so well. 30 The next territory or house that I wish to speak 31 to is the territories of Djogaslee, and Djogaslee is a 32 member of the Frog Clan from Gitanmaax. The present 33 holder of the name Djogaslee is Walter Wilson, and he 34 testified to three territories. Before I get into 35 these, my lord, I want you to appreciate the comment 36 in the third paragraph that Djogaslee and Axtii Dzeek 37 are two chiefs from the same house. In 38 cross-examination, Mr. Wilson explained this. Now, 39 Mr. Wilson, my lord, gave evidence twice; once with 40 respect to fishing sites and once with respect to the 41 territories and that was out of court. And these 42 pages -- references here are to Exhibit 602A. 43 THE COURT: I take it then, Mr. Grant, that you dispute the 44 evidence that suggests that there was no settlement at 45 Gitanmaax. 46 MR. GRANT: Oh, yes. Even at the time of contact? 4 7 THE COURT: Yes. 2565? Submissions by Mr. Grant 1 MR. GRANT: Yes, yes. We don't agree with that proposition, my 2 lord. 3 THE COURT: Do you say that it was part of Temlaxham or do you 4 say it was a separate centre, on the other side of the 5 river of course? 6 MR. GRANT: Yeah. Well, except to the extent that Temlaxham is 7 such a spread out place but it appears the adaawk and 8 the historical evidence that the community of 9 Gitanmaax, and I believe Mr. Adams will come back to 10 this this week, but the community at Gitanmaax arises 11 from the Wolves -- I am sorry, from the Frogs and the 12 Wolves that came into Gitanmaax and that's -- so when 13 you look at Djogaslee you look at Gyetm galdoo, you 14 look at these people whose territories are close to 15 Gitanmaax, the history takes them to Temlaxham. So it 16 appears that people that were left came to Gitanmaax. 17 Of course the name is \"people of the fire\", I believe 18 Walter Wilson described that in his evidence. It may 19 have been another witness but it's with reference to 20 the method of fishing at night in the river with 21 torches and we say that certainly predates the 22 contact. 23 Now, Mr. Wilson described the successorship of the 24 names of Djogaslee and Axtii Dzeek back to his great 25 grandmother's sister on his mother's side. Of course 26 there is a genealogy of this as well. He said the 27 successor to his name will be the present of Ax 28 Weegasxw. He described how three houses split and 29 moved into Gitanmaax from T'emlaxamit and established 30 a settlement at Mission Point and at Sagat. When the 31 houses split they were in separate physical buildings, 32 but today there is only one house. Mr. Wilson 33 described how the chiefs controlled and conserved the 34 fish runs and that they did not need the permit system 35 of the Department of Fisheries. And he went through 36 the process of showing where Axtii Dzeek sat in the 37 long house and stayed, and Djogaslee -- and they came 38 apart and they came together. But these are two 39 leading chiefs of the same house at this time, the 40 time that your lordship is concerned with now. 41 Now, the first territory is the Irving Creek 42 territory and this is the one north of the Nass and 43 east of the junction of the Nass and Bell-Irving. 44 Now, this is a territory that Mr. Wilson -- that is 45 located south of the Skiik'm Lax Haa and west of 46 Gyolugyet's territory that I have taken you to and to 47 the west is the Kitwancool Gitksan. 25659 Submissions by Mr. Grant 1 Daniel Skawill showed Mr. Wilson's father and his 2 sister this boundary. He showed him the area and he 3 also showed the area to William Wale and Ben Wale, 4 both from the House of Djogaslee, they were Walter 5 Wilson's uncles and they would trap together. 6 Now, this is the history of this particular 7 territory according to Mr. Wilson. 8 9 \"Oh, yes that's where he (Daniel Skawill) spent 10 most of his time in the early days. He's a 11 real good trapper. And he had to put up a big 12 feast, and he didn't have enough money and the 13 hides and everything so he talked to my great 14 uncle Willie, if Willie could help put up that 15 big feast. It costs really a lot of money and 16 hides, everything. So Willie did it. That's 17 how Willie got that area. In return to pay 18 Willie back, Daniel give him that area. So 19 every village, the whole eight village were 20 there to witness everything what was happening, 21 so everything knows. Every high chief in each 22 village know the transfer of that land to 23 Willie Wilson and he knows Daniel Skawill gave 24 them the -- they walked the boundary them days. 25 So that's how we know the boundary, the 26 traditional boundary, not the one DIA give out 27 them days.\" 28 29 Now, this is another situation where, in 30 accordance with the rulings, it is an internal 31 transfer among the Gitksan but a transfer from Skiik'm 32 Lax Haa, Daniel Skawill, to Djogaslee. 33 Now, Mr. Wilson says that Axtii Dzeek is the 34 person who deals with this Gail Creek territory and 35 that really should be reflected in the next passage, 36 the next territory. 37 He testified in cross-examination, my lord, that 38 the territory at Irving Creek was transferred from 39 Daniel Skawill to Djogaslee, but it was still Gitksan 40 territory before that transfer. Of course Daniel 41 Skawill is a Frog as well, and Mr. Wilson described an 42 An Tsok, which is similar to the term used for other 43 places of wealthy resources; it was a free area for 44 everyone, and that's a camp within that territory. 45 The next territory I wish to speak to of Gail's -- 46 I am sorry, of Djogaslee's is the Gail Creek 47 territory. And so it's unusual for a Frog chief from 25660 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT THE COURT MR. GRANT Gitanmaax to get a territory so far north but this is because of the relationship that he got this one that I just spoke about. The next territory of Djogaslee that I wish to refer to is this territory here, my lord, and that's the Gail Creek territory on the Babine. It is on the south shore of the Babine on the even boundary just south of Miluulak's territory. And that's referred to as Djogaslee Axtii Dzeek, Axtii Dzeek being a chief within his house who manages the territory for the house. Now, this is the territory about 25 miles northeast of Gitanmaax on the south shore of the Babine River. And I have reiterated what he's learned, how he's learned about this territory and who from, and he said in cross-examination that Djogaslee Axtii Dzeek and Ax Weegasxw own the territories of Djogaslee but here this one is being managed by Axtii Dzeek. Now, there is another territory which is the Sagat territory, and that's on the Bulkley, it is further south, it's right in here, my lord. This is Sagat. This is Sagat, this territory here. Now -- This one is also called Axtii Dzeek? Axtii Dzeek, yes. Axtii Dzeek manages these two territories and Djogaslee himself manages this northern territory but they are all within the one house. Now, this is a territory that's on the border with the Wet'suwet'en, and Sagat is a geographical feature and the territory that he referred to as the people who remained behind, it is one of the features of their adaawk, the people from Tamlaxham, and you can see its proximity to Tamlaxham. Now, on page 169, and this is from his cross-examination, Mr. Wilson does say that the boundaries of this territory go to Boulder Creek but he does also say in cross-examination his house is not claiming to that creek because of the Wet'suwet'en House of Wah Tah Keg't claims to Porphyry Creek and the boundary has to be settled in a feast. Now, my lord, it is my submission that this evidence indicates a long-standing common border between the Gitksan and Wet'suwet'en. The difference between what Djogaslee says and what the Wet'suwet'en say is not one leading to a major dispute in this situation but there is that evidence and, again, it's in evidence of a claim and not in evidence of proof. 25661 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. COURT GRANT COURT GRANT THE MR. THE MR. COURT GRANT COURT GRANT And when Mr. Rush was referring to the Wet'suwet'en territories as was Ms. Mandell, they clearly established through the evidence of Bazil Michell, Madeline Alfred, and Henry Alfred that their territory goes to Porphyry Creek, so the discrepancy is a very short one that is on that -- the way you can describe it is that long, straight stretch there on the highway and one end is Porphyry Creek and the other end is Boulder Creek, it is about two miles. : Dangerous piece of highway. : Judge Hutchinson hated driving it because of the tickets on that section. : All kinds of trouble on those highways. : The closest thing to a freeway in the north. So I want to say that and that evidence is there, but I am -- but he makes it clear in his cross-examination that they are claiming that they have a claim to that but they are not claiming it in this action and it's understood that the territory is Wet'suwet'en. The next territory is that of Gwinin Nitxw. There is two territories located on either side of the Skeena River and these are the territories, the most northerly one is 28 miles north of Kuldo, and then there is the one immediately to the south of it. Now, the first of these territories was testified to by Solomon Jack, Gwinin Nitxw, and he was -- this is the more southerly of the two territories, my lord, and I think you recall where these are -- : Yes I do, yes. : They are quite large and in the centre, so this is the territory we are dealing with first and then this one I want to spend a few moments on. : You are dealing with the southerly one first? : Yes, and that's the territory that Solomon Jack testified to. And I have explained in the argument on page 170 and 171 the sources of the references, and then Solomon Jack explained that his brother, Arthur Kusick, the former Gwinin Nitxw, would come to him about the boundaries. Solomon Jack in fact was shown the boundaries by his father and grandfather and he was shown the traplines, and there were eight traplines in this southern part of the territory. Now, I make some reference to here and I will come back to it on 172. Mr. Jack explained how Moses Stevens, Dawamuuxw, came to be on the northern territory of Gwinin Nitxw at Slamgeesh. He was there 25662 Submissions by Mr. Grant 1 because his father was in Gwinin Nitxw's House and he 2 was allowed to use the area for hunting and trapping 3 of Slamgeesh. Subsequently the area was registered as 4 a trapline. But it belongs to Gwinin Nitxw. And this 5 is the evidence of Solomon Jack, the present holder of 6 the name Gwinin Nitxw. 7 Now, that particular piece of the argument really 8 goes under Galaanhl Giist, the Slamgeesh River 9 Territory to the north. And this -- of the 10 territories I am going to deal with, I'd like to spend 11 a bit more time with this than the others because this 12 again is the third of the Gitksan territories that my 13 friends in their summary of argument focus on to 14 challenge the concept of ownership. 15 Walter Blackwater testified to this territory by 16 way of an affidavit and he was cross-examined in the 17 summer of '88. He was given permission to testify to 18 it by Solomon Jack. He was instructed by Moses 19 Stevens, the former Dawamuuxw from the House of 2 0 Dawamuuxw; by his grandmother, Esther Stevens, the 21 former Asgii; and by his mother, Mary Blackwater, and 22 by his uncle Charles Stevens; all of them, except 23 Moses Stevens, came from the House of Niist. And also 24 by his father, Jimmy Blackwater, who was the former 25 Wii Minosik. 26 Now, Mr. Blackwater, in his affidavit and in his 27 cross-examination, identified this territory as 28 belonging to Gwinin Nitxw. His knowledge of it is 29 very apparent by the 43 georgraphic features on the 30 boundary and within the territory that he identified 31 by Gitksan names. 32 In cross-examination, he confirmed on page 174, my 33 lord, that the Slamgeesh territory is owned by Gwinin 34 Nitxw. He testified: \"He said that was Solomon 35 Jack's territory\". 36 Mr. Blackwater also explained the earlier mapping 37 confusion in which there was an identification on the 38 map that it was under the name of Dawamuuxw. He says, 39 and his evidence I think is very clear on this point: 40 41 \"I'll try to make it clear to you what went on 42 on this territory here. To begin with it all 43 started with my grandmother who is known as 44 Ester Stevens. Asgii is her Gitksan name. 45 Ester and Gwinin Nitxw were just like sisters 46 back then, and she took Ester and her husband 47 to be caretakers of this territory as long as 25663 Submissions by Mr. Grant 1 they want to be, and this is what happened. 2 Ester stayed there until -- as long as she 3 could, and when she passed on that territory 4 was given back to Gwinin Nitxw and the reason 5 why I am telling you is because I want it made 6 clear, real clear to you, what that -- that 7 this happened and this is why that land 8 returned back to Gwinin Nitxw, because it was 9 his to begin with or hers to begin with.\" 10 11 Now, Ester of course is from the House of Gwinin 12 Nitxw and was married to Moses Stevens. 13 Now, the Provincial Defendant has focused on this 14 territory to challenge the reputation in the community 15 as to boundaries and ownership of house territories. 16 The evidence presented in my submission shows that 17 there was apparent confusion with respect to this 18 territory because of the distinction between 19 registered traplines and house territories. There are 20 also other rights within the Gitksan system which led 21 to an apparent -- and I focus on apparent confusion as 22 to ownership of the territory. That is apparent to an 23 outsider or appearing to be that -- a confusion. 24 These rights have already been explained and they 25 include Yugwilaatxw Rights, that is the right of Moses 26 to be on his wife's territory; Amniyetxw, that's the 27 grandfather rights and House Ownership; and finally 28 Use Rights and House Ownership. And Use Rights is 29 really incorporated into the other two but it's -- 30 some of the terminology says Use Rights in this 31 debate. 32 The real issue raised by the defendants is whether 33 this territory belongs to Dawamuuxw or Gwinin Nitxw, 34 and I emphasize this, my lord: There is no suggestion 35 by the defendants or in our submission no evidence 36 that it's not Gitksan territory. It's clear to the 37 defendant -- I mean the evidence is who's is this, 38 Dawamuukw's or Gwinin Nitxw's. 39 Now, in a 1982 statements Art Kusick, the former 40 Gwinin Nitxw, explained the apparent confusion. He 41 said: 42 43 \"We got this land from the Stikine way before my 44 grandfather's time. We owned Blackwater area 45 but they used it so long they kept it.\" 46 47 Referring to Dawamuuxw. Now, Mr. Sterritt explained 25664 Submissions by Mr. Grant 1 to the court why this territory had earlier been 2 referred to as Dawamuukw's. This was in the course of 3 his cross-examination, my lord, the court -- and your 4 lordship intervened when Mr. Goldie went to another 5 topic and asked: 6 7 \"THE COURT: But you have said the members of 8 this house, some of them, at least the leading 9 ones, were born and raised up in the Slamgeesh 10 area?\" 11 12 Mr. Sterritt: 13 14 \"A. No, that's not what I said. What I said 15 was the grandchildren of --\" 16 17 This is the grandchildren of Moses Stevens: 18 19 \"...who are on one side are Wolf and on another 20 side are Frog, were born and raised up at well, 21 Blackwater-Slamgeesh. 22 2 3 THE COURT: Yes? 24 25 A. And that they're the ones who were very 26 knowledgeable about the territories and are the 27 ones who were informing me about this 28 relationship. 29 30 THE COURT: Did I not understand correctly that 31 the -- that people from the House of Dawamuuxw 32 were there because of this right acquired 33 through marriage and in the 34 Blackwater-Slamgeesh area?\" 35 36 And that understanding is exactly the case, and he 37 says: 38 39 \"A. Yes. That was the husband. 40 41 THE COURT: The husband, yes. 42 43 A. He was married to the Wolf side, who were 44 parents of or grandparents of Walter Blackwater 45 and David Blackwater.\" 46 47 That was a correction, he said they were the 25665 Submissions by Mr. Grant 1 grandparents, of course. 2 3 \"THE COURT: Well, was there only the one person 4 that was in that area by way of -- by rights 5 acquired through marriage? 6 7 A. Moses Stevens. 8 9 THE COURT: Just Moses Stevens? And his 10 descendants, where did they live? 11 12 A. Well, Moses Stevens' children would be in 13 the House of -- of Niist. 14 15 THE COURT: I see, all right. 16 17 A. His descendants -- well, his nephews and 18 nieces or his brothers and sisters would be in 19 the House of Dawamuuxw. 20 21 THE COURT: Was this territory originally 22 assigned to Dawamuuxw merely because of the 23 presence on the land of Moses Stevens? 24 25 A. Yes. 26 27 THE COURT: I see. 28 29 A. That was the reason.\" 30 31 Now, 13 days later, Mr. Goldie returned to the subject 32 of this territory during his cross-examination. He 33 referred Mr. Sterritt to a taped interview with Walter 34 Blackwater in 1983. At the commencement of Mr. 35 Blackwater's cross-examination at 2:00 p.m. on 36 September 1, 1988, Mr. Mackenzie advised plaintiff's 37 counsel that he had not received the tape. 38 Plaintiffs' counsel was taken by surprise and had 39 assumed the tape had been delivered after August 24, 40 1988. The entire sequence of requests with respect to 41 the 1983 tape was explained to the court by 42 plaintiffs' counsel. The plaintiffs also invited the 43 defendants to reopen the cross-examination of Walter 44 Blackwater, an invitation which was never accepted. 45 And that reference, I don't have the copy of the 46 transcript but Mr. Rush at that reference, my lord, 47 explained the whole sequence of what happened with the 25666 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT THE COURT tape and in fact it was -- I mean, the plaintiffs never took issue that the defendants should have the right to reopen cross-examination of Mr. Blackwater with the tape in their hands. Now, Mr. Sterritt agreed, as set out on the tape, that in 1983 Walter Blackwater in this interview attributed the Gwinin Nitxw territory at Slamgeesh to Dawamuukw. And this is what he said, explaining the apparent contradiction: \"Q. And you -- now, Mr. Blackwater obviously changed his mind? A. Well, I don't know. He clarified in his own mind as to why Moses Stevens was there, because of his wife, and that it really belonged to the House of Gwinin Nitxw. And at the time he was talking 1983, referring to it in that sense. Q I'm suggesting to you that he changed his view on who owned that territory? A. I disagree with you. I disagree with you. He -- he came to me, either him or David, about a year ago and said he wanted to explain that it really belonged to Gwinin Nitxw; that Moses Stevens was there because of his grandmother, Walter Blackwater's grandmother. And the only explanation that I could offer for that is that Moses Stevens ended up having that registered in his name as a trapline and that that could be the reason, but in fact it's very clear that the area is Gwinin Nitxw's. Solomon Jack had mentioned it to me. I hadn't had anything else to go on, but at some point Walter Blackwater came forward and explained the reason why it was really Gwinin Nitxw's territory and not Moses Stevens, not Dawamuukw.\" In further cross-examination, Mr. Sterritt confirmed Moses Stevens, the former Dawamuukw, is the father of Charles Stevens and Mary Blackwater. Mary of course is the mother of David and Walter. This is the territory where we had lunch, is it not? Yes, that's right. And who was the Blackwater that was with us? 25667 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. GRANT THE COURT MR. GRANT David. That was his brother, David. Thank you. Now, in the course of the cross-examination, it was urged from Mr. Sterritt that the Blackwater affidavit was a sham. Now, this proposition, my lord, was never put to Walter Blackwater. In fact, the defendant did not reopen the cross-examination of Mr. Blackwater after receipt of the 1988 tape although there was an opportunity to do so in November and December of 1988, and in fact Mr. Macaulay suggested he might even do so. There is no suggestion, my lord, in any of this exchange that Mr. Blackwater or his house, remember he is from Niist, would benefit from the apparent change from Dawamuukw to Gwinin Nitxw. In fact, the informant about the territory, the person who apparently changed his understanding, had nothing to gain. In any event, the territory was not suggested by Mr. Blackwater to belong to the House of Niist. Now, my lord, the only explanation for the difference, and Mr. Blackwater was not cross-examined again on this, on the tape, the only explanation for the difference was that he was confusing the rights of his grandfather through Yuugilaatxw in 1983 with the House, it is important to remember in this context that Moses Stevens was one of the principal teachers of Walter Blackwater with respect to the boundaries of the territory. And the second is, my lord, that -- and I will come to it, is with respect to the trapline registration confusion. I submit, my lord, the only conclusion to be taken from the Federal and Provincial's failure to cross-examine Walter Blackwater directly on the 1983 statement is that they did not want him to explain the reason for the difference between the tape and his affidavit because such an explanation would undermine the argument that they are making. Now, Mr. Solomon Jack in 1982 stated Gwinin Nitxw let him, Dawamuuxw, trap in there; his dad was from our clan like. Now, this was Solomon Jack's explanation as to why Dawamuukw trapped on part of the territory. This was a cross cousin relationship, my lord. You can see that Moses Stevens had rights through his father and then through his wife. Mr. Sterritt explained Solomon Jack is here referring to Moses Steven's trapping and not his ownership of that territory and, once again, he raises in 2566? Submissions by Mr. Grant 1 cross-examination at a later point when asked by Mr. 2 Goldie he says: 3 4 \"Q. Yes. Now, so we have it so far as any 5 material that is available to us, a certain 6 consistency; Art Kusick, Solomon Jack and 7 Walter Blackwater all suggesting that the 8 territory -- Slamgeesh territory was Dawamuukw? 9 10 A. No. What Art Kusick is saying and Solomon 11 Jack are saying is that Dawamuukw is in that 12 area, but Solomon says it's because of his -- 13 he mentions because of the father, Dawamuukw's 14 father. 15 16 Q. Yes. 17 18 A. It's what he says on the tape, but he also 19 says that it is the territory, it's Wolf 20 Territory under Gwinin Nitxw. Walter also 21 comes -- and Walter comes -- and also what 22 Solomon is saying is that they are trapping in 23 that area. That Moses Stevens is trapping. He 24 doesn't say that he owns it, but in the terms 25 of what we are doing in terms of defining, or 26 what he was describing was where they trapped, 27 but he has already established that there. It 28 wasn't -- I still don't see that Walter was 29 saying -- or pardon me, Solomon was saying it 30 in a hostile way in any way at all in terms of 31 a conflict. Eventually Walter Blackwater came 32 forward to me and pointed out that the reason 33 Dawamuukw was there is because of his wife, 34 because of the family. 35 36 Q. All right. 37 38 A. And it's Gwinin Nitxw land, and to me the 39 sequence from 1982 to 1983 to 1988 is just 40 building on the same information and them 41 sorting through that.\" 42 43 Now, I also want to point out that both Mr. 44 Sterritt and Mr. Blackwater referred to the 45 clarification of boundaries by way of a September 6, 46 1986 helicopter flight. This evidence of course is 47 not focused on by the defendants when they challenged 25669 Submissions by Mr. Grant 1 the ownership of this territory. 2 Thirty-two days later after first raising this 3 with Mr. Sterritt, Mr. Goldie raised it again with him 4 and he returned to the issue, again referring to field 5 notes of Mike Morrell in 1979. And then he says: 6 7 \"Q. And this too he records as belonging in the 8 territory of Dawamuukw?\" 9 10 Mr. Sterritt said: 11 12 \"A. Yes. And this is the -- what Walter 13 pointed out to me that it was Moses Stevens who 14 was married to a member or to a wolf and that 15 it was really Gwinin Nitxw's territory. It's 16 the same area that is properly Gwinin Nitxw.\" 17 18 Now, I have already referred you to the fact that 19 they did not cross-examine Mr. Blackwater with respect 20 to the 1983 tape which would have required reopening, 21 that they were invited to do, the 1983 tape of 22 interview; the January 12, 1987 interview with Walter 23 Blackwater, or the Mike Morrell interview with David 24 Blackwater and Bobby Stevens respecting the Slamgeesh 25 territory. 26 Now, since they elected not to reopen 27 cross-examination of Walter Blackwater, the sworn 28 evidence before the court is that the Slamgeesh 29 Territory belongs to Gwinin Nitxw. This is consistent 30 with the affidavit of Walter Blackwater, the sworn 31 evidence of Walter Blackwater on cross-examination, 32 the sworn evidence of Neil Sterritt over the course of 33 over 30 days at different times, and the 1982 34 interview with Art Kusick, and the sworn evidence of 35 Solomon Jack. And I add as a sixth, my lord, the 36 sworn evidence of James Morrison who described the Wii 37 Minosik territory bordering on this territory and 38 referred to the neighbouring territories as belonging 39 to Gwinin Nitxw. 40 Now, finally, my lord, after both Mr. Blackwater 41 was examined and Mr. Sterritt was examined, the 42 defendants cross-examined Gwinin Nitxw himself, 43 Solomon Jack on December 6, 1988. 44 It becomes even more clear that the territory was 45 Gwinin Nitxw in his cross-examination when asked when 46 Gwinin Nitxw lost the Slamgeesh territory, this is in 47 cross-examination, he stated: 25670 Submissions by Mr. Grant 1 2 \"Q. All right. But when you answer that, you 3 thought that you had lost your territory? 4 5 A. No, I didn't. I said we lost it through 6 the white man's law by registering it by them 7 registering that trapline. 8 9 Q. And who was the person that registered the 10 trapline? 11 12 A. Moses Stevens, as far as I know. I'm 13 not -- I haven't even looked at the register, 14 but I heard he registered it. 15 16 Q. Well, now you say you never lost the 17 territory at all? 18 19 A. No. But we just lost it through the white 20 man's, that's what I supposed to say on that. 21 22 .... 