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Delgamuukw Trial Transcripts
British Columbia. Court of Appeal
British Columbia. Supreme Court
application/pdf
595 Submissions by Mr. Grant 1 May 13, 1990. 2 Vancouver, B.C. 3 4THE REGISTRAR: Order in court. In the Court of Appeal of 5 British Columbia, Wednesday, May 13th, 1992, in the 6 matter of Delgamuukw versus Her Majesty The Queen at 7 bar, my lords. 8TAGGART, J.A.: Yes, Mr. Grant. 9MR. GRANT: Thank you, my lord. I'm going to complete this 10 issue of the Gitksan and Wet'suwet'en jurisidiction 11 argument in tab 4 this morning. And I understand, 12 following from Mr. Jackson's method of dealing with 13 questions last week, that my understanding from 14 yesterday, three different questions arose and I would 15 like to just advise you how I will approach them. 16 The first question I will deal with, and I'll 17 deal with it right away, is the question of your 18 lordship Mr. Justice Wallace: Why are we concerned 19 about the feast and the demise of the feast? And I 20 will tie that directly -- I'm sorry, the prohibition 21 of the feast. And I'll tie that directly to certain 22 findings of the trial judge right away. 23 The second point was that raised by your 24 lordship Mr. Justice Wallace with respect to the 25 setsaht healing preparation practices, and out of that 26 Mr. Justice Lambert's question, and I would