23 24 A. The reason why our people before me -- I 25 don't know it was after I was born or before, 26 but Moses Stevens, his father came out of 27 Gwinin Nitxw's House and yet he wanted to trap 28 on Gwinin Nitxw's trapline. So they told him, 29 according to my grandmother, they told him to 30 use Slamgeesh Lake, and it's -- that area is so 31 big we couldn't -- we couldn't use it, we 32 couldn't trap on it all the time, eh. So they 33 cut -- actually, the southern part is closer to 34 Kisgagaas, that's why my grandparents trap 35 there all the time. And the first thing they 36 do with that thing was register it on the Moses 37 Stevens. That's what they told me, I didn't 38 see the register of what, or whether it wasn't 39 registered.\" 40 41 My lord, the defendants never put the suggestion 42 this territory belonged to Dawamuukw to Solomon Jack 43 in his cross, and they had all of the information at 44 that time. 45 In summary, the sworn testimony of all witnesses 46 demonstrates that the Slamgeesh territory belongs to 47 Gwinin Nitxw. The early statement of Art Kusick, the 25671 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT THE COURT MR. GRANT former Gwinin Nitxw, is consistent with this; all witnesses explained why Dawamuukw had rights of access; and the defendants refused to seek an explanation from Walter Blackwater. Now, my lord, skipping the next paragraph but going down, the plaintiffs have never denied that the imposition of the trapline registration has impacted the system. In this case, what you see is a very classic example of it, the freezing in time of the trapline registration by issuing it to Moses Stevens, a chief with privileged rights of access, has led to some confusion. But when you take all the evidence together, my lord, it's my submission that the community reputation is that this territory belongs to Gwinin Nitxw. The source of this community reputation is the deceased chiefs who passed on the boundaries and the ownership to the living Gitksan. Now, my lord, this is not to say that the living chiefs do not discuss house territories and boundaries among themselves. That is an obvious aspect of any reputation within a community. To suggest the fact of such discussions makes the reputation evidence inadmissible, as the Provincial Defendant does, is to make a mockery of the reputation evidence exception enunciated by the courts. Just say with that example, my lord, that no aboriginal society with an oral history would be able to prove territory ownership. This is precisely the absurd result that Blackburn L.J. rejected in the Milirrpum case with respect to this territory. : That's a little strong, isn't it? : Well, it may be strong but I say that what -- what he was dealing with is how do you prove -- with an oral society how do you prove ownership or how do you prove that territoriality. And you have to of course in a community reputation, you have to go among living people are talking about it as well. I submit that you should accept the reputation evidence that this is Gwinin Nitxw's territory. If however you accede to the Provincial argument, then we are stuck with the recognition of the territory as belonging to Dawamuukw but in either case there is no argument that it is not Gitksan territory and properly included in the territory claimed in this case. : That's what I was suggesting to you back in 1987, wasn't it, that did it matter? : Which house held the territory? Well, the 25672 Submissions by Mr. Grant 1 difficulty is because of the nature of the system and 2 the society, it would have been much easier of course 3 for the plaintiffs to establish the one territory, but 4 in order to establish that territory and why there 5 were these relationships with the other groups we had 6 to establish the house territories. But the evidence 7 in my submission is that it is Gwinin Nitxw's 8 territory. 9 MR. MACKENZIE: My lord, perhaps I should rise just to clarify 10 my friend's comment that there is no argument. He is 11 referring to the Provincial Defendants. Perhaps just 12 for information -- 13 THE COURT: Where is that, Mr. Mackenzie? 14 MR. MACKENZIE: Page 178-7. 15 THE COURT: There is no argument. 16 MR. MACKENZIE: My friend says: \"In either case there is no 17 argument that the territory is not Gitksan territory\", 18 and my friend has referred in those terms several 19 times I take it to the Provincial Defendant's argument 20 and for purposes of information, perhaps I could just 21 adhere that there is an argument that that territory 22 is subject to overlapping claims by Stikine and the 23 Nishga people so in that sense there is an argument. 24 MR. GRANT: Well, I appreciate my friend's comment. I should 25 say there is no valid argument in my submission 26 because any of these competing claims my friends did 27 not call a single Nishga or Stikine witness to prove 28 that any of the territory wasn't Gitksan. It is just 29 a question of reputation as I understand is as far as 30 they can go based on these claims to the Federal 31 Government. 32 Now, my lord, I want to say here that -- and this 33 is something that I don't want to overly gild the 34 lily. I mean, this is the very nature of reputation 35 evidence and it can lead in a history like we have 36 been dealing in this case to confusion, and it's not 37 perfect. And it would be nice if none of those -- 38 that confusion was there but it was, and I am being 39 frank about that, but we still say we proved it and 40 that it's an example of how confusion can arise. I'd 41 like to move into the territory of Baskelaxha, and 42 this is the territory located 13 miles north of Kuldo 43 running south from the Nass to the Skeena River, and 44 there is only one territory. The present holder of 45 this territory is William Blackwater, and William 46 Blackwater is -- he is the brother of Walter 47 Blackwater but was adopted into Baskelaxha House. As 25673 Submissions by Mr. Grant 1 you recall, that was a very small house. And so this 2 is -- and this is the territory we are referring to 3 here. 4 Now, I don't wish to say anything more regarding 5 that territory. I will move on to the territories of 6 Mauus, Jeff Harris Junior, on page 178-10. These 7 territories, my lord, start with the Kuldo Creek 8 territory and this is the territory that Jeff Harris 9 Senior described in his affidavit and of course, 10 although my friends make a fair amount about the 11 boundary of the Kuldo Creek territory, Mr. Harris was 12 not cross-examined on this boundary and confirmed the 13 boundary as on 646-9A and it is the small territory in 14 that south Kuldo Creek. 15 THE COURT: Yes. I see it. 16 MR. GRANT: Now, I want to clarify something that may be 17 confusing because I only refer to the territories -- 18 this is the one territory here, my lord, in Kuldo 19 Creek, and then there is this territory here and this 20 one here. But what happened was that Mr. Harris 21 referred to the boundary of all of this at once and 22 then he says there is a space there that is Wii 23 Eelast, Amagyet, so the fact it's under one head, 24 there is two territories, but there are two there. 25 And that's referred to as the Xsa Gay Laaxan territory 26 testified in -- 27 THE COURT: The northern one? 28 MR. GRANT: No, the northern one is the Kuldo Creek territory. 2 9 THE COURT: All right. 30 MR. GRANT: And you can see it's Gwiis Xsagan Gaxda, it is the 31 small Kuldo Creek, that's what it really means. 32 THE COURT: All right. 33 MR. GRANT: Now, on page 178-11, Mr. Harris \u00E2\u0080\u0094 I refer to the 34 Xsa Gay Laaxan which are the two that are close to 35 Kispiox and this is described in his affidavit as one 36 territory. And on the next page -- just a minute, I 37 am sorry, on Exhibit 610 itself, I will just refer you 38 to the reference, my lord. Yes, on -- in the 39 affidavit Exhibit 610 at paragraph 11 he describes the 40 Xsa Gay Laaxan territory and he says at the end: 41 42 \"Enclosed within the boundary described above is 43 the Lax Hla Gant territory owned by Amagyet.\" 44 45 which is described in section C of this affidavit, so 46 what he did was he just went around the external 47 boundaries and he said but there is this other 25674 Submissions by Mr. Grant 1 territory of Amagyet, and then he goes on to describe 2 that separately. And I'd like to move to that 3 territory of Amagyet on page 178-13. 4 THE COURT: Yes. 5 MR. GRANT: This is the territory owned by the House of Amagyet 6 and I have put and cared for by Wii Eelast at this 7 time, my lord. At the time of the swearing of the 8 affidavit a successor to the name of Amagyet had not 9 as yet been chosen. Mr. Harris Senior attended 10 funeral feast for Percy Wilson, the former holder of 11 the name, and at that time Mr. Angus Senior was 12 designated a speaker for the house until a successor 13 to the name was chosen. And then it goes on to 14 explain that by the time of the cross-examination, a 15 feast had been held. Leo Braton was selected as the 16 successor to the name but the name was allowed to rest 17 for a while. Mr. Harris describes this territory and 18 he was taught about it by the former holder of the 19 name. 20 I am going now to the territory of Gwoimt. This 21 is a territory of the -- Gwoimt is a Wolf chief from 22 Kisgagaas, and Fred Wale was the person who described 23 this territory. And it's Mr. Wale himself, he is one 24 of the persons that resides part of the year in 25 Kisgagaas even today and of course this is the 26 territory that's being discussed here and it is the 27 one that notches across the Skeena, my lord, on 486, 28 you had -- you have that space. 2 9 THE COURT: Yes, I have it. 30 MR. GRANT: And it is the territory that Anlagaasmdeex which is 31 a site of a fishing village. And Tsabux is part of 32 the Gwoimt wilnadahl, they worked together in the 33 feast hall, and they utilized the fishing stations at 34 Anlaagaasimdeex. Mr. Wale testified to that in his 35 cross-examination. He also explained on -- page 16 I 36 am, my lord. He also explained where his cabins were, 37 the diminishing game and logging, and then he 38 explained that his house originally came from the 39 village of Anlaagaasimdeex, and this is a place which 40 is part of present day Kisgagaas at the west end of 41 the village. It is at this location that the Gwoimt 42 pole was located. 43 In cross-examination, my lord, the dispute over 44 the Gitan Gwalxw area near Swan Lake was raised, 45 that's the notch between the two Gails, and that was 46 raised in cross-examination but that territory is not 47 a subject of the claim and it's the evidence of -- 25675 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 evidence -- Mr. Wale did not know of that dispute and it's our submission that the evidence is that that's Kitwancool territory. In any event, it's not part of the area in this action. I'd like to go to the territory of Gutginuxw which is on the Skeena River northeast of Kispiox. Willie Morrison is the head chief. Abel Brown, a witness who you saw in evidence, I believe -- THE COURT: Yes. MR. GRANT: -- testified to this in cross-examination and he described at the time geographical features on the boundary, witness the territory by their own names. And I can direct you to that one. THE COURT: I have located it. MR. GRANT: Thank you. It is a relatively large one near Kispiox and going out. The other next two territories I am going to focus on will be starting with Luutkudziiwas territory -- it touches on the Kitwancool territory and also, my lord, this would be -- if you looked at the chiefs in terms of village of proximity, Gaxsbgabaxs came from the western village, Luutkudziiwas is the western most of the sort of central Gitksan chiefs, and then Luutkudziiwas, he also has a territory over on the east which borders very closely to the territory of Smogelgem, just a sliver of Gyetm galdoo in between. THE COURT: All right. Can we take the afternoon adjournment then? MR. GRANT: Certainly, my lord. THE REGISTRAR: Order in court. Court stands adjourned for a short recess. (PROCEEDINGS ADJOURNED FOR A RECESS) I hereby certify the foregoing to be a true and accurate transcript of the proceedings transcribed to the best of my skill and ability. Tannis DeFoe, Official Reporter, UNITED REPORTING SERVICE LTD. 25676 Submissions by Mr. Grant 1 (PROCEEDINGS RECOMMENCED AT 3:15 P.M.) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Grant. 5 MR. GRANT: Yes, my lord. Before going on, if you look at 6 Exhibit 486, one of the questions that you raised with 7 me was with respect to Williams Lake, and actually 8 that's a boundary lake on the territory up in the 9 northwest corner right at that notch that sticks out. 10 THE COURT: Oh, yes. I see it. 11 MR. GRANT: That's Williams Lake that Mr. Muldoe is referring 12 to. 13 THE COURT: Yes. 14 MR. GRANT: I am referring to the two territories of 15 Luutkudziiwus, and the first one is the Hazelton Creek 16 territory described in evidence by Mrs. Moore. She is 17 a chief within the house, and was authorized to speak. 18 Mr. MacKenzie was too sick to give evidence in this 19 case. 20 Now, the proximity of the two Luutkudziiwus' 21 territory is indicative, as it is of Djogslee of the 22 antiquity of this Frog House in the territory. In 23 fact this Hazelton Creek territory is in the location 24 of Temlaxam itself. I refer you to page 20, where 25 Mrs. Moore -- page 178-20, Mrs. Moore's evidence in 26 the second last paragraph -- the last sentence is 27 consistent with the evidence of Mary Johnson with 28 respect to the boundary of Antgulilibix' territory to 29 the north of this territory. She also, of course, 30 refers to the Kitwancool on the other side of 31 Andamahl, which is that little notch, so that she 32 touches on it. And this is where that mountain is 33 where Mary Johnson says on the other side is 34 Kitwancool. And she goes up to there as well, this 35 Luutkudziiwus' territory. 36 And of course with respect to the Kitwancool 37 boundary that's also consistent with the evidence of 38 Stanley Williams, who also described that location, 39 that Kitwancool boundary. 40 THE COURT: I take it it's intended that there is a narrow 41 corridor running along the Kitwancool border belonging 42 to Gaxsbgabaxs, is it? Is that -- that's what this 43 map shows. Does your show the same thing? 44 MR. GRANT: Oh, yes. Where Gaxsbgabaxs, it's around Burdick 45 Creek (?), which you can see here, Burdick Creek is a 46 boundary between Gaxsbgabaxs and Luutkudziiwus. 47 Actually there is a long extension and only a very 25677 Submissions by Mr. Grant 1 small point at the height of Luutkudziiwus, the 2 northern point of Luutkudziiwus' territory that 3 touches on the Kitwancool. 4 The next territory is the Madii Lii territory. In 5 this case was testified to by Arthur Risdale, the 6 brother of the present Chief Luutkudziiwus. And he 7 was taught this by Tom Campbell, who is now deceased. 8 Just a point to be made there with respect to 9 this, is that Kenny Muldoe are -- or Kenny MacKenzie, 10 Simon Muldoe and Delbert Turner trap in the Madii Lii 11 territory. They have permission to do so. 12 And Kenny MacKenzie is of the son of the present 13 Luutkudziiwus, and it's understood that he will only 14 have that right to use the territory until his father 15 dies. 16 Now, the next territory I am referring to is quite 17 close to that. It's the territory of Gyetem Galdoo. 18 And this long narrow sliver here that intervenes 19 between Luutkudziiwus and Smogelgem along the 20 boundary. This is the only territory of Gyetem 21 Galdoo -- the only territory of Gyetem Galdoo. Except for the mountain top. That's right. Yes. All right. Now, David Green, chief in the House of Wii Gaak, 26 Wagil Wil, testified to this territory. He was taught 27 the territory by Charles Clifford, the former Gyetem 28 Galdoo, and by Thomas Wright, the former Guuhadak and 29 the late Dick Lattie. Mr. Green himself was born at 30 Kisgagas and is 77 years old. I have summarized his 31 evidence, and the references on his cross-examination 32 are to Exhibit 595-A, my lord. That's the transcript 33 of his cross-examination, and those page references 34 are all to that exhibit. 35 But he refers to the meaning on page 178-24 of An 36 Djem Lan translated means \"pot of fish eggs\". This is 37 where the spawning is done on the territory. And he 38 also referred to Gyetem Galdoo as having a fishing -- 39 Seeley Lake, and this is that -- to that small piece 40 that Wii'goob'l refers to. Gyetem Galdoo and 41 Wii'Goobl are very close, although separate houses and 42 the same wilnat'ahl. 43 THE COURT: I thought Mrs. Ryan said she owned Seeley Lake. 44 MR. GRANT: Seeley Lake, my lord, is within the territory now -- 45 Seeley Lake itself is within the territory of Spookw. 46 Gwaans, that Hanamuxw territory comes up close to 47 Seeley Lake, but she -- her evidence was that Spookw 22 THE COURT 2 3 MR. GRANT 2 4 THE COURT 2 5 MR. GRANT 2567? Submissions by Mr. Grant 1 2 THE COURT 3 MR. GRANT 4 THE COURT 5 MR. GRANT 6 7 8 9 10 11 12 THE COURT 13 MR. GRANT 14 15 16 17 18 19 20 THE COURT 21 MR. GRANT 22 23 THE COURT 24 MR. GRANT 25 26 27 28 THE COURT 29 30 MR. GRANT 31 32 33 THE COURT 34 MR. GRANT 35 36 THE COURT 37 MR. GRANT 38 39 THE COURT 40 MR. GRANT 41 42 43 44 45 46 47 owns the other side, and he owns Seeley Lake. Spookw does? Yes. I thought you just said Gyetem Galdoo -- I am going to come to that. The territory here, Seeley Lake is within the territory of Spookw, but there is a place that Spookw gave evidence of that Wii'goob'l holds, and it's this end of the lake. It's that small -- it's on the fishing site map actually. And there is a -- the outlet of Seeley Lake belongs to Wii'goob'1. All right. Okay. That's what is being referred to in this case in cross-examination by David Green. But the former head chief of that wilnat'ahl group was Gyetem Galdoo. Gyetem Galdoo and Wii'goob'l are very close, and Jessie Sterritt described it -- that Wii'goob'l right -- Wii'goob'l ownership of that Seeley Lake reference. Mrs. Ryan not also object to the Carnaby Mill as -- The Carnaby Mill is in her territory, and it's further down. Seeley Lake -- Yes, I remember it is. After you pass Seeley Lake there is actually a creek right near where that truck stop is, and that creek or very -- that creek, that watershed, that boundary between Hanamuxw and Spookw. All right. Did Mrs. Ryan not say that Seeley Lake was hers? No. I mean, my lord, certainly not that I recall. I recall her referring to it, but that it was on the Spookw side of the boundary. All right. I certainly, given your accuracy of memory, I will check that, but I'm fairly certain of that. It's pretty vague at this moment. I'm sure I would recall if she said that it was hers . Thank you. Now, I now refer to the territory of Spookw, and this is the one territory along the Skeena and Bulkley River, page 178-25. And this is Mr. Robinson, Steve Robinson was taught the boundaries of this territory by his father and by his mother, as well as by Mary Johnson, who was the former Yagosip, another Mary Johnson, of course, the Mary Johnson who gave evidence. And by Frank Clark, the former Spookw. 25679 Submissions by Mr. Grant 1 Now, there is a place within that territory known 2 as Daxso'op, which is a pond at the outlet of Seeley 3 Lake. This belongs to the House of Wii'goob'l, and 4 this outlet pond is also known as Wii Gidii Sitax. 5 That is the reference that Sylvester Green -- or I'm 6 sorry, that's the reference that David Green is 7 referring to. That is the location that is understood 8 to belong to Wii'goob'l. Wii'goob'l and Gyetem 9 Galdoo are in the same wilnat'ahl. When we look at it 10 by house, it's Wii'goob'l, but if you look at by 11 larger group, Gyetem Galdoo was -- formerly would have 12 been referred to -- he is the leading chief of the 13 Frogs one may say. So there is that connection. 14 Now, I just like to emphasize this quote from Mr. 15 Robinson. On cross-examination he was cross-examined 16 on again interrogatory maps and map changes. But this 17 is what he said in cross-examination: 18 19 \"The maps can change, you see, you can draw a 20 map here and they say cut it in half and 21 then -- but Spookw's territory has its own 22 boundaries from the time that they were here. 23 You see, this is what I mean, I'm going to 24 explain to you ... maps can change, but the 25 territory itself stays, and we know.\" 26 27 And I ask you to keep that in mind, as Mr. Rush is 28 going to shortly deal with the mapping, that the 29 chiefs' evidence is that the territories stays, the 30 mapping may change, but that's because of the enormous 31 project or task of mapping the oral knowledge of the 32 territories. 33 Mr. Robinson explained why Lost Lake belongs to 34 Yagosip, and I referred to that, and then when he was 35 cross-examined with reference to this outlet pond, he 36 made it clear in his testimony that Seeley Lake itself 37 belonged to Spookw, but the outlet pond at the 38 northeast end of the lake was owned by Gyetem Galdoo, 39 \"because Gyetem Galdoo had a fishing site right in the 40 mouth of -- Station Creek, coming out there.\" 41 Now, here again what you have is Gyetem Galdoo, 42 Wii'goob'l interchanged, but it is that wilnat'ahl, 43 Gyetem Galdoo and Wii'goob'l, that own that outlet 44 pond. 45 Then Mr. Robinson talks about his knowledge, and 46 he disagrees with Mr. Sterritt's notes that Spookw had 47 no land. 25680 Submissions by Mr. Grant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT THE COURT MR. GRANT Now, in cross-examination Mr. Mackenzie suggested that territories were -- I'm on page 28. A re-creation, a creation that you prepared for the court case. And this is Mr. Robinson's answer to that. He said: \"It's not a creation, it's there and then we know what our land is. We didn't create -- I'm not -- I'm not a magician to create anything, to do anything like that -- -- -- but we are talking about land and all get together and then we were denied by the B.C. government, they wouldn't recognize us as people of this country.\" And that is the evidence of the territory and generally of the concept of re-creation. It's something that's created, I would say, by the defendants in their argument, but is it true? Yagosip's territory is referred to next, and this is the territory north of the Bulkley up the Babine trail. There are two territories. And Guuhadak was authorized to use part of this territory. You remember that Yagosip was one of those Wolf chiefs who came down from Kisgagas, and therefore is closely related to Guuhadak, and this -- the territory that we are referring to here, my lord. Its right on -- to the east and going up in the mountains, to the east and north of Hazelton. Yes. And then you asked about the notch between Gwii Yeehl and Kliiyem Lax Haa, and that's the Yagosip territory up here on the Kispiox, that's the second territory, that's not shown on 486, but there is a space there for it. It's on the west side of the Kispiox. Yes. All right. Both these territories were testified to by Mr. Robinson. And I would like to refer you now to the territory of Woosimlaxha. And this is the territory located along the Skeena and Bulkley Rivers near the village of Gitanmaax. And Victor Mowatt is the present holder of that name. And Woosimlaxha territory, I will refer to the Nika Teen ones as well, which are next, is this territory that really encompasses and surrounds on three sides the Nika Teen territory. And it comes 25681 Submissions by Mr. Grant 1 right out from Kispiox and going east to Nine Mile 2 Mountain and then down to the Bulkley River. And then 3 inside that insert is Nika Teen, one territory, which 4 encompasses Gitanmaax actually, and is -- goes along 5 the Skeena and then across the river in the area of 6 the south Hazelton is another Nika Teen territory, but 7 it doesn't go very far up the mountain. 8 THE COURT: All right. 9 MR. GRANT: Now, Mr. Robinson again testified to these three 10 territories I referred you to, and referred to 13 11 geographical features on the Woosimlaxha or Robinson 12 Lake territory. The territory referred to as Mount 13 Glen is that territory close to Gitanmaax of Nika 14 Teen, and again Mr. Robinson testified to the 15 boundaries of this territory. 16 Now, the reference on the bottom, my lord, at page 17 32 should be under the next territory, because it's 18 really talking about across the river. And he 19 explained the boundary line between the Spookw 20 territory and this Nika Teen territory was the 21 boundary at approximately 14 hundred foot elevation on 22 the mountain. Above that point it belonged to Spookw. 23 It was the top part of the mountain. Then he 24 described his own presence on the territory close to 25 Hazelton and Dam Gan Gyuuxs, is the territory which is 26 on the Lower Chicago Creek down slope from Hagwilget 27 Peak. 28 Now, finally, my lord, I refer you to the 29 Wii'goob'l territories. And of course we have 30 referred to the one at the outlet of Seeley Lake, 31 which is just a very small place, and there is another 32 territory at Sallysout Creek, and this is testified to 33 by Mr. Benson. And that is the main territory of 34 Wii'goob'l. And Mr. Benson was cross-examined on 35 that, and his -- his evidence is there. Have you seen 36 that? 37 THE COURT: Yes. 38 MR. GRANT: My lord, I am going to \u00E2\u0080\u0094 I have alluded with 39 respect to the Gwinin nitxw territory and others to 40 the concept of the reputation, and I am going to 41 return to the legal side of that argument. But we 42 have now reviewed the evidence, and I say we fairly 43 reviewed it, those areas of suggested contradiction we 44 have endeavoured to incorporate, but we have reviewed 45 the evidence of all of these territories, and we say 46 that you should make a finding at the end of the day 47 that these territories, as depicted on 646-9-A and 25682 Submissions by Mr. Rush 1 2 3 4 5 THE COURT 6 7 MR. GRANT 8 THE COURT 9 MR. GRANT 10 THE COURT 11 12 MR. GRANT 13 THE COURT 14 MR. GRANT 15 16 17 THE COURT 18 MR. GRANT 19 20 21 22 23 THE COURT 24 MR. GRANT 25 THE COURT 26 MR. GRANT 27 28 THE COURT 29 MR. RUSH: 30 THE COURT 31 MR. RUSH: 32 33 34 35 36 37 38 39 40 41 42 43 44 45 THE COURT 46 MR. RUSH: 47 9-B, are with respect to 9-A, the Gitksan territories, and with respect to 9-B, the Wet'suwet'en territories, and that they have been proven as belonging to the houses that are depicted there. Have you not a count of how many territories there are? 133. 133 territories? Yes. Somewhere in the argument there must be a list of the \u00E2\u0080\u0094 The territories. -- the territories claimed by each chief. Yes. First of all with respect to the Wet'suwet'en, I believe Mr. Rush has included that at the first -- or -- I remember seeing it somewhere at the beginning. I am going to -- I will be providing you with a listing of all of the -- these territories, an index in effect to this section of the argument, which will list territories of each chief underneath the name of the chief. All right. So that will be put at the front of this, and -- That will be very helpful. Yes. Mr. Rush is prepared to commence argument on the mapping question. Thank you. I am handing up a copy of the argument. It goes in this volume 6? Goes in the back of volume 6, my lord. It's numerical -- it's sequential. My lord, Mr. Grant made the point in conclusion of his last item of argument that I seek to make as well in respect to the question of the mapping of the Gitksan and Wet'suwet'en territory east as shown in Exhibits 646-9-A and 646-9-B. And the point is made at the commencement of the argument after I have set out the plaintiffs' plea on the first of the page 456 of this argument. The point is simply that the territory set out in the Statement of Claim is the land of the Gitksan and Wet'suwet'en chiefs delineated by the external boundaries or boundary line shown on 646-9-A and 9-B. Yes. And, my lord, that is a point that's made in paragraph 4 -- well, paragraph 3 really, I suppose, of 25683 Submissions by Mr. Rush 1 page 456. 2 Now, at the bottom of that page, my lord, what we 3 say is that the underlying maps from which -- I'll 4 refer to them as 646-9-A and 9-B, or in even more 5 short form, 9-A and 9-B, were prepared, were drawn by 6 Marvin George, the cartographer who gave opinion 7 evidence. These maps were drawn from 25 Wet'suwet'en 8 and 29 Gitksan territorial affidavits, the oral 9 evidence of the witnesses who testified directly about 10 their territories and the territorial maps tendered in 11 the proceedings. It's important to note here that the 12 evidence of Mr. George was that he relied on all of 13 those aspects of the evidence called at trial. 9-A 14 and 9-B were founded on the sworn evidence of the 15 Gitksan and Wet'suwet'en people, mostly chiefs and 16 elders, and in some cases sons and daughters of those 17 chiefs. Although attacked, this evidence was never 18 undermined. And we say it ought to be accepted by the 19 court. And we say it's the factual foundation for the 20 opinion represented by the two overlays 9-A and 9-B 21 depicting the internal and external boundaries of the 22 Gitksan and Wet'suwet'en houses. 23 Now, we say further that the requirements 24 established by the Court and the authorities regarding 25 the proof of reputation of land ownership have been 26 met. And the legal argument on this will follow 27 shortly, my lord. I don't intend to make it here, but 28 simply to allude to the fact that knowledge of the 29 boundaries, geographical features and ownership of the 30 territories was passed to the witnesses from previous 31 chiefs or knowledgeable elders. The territory and its 32 ownership were spoken of publicly in the feast, and 33 this knowledge was common in the Gitksan and 34 Wet'suwet'en communties. In all cases the witness's 35 knowledge has been passed down, most often by the 36 matriline, from a deceased chief, and it originated 37 prior to the litigation. 38 Now, on 458, my lord, I respond to an attack 39 raised by the province. And this attack is that the 40 territorial affidavits are based on -- the territorial 41 affidavits is attacked on the basis that they do not 42 disclose whether the informants were living. What 43 flows from this, they say, is that the sources of the 44 territorial and boundary information in the affidavits 45 cannot be determined to be from deceased persons, and 46 therefore should be accorded little or no weight as a 47 statement of reputation not reliant on a deceased 25684 Submissions by Mr. Rush 1 informant. We say this attack has no basis. 2 The territorial witnesses, in the affidavits and 3 in the evidence, said who their informants were. They 4 were their deceased ancestors. In most cases previous 5 holders of the chiefs' name, for example, Thomas 6 George to Alfred Joseph, family members, in the case 7 of Rose Sam to her daughter, Mable Critch or 8 relatives, in the case of Simon Morrison, who held 9 Waiget to Pete Muldoe, who took the name of 10 Gitluudahl. There is no case where a witness said he 11 or she relied on the evidence of a living informant 12 for the boundary description of a territory. There is 13 a few examples where a witness said he talked to a 14 living informant about a place or place name. In 15 these cases it was never for the purpose of 16 determining the boundary or the ownership of the 17 territory. There were more -- they were more in the 18 line of exceptions. 19 And, my lord, I just like to add to this, not in 20 the text, that it would be highly surprising indeed if 21 the witness didn't talk to people who were living in 22 an oral culture, there would be and indeed was 23 discussion in the feast hall and on the land. The 24 source of the knowledge, however, the source relied 25 upon by the affiants, were the deceased ancestors of 26 the plaintiffs. And I think that's demonstrated by 27 the review of the territory by territory evidence that 2 8 we have just gone through. 29 We say further that the defendants were never 30 precluded from exploring in cross-examination who the 31 witness's informants were. Where they did, it was 32 made clear how the territorial information was passed 33 from deceased persons. 34 We say there is no basis to suggest that the 35 knowledge of the witness who speak about territory 36 came from sources other than identified knowledgeable 37 chiefs and elders who were the ancestors, or relatives 38 of ancestors of the witness. 39 Now, our proposition is, and our submission is 40 that 646-9-A and B together reliably depict the 41 territories of the Gitksan and Wet'suwet'en chiefs and 42 houses in this case. The Court should accept these 43 maps as depicting the delineation and identification 44 of ownership of the plaintiffs' territory. 45 Now, my lord, these two overlay maps together are 46 the product of an impressive gathering process of 47 information from the Gitksan and Wet'suwet'en 25685 Submissions by Mr. Rush 1 hereditary chiefs. They are the product of a decade 2 and-a-half process. And this process was predicated 3 on the fundamental assumption that the hereditary 4 chiefs knew their territories by reference to natural 5 features on the ground and by names in the Gitksan and 6 Wet'suwet'en languages. The task in mapping these 7 territories was to determine the physical features 8 known by the hereditary chiefs, to ascertain their 9 Gitksan or Wet'suwet'en names, to locate the features 10 on a NTS or government map, and to record the names, 11 places and owners on the map. 12 Mr. George summarized the process in his 13 examination. And the question was put to him: 14 15 \"Q How was it that the hereditary chiefs told you 16 about the information concerning their 17 territories?\" 18 19 And I'll just read part of his answer here, my 20 lord. He said: 21 22 \"During the interviews with the hereditary 23 chiefs they would indicate to me a particular 24 feature where their boundary was on. They 25 would identify a feature as being a river or a 2 6 creek. They would give a name to it and I 27 would identify that particular feature on the 28 map, and they would tell me that 'my boundary 29 goes to this hill, and this particular hill has 30 a geograph -- has a name.' And they would give 31 me that particular name, and they would 32 indicate to me that 'I do not go over that. 33 Over there belongs to somebody else. You would 34 have to go to talk to him about that particular 35 area.' Then they would say 'We will go to this 36 particular feature.' I would identify that on 37 the map and if there was a name given to that 38 particular feature that would be labelled, and 39 they would identify those features to me and I 40 would identify those features on the map.\" 41 42 And he carries on. A little farther in his 43 examination he was asked: 44 45 \"Q What other types of features would be the type 46 that would be mentioned to you?\" 47 25686 Submissions by Mr. Rush 1 And he identifies rivers, creeks, lakes, 2 mountains, hills, ridges and on some occasions trails. 3 In testifying on his use of the territorial data 4 sheets, which were his means to record the 5 geographical information, Mr. Sterritt said of this 6 process, and I go to his answer located here, my lord: 7 8 \"It was to connect topographic features of -- a 9 hereditary chief would refer to a place name 10 and a feature and it was to connect those 11 features with the house, the clan, the village 12 as much as possible and the type of feature, 13 and to provide a record of those features 14 throughout the Gitksan and Wet'suwet'en 15 territory.\" 16 17 This approach we say was the only way to know the 18 territories. The hereditary chiefs had a mental image 19 of their territories. That image was both a product 20 of the oral transmittal to them of names, histories 21 and crest data about the territory, as well as having 22 acquired firsthand contact with the land by being 23 there and working the resources on it. As Stanley 24 Williams said, \"You have to have the dirt of that 25 territory under the soles of your shoes before you 26 tell me about the boundaries of the territory.\" 27 The intertwining characteristics of geographic 28 knowledge resident in the chiefs and the ancestors of 29 the Gitksan and Wet'suwet'en people were themselves 30 communicated in the oral tradition by interview and 31 re-interview and trips out onto the land. I there 32 make reference, my lord, to the interview notes of Mr. 33 George, the field notes of Mr. Sterritt, and the 34 interview record relied on by Drs. Mills and Daly, and 35 they, we say, speak eloquently of the process. 36 And I should point out, my lord, that this is to 37 mention but a few. There were notes of Alfred Joseph 38 and Leonard George, and as well of Glen Williams. My 39 lord, we say the system of investigation employed by 40 the researchers required determining the geographical 41 landmarks and ground features from the hereditary 42 chiefs. From this it followed that the more landmarks 43 and features that were known, the better the 44 information and the better the map. The accumulation 45 of detail about an area allowed Mr. George to 46 determine boundary as lines beyond which often the 47 ground activity did not go. Those boundaries 25687 Submissions by Mr. Rush 1 encircled the land owned by the house under the 2 stewardship of the chief. Those boundaries were 3 almost invariably the rivers, creeks, lakes, 4 mountains, ridges and heights of land. The task of 5 mapping therefore was to assemble and record as many 6 of those features as possible from the hereditary 7 chiefs, and to determine from the hereditary chiefs 8 which house and clan owned the territory. 9 Mr. George worked as a cartographer for the 10 hereditary chiefs through the Gitksan and Wet'suwet'en 11 Tribal Council from October, 1983. And, my lord, the 12 task that I have just outlined was the task that he 13 was charged with, as he indicated in his evidence. 14 And I ask you to refer to that, the top of 463. 15 In commencing his task Mr. George relied on 16 information which already had been collected from the 17 chiefs up to the time he began his cartographic work. 18 Maps of the Gitksan and Wet'suwet'en territory had 19 been previously drafted. These maps were drawn 20 relying on generalized and incomplete information 21 about the external boundary. One such early map was 22 hand drawn by Chris Harris who held the chief name of 23 Luus. It showed primarily the territories of some of 24 the Gitksan chiefs north of the village of Kispiox. 25 Mr. Sterritt became aware of this map in late 1974. 26 The map was on tracing paper, and it depicted 27 territories that had been traced by Mr. Harris; there 28 were features on the territory, some rivers, creeks 29 and lakes. Exhibit 22 prepared by Mr. Sterritt is a 30 tracing of Chris Harris's map with additional 31 information of his own on it. Mr. Harris died in late 32 1975, and Mr. Sterritt did the tracing from his map in 33 early 1976. The reason Mr. Sterritt gave for tracing 34 this map was given in his evidence. And what he said 35 was: 36 37 \"The hereditary chiefs had asked me and others 38 to do some work on the boundaries of the 39 Gitksan, and this was the first representation 40 that I had seen of some of the territories of 41 the Gitksan, and I felt that it would be useful 42 to begin with what had already been done by 43 Chris Harris.\" 44 45 On Exhibit 22 Mr. Sterritt had added several 46 notations. And I just set a few of them out there, my 47 lord, particularly the \"boundary per Billy Moat, T/L\", 256? Submissions by Mr. Rush 1 and I refer to a few others. To do this -- Mr. 2 Sterritt, in order to determine where Billy Moat was, 3 Mr. Sterritt used the linen trapline maps which had 4 been kept by the Department of Indian Affairs to 5 record Gitksan and Wet'suwet'en traplines registered 6 with the provincial government. Mr. Sterritt's reason 7 for doing so is set out in the next following quote. 8 And he said: 9 10 \"The hereditary chiefs believed that trapline 11 maps in the care of the Department of Indian 12 Affairs represented the hereditary territory, 13 and they had passed a resolution in the summer 14 of 1975, directing that we do a map 15 representing their hereditary territories based 16 on the traplines - based on the traplines in 17 the care of the Department of Indian Affairs.\" 18 19 It was a belief among some of the hereditary 20 chiefs that their territories were described in the 21 trapline maps of the D.I.A. And this belief was 22 reflected in that 1975 resolution referred to by Mr. 23 Sterritt. It was this then that led him to the linen 24 maps. And Mr. Sterritt used Mr. Harris's tracing to 25 assist him to locate information, to locate hereditary 26 chiefs and their territories and to cross-reference it 27 to determine whether the person located on that area 28 was the proper hereditary chief within the system. 29 And he said he did that by consulting with other 30 hereditary chiefs. 31 And I note, my lord, that three of those linen 32 maps were examined by Mr. Sterritt and were marked in 33 the proceedings. 34 Mr. Sterritt gave evidence about the kind of 35 information depicted on the linen trapline maps, and 36 it is set out in the next passage, my lord. And I 37 just direct your particular attention to the example 38 given by Mr. Sterritt at the bottom of page 465. He 39 said: 40 41 \"For example, a pencil line or a crayon line 42 might be drawn indicating a creek, and a 43 Gitksan name or a Wet'suwet'en name would 44 appear next to that in phonetics, or the 45 translation of the Gitksan or Wet'suwet'en 46 name, and square lines or straight lines 47 indicating that presumably were trapline 25689 Submissions by Mr. Rush 1 boundaries.\" 2 3 For example, on Exhibit 718 the entirety of one of 4 the rivers was marked Quinagese, and this river today 5 goes by the name of Kwinageese. Elsewhere on the map 6 in the lower half there appears the words \"Ksimottis 7 Kwit\", and in brackets underneath the word in English 8 \"Milking\". And Mr. Sterritt testified this referred 9 to what is marked today as Milking Lake. 10 Now, how he used the maps is set out next. And he 11 said that he used them as a general guide to determine 12 whether or not the person who had a registered 13 trapline in a given area was the hereditary chief, the 14 proper person to hold the house territory. 15 16 \"For example, I sat down with Luudkudziiwus, Ben 17 MacKenzie, and I reviewed his trapline with 18 him. And during that discussion he indicated 19 to me that the boundaries as defined were wrong 20 ... on the trapline maps. Because it did not 21 include all of his house territory. And at a 22 later date I sat down with Ben MacKenzie when 23 he outlined his house territory to me.\" 24 25 Now, Mr. Sterritt learned from the hereditary 26 chiefs that the trapline maps did not in reality 27 depict the territories of the hereditary chiefs. And 28 that, my lord, is set out in the next passage. 29 And I go over to 467. These maps were of 30 assistance to Mr. Sterritt to the extent that they 31 gave a general location for a place name. However, 32 \"it was never necessary to review that information 33 with the hereditary chief and see exactly, or as close 34 as possible, where that particular feature was, 35 whether it was a creek or a mountain or a lake.\" And 36 upon reviewing the information on the linen maps Mr. 37 Sterritt realized geographic names he had been given 38 were on the maps, and he cited the example of Xsi Luu 39 Max Seexsit, a name given by Martha Haimadam. 40 Now, in the summer of 1977 the Gitksan external 41 boundary was described more fully to Mr. Sterritt. 42 There was a large meeting of the Gitksan hereditary 43 chiefs in July of that year where the external 44 boundary of the Gitksan territory was described in 45 general terms in its entirety by the hereditary 46 chiefs. Later that year in October or November there 47 was a meeting of the Wet'suwet'en chiefs, who defined 25690 Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. RUSH: THE COURT MR. RUSH: the Wet'suwet'en external boundary. As a result of these meetings with the Gitksan and Wet'suwet'en chiefs Mr. Sterritt drew a map that was presented to the Honourable Hugh Faulkner on November 7, 1977, which described the territories of the Gitksan and Carrier Indians as part of the presentation to the Government of Canada. And, my lord, that is Exhibit 113. And I am just going to pause here to ask you to make reference to the plaintiffs' small desk size overlay series. And I don't intend to refer you to it seriatim, my lord, but only to draw your attention to the fact that the first of those overlays is the depiction of the map that was presented to the Honourable Hugh Faulkner in November of 1977. : Which one is that? That's the first one. It begins first in sequence, so it will be the one closest to the background or base map. : Yes. Now, my lord, when asked in his examination, Mr. George described this map as a crude attempt to identify boundaries of the Gitksan and Wet'suwet'en. But this was the first attempt to define the external boundary of the Gitksan and Wet'suwet'en people. Following that presentation, my lord, and I am on 468, mid-paragraph, Mr. Sterritt engaged in a process of systematically gathering information about the geographical features, landmarks and territorial ownership from the Gitksan hereditary chiefs. I note in the next paragraph that Alfred Joseph and Leonard George, two Wet'suwet'en chiefs, were also engaged after 1978 in interviewing the Wet'suwet'en hereditary chiefs identifying and labelling geographical features. Mr. George relied on the information about the Gitksan territories gathered and recorded by Mr. Sterritt and Mr. Glen Williams. This information was recorded primarily on what was described as topographic survey data sheets and land use reference summary sheets devised for this purpose. It was also recorded in notebooks and on working maps kept and used by the researchers in the field. Mr. Sterritt described how he recorded the information gathered from the hereditary chiefs. Now, my lord, what follows, then, is Mr. Sterritt's description, and he described the process of moving from an informal method to a more formal 25691 Submissions by Mr. Rush 1 information gathering process, and it's set out on 469 2 over to 470. And I just want to draw your attention 3 to a couple of his answers on page 469. Midway 4 through the page the question was put to him: 5 6 \"What information did you take from the field 7 book and put on the topographic data sheets?\" 8 9 And he said: 10 11 \"Place names, Gitksan place names for mountains, 12 creeks, lakes; place names around a particular 13 Gitksan village ...\" 14 15 And so on. And then further, my lord, he said: 16 17 \"Well, I also located some of the features or 18 many of the features on a map, a 1 to 250,000 19 map, very much like the different maps that are 20 on here. I had a set of them, about six of 21 them. And I would locate as best I could place 22 names on those maps.\" 23 24 Those were entered as an exhibit. 25 My lord, how Mr. Sterritt identifies features from 26 the information provided to him is set out in the next 27 passage of his evidence. And I'll just read in part 28 what Mr. Sterritt said: 29 30 \"As close as I could locate it to the feature 31 that was being identified to me by a hereditary 32 chief. I might -- hereditary chiefs were 33 talking to me all the time. I might run into 34 them on the street and they would identify a 35 feature; I would write it down and go back and 36 try to locate it.\" 37 38 Mr. Sterritt further testified how he attended 39 feasts, and was giving information during the course 40 of the feast about place names and territorial 41 ownership. And, my lord, what follows, then, are Mr. 42 Sterritt's responses to how he garnered information 43 from the hereditary chiefs during the course of the 44 feasts. 45 Over to 471. Mr. Sterritt testified about the 46 process in this way: 47 25692 Submissions by Mr. Rush 1 \"Basically it was an information gathering time 2 for me. When Marvin George was hired, I turned 3 that information over to him. And apart from 4 the entries that I made on my own maps, I 5 turned over the data sheets, the summary 6 sheets, my field books, if it was necessary, or 7 if Marvin requested them, as well as the six 8 maps that contained whatever information I had 9 put on the map.\" 10 11 Now, my lord, the land use reference or summary 12 sheets in the topographical survey sheets were given 13 to Mr. George for mapping. And what I have done is 14 just to set them out there. And what I've -- I have 15 attempted to do, my lord, was to indicate that at this 16 stage what the references were and what the sources 17 were. And you will see that I have gone through the 18 sheets that were -- that were the product of Mr. 19 George's, Mr. Joseph's, Mr. Sterritt's work, and the 20 number of references indicated on the sheets. And 21 those sheets, I might add, my lord, were cross 22 referred to NTS maps. And that point is made on page 23 472. 24 Accompanying these topographic data sheets were 25 the working maps onto which the geographical names and 26 features, recorded in the summary and data sheets, 27 were labelled. The reference numbers were transferred 28 to working or field maps by Leonard George, Mr. 29 Joseph, Mr. Sterritt and Mr. Williams. The number on 30 the data or summary sheet corresponded with the same 31 number placed on the topographic NTS maps. The 32 different colours on the maps and numbers was an 33 attempt to differentiate between the clans. And Mr. 34 George explained this process in his evidence. And he 35 summarized the relationship of the data sheets to the 36 maps in this way. And I am just going to refer you to 37 Mr. George's first response, my lord. He said: 38 39 \"Number 1 on this work map is situated on Morris 40 Lake and that number 1 would correspond to the 41 number 1 that is in the land use reference data 42 sheet, and the number 1 would identify what 43 that feature is and what type of feature it was 44 and would identify the chief and the clan and 45 the village.\" 46 47 Now, my lord, the working maps of the researchers 25693 Submissions by Mr. Rush 1 were also exhibited. And I enumerate them starting at 2 the bottom of 472, running to the top of 473, and they 3 are there set out with their appropriate exhibit 4 numbers. 5 With the data in hand, Mr. George then prepared 6 for himself a Gitksan and Wet'suwet'en composite 7 working map. From the topographical data and summary 8 sheets and from the working maps that were labelled he 9 then transferred the numbered references onto his 10 composite map. For the Wet'suwet'en composite map, he 11 testified: 12 13 \"This would be the combination of the 14 information that would have been in the Leonard 15 George data sheets and the Alfred Joseph data 16 sheets.\" 17 18 The numbers on the working maps were combined and 19 appeared on the composite map. Mr. George explained 2 0 the colour code on the Wet'suwet'en map. And I there 21 recommend his explanation to you, my lord. 22 On 474. A similar procedure was followed by him 23 in respect of the recording, labelling and mapping of 24 the Gitksan geographical features. In this case, 25 however, a composite working map was assembled by Mr. 26 George and Glen Williams, and they transferred to it 27 the geographical information which had been supplied 28 by the hereditary chiefs on the topographic and 29 summary data sheets and working maps. 30 Now, my lord, moving to the next paragraph, I set 31 out there a number of field trips that were taken by 32 Mr. Sterritt. Mr. Sterritt, among others who were 33 gathering information, took a number of field trips, 34 and those are as set out by reference to the exhibit 35 numbers. 36 On those trips Mr. Sterritt assembled an 37 impressive five volume set of photographs of 38 geographical features in the territories of the 39 hereditary chiefs. And I just give the numbers there 40 by reference to exhibit. The purpose of that record, 41 according to Mr. Sterritt, was to put Gitksan names to 42 physical features in the chiefs' territories. The 43 photographs show mountains, ridges, creeks, rivers and 44 lakes labelled by their Gitksan names, and where 45 possible, cross-labelled to their English names 46 according to government maps. And I there indicate 47 that there is a cross-referenceing index. 25694 Submissions by Mr. Rush 1 I then indicate, my lord, that Alfred Joseph and 2 Leonard George similarly went on several field trips, 3 and I there indicate the trips that were taken, and I 4 make reference to the fact that we were -- a video of 5 Mr. Johnny David, Exhibit 67, was shown in court, and 6 demonstrates the process by which Mr. Joseph gathered 7 information from him. 8 What follows, my lord, is a sampling of other 9 trips that Mr. Joseph took at the bottom of 475. 10 Now, my lord, the composite maps were a repository 11 of accumulated information. As such, they represented 12 the state of knowledge as at that time. As new 13 information about places or names was given to Mr. 14 George, he added it to the data sheets and to the 15 composite maps. And that's set out there. 16 Now, my lord, I simply want to draw your attention 17 to the fact that an obviously well used composite map 18 was filed as an exhibit in the proceedings, and a copy 19 was made, I believe, by the province. And what it 20 indicates is a visual depiction of this process of 21 taking the numbered labelled feature and placing it by 22 reference to another number on the map. And I simply 23 ask your lordship at some point to make reference to 24 that, and I think a quick visual review of a portion 25 of that map will demonstrate how the features got 26 marked and labelled on the territories. 27 THE COURT: This is Exhibit 1008? 28 MR. RUSH: That's correct. Your lordship has the copy. The 29 original demonstrates this much more vividly, in the 30 sense that the original is marked in colour. 31 THE COURT: I'm not sure if I have got it upsidedown or not. 32 No, I don't think so. 33 MR. RUSH: Your lordship can see the numbers circled and placed 34 as against various land features, which would be shown 35 by the contour lines. 36 THE COURT: Yes. And this runs from just south of Houston in 37 the south? 38 MR. RUSH: Probably runs to the headwaters of the Nass and 39 Skeena in the north, my lord, judging from the NTS 40 sheets that were cut and pasted together. 41 THE COURT: Yes. All right. Thank you. 42 MR. RUSH: My lord, I'm on 476. And I want to draw your 43 lordship's attention to the fact that there were 44 difficulties attended with the information gathering 45 process. And I address some of these difficulties in 46 the few pages that follow. There was first the 47 problem of language, and Mr. Sterritt addressed that 25695 Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 point, and it was a question of understanding what was being said by the hereditary chief in his language or her language. Secondly, there was the question of correctly identifying topographic features. And in the passage that follows, Mr. Sterritt points out that the feature of Stekyoodenhl by reference to the mountain of Roche de Boule just outside of New Hazelton, did not fully describe all of the names given to that mountain mass, and he points out in the second paragraph from the bottom of the page that there were actually four different names that were given to that mountain, and he describes them. He points out the difficulty in linking the identified feature with the actual geographical feature on the ground, and he says the efforts that he undertook in order to overcome that difficulty. And 479, my lord, he makes the point that with regard to Stenstrom Creek, which flows into Kiteen River, and he says that over the length of the 15 miles of that creek there were some three different names for the water course. In the middle of 479, my lord, I draw your attention to the fact that Art Mathews Jr. also described how the chiefs described their territories to other chiefs who knew them, and how error could result if a person didn't know the chiefs' methods of explaining the territorial boundary. Mr. Mathews was cross-examined on the approximate boundaries of his territories, as indicated in a response to the question 59-C of the interrogatories, and he was asked if there was uncertainty as of February, '87 on the location. And he explained how the chiefs territories -- how the chiefs described their territories, and how other chiefs knew the territory that was being referred to from the description. And I insert the passage there, my lord, and I draw your particular attention to Mr. Mathews comments partway through. \"You would go directly to where it was described simply because the description ...\" THE COURT: MR. RUSH: 'Wouldn't go directly\", \"You wouldn't go directly to where it was 25696 Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. RUSH: described simply because the description chiefs use is -- and a lot of them is going to, going away from, just going sideways, over it, or these types of things, and so that's how these errors came to be, yes, so we correct them according to our descriptions.\" And he went on to describe that the errors were corrected by physically going on the territories and looking at them. And he makes that point with regard to his grandfather Wallace Morgan. Next, my lord -- Mr. Rush, I think we'll take about a five-minute break. Thank you. THE REGISTRAR: Order in court. Court stands adjourned. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) THE REGISTRAR: Order in court. THE COURT: Thank you, Mr. Rush. MR. RUSH: Thank you, my lord. My lord, at the bottom of 480 I wanted to draw your attention to a fourth difficulty encountered in the process I have been describing, and that was an almost universal inability of the hereditary chiefs to read maps. That was noted by Mr. Sterritt in his evidence. And on 481 I can advise your lordship that it was a bone of contention in the cross-examination of Mr. Sterritt with regard to Mr. Blackwater. Mr. Sterritt's evidence is set out there with regard to that. As another example of this difficulty I refer to the cross-examination of Mr. Hyzims. He appeared to be able to read maps on cross-examination, but on re-examination it was apparent he could not find locations on the map. And 482, my lord, Mr. Sterritt expressed in his evidence the difficulty that was encountered, and that was again repeated by Mr. George in the middle of 482. This was not something that was particularly new, my lord. Mr. Boys, who testified as a witness called by Canada, observed on the top of 483 that the Indian people in the Babine agency where he was the agent were \"never very skilled in interpreting a position on the map, experience unusual difficulty in this area.\" Now, my lord, a fifth difficulty encountered was 25697 Submissions by Mr. Rush 1 the naming of features, and Mr. Sterritt makes 2 reference to that. And I draw your attention to the 3 reference to the feature called Na'ahl Taada, and the 4 meaning of that, and how he came to determine where 5 that feature was located. 6 On 484 I draw your lordship's attention to the 7 evident difficulty encountered in age, difficulties of 8 recall. I also draw your lordship's attention to the 9 problems encountered in language, and the terms that 10 were utilized. 11 I ask you to turn to 485, my lord, where Mr. 12 Joseph testified about the differences in meaning 13 between the land, the word \"the land\" and \"the 14 registered trapline\". And he said the land was Yenta 15 in Wet'suwet'en. 16 Mr. Joseph was cross-examined about that, and he 17 replied: 18 19 \"We say, in our language, their land, Yin Tah, 20 that's the only thing they talked about. We 21 just pointed it out to them.\" 22 23 And finally, my lord, I draw your lordship's 24 attention to the confusion that occurred over the 25 boundaries of territories as created by the 26 intervention of the Department of Indian Affairs and 27 the Fish & Wildlife Department and their attempts to 28 render the boundaries of the hereditary chiefs. And I 29 cite Mr. Morrison's, James Morrison's experience in 30 this regard, and I also draw your attention to Walter 31 Wilson at 486, Chief Djogaslee, and the difficulties 32 between the D.I.A. mapping and the traditional 33 boundaries of the hereditary chiefs. 34 And, my lord, how the confusion was created by the 35 Department of Indian Affairs and the Fish & Wildlife 36 branch was made clear in the evidence of Mr. Boys, who 37 was the Indian Agent in the Babine agency from '46 to 38 '51, and he explained in his cross-examination how, 39 despite the descriptions given by the hereditary 40 chiefs to him and the tracing that he endeavoured to 41 make on the maps. And I note that they were outdated 42 and conceded by Mr. Boys to that effect when the Fish 43 & Wildlife Branch invariably and unilaterally redrew 44 the descriptions and made their own maps. Neither the 45 chiefs nor Mr. Boys were consulted or involved in this 46 process. And clearly what emerges, my lord, is a 47 picture of the Fish & Wildlife Branch making a 2569? Submissions by Mr. Rush 1 description and a map to suit their administrative 2 needs, and not to reflect the territorial boundaries 3 given to them by the hereditary chiefs. 4 And I give the citation there, my lord. And what 5 I have done here is to include the full text of the 6 cross-examination of Mr. Boys at the end of this 7 portion of the argument, and how the Fish & Wildlife 8 Department proceeded about their mapping, and why 9 their maps were unreliable depictions. And I don't -- 10 I simply included for your lordship's reference -- 11 and, my lord, I am going to ask you to make a note of 12 the cross-examination that's appended here, and I will 13 give you the pages. Page 300 -- 14 THE COURT: Stopping there. If it's important, at the bottom 15 one eighth of page 300 is blocked out by -- somebody's 16 put a yellow slip and written something on it. I'm 17 sorry, Mr. Rush, I can find it, the original, as 18 easily as you can. 19 MR. RUSH: My lord, that wasn't intended to be there. 20 THE COURT: But you needn't trouble yourself with it. I can 21 find it. 22 MR. RUSH: My lord, page 300, 302. 23 THE COURT: Just a minute. I should make these notes on page 24 487? 25 MR. RUSH: Yes, on the bottom of page 486 just to cross-refer to 26 Mr. Boys' cross-examination. Pages 300, 302, 304 and 27 305. Of course I recommend your lordship reading the 28 whole of that, but I recognize our time constraints 29 all the way around. 3 0 THE COURT: Yes. 31 MR. RUSH: My Lord, 487. The boundaries drawn by Mr. George on 32 the map filed with the Statement of Claim in October, 33 1984 was the first depiction of the external 34 boundaries of the Gitksan and Wet'suwet'en hereditary 35 chiefs based upon the feature - identification 36 gathering process. And I there set out upon what 37 information Mr. George drafted that map. 38 And I go to the bottom of the page, my lord. 39 Mr. George prepared a draft map showing the internal 40 house boundaries on October 17, 1985. And this became 41 Exhibit 102, and it's overlay number 4 in the overlay 42 series. 43 Now, what's significant about this, my lord, is 44 that it was drafted on a planimetric base. The base 45 showed only natural features and not topographic ones. 46 The house and clan territories were coded and depicted 47 on the base. And this was the first attempt to show 25699 Submissions by Mr. Rush 1 the internal house territorial boundaries based on the 2 geographical reference labelling that had been reached 3 to that point. 4 THE COURT: Now, that's number 4 in your series? 5 MR. RUSH: That's correct, my lord, yes. 6 THE COURT: Yes. 7 MR. RUSH: The draft map showed the state of knowledge which had 8 been acquired by Mr. George based on the interview and 9 field work conducted as of that time. And the purpose 10 of the map was to act as a guide for the lawyers in 11 identifying the location of the house territories of 12 the chief. Since it did not contain contour lines, it 13 was not intended to be a final statement of the house 14 boundaries and their ownership. 15 Mr. George testified regarding the source of the 16 information on Exhibit 102, and he testified as to the 17 purpose of this map at the bottom of the page 488. 18 Mr. Sterritt also testified as to how Exhibit 102 or 19 overlay 4 was to be used. 20 My lord, at the same time as Mr. George was 21 engaged in the preparation of 102, he was involved in 22 an ongoing process of producing individual house 23 territory maps on mylar or plastic bases. And these 24 ranged in scale of 1 to 10,000 to 1 to 100,000. 25 Now, moving to the next paragraph, my lord. These 26 individual house base maps were drafts, and they were 27 prepared in reliance on the information taken from the 28 1:250,000 scale working composite maps. Mr. George 29 described the procedure of incorporating new maps onto 30 these mylar bases, and he sets out there the procedure 31 that he undertook to deal with the individual maps. 32 And, my lord, I will just pause there to remind 33 you that this was an attempt by Mr. George to 34 individually map each of the separate house 35 territories. And they were placed on these mylar 36 bases. 37 Now, as I point out on page 490, this was a 38 building process. The bases were changing constantly 39 as more information came in. And Mr. George's work of 40 incorporating the new information onto these mylars 41 often lagged behind the presentation of the 42 information to him, so that the maps were not in step 43 with the most up-to-date knowledge. 44 And that is apparent by Mr. Sterritt's testimony, 45 which is then set out in the next paragraph, and the 46 example that he gives of the territory of Wii Gaak and 47 and the interrogatory response. And Mr. Sterritt says 25700 Submissions by Mr. Rush 1 in respect of that at the bottom of 490: 2 3 \"This is a situation where Marvin George had 4 certain information and was working with it, 5 and I had updated information, but it hadn't 6 gotten through the process of Marvin onto the 7 maps.\" 8 9 Now, my lord, moving to the middle of 491. Many 10 copies of these mylar bases were attached as 11 interrogatory answers. And how this occurred was 12 explained by Mr. Sterritt. 13 14 \"The base maps that were attached with some of 15 the interrogatories were prepared for the use 16 of the -- at the instructions and for the use 17 of the lawyers, and for the use with the 18 hereditary chiefs, and were never meant to be 19 used in court. Pressures of court and the time 20 pressures resulted in their being used to 21 help -- to try to help in the demands that were 22 coming through with the interrogatories.\" 23 24 Mr. George explained what he intended when he 25 marked these base maps as \"draft\". 26 27 \"I was also aware that none of these bases would 28 be thought to be final until the time that the 29 chiefs had reviewed them extensively and had 30 identified them as being the final maps.\" 31 32 Now, my lord, over to 492. Simply put, the draft 33 interrogatory maps were considered to be incomplete. 34 Mr. George did not intend for them to be tendered as 35 evidence. This point was made in Mr. Sterritt's 36 evidence when he compared the interrogatory maps of 37 the Gitksan with Exhibit 646-9-A. And he explains in 38 his answer with regard to the Wii Minosik 39 interrogatory response how those bases were 4 0 incomplete. 41 Now, I take you over to 493, my lord. It was a 42 process of checking and cross-checking and verifying 43 information which led to a more exact understanding of 44 the territorial boundaries, the geographical features 45 on those boundaries and the ownership. 4 6 Art Mathews, and I have relied on his evidence 47 here to essentially make the same point I make in 25701 Submissions by Mr. Rush 1 respect of Mr. Sterritt's evidence, he was 2 cross-examined on the difference between the 3 interrogatory map of Tsihl Gwellii territory in 4 Exhibit 349. And three inconsistencies were put to 5 him, and Mr. Mathews explained how those came to be, 6 and what he considered to be -- how the mix-up 7 occurred, and what he considered the correct 8 statements of his evidence was. He also refers to the 9 boundary that was drawn at Sand Lake, and how the 10 discrepancy arose there. 11 At the bottom of 494, my lord, Mr. Mathews 12 referred to the area between Sand Lake and Haahl 13 Dakakhl, and that means going alongside. And this is 14 along the side he testified, and he pointed out you 15 can distinguish the marks on the boundaries, however, 16 the descriptions are pretty hard to follow. 17 Now, not only were the base maps attached as 18 interrogatory responses in various stages of 19 completeness, but also in many cases no draft copy was 20 attached to an interrogatory response, because there 21 were either blank mylars; that is to say mylars with 22 no chiefs' information labelled on them, or no mylars 23 of the territory at all. 24 Now, my lord, it's clear that the mylar bases 25 prepared by Mr. George were in the process of being 26 worked on. The state of information contained on them 27 was incomplete. They were viewed and treated as 28 drafts. The decision to append these maps was made in 29 haste under pressure from the court schedule. And it 30 is significant that the maps were on a planimetric 31 base. They required topographic information to be 32 drawn on them to make sense of the boundary and 33 landmark data dependent upon heights of land. A 34 visual review of these maps demonstrates that most 35 contained few topographic labels, mixed word spellings 36 and tentative geographical determinations. Since 37 these maps were individual house territorial maps made 38 to scale ranging from -- differing scales, the areas 39 depicted on them are out of context to the larger 40 surrounding geographic area. It is hard to locate 41 oneself by means of the limited geographic areas shown 42 on these planimetric bases. And I say these factors 43 underscore the draft character of these maps. 44 My lord, what I then set out is Mr. George's 45 evidence regarding the interrogatory maps and the 46 interrogatory responses, and I don't intend to go 47 through them, but I set them out for your reference. 25702 Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. RUSH: THE COURT MR. RUSH: : These aren't all of the interrogatory maps that were filed, though, are they? No, because some of them were directed -- directly in evidence, and these are Mr. George's. I gave three examples, I believe, of the Gitksan, and those have preceded these. : All right. Relative to the Wet'suwet'en, in the middle of the page Alfred Joseph explained the difference between the map of Gisdaywa's territory dated May 12, 1987, and his interrogatory map, and how the differences arose between them. And I think it exemplifies a common state of affairs, my lord. He testified: \"It's one of the differences was when we told Marvin to draw the boundary. Showed him where to draw the boundary. But one area was left out. He followed Houston Tommy Creek for a ways, and then swung back up north, but left out an area, a plateau that was not used for trapping. The only thing that was used for was for hunting goats or caribou. It was hardly any trees on it. But that's included, it was included as Gisdaywa's territory.\" The fact that the whole of the territory was not used for trapping in no way reflected on the fundamental ownership of that territory and the multi-faceted activities going on there. My lord, the differences which subsequently became apparent between the draft maps appended as interrogatory responses and the evidence of the chiefs on their boundaries speaks much about the problems arising from the incomplete state of the information on the maps and the pressure of the court timetable. The draft interrogatory maps did not purport to, nor did they necessarily accurately represent the label, location or spelling of geographical features on the territories, nor were they in any sense determinative of house ownership in the areas marked. These maps illustrate the evolutionary process in the cartographer's understanding and mapping of the information from the hereditary chiefs about their territories. The mapping weaknesses say nothing about the knowledge of the chiefs or their territories. The care with which new information was sought and incorporated, and errors were corrected, speaks both 25703 Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. RUSH: THE COURT MR. RUSH: to the extent of the chiefs' knowledge, and the importance they attach to ownership of their territories. Now, my lord, I ask you to go over to 499, and I make reference to the fact that Mr. George drafted another map in April of 1986, and that's overlay number 5, and this was drawn from the same base as Exhibit 102, and so it was a planimetric map. I draw your lordship's attention to a map Mr. George drew in March of '87, to a scale of 1 to 250,000. And this one, my lord, is on a topographic base. And that was designed to show the external boundary of the Gitksan and Wet'suwet'en territory based on the information which he had received to that date. : That's overlay 6? That's overlay 6. What I try to do, my lord, is to give the map exhibit number, and then the exhibit where the overlay is located. : Thank you. My lord, on page 500 I draw your lordship's attention to the intensive review of the external boundaries that Mr. Sterritt was then involved in, and how information which came to Mr. Sterritt passed onto Mr. George and was incorporated on that March, '87 map, overlay 6. And midway through page 500 I draw your attention to the fact that Mr. Sterritt conducted a detailed review of those house territories on the external boundaries, starting December of '86, and the process by which the information was passed onto Mr. Sterritt. I then -- excuse me, Mr. George. Now, my lord, I draw your attention to Mr. Sterritt's comments at the bottom of page 500. And on 501 Mr. Sterritt in that particular case was testifying about the boundary change at the headwaters of the Skeena and Nass Rivers. And on the basis of the information that he received from Martha Brown, Walter Blackwater and his uncle, Percy Sterritt, he concluded that the boundary should be moved \"based on the more accurate information they had, and it was partly based on a field trip as well that I made to the area with Walter Blackwater\" on September 6th, 1986. I say that this example is typical of the process of obtaining more detail and therefore more accurate information about the boundaries. My lord, that point again is made by reference to 25704 Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT THE COURT MR. RUSH: Mr. Sterritt's evidence in the mid-paragraph and the last paragraph on 501. I then take you to 502, and I draw your lordship's attention to the fact that the information provided to Mr. George was recorded in loose-leaf notes of Mr. Sterritt. And in respect of the information he gathered as a result of those interviews, my lord, Mr. Sterritt identified in his evidence changes to the boundaries which were located at the 12 points I have there identified. And those were reflected on Exhibit -- overlay 646-6. Now, my lord, events overcame -- : Those changes were made before overlay 6 was prepared. : No. They were made and reflected in overlay 6, but yes, they were -- the information came to Mr. Sterritt prior to that. : Thank you. Now, my lord, the events of Mr. Sterritt continuing were to gather geographic work -- were to gather hereditary information from the hereditary chiefs overcame the process. And I note that on the bottom of 502. And on 503 I draw your lordship's attention to the fact that while he continued his work, Mr. Sterritt's evidence disclosed that with the -- as a result of his continuing work, the hereditary chiefs and the clarification of eastern boundary resulting from the Wet'suwet'en chiefs meeting after the All Clans feast in April, information was forthcoming which necessitated further changes to the external boundary. The evidence of Mr. George indicated that in this period he was using a working map to incorporate the new information which was being passed to him from Mr. Sterritt, and on which he made the changes to the boundary. And this was another drafted composite map of the Gitksan territory, and this map depicted the changes to the boundaries after April 9, '87. And that was marked Exhibit 1009. My lord, I don't wish to do anything more than to just simply say that your lordship can by reference to this get a feel for the working nature of the information that Mr. George was trying to put together in reference to this map. That's Exhibit 1009. I am over to 504, my lord. Now, I am now referring to the map that was tendered as Exhibit 681 in the trial, and became 25705 Submissions by Mr. Rush 1 647-7. It was the map attached to the amended 2 Statement of Claim of May the 11th, '87. 3 THE COURT: Overlay number 7. 4 MR. GRANT: That's right. In this map Mr. George showed the 5 changes on the external boundary. The map was 6 entitled \"The map of the external Gitksan and 7 Wet'suwet'en boundary\", and dated May 2, and the 8 changes are there enumerated. 9 The internal boundaries which were drafted onto 10 the working map were drawn onto the map which became 11 Exhibit 5 in the proceedings. And this map was 12 labelled \"external boundaries\". Now, Mr. George 13 considered this to be a draft map, and was intended to 14 show the internal boundaries of the Gitksan and 15 Wet'suwet'en territories in draft form. And the 16 reason that he said that appears at 505. And he said: 17 18 \"All maps would be drafts until the time they 19 were extensively reviewed with the hereditary 20 chiefs, and they had decided that the 21 information that they had given us was properly 22 transferred to the map and identified the 23 geographic features that they had given us and 24 identified the external boundaries that they 25 had given us, this wasn't done at this time.\" 26 27 Now, my lord, the procedure by which the 28 territorial information was gathered from and verified 29 by the hereditary chiefs altered in the summer of '87. 30 The evidence of Mr. George and Mr. Sterritt was that 31 as a result of an objection taken to the hearsay 32 character of the territorial information, a 33 recommendation was made and accepted by the court that 34 affidavit evidence was a useful means to introduce the 35 territorial and boundary evidence of the house chiefs. 36 And Mr. George testified as to how the affidavit 37 process was instituted. Here he then describes how it 38 was instituted, and how it was decided that he would 39 use a territorial affidavit. 40 I point out, my lord, that your lordship directed 41 on October 23rd that the Court -- that the plaintiffs 42 could adduce affidavit evidence of facts or documents 43 relating to location, boundaries and geographic 44 landmarks of the territories claimed by the plaintiffs 45 and their houses. 46 The work of interviewing Gitksan and Wet'suwet'en 47 hereditary chiefs and the drafting of the territorial 25706 Submissions by Mr. Rush 1 affidavits commenced in the summer of '87, and, my 2 lord, I set out Mr. George's role in that respect, and 3 Mr. Sterritt's role. And I simply ask your lordship 4 to make reference to Mr. George's role, and the 5 affidavits which he relied on for the purposes of 6 drawing Exhibit 646-9-A. That's the Gitksan 7 territorial boundaries. 8 Over to 507, my lord. I want to draw your -- 9 THE COURT: 646-9-A is the Gitksan? 10 MR. RUSH: External and internal territorial boundaries, yes. 11 THE COURT: Yes. 12 MR. RUSH: And I perhaps should emphasize the point at 506, that 13 Mr. George relied on the maps -- he relied not only on 14 the territorial affidavits, but he relied on maps 15 identified by the territorial witnesses in court. For 16 example, Mr. Stanley Williams, in respect of the 17 territories of Mary Johnson and one of the territories 18 of Hanamuxw, Mr. George relied on the territory -- the 19 chief's evidence, and he relied on the evidence of Mr. 20 Benson. He was also present during the evidence given 21 in cross-examination by Mr. Walter Blackwater. 22 Now, the opinion of Mr. George is set out at 507, 23 that Exhibit 646-9-A accurately reflected the internal 24 boundaries of the Gitksan hereditary chiefs subject to 25 four minor drafting corrections to which he noted. 26 Now, Mr. George was directly involved in the 27 drafting of the Wet'suwet'en territorial affidavits. 2 8 He conducted interviews with the Wet'suwet'en 29 hereditary chiefs and elders, with the assistance of 30 Wet'suwet'en interpreters. In preparing these 31 affidavits Mr. George utilized the existing 32 information about the house territories gathered from 33 hereditary chiefs. This included the records of the 34 names of the geographical features and the draft and 35 the draft maps, and with this information Mr. George 36 described how he prepared the affidavit. And it's 37 there set out, my lord, and I direct your attention to 38 the second full answer on page 508. And I ask you to 39 refer to all of this, my lord, but I -- with 40 reference, will direct you specifically to 509. And 41 this is what Mr. George said: 42 43 \"And what I would do is I was explaining, 'this 44 is our understanding of the boundary is as we 45 have it. Now is this correct? Does your 46 boundary go along this particular creek or to 47 the height of land of this particular creek? 25707 Submissions by Mr. Rush 1 Are these features all within your territory? 2 Are there more -- is there more information 3 that you could give me regarding the 4 geographical features within this territory?' 5 And many occasions there was more information; 6 they would identify more geographical features. 7 And on some occasion the geographical features 8 were already identified but would be in the 9 wrong locations and they would correct me on 10 that, and then they would be properly 11 identified and properly labelled. And all 12 this -- most of this information would go onto 13 the working map that I had.\" 14 15 And then carry onto the bottom of the page, my 16 lord. Mr. George said: 17 18 \"Next step was to take this information back to 19 the office and do a draft affidavit based on 20 the information that they had given us. The 21 draft affidavit would identify who this person 22 was, if he was Wet'suwet'en, what the chief 23 name was and where he was from what clan, who 24 his chief was, where he was from. The draft 25 affidavit would also indicate the source of 26 this person's knowledge. The draft affidavit 27 will also include the revised boundaries where 28 revisions were required, and would also include 29 the geographical features as they were 30 identified for us, and whether or not this 31 particular territory was described in the feast 32 or not.\" 33 34 And then, my lord, he says: 35 36 \"Another meeting would be arranged with this 37 particular informant, and then again with the 38 help of a translater, we would go back and I 39 would have my working copies and I would 40 explain to them that the information they 41 have -- have given me is now incorporated into 42 this affidavit, and I would explain where all 43 the changes were and the geographical features 44 that they may have been identified.\" 45 46 And so on. Now, my lord, Mr. George took notes 47 during the interviews with the chiefs, and these were 2570? Submissions by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. RUSH: THE COURT MR. RUSH: marked as an exhibit. A similar process was used by Mr. Sterritt, and Mr. Sterritt's description is set out at the top of the page. In most all cases Mr. Sterritt made and retained notes of his intereviews. Only the notes of deceased chiefs were exhibited in the proceedings by the plaintiffs because of objection to notes of interviews about the territories from living informants. Mr. George testified that he relied on the Wet'suwet'en territorial affidavits in order to prepare the map showing the internal boundaries of the Wet'suwet'en House territories. And he gives there, my lord, the affidavits relied on, the information that he relied on in order to draw his conclusion, which is on the top of page 512, that in respect of the Wet'suwet'en territory that overlay Exhibit 4 -- 646-9-B reflected the territory of the Wet'suwet'en hereditary chiefs. He further stated in 512 that 9-A and 9-B together reflected the external and internal boundaries of the Gitksan and Wet'suwet'en, subject to the changes which he testified to. My lord, I am going to pause there for a moment just to refer your lordship to the fact that I have also included a passage of Mr. Sterritt's cross-examination by Mr. Goldie. And this deals with the sources of the information. And I include this for your reference, because in the course of the examination -- in the examination a question was raised about the sources of the information, and Mr. Sterritt at page 8674 says unequivocally \"the hereditary chief, if they knew the name of a mountain along the boundary, they provided the source of that information, not me.\" : Where is that? This is line 7 on 8674. : Thank you. Now, my lord, you may just make a reference to that, perhaps, at the top of page 511 of my argument. Now, if I just, my lord, may proceed here with these points in the middle of 512. My lord, the evidence of the chiefs and elders concerning territory was not unblemished. As I have argued earlier, some of the chiefs on cross-examination placed feature names in the wrong place, could not recall if certain features (usually named in English) were in their territory, were vague about specific points on the boundaries or confused 25709 Submissions by Mr. Rush 1 house ownership with government trapline ownership. 2 What I have done here, my lord, is made reference to 3 the Elizabeth Jack example, and I have already 4 addressed your lordship on that, and I simply draw 5 your lordship's attention to the plaintiffs' argument, 6 which I set out on this point in the second to last 7 paragraph on 513. 8 I will also give as another example the testimony 9 of Mrs. Lucy Bazil, and I have also addressed your 10 lordship on that point, and I don't intend to speak to 11 that again. 12 On 514 I just ask your lordship to note that in 13 addition to the submissions made here, we further 14 submitted on this point at the location I have 15 indicated in the transcript -- or in my argument. 16 Now, my lord, going to the bottom of the page. 17 THE COURT: 514? 18 MR. RUSH: Yes. The nature of the process for gathering 19 information about the house territories required that 20 interviews be conducted with knowledgeable persons, 21 chiefs and other house members. Many of the people 22 who were the initial informants also swore the 23 territorial affidavits. And I there list as examples 24 many of those persons. 25 And going to the -- including James Morrison, Sam 26 Morrison, Stanley Williams, Pete Muldoe and so on. 27 Information was acquired from other chiefs living and 28 deceased, but not relied upon by the affiant. This 29 information was passed to Mr. George, Mr. Joseph, Mr. 30 Sterritt, Mr. Williams, and Mr. George in the process 31 that has been described, and that information by this 32 process was, of course, hearsay. The fact that 33 hearsay information may have been the basis in some 34 cases for the drafting of the early maps and for the 35 first draft of the territorial affidavits in no way 36 detracts from the direct evidence of the territorial 37 affiants who spoke directly to the same territories 38 and geographic features based on independent, their 39 sources of information. 40 The information shown on the maps and reflected in 41 the boundaries was the end product of gathering more 42 detailed and exact information about the hereditary 43 chiefs about their territories. The more information 44 that was gathered and understood by the researchers, 45 the more certain the maps became. It was, however, 46 the checking and cross-checking of information that 47 began in December, 1986 and followed through to the 25710 Submissions by Mr. Rush 1 drafting of the last affidavit which resulted in 2 finalized boundary descriptions and maps. 3 And I say something, my lord, at the top of 516 4 about the evolutionary process inherently involved in 5 mapping. And then I go to the bottom of 516, and I 6 note, my lord, that Mr. George and Mr. Sterritt knew 7 the geography of the territory and the features being 8 referred to on the ground. Because of that they could 9 map and label the features given to them on 10 topographical maps containing no English names for the 11 features. Mr. George could map the Gitksan and 12 Wet'suwet'en names on the maps and know that they 13 referred to the ground site. And I refer to Mr. 14 George's evidence in that respect. 15 Now, my lord, how else could this information have 16 been gathered in an oral culture with interwoven 17 community connections and a centralizing feast 18 institution? We say it was a truly remarkable and 19 unprecedented task to record, label, verify the names 20 and boundary locations in an area the size of New 21 Brunswick. And it could only have been achieved by 22 the method used in this case. The affidavit means of 23 proof was a reliable and expeditious way to take the 24 evidence out of its hearsay character and put it 25 before the Court in a direct way. 26 Mr. George also testified that he went on a number 27 of field trips in aid of his preparation work on the 28 territorial affidavits. And I there set out where Mr. 29 George went on his field trips. 30 Mr. George also accompanied your lordship on the 31 view, and I make that reference on page 518. 32 Now, my lord, I take you to the bottom of 518, and 33 I make this submission. What do the maps, 646-9-A and 34 646-9-B, represent? The maps speak to the truth of 35 the location of the boundary of the house territories 36 as drawn on the map and as existing on the ground. 37 The boundaries were contiguous, without gaps. The 38 labelling of chief and house names to an area on the 39 map correctly shows the ownership of that area on the 40 ground. The external boundaries of the Gitksan and 41 Wet'suwet'en territories together correctly show 42 where, on the ground, the dividing line is between the 43 Gitksan and Wet'suwet'en people and their neighbours. 44 And the final paragraph, my lord, are the 45 underlying facts founding Mr. George's opinion 46 reliable? We say yes, without doubt. The affidavits 47 of the hereditary chiefs and knowledgeable elders 25711 Submissions by Mr. Rush 1 represent the body of evidence proving the boundaries 2 and territorial ownership. That evidence was tested 3 and its reliability is unshaken. The witnesses who 4 testified about house territories had direct on the 5 ground knowledge of the land, its geographical 6 features, its boundaries and ownership, and this 7 knowledge was passed to them from previous, now 8 deceased, holders of the house names and other 9 knowledgeable elders who themselves had knowledge of 10 the territory. 11 And I think, my lord, that the plaintiffs' review 12 of the 133 Gitksan and Wet'suwet'en territories speaks 13 eloquently to that fact. 14 Now, my lord, I said that I would go to 5:00 15 o'clock, and I'm going to keep to my word here. I 16 have a further section to address you on, and if 17 you'll allow me, I don't intend to argue it. I am 18 simply going to, if I may direct you to it, and point 19 out what the argument is. 20 My lord, beginning at 520 is what we call other 21 claims to the territory not proved. And this is the 22 suggestion by the defendants that there is an overlap, 23 and that that overlap somehow detracts from the proof 24 of the ownership of the Gitksan/Wet'suwet'en 25 territories. And I invite your lordship to read this, 26 and I set out the reasons why this is a completely 27 untenable argument. And I simply say that what they 28 rely on are claims, the claims are unsupported in the 2 9 evidence. 30 At 521 the claims are bald assertions. The 31 mapping of these claims by Mr. Magwood demonstrates 32 how specious these claims really are. And I detail 33 Mr. Magwood's evidence in this respect. And you will 34 recall that he was essentially given the claims of the 35 neighbouring peoples and asked to draw them to the 36 best that he could. And I think that his evidence 37 makes it very clear just how unsupported those claims 38 are. 39 I also refer to Mrs. Ladouceur's evidence at 523, 40 and I direct your lordship to 524. And I say that the 41 documents that Mrs. Ladouceur referred us to do not 42 show proof of any other ownership interest in the 43 Gitksan and Wet'suwet'en territory either in terms of 44 the common law land tenure principles or by the 45 evidence and law, and I should say standards of that 46 law established by the Gitksan and Wet'suwet'en 47 people. 25712 Submissions by Mr. Rush 1 My lord, I just direct your attention to Exhibit 2 101, and Mr. George's, Mr. Sterritt's evidence on 3 that. I also direct your lordship's attention at page 4 525, directly to Mr. Sterritt's response about the 5 Nishga claim. And you will see that Mr. Sterritt's 6 evidence is that they resiled from much of what they 7 had asserted on previous claims. 8 My lord, I direct your attention to the bottom of 9 526, where Mr. Sterritt drew the court's attention to 10 the inter-societal mixing around Bear Lake, and the 11 fact that the Gitksan did not exclude the Stikene or 12 the Sekani relatives from those areas, but that did 13 not mean that there was any giving up or loss of 14 Gitksan or Wet'suwet'en ownership. 15 My lord, I direct your attention to the bottom of 16 527, that in fact the areas where there were Sekani 17 relatives located, that there were also areas of 18 proved ownership in the Gitksan/Wet'suwet'en people. 19 Over to 528 I refer to Mr. Joseph's evidence about 20 confusion that was compounded by the introduction of 21 the mapping and D.I.A. administrative systems, and Mr. 22 Joseph's and Miss Dora Wilson-Kennie's evidence in 23 that respect. 24 My lord, our conclusion is that the evidence of 25 the Gitksan and Wet'suwet'en people demonstrates that 26 they are the owners of the territories in this 27 lawsuit, and their evidence more than satisfies the 28 test in Baker Lake of dominion over their land. 29 And finally, my lord, I simply refer you to the 30 last section, 530 to 532, which is a short section on 31 mapping of the fishing sites. Mr. Grant has already 32 addressed you on this point, and I ask your lordship 33 to be mindful while reading this particular portion of 34 our argument of Mr. Grant's earlier submissions to you 35 with regard to mapping -- the mapping the fishing 36 sites and fisheries of the Gitksan and Wet'suwet'en 37 people. 38 Now, that concludes the plaintiffs' submissions 39 with regard to mapping of the territory, my lord, and 40 I would ask you, of course, even though perhaps I 41 touched briefly on certain portions of our written 42 argument, that that by no means lessens our -- the 43 importance of other portions that I didn't touch on. 44 I can advise your lordship that if the Court and 45 the Court Reporters and the staff and every one else 46 is willing to be here at 7:00, my lord, we would like 47 to pursue the plaintiffs' argument at that time. 25713 Submissions by Mr. Rush 1 THE COURT: Yes. Arrangements have been made for us all to be 2 here. Look forward to seeing someone at that time. 3 MR. RUSH: Thank you very much. 4 THE COURT: All right. Thank you. 5 THE REGISTRAR: Order in court. Court stands adjourned until 6 7:00 o'clock. 7 8 (PROCEEDINGS ADJOURNED AT 5:10 P.M. TO 7:00 P.M.) 9 10 I HEREBY CERTIFY THE FOREGOING TO 11 BE A TRUE AND ACCURATE TRANSCRIPT OF 12 THE PROCEEDINGS HEREIN TO THE BEST OF 13 MY SKILL AND ABILITY. 14 15 16 LORI OXLEY 17 OFFICIAL REPORTER 18 UNITED REPORTING SERVICE LTD. 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 25714 Submissions by Mr. Jackson 1 (PROCEEDINGS RESUMED AT 7:05) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Jackson. 5 MR. JACKSON: My lord. 6 THE COURT: I understand that we're going to have two 7 approximately one-hour sessions this evening with a 8 ten- to fifteen-minute break between. 9 MR. JACKSON: Yes, my lord. 10 THE COURT: All right, thank you. 11 MR. JACKSON: The material that's been handed up to you is a 12 section which will go into the Plaintiffs' submissions 13 as volume 5 at the back under tab 2. I trust there's 14 still room in the binder. 15 THE COURT: Yes. I squeezed it in. 16 MR. JACKSON: The first section of this part of the argument, my 17 lord, deals with a number of issues relating to the 18 Plaintiffs' asserted right to ownership and 19 jurisdiction which arise out of questions your 20 lordship posed to counsel in the last week in 21 Smithers. And the issues raised by your lordship's 22 questions fall into two categories: The first one, 23 the issue of jurisdiction as it relates to land and 24 resources; and secondly, the issue of jurisdiction as 25 it relates to matters other than lands and resources. 26 And I'm addressing myself to the first of those issues 27 on page 1, and I have set out there the nature of the 28 interrogatory your lordship has posed on this issue, 29 and it's most succinctly stated at page 1 in the first 30 passage: 31 32 \"But if the House owns the territory why do you 33 have to prove anything about jurisdiction if 34 you own the territory?\" 35 36 And on page 2, my lord, you see the passage I have set 37 out there in which you have taken the position that 38 ownership of land and resources subsumes jurisdiction 39 or authority over that land and resources, and I've 40 set out a passage there which reflects that. In 41 relation to this matter, my lord, at page 3, the 42 Plaintiffs have a number of submissions, the first one 43 of which is as follows: If your lordship accepts the 44 Plaintiffs' submission that the nature of the 45 Plaintiffs' aboriginal rights in land and resources is 46 properly characterized as ownership -- and I'm at page 4 7 3, my lord. 25715 Submissions by Mr. Jackson 1 THE COURT: Yes. 2 MR. JACKSON: And adopts the further proposition that one of the 3 essential elements of that ownership is the authority 4 to harvest, manage and conserve the land and 5 resources, then it is not necessary for your lordship 6 to go any further and to make any separate ruling on 7 the issue of jurisdiction over those lands and 8 resources. And there is judicial support, my lord, 9 for that proposition, which I have set out at page 3 10 and 4, in the judgment of the Privy Council in the 11 Attorney General of British Columbia and the Attorney 12 General of Canada. 13 THE COURT: Well, can I just stop you there, Mr. Jackson, and 14 just say that I think your paragraph number 1 on page 15 3 raises a serious legal difficulty for me, and one 16 which I have been grappling with and I have no very 17 firm view on it, but you see what -- the second branch 18 of your proposition there, that is if the court adopts 19 the further proposition, one of the essential elements 20 of that ownership is the authority to harvest, manage 21 and conserve the land and resources, then it is not 22 necessary -- well, that raises the fundamental 23 question as to whether that authority is an incident 24 of ownership or whether it's regulated or controlled 25 in some way by the general or other law of the 26 province. 27 MR. JACKSON: Yes, my lord, I appreciate these are separate 28 points, and Miss Mandell will be addressing you 29 separately on this issue, because it is a point of 30 great difference between my friends and I. They say 31 that whatever rights which the plaintiffs have, be 32 they characterized as aboriginal title or some other 33 interest, they are subject to regulation by the 34 province through the vehicle of Section 88 of the 35 Indian Act, and that is the straight argument, my 36 lord, and something which we will be grappling with 37 later in the week. 38 THE COURT: All right, I'll look forward to hearing from you 39 then. 40 MR. JACKSON: And the Privy Council decision, my lord, dealt 41 with the competence of the Province of British 42 Columbia to grant exclusive fishing rights in both 43 tidal and non-tidal rivers. So far as non-tidal 44 rivers were concerned, my lord, in which there was no 45 public right to fish, and where the fishery is an 46 incident of the ownership of the bed of the river, 47 because these particular lands were within the railway 25716 Submissions by Mr. Jackson 1 belt, the bed of the river was within the proprietary 2 domain of the federal government, and Lord Haldane, in 3 the course of his judgment, said: 4 5 In the present case, therefore, their Lordships 6 entertain no doubt that the title to the solum 7 and the water rights in the Fraser and other 8 rivers and the lakes so far as within the belt 9 are at present held by the Crown in right of 10 the Dominion, and that this title extends to 11 the exclusive management of the land and to the 12 appropriation of its territorial revenues.\" 13 14 And that, my lord, reflects the subsuming, as it were, 15 of a regulatory managemental authority within the 16 general rubric of ownership. 17 THE COURT: But that's not the way it worked, is it? 18 MR. JACKSON: The Province always collected a royalty on the 19 appropriation of the territorial revenues in terms of 20 the railway belt. 21 THE COURT: Yes. Well, I'm not sure which railway belt you're 22 talking about, but let's talk about the Crows Nest. 23 MR. JACKSON: No -- we're talking about the -- the great reserve 24 established as a result of the terms of union. 25 THE COURT: The main line? 2 6 MR. JACKSON: Yes. 27 THE COURT: You say the Province didn't collect a royalty on the 28 timber and the coal and everything that's extracted 29 from it? 30 MR. JACKSON: I think that was pursuant to particular 31 arrangements rather than as a necessary incident of 32 any ownership. I think those royalties and other 33 arrangements were as a result of special arrangements. 34 THE COURT: All right. So you say I should take it, at the 35 moment, at least, that statement is face value? 36 MR. JACKSON: In support of your lordship's proposition of 37 ownership subsuming a jurisdictional management 3 8 component. 39 THE COURT: All right. 40 MR. JACKSON: Your lordship in volume 328 stated what in effect 41 is a proposition which would reflect Lord Haldane's 42 views, where you put in what you viewed what the 43 Plaintiffs' position was highest: 44 45 \"I have assumed...that at the end of the day 46 what I would say, if I accepted all your 47 submissions, would be that the Plaintiffs are 25717 Submissions by Mr. Jackson 1 entitled to judgment, that they have an 2 interest in the following lands, followed by a 3 description of them in some way...And that the 4 form of such interest is as follows, and it 5 would say it's a right to enjoy and possess and 6 to manage and harvest its fruits and 7 benefits...it seems to me that that's the form 8 of order that would be the most you could 9 expect to receive on this case, and that's why 10 I'm having serious difficulty with this 11 question of jurisdiction.\" 12 13 My lord, if your lordship does take the position that 14 harvest, manage, conserve is within the rubric of 15 concept of ownership, we would accept that statement 16 of your lordship's, subject to a qualification which 17 I've set out at the bottom of page 4, that the right 18 to enjoy and possess would be an exclusive right to 19 enjoy and possess. And, my lord, this could be your 20 lordship's proposition we are prepared to 21 reverentially incorporate, as it were, in our previous 22 submissions, and I have referred you to volume 3 of 23 our previous submissions. And your lordship may 24 remember on a previous occasion I sought to answer 25 some other questions your lordship had regarding 26 whether the Plaintiffs' rights were in the nature of 27 fee simple, or what was the precise nature or quality 28 of the interest we were seeking. And that proposition 29 is set out at the top of page 5 with the additional 30 element of right to harvest, manage and conserve. So 31 that the Plaintiffs' interest extends to the full 32 exclusive possession of the territory and all of its 33 resources, including the right to harvest, manage and 34 conserve its fruits and benefits. 35 My lord, that is, as I say, on the first 36 assumption that ownership does subsume jurisdiction. 37 And while there is judicial support for that broad 38 characterization of ownership, the plaintiffs have 39 not, out of some sense of perversity, pleaded 40 ownership and jurisdiction, they have pleaded 41 ownership and jurisdiction because within Canadian law 42 there is also a broad spectrum of authority which does 43 characterize and divide the relationship to property 44 as between ownership and jurisdiction. And that 45 distinction, my lord, is set out in a passage I have 46 taken from Dr. Dorcey, McPhee, and Mr. Sydneysmith's 47 book, which seeks to explain the rather complex 2571? Submissions by Mr. Jackson 1 relationship between federal and provincial rights in 2 the area of resource regulation and environmental 3 protection. And in the last part of that passage you 4 will see the authors say: 5 6 \"The federal and provincial governments, as 7 proprietors of public lands, can accordingly 8 regulate the use of these resources much in the 9 same manner as a private owner would. In 10 addition, many aspects of resource 11 administration come within the grants of 12 legislative jurisdiction made to the respective 13 levels of government in the B.N.A. Act. This 14 jurisdiction is distinct from the rights and 15 powers that devolve upon a government through 16 its ownership of a resource, and may either 17 complement or conflict with them.\" 18 19 And that relationship, that potential conflict between 20 ownership on the one hand and jurisdiction on the 21 other, is also made manifest somewhat paradoxically in 22 the same case I have just referred your lordship to, 23 where Lord Haldane, in referring to a previous 24 decision of the Privy Council in 1898, the Attorney 25 General of Canada, the Attorney General of the 26 Provinces, dealing with the relationship between the 27 provinces' proprietary interest in a fishery in a 28 non-tidal water in an area outside of the railway belt 29 contrasted its relationship to the federal 30 government's jurisdiction under Section 91(12) over 31 seacoast and inland fisheries, and in the passage I've 32 set out at page 6, Lord Haldane, in referring to that 33 earlier decision, stated: 34 35 \"It recognized that the province retains a right 36 to dispose of any fisheries to the property in 37 which the province has a legal title, so far as 38 the mode of such disposal is consistent with 39 the Dominion right or regulation, but it held 40 that, even in the case where proprietary rights 41 remain with the province, the subject matter 42 may be of such a character that the exclusive 43 power of the Dominion to legislate in regard to 44 fisheries may restrict the free exercise of 45 provincial rights.\" 46 47 And so there, my lord, you have that characterization 25719 Submissions by Mr. Jackson 1 of ownership and jurisdiction, not as one subsuming 2 the other, but as ones which may in certain 3 circumstances conflict one with the other, and I've 4 set out in the following pages at the bottom of page 5 6, top of page 7, a statement again of Dr. Dorcey and 6 his associates on the relationship between federal and 7 provincial proprietary interests and jurisdictional 8 rights. And I would say, my lord, that the discussion 9 in these passages, of course, is all made outside of 10 the context of any discussion of aboriginal rights. 11 THE COURT: Yes. 12 MR. JACKSON: That was not an issue in any of these cases. 13 THE COURT: They had the easy problems. 14 MR. JACKSON: Although in terms of how easy it was, I should 15 note that Lord Haldane in this case made the point 16 that he and his colleagues were not a little upset at 17 all these references being made to the Privy Council 18 on issues which they found enormously difficult to 19 resolve in the abstract. No doubt a similar problem 20 which caused the Chief Justice Dixon to issue his 21 caveat that aboriginal rights ought not to be resolved 22 in a factual vacuum. The distinction, my lord, 23 between ownership and jurisdiction is made even more 24 explicit in some of the modern comprehensive land 25 claims agreements, and I've set out at page 7 some 26 provisions from the Inuvialuit Final Agreement, which 27 is earlier referred to in volume 1 of the Plaintiffs' 28 submissions, where the Inuvialuit, under the 29 agreement, are granted a fee simple title in certain 30 lands, and notwithstanding the grant of that fee 31 simple title, the agreement specifically -- and you 32 will see at paragraph 7, subparagraph 85, the 33 agreement says: 34 35 \"Notwithstanding Inuvialuit ownership of beds of 36 rivers, lakes and other water bodies, 37 (a) Canada shall retain the right to manage 38 and control waters, waterways\" -- 39 40 For certain particular purposes. And so under the 41 agreement, ownership and jurisdiction are split, the 42 one is not subsumed within the other. It is the 43 Plaintiffs' submission that in the absence of a treaty 44 or a modern land claims agreement, the aboriginal 45 rights of the Plaintiffs, at least so far as the 46 Provincial defendant is concerned, embraces both a 47 proprietary interest in the lands and resources, its 25720 Submissions by Mr. Jackson 1 ownership and authority to harvest, manage and 2 conserve the lands and resources in its jurisdiction. 3 And, my lord, I would -- 4 THE COURT: You would say then that that is ownership free of 5 all provincial regulatory or other resource -- or 6 other legislation, including Land Act, Land Titles 7 Act, and all those other provincial legislative 8 enactments that relate to the land within the 9 territory found to be subject to this aboriginal 10 right? 11 MR. JACKSON: Yes, my lord. 12 THE COURT: Yes. 13 MR. JACKSON: At pages 8 to 14, my lord, and I'm not going to go 14 over them with you, but I would refer your lordship to 15 them, I set out some of the areas of conflict between 16 the provincial and the Plaintiffs' jurisdictional 17 schemes. 18 THE COURT: I'm sorry, page 14? 19 MR. JACKSON: Page 9 to 14. 20 THE COURT: Oh, 9 to 14, and \u00E2\u0080\u0094 21 MR. JACKSON: And I will be coming back to that in a later area. 22 The second issue which your lordship raised in 23 questions was the issue of jurisdiction as it relates 24 to issues not connected with land and resources. And 25 I've set that out at page 14. And your lordship will 26 recall that with the benefit of reflection your 27 lordship, in a preliminary way, formulated for the 28 benefit of counsel some views on how your lordship saw 29 the relevance of the evidence in the submissions which 30 counsel were addressing to you on matters of 31 jurisdiction which related to areas other than land. 32 THE COURT: Yes. 33 MR. JACKSON: And I've set out that passage at page 15. 34 THE COURT: Well, I'm sure you understand that these are all 35 very tentative. 36 MR. JACKSON: Yes, my lord. We've approached this with that in 37 mind to, as it were, provide food for thought, and to 38 try and prompt the Plaintiffs into being as precise as 39 to the nature of the interest being claimed and to 40 articulate why these submissions are urged upon your 41 lordship. And your lordship characterized the issue 42 in the cases as being one of a conflict between lore 43 and culture, and you expressed the view that your 44 lordship felt that this court could not make any order 45 which would impose a cultural authority or a 46 jurisdiction upon individual Gitksan and Wet'suwet'en 47 who were not parties to this action, particularly in 25721 Submissions by Mr. Jackson 1 relation to minors, and that your lordship was 2 concerned that orders of this court might convert what 3 at the present moment was a voluntary jurisdiction in 4 the sense of one where people were free to adhere to 5 or not, into something of a wholly different character 6 which could raise a number of issues. And what we say 7 in relation to those thoughts, my lord, is that, first 8 of all, that the characterizing the case as a clash 9 between lore and culture we say does not do full 10 justice to the nature of the relationships between the 11 Plaintiffs and the Province. Nor do we say does it do 12 full justice to the nature of the evidence. And at 13 page 16 to 18, my lord, I have suggested that a number 14 of those heads of evidence and heads of submissions 15 based upon them bespeak something which the rubric 16 culture does not reflect in the fullness of those -- 17 of that evidence. We say, my lord, for example, while 18 the ancient histories of Gitksan and Wet'suwet'en 19 houses are certainly part of their culture, the laws 20 which determine membership in a house and the 21 enforcement in those laws through birth and adoption 22 are rules taught and followed by the Gitksan and 23 Wet'suwet'en within the central institutions within 24 the feast in the house. While song recording past 25 trespasses may be part of the culture, the law 26 prohibiting trespass and the sanctions which are 27 imposed demonstrate the system of land holding among 28 the community of people where clearly defined 29 boundaries are intensely important and where people 30 can expect that sanctions will result if trespass 31 continues. 32 And at page 18, my lord, we say that when Stanley 33 Williams picked up the bear which he killed, about 34 which you have heard much, and sang the song of the 35 bear; and put the bear on his shoulders and walked to 36 the village and again sang the song, his actions of 37 course can be described properly as cultural, but at 38 the same time he is reaffirming the obvious 39 long-standing spiritual connection between the people, 40 the lands and the animals, reflecting harvesting laws 41 which in the rigor of their training and the antiquity 42 of their practice can hardly be described only as 43 cultural. 44 THE COURT: But it was voluntary. 4 5 MR. JACKSON: Voluntary? 4 6 THE COURT: On his part. 47 MR. JACKSON: Yes, my lord. The point I'm seeking to make is 25722 Submissions by Mr. Jackson 1 that within the context of the Gitksan and 2 Wet'suwet'en system, the fact that something is 3 voluntary does not mean that it does not have a 4 character of something which is more than simply 5 culture as compared to our law. 6 THE COURT: Stanley Williams didn't say everytime he shot and 7 killed a bear he did this. 8 MR. JACKSON: No, my lord. The fact that he did this on this 9 particular occasion was symptomatic or symbolic of a 10 relationship both to his territory, to the animals, 11 and to his place in the community, and his 12 relationship to that community. 13 THE COURT: Well, take an even more graphic illustration. When 14 Pete Muldoe acquired fee simple titles of land within 15 another chief's alleged territories and boundaries, he 16 was clearly not -- he clearly did not consider himself 17 at that moment bound by Gitksan law. 18 MR. JACKSON: My lord, that kind of example, which of course is 19 repeated in the evidence on more than one occasion, is 20 something I will be addressing. 21 THE COURT: All right. 22 MR. JACKSON: Specifically in relation to some arguments made by 23 my friends as to the continued viability of the 24 Plaintiffs' system of authority. My lord, in terms of 25 the juxtaposition of a conflict between lore and 26 culture, it is our submission that the concept of 27 aboriginal rights, properly understood in its 28 historical context, and I'm reading here from page 18, 29 my lord, contains both the principles and the process 30 for cultural and economic accommodation. The 31 treaty-making process and its modern equivalent, the 32 comprehensive land claims agreements, are built upon a 33 recognition of aboriginal rights as legal concepts 34 imbedded in the law. In this way these agreements are 35 designed to provide the framework for accommodation 36 and not conflict between aboriginal organized 37 societies and other Canadians. It is our submission 38 that the conflict to which your lordship referred is 39 the consequence of the provincial government acting in 40 violation of the legal rights of the Plaintiffs. 41 THE COURT: Can't you put it the other way just as easily, 42 though, and say that the comprehensive land claims 43 agreements are a combination designed to avoid the 44 conflict I have identified, and that it can't be said 45 with absolute certainty that the rights that were 46 recognized in the comprehensive land claims were 47 admitted to be legally enforceable, that they dealt 25723 Submissions by Mr. Jackson 1 practically and, I suppose, kindly and generous, and 2 in an accommodating way with the problem that they 3 wanted to resolve. But can you say that it -- can you 4 argue that -- I must assume that the -- I guess it's 5 the federal government who agreed to those claims, 6 recognized that these were enforceable rights that 7 they were conceding by way of agreement, and even if 8 they do, even if they were, how does that bind anyone 9 else? 10 MR. JACKSON: It doesn't, my lord. What we say about those 11 agreements is that if your lordship was faced with 12 those agreements, as it were, out of context, then 13 those agreements could be fairly characterized in the 14 way your lordship has expressed. What we say, 15 however, is that when you look back to the practice of 16 the Crown over some 400 years in various parts of 17 North America, that the modern land claims agreements 18 are part of a chain of continuity of recognition of 19 rights. 2 0 THE COURT: Doesn't this whole argument come right up against 21 Chief Justice Dixon's dictum that each of these claims 22 is to be treated as suigenuris. 23 MR. JACKSON: I don't think so, my lord, because what Chief 24 Justice Dixon was saying, I think, was that these 25 cases ought not to be viewed as legal abstractions, 26 and I -- and of course in the Amodu Tejani(?) case the 27 Privy Council made exactly the same point. Your 28 lordship has said as much using the language that we 29 have to be on the ground in relation to these matters. 30 I don't think Chief Justice Dixon was saying that the 31 suigenuris nature of the rights means that the court 32 cannot look for and find guidance in consistent and 33 persistent practices of the Crown, particularly when, 34 as we say, those practices bespeak legal obligations 35 which are imbedded in the common law, the practice and 36 the continuity there is something which your lordship 37 can take and should take into account in deciding 38 whether or not in British Columbia, as part of the 39 common-law pre-existing rights of aboriginal peoples, 40 exist as a matter of law and not as a matter of 41 sovereign grace, dependent upon the particular 42 practices observed by the British Columbia colonial 43 authorities in this part of the world. And that is 44 exactly the point on which Mr. Rush will be addressing 45 your lordship tomorrow morning. 46 THE COURT: Well, I understand your point, I'm just troubled by 47 whether I can accept it and give effect to it without 25724 Submissions by Mr. Jackson 1 trying all the claims individually and seeing why they 2 reached the conclusions they reached, because I have 3 intended in this case to treat the language of Chief 4 Justice Dixon both in Guerin and in Krueger and Manuel 5 he talks about site specific and these sort of things 6 as meaning that each claim stands on its own, and I am 7 having some difficulty with the quantum leap that 8 you're asking me to take here to say that because 9 these things were done with relation to those Indians 10 in those circumstances, that that means that that was 11 in recognition of a legal right. 12 MR. JACKSON: Well, my lord, our position, and it is at the 13 heart of our position, is that I think this is the 14 point of great difference between our position and my 15 friends'. It is our position that using the words of 16 Mr. Justice Strongest?) in St. Catherine's Milling, 17 that the practice of the Crown, as reflected in the 18 bilateral consentual treaty-making which took place 19 over several hundred years, that those practices 20 ripened into rules of the common law, and your 21 lordship will recall -- 22 THE COURT: Well, I understand that argument, and you've made 23 that argument, and if I might say so, made it very 24 well. I have no difficulty with that argument as it 25 raises a legal problem that all these matters seem to 26 end up as is a question of difficult choices between 27 pretty well circumscribed options, and I have no 28 difficulty with that one. I am still having a lot of 29 difficulty with the question of jurisdiction. It 30 seems to me that at the end of the day I still come 31 down to a question of defining the nature of the 32 ownership, and once you do that you have subsumed -- I 33 think you have subsumed jurisdiction. 34 MR. JACKSON: As I say, my lord, we have no problem with that 35 subsuming of jurisdiction, so far as in relation to 36 lands, and if your lordship feels that that is a way 37 which is more comfortable in terms of the precedence, 38 more consistent with the precedents, of course the 39 precedents I've given your lordship point in both 40 directions. What I am dressing at this point, though, 41 is the issue of jurisdiction as it relates to the 42 issue which most troubled your lordship in the 43 non-land resources area. 44 THE COURT: Well, can I ask you what I asked Miss Mandell, what 45 you are asking for in a way of an order that would 46 give effect to that part of your submission? 47 MR. JACKSON: My lord, the paragraph 4 of the prayer for relief 25725 Submissions by Mr. Jackson 1 seeks a declaration, and I've set this out on the top 2 of page 19, the right to govern themselves, the 3 members of the houses represented by the Plaintiffs in 4 accordance with Gitksan and Wet'suwet'en law, 5 administered through Gitksan and Wet'suwet'en 6 political, legal and social institutions as they exist 7 and develop. That was the general tenure of that 8 paragraph. And we say, my lord, in response to your 9 lordship's concern about this court imposing a 10 cultural jurisdictional authority upon people not 11 before the court, that a declaration in those terms 12 does not impose a cultural authority upon individual 13 Gitksan and Wet'suwet'en. 14 THE COURT: Well, you would be asking me to make a declaration 15 that would impose this matrilineal concept upon every 16 Gitksan, whether he subscribes to it or otherwise. 17 MR. JACKSON: No, my lord. What we say is that the Plaintiffs' 18 jurisdiction is exercised within the framework of a 19 kinship society and is non-coercive. Any declaration 20 of this court, therefore, is exactly what it would 21 imply, it is declaratory of an existing state of 22 affairs and would not impose anything different upon 23 individual Gitksan and Wet'suwet'en. And a 24 declaration of this court, therefore, in the form of 25 paragraph 4 of the prayer for relief would not subject 26 individual Gitksan and Wet'suwet'en to any legal 27 sanctions such as those that might flow from 28 disobedience to an order of this court requiring them 29 to pay taxes. The order of this court does not 30 convert the legal imperatives of observing the 31 obligations of a kinship society into the legal 32 imperatives of obeying the laws of a state society 33 such as Canada, backed as it is with the authority of 34 police officers, a Criminal Code which authorizes 35 fines and imprisonment, and the power of the judiciary 36 to commit for contempt of court, and therefore your 37 lordship in declaring a right of jurisdiction would 38 not subject those individuals to an authoritarian 39 regime or require them to act in ways different from 40 that which they are prepared to act by virtue of the 41 forces which bear upon them or don't bear upon them, 42 depending upon the degree of their commitment to the 43 kinship society of the Gitksan and Wet'suwet'en. And, 4 4 my lord -- 45 THE COURT: I'm having a lot of difficulty with this, Mr. 46 Jackson. Perhaps I can put it in terms that I can 47 understand. What do you say about the general law of 25726 Submissions by Mr. Jackson 1 the province as every child must attend school until 2 he's 15 years of age, subject to certain objections. 3 You say that I would have to strike that down as to 4 whom -- 5 MR. JACKSON: No, my lord, we're not asking you to strike that 6 door down. 7 THE COURT: You wouldn't strike that down? 8 MR. JACKSON: No. We're not asking you to. 9 THE COURT: What about all the health regulations and pure foods 10 and environment and all those things. 11 MR. JACKSON: In setting out, as we have, certain heads of 12 jurisdiction, which we did in our submissions, your 13 lordship will see we did not deal with a variety of 14 issues which the Plaintiffs have not sought specific 15 authority in relation to, nor do they seek to exclude 16 provincial laws pertaining thereto. And your 17 lordship, in fact, will recall that that was part of 18 your lordship's concern, that some of the heads of 19 jurisdiction which were claimed, such as the right to 20 regulate the internal affairs of the house to 21 determine house membership, to conduct feasts, were 22 areas which were not subject to federal or provincial 23 laws conflicting therewith, and your lordship wanted 24 to know why that raises a justiciable issue, given 25 that the Plaintiffs can exercise those kind of rights 26 without the orders of the court. What we say, my 27 lord, in relation to that, is that those areas of 28 jurisdiction were led not only to illustrate the 29 overall structure or framework of the Plaintiffs' 30 jurisdiction in other areas, particularly in relation 31 to lands and resources. In other words, the 32 jurisdiction in relation to lands and resources was 33 not, as it were, an ad hoc body of authority, it was a 34 body of authority which was reflected in other areas 35 through the institutions of the house, through 36 institutions of houses acting collectively, so that 37 your lordship could see that the jurisdiction in 38 relation to proprietary interests was something 39 consistent with the way the chiefs in the houses 40 exercised jurisdiction in other areas. But over and 41 above its evidentiary importance, we also say, my 42 lord, that those heads of jurisdiction -- and that's a 43 point which I make at page 20, my lord -- that those 44 heads of jurisdiction bespeak what we say is the 45 pre-existing right of the Plaintiffs to govern 46 themselves, and that is a right, my lord, which the 47 federal and provincial governments do not at this time 25727 Submissions by Mr. Jackson 1 recognize, and it is a right which if it is declared 2 in your lordship's judgment is not simply something of 3 symbolic importance, it is of practical effect and 4 would be something which would bear directly, my lord, 5 in relation to any negotiations which will be 6 consequent upon any order of this court. And of 7 course the Court of Appeal has made it very clear the 8 expectation of everyone is that these matters 9 ultimately will be resolved by negotiation and not by 10 the fiat of the court. So that a declaration in 11 relation to those matters, which does not, in terms of 12 its specificity, seek to exclude educational laws or 13 health laws, is something which we say your lordship 14 can and should grant. 15 THE COURT: Well, I'm sorry, I thought you said a moment ago 16 you're not seeking to strike down laws of general 17 application. Now I think you're saying that you are. 18 MR. JACKSON: My lord, the Plaintiffs are not specifying the 19 particular areas of jurisdiction which they -- over 20 which they exercise and govern themselves. They have 21 articulated a number of particular heads of 22 jurisdiction upon which we have asked this court to 23 make declatory rulings. 24 THE COURT: Then the note I made a moment ago, Plaintiffs do not 25 seek an order striking down the general laws of the 26 province, now you tell me now that is not an accurate 27 note of your -- 28 MR. JACKSON: I was referring, my lord, to your reference to 29 land, education and health. 30 THE COURT: Public health, yes. What about traffic? 31 MR. JACKSON: In relation to lands outside of reserves, I don't 32 think the Plaintiffs have ever voiced an objection to 33 the traffic laws of the province, my lord. 34 THE COURT: So the province can continue to regulate the use of 35 the highways and can continue to impose roadside 36 suspensions and all those other things that go with 37 the regulation of traffic? 38 MR. JACKSON: I don't believe the Plaintiffs have suggested that 39 that would be any different, my lord. 40 THE COURT: So that \u00E2\u0080\u0094 well, is there a happy little bundle of 41 rights that you can -- that I can add to my note after 42 the \"but\"? 43 MR. JACKSON: We can try to provide your lordship with something 44 which clarifies this a little bit more. The point of 45 trying to articulate, as I said, the areas of 46 jurisdiction in our submissions was to give your 47 lordship, as it were, a short list of the particular 2572? Submissions by Mr. Jackson 1 jurisdiction which the Plaintiffs are claiming outside 2 the area of lands and resources. 3 THE COURT: You say the Plaintiffs are not seeking an order from 4 this court which would permit another Canadian court 5 to adjudicate disputes or breaches of law internal to 6 the Gitksan and Wet'suwet'en system. What other 7 Canadian court would you have in mind there, the 8 federal court or the provincial courts or what? 9 MR. JACKSON: No, my lord. That was meant to be a general 10 statement that we are not seeking from this court an 11 order which would permit any other court, whether it 12 be this court, a provincial court, a federal court, to 13 intervene in the internal affairs of the Gitksan. 14 This was in relation to your lordship's concern that 15 any judgment that your lordship made would impose some 16 cultural authority which hitherto had been voluntary. 17 The point we're trying to make in that passage is this 18 would not -- 19 THE COURT: Then would it be more accurate, if I might be 20 forgiven by putting it that way, that what you're 21 really saying is that the Plaintiffs are seeking an 22 order from this court which would prevent any Canadian 23 court from adjudicating disputes or breach of law 24 internal with the Gitksan and Wet'suwet'en system? 25 MR. JACKSON: I think that would be putting it too highly in the 26 sense that we're not seeking a preclusive ruling from 27 your lordship, we're saying the nature of the Gitksan 28 and Wet'suwet'en society and its rule-making is such 29 that the intervention of an outside body such as a 30 court would in fact be inconsistent with the nature of 31 the kinship obligations. 32 THE COURT: All right. Now, your next sentence: 33 34 \"The Plaintiffs are seeking from this court 35 recognition that their laws and institutions 36 exist and must be respected by the governments 37 of Canada.\" 38 39 So you're asking for a declaration that the feast 40 system is alive and well in Gitksan country, and that 41 it must not be impaired by any enactment of any 42 Canadian legislative body. 43 MR. JACKSON: I don't think we're seeking a declaration in that 44 kind of specificity, my lord. Paragraph 4 of the 45 prayer for relief is left in the form it is in order 46 to, as it were, give space for accommodation. One of 47 the points which the Plaintiffs have struggled with is 25729 Submissions by Mr. Jackson 1 to seek declarations which do in fact provide the 2 basis upon which real negotiations can take place. 3 They have some content to them, but they do not 4 confine or limit the possibility of accommodation 5 between the Plaintiffs and either the federal or the 6 provincial governments to a point where those 7 negotiations would not in fact be productive or 8 fruitful. 9 THE COURT: I take it you have no concern with the -- with what 10 troubled me as expressed to Miss Mandell, that there's 11 no one here representing persons under disabilities, 12 and that I shouldn't be concerned about making an 13 order that might affect the right of unrepresented 14 persons, such as a child, to opt out of this whole 15 cultural mosaic that you and your colleagues have 16 painted. 17 MR. JACKSON: I don't think that is a concern your lordship 18 should have, given the nature of the declaration your 19 lordship would be making. 2 0 THE COURT: That's why I'm having trouble seeing how I could 21 frame the kind of declaration you are seeking without 22 it possibly affecting the rights of other 23 unrepresented third parties. 24 MR. JACKSON: It's not clear to me, my lord, what rights of 25 unrepresented third parties would be negatively 26 affected by the order of the court. 27 THE COURT: Well, let's take the case of a young Gitksan person 28 who received a gift by will from a non-native of land 29 within the claim territory. Is she required as a 30 Gitksan person to submit to the laws and institutions 31 of the Gitksan, or is she entitled to say no, this is 32 a private right that I have. 33 MR. JACKSON: I would have thought even under the effect of your 34 lordship's declaration she would be able to make that 35 individual choice, and the consequences of that would 36 be something as between her and the chief or members 37 of the house to which she belonged and would not be 38 the subject of any negative sanctions or consequence 39 which would flow from this court's declaration. In 40 other words, this court's declaration would not change 41 that particular situation in any way or shape, 42 vis-a-vis her relationship or rights as a Gitksan 43 person. 44 THE COURT: But I take it you would say that if a dispute arose 45 as to who should be the hereditary chief of a house, 46 that this court would have no jurisdiction? 47 MR. JACKSON: No, my lord. And it would not have any greater 25730 Submissions by Mr. Jackson 1 jurisdiction than it does today arising from the fact 2 that this court has declared in effect that the 3 Gitksan have a pre-existing right to govern 4 themselves, the precise contours of which and the 5 precise details of which are not defined but are left 6 for further definition. 7 THE COURT: Mr. Jackson, I don't think I should take up so much 8 of your time, but I think you can see that I'm 9 troubled, and what I would like you to do for me is to 10 give me a draft of what you say I should -- or what is 11 the declaration you say I should make, because you see 12 that it troubles me because I do not foresee all the 13 possible consequences, and that is a scary thing to 14 ask a judge, trial judge to do, is to do something for 15 the first time, never been done before, and I would be 16 very interested in seeing what language you say should 17 reflect the court's judgment on that part of your 18 prayer for relief. 19 MR. JACKSON: My lord, I will \u00E2\u0080\u0094 we will provide your lordship 20 with that draft. 21 THE COURT: Thank you. And I wish you all the luck in the world 22 in drafting it. 23 MR. JACKSON: My lord, at page 20 and 21 I've set out some 24 further submissions regarding why we say a declaration 25 in relation to what I've broadly characterized as a 26 right to self-government in terms of areas outside of 27 lands and resources is of significance and why the 28 plaintiffs have requested it. We will in fact amplify 29 that in relation to your lordship's concerns. My 30 lord, starting at page 21, the argument turns to the 31 legal foundations for the Plaintiffs' right to 32 jurisdiction, and the first part of that, my lord, is 33 at page 23, the concept of aboriginal jurisdiction as 34 part of the common law of aboriginal rights. And this 35 in large measure, my lord, is something I have already 36 addressed your lordship on at some length in terms of 37 dealing with the strand of the common law which has 38 developed in the American cases, building upon the 39 foundation block of Worcester and Georgia, and I say 40 at page 23, my lord, that -- and your lordship is 41 correct in terms of identifying this as an issue of 42 first impression in the Canadian court in that the 43 issue of aboriginal jurisdiction, as the Plaintiffs 44 have articulated, has not come before a Canadian court 45 in the way it has come before your lordship, and 46 certainly has not been addressed on the basis of an 47 evidentiary foundation such as has been placed before 25731 Submissions by Mr. Jackson 1 your lordship. The issue has, however, been the 2 subject of litigation, although that litigation has 3 usually been resolved on other grounds, and at page 24 4 and page 26, my lord, I have provided for your 5 lordship a short summary of how that litigation has 6 come about, and interestingly enough, in the same way 7 as some of the modern litigation in the United States 8 in relation to land rights and whether or not 9 aboriginal title is properly characterized as being at 10 the sufferance of the Crown in the way of the 11 Teehiton(phonetics) characterization, or as a 12 pre-existing legal right in the manner of the original 13 Worcester -- the original Marshall decisions. So too 14 the issue of jurisdiction has arisen in the context of 15 the Six Nations, the Iroquois confederacy, and I've 16 set out at page 24 and 26 the resume of that 17 litigation. And your lordship will see from that that 18 the Six Nations, after their crossing of the American 19 border into Canada, have in their relationships with 20 government taken the position that the Covenant Chain 21 which characterized their relationships originally 22 with the Crown is something of continuing significance 23 in the twentieth century. And your lordship will see 24 at page 25 and 26 how the Six Nations addressed the 25 parliamentary committee on Indian self-government 26 using a discourse with which your lordship has become 27 familiar from the eighteenth century Covenant Chain 28 treaties. The issue which has arisen in the courts, 29 however, has arisen in the context of a dispute 30 between the band council system established under the 31 Indian Act and the hereditary chiefs, and the Indian 32 Act system of election of band councils and band 33 chiefs was not applied to the Six Nations until well 34 after its first introduction in 1876 until 1924, and 35 the litigation which ensued was as to the competence 36 of the federal government to impose upon the 37 hereditary system a system of elected band councils. 38 And so in terms of the nature of the dispute, this 39 litigation was designed to get from the court a ruling 40 as to the pre-existing rights of the Iroquois. 41 Now, of course, my lord, you may recall that the 42 Iroquois, when they came to Canada, did not settle on 43 their own lands. Lands were bought from the 44 Missassauga Indians by the Crown, and those lands were 45 then granted to the Six Nations, as it were, as 46 compensation or as a recognition of the -- their 47 alliance with the British Crown in the American War of 25732 Submissions by Mr. Jackson 1 Independence. And therefore, the Six Nations' 2 relationship to those lands and their rights on those 3 lands are not analagous to the rights of the 4 Plaintiffs in what has always been their homelands. 5 The litigation which ensued, however, my lord, was 6 resolved on a much narrower issue, and in the case of 7 Logan and Styres in 1959 Mr. Justice King, and I set 8 this out at page 28, limited his examination as to 9 whether or not the Indian Act could be legally applied 10 to the Six Nations. He limited his analysis to the 11 original deeds under which lands were granted to the 12 Six Nations, and he concluded at the bottom of page 13 28: 14 15 \"In my opinion, those of the Six Nation Indians 16 so settling on such lands, together with their 17 posterity, by accepting the protection of the 18 Crown then owed allegiance to the Crown and 19 thus became subjects of the Crown.... 20 ...While it might be unjust or unfair under the 21 circumstances for the Parliament of Canada to 22 interfere with their system of internal 23 government by hereditary chiefs, I am of the 24 opinion that Parliament has the authority to 25 provide for the surrender of Reserve land, as 26 has been done herein.\" 27 2 8 And we say, my lord, that Mr. Justice King's judgment 29 is limited to the proposition that so far as reserve 30 lands are concerned, the hereditary system of 31 government is subject to parliamentary, that is 32 federal modification. It is submitted that Mr. 33 Justice King's statements do not support the wider 34 proposition that the acceptance of Crown protection 35 necessarily involves a surrender of pre-existing 36 rights of self-government. And we say, my lord, that 37 because the Marshall decisions are the clearest 38 refutation of that proposition, that by accepting 39 protection the Indian nation so doing gives up its 40 rights to self-government. That was a proposition 41 which was specifically addressed and rejected in 42 Worcester and Georgia. We've also pointed out, my 43 lord, that in the American development of this strand 44 of the common law the fact that American Indians are 45 citizens of the United States and have the right to 46 vote, is not seen in any way as being inconsistent 47 with a continuing right of internal jurisdiction, the 25733 Submissions by Mr. Jackson 1 right to govern their own affairs within the 2 parameters of the American jurisprudence. This issue, 3 my lord, as to conflict between the hereditary chiefs 4 and the band councils is one which has continued to be 5 the focus of litigation in which the Six Nations have 6 tried to have the courts address the issue of the 7 legitimacy of their pre-existing traditional form of 8 hereditary chiefs, and it's come before the court on 9 several occasions. At pages 29 to 32 I've set out 10 some of those cases. I'm not going to take your 11 lordship to them, because in the event all of them 12 have been determined on very narrow grounds in which 13 the courts, as it were, have side-stepped the issue, 14 which the Six Nations have sought to raise, so those 15 cases do not provide your lordship with much guidance 16 beyond knowing that underlying this litigation is an 17 issue which is very much seen by the Six Nations as a 18 live one, in the same way as it is seen by the 19 Plaintiffs as a live issue. And the question of the 20 relationship between the hereditary chiefs and the 21 band councils is something that I will shortly 22 address. 23 The next case I want to refer your lordship to is 24 the case of Connolly and Woolrich, which I have set 25 out at page 32. Would this be a proper place to take 26 the break, my lord? 27 THE COURT: We'll take about 15 minutes. 28 THE REGISTRAR: Order in court. Court stands adjourned for 15 2 9 minutes. 30 31 (PROCEEDINGS ADJOURNED AT 8:00 p.m.) 32 33 I hereby certify the foregoing to be 34 a true and accurate transcript of the 35 proceedings herein transcribed to the 36 best of my skill and ability 37 38 39 40 41 Graham D. Parker 42 Official Reporter 43 United Reporting Service Ltd. 44 45 46 47 25734 Submissions by Mr. Jackson 1 (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Thank you. Mr. Jackson. 5 MR. JACKSON: My lord, Connolly and Woolrich was decided by 6 Quebec Superior Court just nine days after 7 confederation. It is a case much beloved by conflict 8 of laws professors. 9 THE COURT: Should that be 1869? 10 MR. JACKSON: 18 67, my lord. 11 THE COURT: 18 67. 12 MR. JACKSON: Yes. Yes, I think you are looking at page 33, are 13 you, my lord? 14 THE COURT: Yes. 15 MR. JACKSON: That's the case I think \u00E2\u0080\u0094 I see, yes. I think 16 it -- I will have to check that. It is certainly not 17 1969, that's for sure. 18 THE COURT: How many days after confederation? 19 MR. JACKSON: Nine. 20 THE COURT: Sounds like about July 9 then of that year. 21 MR. JACKSON: And I was checking out books of authorities, my 22 lord, and unless we have placed it under somewhere 23 else, I didn't find it in our books of authorities so 24 I will be providing our friends and your lordship with 25 a copy of that case. 26 The issue in that case, my lord, was whether the 27 law of lower Canada would recognize a marriage between 28 a clerk of the northwest company and a Cree Indian 29 woman entered into 1803 in the Athabaska district in 30 accordance with Cree customary law. Under the Common 31 Law conflict of law rules, a foreign marriage would be 32 recognized if it was valid under the law of the place 33 in which it was celebrated and if the marriage had 34 certain basic characteristics. And the issue 35 therefore for his lordship was what was the law of the 36 place where the marriage was celebrated, and Mr. 37 Justice Monk determined that the law of the place was 38 the Cree laws as they were in force at that time. And 39 what is of significance in his judgment is that, in 40 deciding the question of could there be such a thing 41 as laws in a territory occupied by aboriginal peoples, 42 his lordship reviewed the same juris prudence which we 43 have urged upon your lordship as being the foundation 44 cases for determining the nature of aboriginal rights 45 at common law, and he reviewed the Marshall decisions 46 and in the passage I set out on page 33, he applied 47 the doctrine of continuity, as we have called it, the 25735 Submissions by Mr. Jackson 1 idea that upon the assumption of sovereignty over an 2 area the pre-existing rights of aboriginal peoples are 3 not affected, and he held that the assertion of Crown 4 sovereignty in the Athabaska district did not affect 5 either the pre-existing territorial rights of the 6 Cree, of course which was not an issue before him, but 7 nor did it affect the pre-existing customary law of 8 the Cree Nation. And in the passage I have set out at 9 page 33 and over on to page 34, he held -- and I will 10 just refer your lordship to the last paragraph on page 11 34 at the top: 12 13 \"I have no hesitation saying that, adopting 14 these views of the question under 15 consideration...\" 16 17 That is the Marshall doctrines: 18 19 \"...the Indian political and territorial rights, 20 laws, and usages remained in full force - both 21 at Athabaska and in the Hudson Bay region 22 previous to the Charter of 1670...\" 23 24 And that should be: 25 26 \"...and even after that date as will appear 27 hereafter.\" 28 29 And his lordship then looked at the question of the 30 argument which was made against the application of 31 Cree customary marriage laws as being the law of the 32 place, that argument being that this was an area 33 within the bound of the Hudson's Bay territory and 34 therefore the grant of the Charter and the reception 35 of Common Law would have had the effect of eclipsing 36 the pre-existing customary law, and his lordship said 37 in a passage half-way down that second quote on page 38 34: 39 40 \"It is easy to conceive, in the case of joint 41 occupation of extensive countries by Europeans 42 and native nations or tribes, that two 43 different systems of civil and even criminal 44 law may prevail. History is full of instances, 45 and the dominions of the British Crown exhibit 46 cases of that kind. That Charter...\" 47 25736 Submissions by Mr. Jackson 1 That is the Hudson's Bay Charter: 2 3 \"...did introduce the English law, but did not, 4 at the same time, make it applicable generally 5 or indiscriminately - it did not abrogate the 6 Indian laws and usages. The Crown had not done 7 so. Their laws of marriage existed and exist 8 under the sanction and protection of the Crown 9 of England and Mr. Connolly might bind himself 10 as well by that law, as by the Common Law of 11 England.\" 12 13 In some ways, my lord, that is not that dissimilar 14 to what Chief Justice Marshall said in Johnson and 15 Mcintosh when, as one of the bases upon which he ruled 16 that the conveyance made by the Illinois Indians to 17 Mr. Johnson could not be sustained, was that he had in 18 fact made an agreement under the customary law, the 19 land tenure system of the Illinois Indians, they in 20 fact had changed the arrangements, sold the land to 21 someone else, and he could not be heard to complain of 22 that having in fact incorporated as it were himself 23 into their laws. The central point however here is, 24 my lord, what Mr. Justice Monk recognized was that 25 there was a pre-existing system and that the reception 26 of the Common Law was not such as to be inconsistent 27 with nor did it necessarily abrogate that customary 28 law of the Cree. His lordship went on to find that 29 the Royal Proclamation in his view did nothing to 30 interfere with the continuing existence of the 31 customary laws of the Cree as respected themselves. 32 THE COURT: But does this get you anywhere, because surely under 33 English Law and therefore at least in 1859 British 34 Columbia Law, common law would recognize the law of a 35 marriage that's celebrated. 36 MR. JACKSON: My lord, the sole point for referring to the 37 Connolly case is that it is in a Canadian context a 38 recognition of a strand of juris prudence which 39 reflects a recognition of an indigenous system of law 40 which regulates vis-a-vis the indigenous peoples, 41 their relationships between each other. 42 THE COURT: I can see that. Let me trouble you with one other 43 thought that's crossing my mind that you will want to 44 deal with and that is whether I can use any of the 45 Marshall juris prudence in this area by reason of the 46 fact that it seems to me, I say this without careful 47 thought or study, that he was saying you people have 25737 Submissions by Mr. Jackson 1 exclusive possession of those lands let's say beyond 2 the Appalachians beyond which we claim no 3 jurisdiction, and therefore you are in those areas of 4 sovereign people, and we can make treaties with you or 5 we can buy your land but we are not interfering with 6 your self-governments. Can you make the same -- can 7 you make the same claim here subsequent to the claims 8 of sovereignty where at least since 1846, is it, 9 sovereignty over British Columbia was claimed putting 10 it in a different factual situation from what Chief 11 Justice Marshall was dealing with? 12 MR. JACKSON: I don't think so, my lord, for this reason: That 13 the Marshall decisions are all premised upon the 14 Crown's assertion of sovereignty over North America by 15 virtue of the doctrine of discovery. I don't think 16 Chief Justice Marshall would ever have conceded that 17 the Crown or its successor in title, in terms of the 18 underlying title, the states and the Federal 19 Government of the United States did not have 20 sovereignty over the territorial United States. His 21 point was that, consistent with that assertion of 22 sovereignty, consistent with the underlying title and 23 the sovereignty that goes with the doctrine of 24 discovery, was a pre-existing legal regime which 25 comprised both of rights to land, the rights he 26 characterizes as the rights to possession, and also a 27 jurisdiction whereby the Indian nations could govern 28 themselves, and that was consistent with the assertion 29 of sovereignty. So in that sense, my lord, the fact 30 that the Crown asserted sovereignty in British 31 Columbia we say in no way contradicts -- in many ways 32 it is the point at which the Marshall principles kick 33 in as it were prior to the assertion of sovereignty. 34 There is no room for the common law recognizing any 35 rights. There is no common law there. It's only at 36 the point where the Crown asserts sovereignty that the 37 doctrine of Common Law aboriginal rights begins to 38 apply, and we say at that point, whether that point is 39 the Treaty of Oregon or whether that point is the 40 formation of the mainland colony of British Columbia 41 or whatever that point is, that is the point at which 42 the Common Law does provide and did provide 43 recognition of the aboriginal rights of the 44 plaintiffs, and we say that those aboriginal rights 45 comprise the package, rather inelegant word, but I 46 will use it anyway, the package of rights which we say 47 properly characterizes ownership and jurisdiction. 2573? Submissions by Mr. Jackson 1 THE COURT: Running also through my mind is a problem with 2 Campbell and Hall, I haven't read it for some years, 3 but sometime you might want to tell me whether you 4 think the assertion of sovereignty and the exercise of 5 sovereignty falls within the principles of Campbell 6 and Hall, the great case of Campbell and Hall as Chief 7 Justice Marshall called it, which seems to suggest 8 that when there is -- of course he was talking about 9 conquest. 10 MR. JACKSON: Yes, my lord, in that case. 11 THE COURT: And it may be limited to conquest but, if it isn't, 12 is he saying when the new regime takes over it can 13 create new laws or -- and, if it doesn't, the old ones 14 remain? 15 MR. JACKSON: My lord, Campbell and Hall I think at this point 16 is in Mr. Rush's bailiwick and I may -- 17 THE COURT: \u00E2\u0080\u0094 leave it to him. 18 MR. JACKSON: \u00E2\u0080\u0094 give that question to him. 19 THE COURT: All right, thank you. 20 MR. JACKSON: Page 36, my lord. I note that in a series of 21 cases decided by the late Mr. Justice Sissons and Mr. 22 Justice Morrow, Connolly and Woolrich has been applied 23 to recognize both customary Indian and Inuit marriages 24 and customary adoptions even after the dates of the 25 reception of the English law into the territory. The 26 issue, my lord, of the validity of these marriages, I 27 have addressed that issue at page 36. Although much 28 evidence has been placed before your lordship 29 regarding the laws of the Gitksan and Wet'suwet'en 30 dealing with marriage, adoption and succession, this 31 evidence is not directed, nor do the plaintiffs seek, 32 my lord, any declaration relating to the validity of 33 any particular marriage, adoption or succession, 34 rather, that evidence is to demonstrate that the 35 plaintiffs as part of their organized society had and 36 continue to have a system for regulating these 37 important areas of their everyday lives. They are 38 evidence, in other words, of their pre-existing and 39 continuing jurisdiction. It is submitted that in the 40 same way the Connolly and Woolrich line of cases 41 recognizing customary marriages and adoptions 42 implicitly and in some cases explicitly recognizes a 43 pre-existing and continuing aboriginal jurisdiction. 44 This issue, my lord, of Indian jurisdiction was 45 one which Mr. Justice Steele addressed and rejected in 46 the course of his judgment in the Bear Island case and 47 I have set out at page 37 what his lordship had to 25739 Submissions by Mr. Jackson 1 say. 2 3 \"The Constitution Act 1867 allocated 4 jurisdiction over all matters respecting Canada 5 to the federal and provincial governments. It 6 did not leave Indian bands with any direct 7 jurisdiction over themselves. It was submitted 8 by the defendants that, because the Act did not 9 specifically take away internal self-government 10 from the Indians, therefore the Indians had the 11 right to self-determination within their own 12 areas, subject only to the overall sovereignty 13 of the Crown. I disagree. 14 15 The Act clearly provided, under s. 91(24) that 16 Indians and land reserved for the Indians were 17 under federal jurisdiction, just as municipal 18 institutions in the province were clearly under 19 provincial jurisdiction, by virtue of s. 92(8). 20 There was no residue left to the independent 21 jurisdiction of Indian bands or nations.\" 22 23 And that characterization of the exclusive 24 allocation of competence so far as jurisdiction is 25 concerned as between the Federal and Provincial 26 Governments is reflected in paragraph 34 -- 33 of the 27 Provincial Defendant's Statement of Claim and it is 28 also an argument which the Federal Defendant urges 29 upon your lordship in their summary of argument. 30 The response of the plaintiffs to that argument, 31 my lord, is set out at the bottom of page 37 and over 32 to page 38, and it is by reference to the American 33 situation, my lord, in the United States that 34 Constitution also allocates competences as between 35 federal and state jurisdictions. The Worcester and 36 Georgia case, my lord, is premised upon the fact that 37 the Federal Government has as done the Federal 38 Government in Canada, exclusive jurisdiction to deal 39 with Indian nations in that case by virtue of the 40 treaty power and the commerce power. It has never 41 been said however, my lord, that the fact that the 42 Federal Government has that exclusive power and that 43 the states have other powers not allocated to the 44 Federal Government that that excludes the idea of 45 inherent Indian jurisdiction as it was articulated in 46 Worcester and Georgia. I shouldn't have said that it 47 has never been suggested because in the late 19th 25740 Submissions by Mr. Jackson 1 century, and your lordship will remember when I went 2 through some of those cases, one of which I have 3 referred to at page 38, the United States Supreme 4 Court in the Kagama case did in fact under the 5 influence of certain of the revisions of the Marshall 6 principles which took place in the late 19th century 7 did in fact say pursuant to the plenary power doctrine 8 that within the United States there are but two 9 sovereigns, the States and the Federal Government. 10 And that doctrine however, my lord, was we submit 11 aberration and in fact the United States Supreme Court 12 has now in its most recent juris prudence, and I refer 13 your lordship to the Wheeler case which I have already 14 dealt with as an earlier point, has recognized that 15 within the United States even though federal and state 16 jurisdictions are the only jurisdictions which are 17 referred to in the Constitution that the Common Law 18 had recognized as pre-existing the concept of an 19 Indian jurisdiction and that that can live alongside 20 with, compatible with a relationship between, on the 21 one hand, the Federal and, on the other hand, State 22 jurisdictions. And so we say, my lord, that the 23 concept of Common Law jurisdiction is not inconsistent 24 with the pattern of allocation of legislative 25 competences as it is set out in the British North 2 6 America Act. 27 The last case I would refer your lordship to, and 28 I am not going to spend any time on it, is a recent 29 decision of the Provincial Court, arising under the 30 James Bay Agreement, my lord, and it was -- it related 31 to the question of whether or not a curfew was in fact 32 delegated legislation and therefore was subject to the 33 kinds of restrictions which those exercising delegated 34 powers are subject to, and the court, relying 35 principally upon the fact that the James Bay Agreement 36 has the status of a land claims agreement protected by 37 s. 35(3) of the Constitution Act of 1982, held that in 38 fact the curfew was not the exercise of a delegated 39 power, but what is of importance to the plaintiffs' 40 submission was the passage which I quoted at page 40 41 and underlined at the bottom of the page that the 42 judge, referring to the idea of an inherent 43 sovereignty as that term is used in the American 44 cases, held that his analysis squared with the idea: 45 46 \"...that the Crees hold some sort of residual 47 sovereignty as regards their local 25741 Submissions by Mr. Jackson 1 governments.\" 2 3 And so, my lord, what we say is that there are 4 these strands in the Common Law which are somewhat 5 embrionic so far as Canada is concerned but, so far as 6 they have been developed in the United States, have 7 recognized that the Common Law does give effect to a 8 distinctive jurisdiction of Indian nations and 9 aboriginal peoples and we urge your lordship to affirm 10 that proposition in the declarations that your 11 lordship issues. 12 What doesn't exist in any other case, my lord, 13 including Worcester and Georgia, is an evidentiary 14 record such as your lordship has had in which the 15 plaintiffs have sought to describe the nature of their 16 authority, how it is exercised, in the areas it is 17 exercised, so that your lordship is not asked to make 18 declarations as it were in the air, but consistent 19 with the Court's directions in the Supreme Court 20 something which does reflect what exists on the 21 ground. 22 The next section, my lord, deals with a second 23 strand of legal foundation as it were for a 24 jurisdictional component to aboriginal rights and that 25 is that the Royal Proclamation we say properly 26 understood in its historical matrix against the 27 backdrop of the covenant chain treaty making does 28 acknowledge the continuing jurisdiction or internal 29 self-government of Indian nations. And we say, my 30 lord, that the Proclamation, in guaranteeing that the 31 Indian nations with whom the Crown is connected and 32 live under the Crown's protection, that they should 33 not be molested or disturbed, that was a guarantee of 34 a fundamental freedom or liberty, the liberty of 35 non-interference and non-interference we say implies 36 the continuity of pre-existing powers of 37 self-regulation or self-government. 38 And, my lord, that interpretation of the 39 Proclamation was one which Mr. Justice Monk in 40 Connolly and Woolrich adopted. 41 Page 42, my lord, we say that further support for 42 the idea that inherent in the Common Law in addition 43 to the proprietary interest in lands is the 44 recognition of a right of internal self-government is 45 supported by the way in which the Treaty of Waitangi 46 has been interpreted by the Waitangi Tribunal, and 47 I've set out Article 2 at the bottom of page 42. It 25742 Submissions by Mr. Jackson 1 is an article which I have previously referred to in 2 greater detail but, as you see, the article talks 3 about the full exclusive and undisturbed possession of 4 the Maoris' lands and estates, forests and fisheries, 5 and the Treaty of the Tribunal -- Waitangi Tribunal in 6 the report which I have set out at page 43 has taken 7 the position that Article 2 is a guarantee \"not only 8 of the possession of their lands but in the mana 9 (authority) to control them in accordance with their 10 own customs and having regard to their cultural 11 preferences...The tribes are entitled to develop their 12 own tribal authorities without undue circumscription\". 13 We have said, my lord, in our previous arguments 14 that the Treaty of Waitangi in many ways is the most 15 explicit and detailed description of the nature of the 16 pre-existing aboriginal rights of indigenous peoples 17 and we say that the Orakei Report and the findings of 18 the tribunal therein parallel what the plaintiffs 19 assert are their pre-existing rights and the terms in 20 which they seek to character relief in paragraph 4 of 21 the prayer for relief, and we say that this 22 parallelism is not happenstance. The Treaty of 23 Waitangi and the aboriginal rights asserted in the 24 Statement of Claim embody the fundamental principles 25 of the Common Law. 26 The last section of this argument, my lord, deals 27 with a third component of recognition of jurisdiction 28 and it is in the form of treaty making. And again, my 29 lord, in relation to your lordship's previous comments 30 we say that the treaty making is of relevance insofar 31 as it bespeaks a pattern and a recognition of 32 pre-existing rights in other parts of the dominions 33 and possessions of the British Crown. And in my 34 previous submissions I described and went through a 35 number of treaties, my lord, in which the right of 36 self-government was described explicitly and clearly 37 as part of the consentual arrangements between the 38 Crown and at various Indian nations over the course of 39 some 200 years. The Canadian treaties, my lord, 40 negotiated particularly in the 19th century, the ones 41 in which I spent some time on, are not as explicit in 42 terms of dealing with self-government. As your 43 lordship will recall those treaties deal principally 44 with the surrender of lands, the establishment of 45 reserves and the provision of particular forms of 46 economic assistance and certain guarantees of hunting 47 and fishing rights. However, as I also related to 25743 Submissions by Mr. Jackson 1 your lordship, those treaties were not negotiated in a 2 vacuum and that, in the course of treaty making, 3 various assurances and oral guarantees were made by 4 the treaty commissioners which we say are relevant in 5 understanding what the treaty commissioners understood 6 to be the rights of the Indians prior to treaty 7 making, and I've, at page 45, my lord, set out and I 8 am not going to repeat them, I have set out some of 9 those provisions, some of the statements made on the 10 one hand by the Indians spokespersons at the treaty 11 making and on the other hand by the Crown's treaty 12 commissioners which we say coalesce around the concept 13 that the Indians had a right to govern themselves and 14 that the making of treaties with Canada was not 15 designed to interfere with that pre-existing right. 16 And we say, my lord, that applies to Treaty Number 8 17 as well as the other treaties. 18 The bottom of page 45 I set out the statements 19 made by Treaty Commissioner Ross at the beginning in 20 which in trying to encourage those who were reluctant 21 to enter into treaty said: 22 23 \"As all the rights you now have will not be 24 interfered with, therefore anything you get in 25 addition must be clear gain... Indians are fond 26 of a free life, and we do not wish to interfere 27 with it. When reserves are offered you there 28 is no intention to make you live on them if you 2 9 do not want to.\" 30 31 My lord, at page 46 through to page 49 I have set 32 out, and I am not going to go into it, some of the 33 academic discourse which has taken place as to whether 34 or not certain provisions in the numbered treaties are 35 inconsistent with a right to internal self-government, 36 and it is my submission that those provisions are not 37 inconsistent with a continuation of the right to 38 self-government and your lordship will see why I say 39 that and the way in which applying the Marshall 40 decisions to those arguments and looking at some 41 specific examples of treaty making in the 18th century 42 those arguments in fact are not well-founded, and I 43 will leave your lordship to grapple with those issues. 44 The next section, my lord, is a section which 45 tries to deal with some of the thorny problems which 46 have arisen in the context of the evidence relating to 47 how in fact the plaintiffs have sought to exercise 25744 Submissions by Mr. Jackson 1 their jurisdiction in the face of the competing 2 assertions of jurisdiction by the Provincial 3 Government in particular, and we say, my lord, that 4 while the assertion of authority by government over 5 the Gitksan and Wet'suwet'en peoples has certainly 6 challenged the authorities of the hereditary system of 7 houses and chiefs, it has never supplanted it. 8 My lord, at page 50 I've set out some of the dire 9 predictions of doom and gloom which were made by 10 various missionaries and anthropologists into the 19th 11 and into the 20th century that the Gitksan traditional 12 system, the hereditary system, along with the other 13 bailiwicks of their distinctive society were doomed to 14 extinction. The defendants, my lord, acknowledge in 15 fact, of course those predictions have not come to 16 pass, but they recharacterized the argument in the 17 sense of saying that the Gitksan and Wet'suwet'en may 18 have survived but their systems of authority have not; 19 that they in fact have succumbed to the authority of 2 0 Provincial and Federal Governments and that they 21 exist, if they exist at all, as very pale images, 22 something which is not capable of being the subject of 23 judicial relief, either in terms of the concept of 24 jurisdiction as a matter of law or as a matter of 25 facts when you look at what has happened over the last 26 century. And we say, my lord, that the conflict 27 between the kinship form of ownership at page 51 and 28 jurisdiction and that of the Canadian state by which I 29 refer to both the Federal Provincial Governments has 30 been a pervasive theme in the social and political 31 lives of the Gitksan and Wet'suwet'en people 32 throughout the present century. The intensity of the 33 friction between these two radically different systems 34 of authority has ebbed and flowed from one generation 35 to the next. These fluctuations have occurred in 36 relation to the political, social and cultural 37 initiatives taken, on the one hand by government, on 38 the other, by House groups and their respective chiefs 39 and elders. 40 From the perspective of the plaintiffs, the 41 challenge to their jurisdiction is mounted each time 42 one or other of the levels of government ignores the 43 system of authority of the Gitksan and Wet'suwet'en 44 peoples and thereby violates the ownership of the 45 house groups. This has been a particularly painful 46 experience for the Gitksan and Wet'suwet'en in 47 relation to government-authorized use and alteration 25745 Submissions by Mr. Jackson 1 of house lands, and the attempted expression of the 2 Gitksan and Wet'suwet'en institutions, economic 3 activities, cultural practices, languages and values. 4 At each step in the development of the national 5 and provincial economy, the Gitksan and Wet'suwet'en 6 system of authority has found itself facing a new 7 level of pressure - from the early incursions into the 8 territories for transportation, communication and 9 prospecting activities; to land-clearing and 10 settlement for agriculture and urban centres; to 11 limitations upon age-old harvesting and managing 12 pursuits like hunting, trapping, fishing and the 13 gathering of plant-stuffs; to the alienation of 14 forests for selective logging and sawmill production; 15 to tourism and recreational hunting and fishing; and 16 to the large-scale contemporary resource extraction 17 and use, such as mammoth hydro-electric inundations of 18 valley bottom land, open-pit and other mining, and 19 clearcut logging practices. 20 At each of these stages of economic change and 21 development in the wider society the Gitksan and 22 Wet'suwet'en system of authority has been confronted 23 with renewed assertions of governmental jurisdiction. 24 We say, my lord, that the Gitksan and Wet'suwet'en 25 have simultaneously tried to respond to the changing 26 political and economic system and have sought to do so 27 within the goals and within the sanctions of their 28 aboriginal system of authority. And the rest of this 29 section, my lord, is an attempt to explain the 30 evidence and some of the contradictions in the 31 evidence by a reference to this tension and clash 32 which has occurred between the assertion of 33 governmental authority over the Gitksan and 34 Wet'suwet'en and their territory and the ways in which 35 the Gitksan and Wet'suwet'en have sought using their 36 indigenous systems and seeking as it were to adapt and 37 accommodate this competing system have sought to 38 struggle with and maintain and have maintained their 39 system as a viable, dynamic part of their lives. 40 The first section, my lord, deals with an example 41 at the individual level of how this has come about and 42 we say at the level of the individual the Gitksan and 43 Wet'suwet'en person has been faced with the task of 44 picking his or her way through the complexities of the 45 competing jurisdictions in which he or she is 46 enmeshed. In many situations a family will heed the 47 sanctions of its people's system of authority, while 25746 Submissions by Mr. Jackson 1 at the same time it is the sanctions of fines and 2 government, the jurisdictional strictures of 3 government which are instrumental in individual 4 Gitksan and Wet'suwet'en decision making. It is clear 5 that the choices which individual Gitksan and 6 Wet'suwet'en make in the contemporary world are 7 dramatically affected by the reality of the sanctions 8 of the two opposing systems. 9 And we say a case in point, my lord, is to be 10 found in the evidence of Emma Michell, Chief Lilloos 11 in the House of Namox in the Tsayu Clan of the 12 Wet'suwet'en. In the course of explaining her family 13 history, Mrs. Michell repeatedly asserted the 14 Wet'suwet'en system of authority and narrated 15 incidents where her relatives had suffered government 16 sanctioned appropriation of land, pastures, cabins and 17 equipment during the non-Native settlement of the 18 Bulkley Valley. At the same time, against this 19 background, Mrs. Michell explained that she and her 2 0 husband had acceded to the demands of government 21 authority in the course of pole-camp contract work in 22 the 1940s. 23 She testified that her grandfather's relatives, 24 Canyon Creek Marry and her son, Jimmy Thomas, were 25 dispossessed of their land at Canyon Creek: 26 27 \"...and that land at Canyon Creek was taken away 28 by the white people. They chased them out; 29 they never paid nothing for the land.\" 30 31 Later, in cross-examination, she discussed the 32 dispute she had with her husband who -- she and her 33 husband had with the provincial land tax assessment 34 relating to a trapline cabin. And in that same 35 cross-examination she admitted to having complied with 36 regulations pertaining to federal and provincial 37 jurisdiction, that she took out forest permits in 38 order to cut poles for the small business she 39 operated, she filed tax returns, and she also paid 4 0 stumpage. 41 Page 55, my lord, we try and place this in some 42 kind of context. I mean, is this an acceding to the 43 jurisdiction, a withering of the existing authority of 44 the Gitksan and Wet'suwet'en? And what we say is, my 45 lord, is that the human drama of this, Mrs. Michell 46 and her husband complied with jurisdictional rules of 47 the same government which earlier had dispossessed her 25747 Submissions by Mr. Jackson 1 relatives from their land. She and her husband 2 complied with the government regulations pertaining to 3 pole-cutting in order to obtain work and support their 4 family. It is submitted that they did so with the 5 knowledge and fear of the potential power of 6 government to violate Wet'suwet'en ownership and 7 jurisdiction, as evidenced by the witness' statements 8 of relatives having been dispossessed from their 9 hunting territories, and having herself experienced 10 the loss and destruction of trapping and domestic 11 equipment and goods. And so, my lord, what that is, 12 and of course there have been many examples of it -- 13 THE COURT: Not many, not very many. 14 MR. JACKSON: Well, there's been others, my lord, of ways in 15 which people have tried in fact to maintain their own 16 system, but facing the inevitability that the 17 government has certain power over their lives de 18 facto, and that they have to live within those 19 strictures. 20 THE COURT: But accepting that every dispossession was an 21 intolerable afront to justice, does that provide the 22 answer to the legal problem? I mean, I don't know who 23 stole their camp equipment, I don't recall 24 specifically what evidence there was about that, but I 25 don't think there is any evidence that would say that 26 that was a government policy or a government direction 27 but some of the dispossessions were said to be -- but 28 is there enough here to generalize -- to say that that 29 is a matter that can be redressed by -- can individual 30 matters form the basis for a blanket claim to 31 aboriginal rights of the kind that's being advanced 32 here? 33 MR. JACKSON: My lord, the Emma Michell is not offered to your 34 lordship as a platform upon which your lordship should 35 build a concept of aboriginal rights. It's offered 36 rather as a rejoinder to the arguments which my 37 friends have made and your lordship will be hearing 38 that these kinds of actions of taking out licences, of 39 complying with a competing system of authority, are in 40 fact a recognition not only that there is a competing 41 system or authority but in fact a recognition of the 42 demise and the failure of their own system and the 43 fact that it is no longer a reality such that it can 44 be reflected in any judgment of this court. So it's 45 not -- it's offered for a different proposition than 46 your lordship may have seen it. 47 THE COURT: Well, I am not stopping you; I am just troubled by 2574? Submissions by Mr. Jackson 1 the -- well, you don't think this is something you 2 should save for reply? 3 MR. JACKSON: I think I have lost that opportunity, my lord. 4 THE COURT: Well, maybe, yes. All right. 5 MR. JACKSON: Would this be a convenient time? 6 THE COURT: Oh, I think we will carry on until -- we adjourned 7 at 8:00 and we came back at 8:15, so we'll go to 9:15. 8 MR. JACKSON: The next section, my lord, looks at the manner in 9 which the hereditary system of authority has sought to 10 deal with the federal and provincial jurisdiction. We 11 say that the response of Gitksan and Wet'suwet'en 12 House members over the past century to features of 13 governmental assertions of jurisdiction has been a 14 mixture of political resistance, cultural persistence 15 and cautious accommodation. Throughout the past 16 century the peoples' own political representatives 17 have sought federal and provincial recognition of 18 Gitksan and Wet'suwet'en land title and jurisdiction 19 as the sound basis for social and economic growth and 20 development in the region. While various actions have 21 been carried out in the political arena to this end, 22 the individual Gitksan and Wet'suwet'en families have 23 lived under a hereditary system of authority that is 24 constantly in collision and conflict with governmental 25 agencies and policies. 26 We do not seek, my lord, in this part of the 27 argument nor anywhere else to chronicle the resistance 28 of the Gitksan and Wet'suwet'en to the negative 29 sanctions and dire social and economic effects of 30 governmental authority but some examples of the 31 conflict faced by the people over the past century are 32 in order in terms of your lordship's attention and we 33 have provided some examples, my lord, to illustrate 34 the ongoing nature of the hereditary system of 35 authority especially under 20th century conditions of 36 conflict that have arisen between the system of 37 House-owning kin groups and the state system of the 38 Federal and Provincial Governments. 39 And the first section, my lord, deals with a 40 number of points dealing with game regulations and 41 trapline registration, and I would take your lordship 42 to page 58 and use the trapline registration as an 43 example of an apparent way in which the provincial 44 system has been imposed, and the plaintiffs have 45 co-operated within that system apparently in ways 46 which are not consistent with their traditional system 47 of authority, and this was an issue which was 25749 Submissions by Mr. Jackson 1 addressed at some length by Mr. Brody through a review 2 he undertook of documents relating to the initiation 3 of the trapline registration system and the ways in 4 which it was advertised to aboriginal peoples and the 5 perceptions which they brought to bear on the 6 registration of their hunting territories. And Mr. 7 Brody addressed the question of trapline registration 8 through a number of documents, one of which was the 9 report by Mr. Pragnell, the inspector of Indian 10 Agencies for British Columbia in 1923, just two years 11 before the initiation of the trapline registration, 12 and Mr. Pragnell, in talking about the various models 13 which the province could adopt for trapline 14 registration, said at page 59 at the top as one of 15 the \u00E2\u0080\u0094 16 THE COURT: I have read that. 17 MR. JACKSON: Yes, my lord, and what Mr. Brody urged upon your 18 lordship was that this approach to trapline 19 registration was a way and was perceived by government 20 officials as a way to accommodate the hereditary 21 system of family-owned hunting territories so that 22 trapline registration would as it were build upon 23 rather than seek to undermine the existing indigenous 24 pattern of conservation and management of territories. 25 That being also the avowed purpose of trapline 26 registration to develop a system which would avoid the 27 abuses which white trappers had introduced by 28 over-harvesting and moving from area to area depleting 2 9 the game. And what Mr. Brody sought to do was to show 30 how, while initially this was seen as being an 31 accommodation and while aboriginal peoples, 32 particularly the Gitksan and Wet'suwet'en, saw it as a 33 way in which they could register and protect their 34 rights, in fact the way the system was administered 35 through a patrilineal section through permitting 36 individual alienation and also the idea of registering 37 an individual to a trapline, those were ways which 38 were inconsistent with the indigenous system and yet 39 the fact of the matter was that this system was 40 originally conceived as one of accommodation, the 41 Indians perceived it to be one of accommodation, and 42 what you have had since is this uneasy attention 43 between trapline registration from the provincial 44 point of view whereby it's seen as their system and 45 the registration from the aboriginal peoples' point of 46 view whereby they saw it as a way in which by 47 registering they could protect their rights from 25750 Submissions by Mr. Jackson 1 outsiders. 2 THE COURT: Was there any way I can conclude that the trapline 3 registration system has been a disadvantage in over 4 being an advantage to the Indians? It seems to me 5 it's probably worked both ways, hasn't it? 6 MR. JACKSON: My lord, I don't think we are seeking from your 7 lordship any opinion that it is in fact -- that 8 it's -- it has net advantages or disadvantages in the 9 abstract. What we are suggesting here, my lord, is 10 that trapline registration should not be seen as 11 evidence of the abrogation of an existing aboriginal 12 jurisdiction to harvest, manage and conserve 13 resources. The Indian people have sought to use it in 14 a way which compliments their existing system even 15 though in many ways that is very difficult to do, but 16 the extent to which the trapline registration system 17 is capable of protecting aboriginal interests I would 18 say is reflected in the fact that the Gitksan and 19 Wet'suwet'en sought to return to the original idea of 20 Inspector Pragnell by seeking a blanket trapline in 21 which all of the hunting territories of the Gitksan as 22 it were would be protected so that the provincial 23 system would operate as a protected device for 24 aboriginal interests until such time as those 25 interests could be protected either through 26 declarations of this court or more realistically in 27 the long term through the negotiation of a 28 comprehensive settlement. 29 THE COURT: Well, I don't have any difficulty understanding what 30 you are saying. I have difficulty in trying to reach 31 a conclusion that that would help or hurt anybody in 32 this lawsuit with respect to trapline registrations. 33 It seems to me that it's an axe with two blades. 34 MR. JACKSON: My lord, we are seeking to the extent that the 35 Provincial Defendants point to trapline registration 36 and the laws which underpin it as being an example of 37 the abrogation of an Indian jurisdiction to harvest, 38 manage and resource -- 39 THE COURT: I see that as a different question, but you can 40 persuade me otherwise. At the moment I see it as 41 being put forward by the Province as an indicia of the 42 exercise of a jurisdiction and I see it from the 43 plaintiffs' point of view as being a facility that was 44 created other than by our participation and our 45 passive acceptance at best and that it has been used 46 by some Native people for their advantage, and I don't 47 see very many examples of where it was to their 25751 Submissions by Mr. Jackson 1 disadvantage. There may well have been a few examples 2 of disputes between whites and Indians over trapline 3 ownership but I don't recall very many of those, and a 4 few disputes between Indians about them, and the 5 result of that doesn't seem to me to hurt the 6 plaintiffs in any way at all. So I am -- at the 7 moment I am pretty neutral about trapline 8 registrations. I see what the plaintiffs are putting 9 it forward for and I have stated that but, apart from 10 that, it doesn't seem to me to be something that 11 weighs very heavily on either side of the scales. 12 MR. JACKSON: My lord, I think I am going to allow Mr. Grant, 13 not at this point but in the course of his further 14 submissions, to deal with this issue. 15 THE COURT: I will be glad to have any help I can get. 16 MR. JACKSON: My lord, I want to move to page 75 of the 17 argument. 18 THE COURT: 75? 19 MR. JACKSON: 75. And just to indicate to your lordship the 20 previous passages which I have leaped over deal with 21 some further examples of the kinds of pressures upon 22 individuals Gitksan and Wet'suwet'en which have caused 23 them to register traplines, some of the concerns they 24 have expressed in the course of this trial in terms of 25 the manner in which the Provincial Government has 26 managed resources which they themselves have nurtured, 27 and I would perhaps refer your lordship particularly 28 to the statement of Alfred Joseph at page 70 and 71 29 where, during the course of cross-examination by Mr. 30 Goldie, he explained how the results, the benefits, 31 the fruits of the wise husbandry of Gyolugyet was in 32 fact being drawn off by what the Wet'suwet'en saw as 33 being in fact the practices of the Provincial 34 Government in harvesting timber which was not 35 consistent with the Gitksan and Wet'suwet'en 36 harvesting laws. And I just refer your lordship to 37 that at page 70 and 71. The material also deals with 38 a matter which your lordship just referred to, how in 39 fact Gitksan and Wet'suwet'en have from time to time 40 sought to invoke provincial officials in the business 41 of adjudicating disputes where in fact they were 42 allegations of trespass so that in addition to using 43 the feast hall there have been other efforts in 44 certain cases to use as it were outside arbitration, 45 and that is only brought to your lordship's attention 46 for the purpose of making the argument that that 47 should not be taken as being an acquiescence in the 25752 Submissions by Mr. Jackson 1 provincial jurisdiction and a recognition of the 2 demise of their own. 3 Gitksan and Wet'suwet'en have sought to resolve 4 disputes in many different ways and they have not in 5 particular cases refrained from invoking outside 6 officials who they believe have a certain knowledge 7 and a certain ability to break a deadlock. And of 8 course, my lord, the fact that I have skipped over it 9 is not an indication that -- of anything except the 10 lateness of the hour. 11 THE COURT: Yes, all right. Do you think you should start 12 another section tonight? 13 MR. JACKSON: Unless your lordship wants to go a little bit 14 longer. 15 THE COURT: Well, I have used up some of your time. If you want 16 to stay a few minutes longer, I think you are entitled 17 to that. 18 MR. JACKSON: I think this might be an appropriate point to 19 take, and we are starting tomorrow at nine, my lord. 20 THE COURT: Yes, from nine to four, and then from about 5:30 to 21 about 7:00 or thereabouts. Yes, thank you. 22 THE REGISTRAR: Order in court. 23 THE COURT: Thank you, madam reporter. 24 THE REGISTRAR: This court stands adjourned until nine o'clock 25 tomorrow morning. 26 27 (PROCEEDINGS ADJOURNED AT 9:15 p.m.) 28 29 I hereby certify the foregoing to 30 be a true and accurate transcript 31 of the proceedings transcribed to 32 the best of my skill and ability. 33 34 35 36 37 38 Tannis DeFoe, 39 Official Reporter, 4 0 UNITED REPORTING SERVICE LTD. 41 42 43 44 45 46 47"@en . "Trial proceedings"@en . "British Columbia"@en . "KEB529.5.L3 B757"@en . "KEB529_5_L3_B757_1990-05-07_01"@en . "10.14288/1.0018556"@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 1990-05-07]"@en . "Text"@en .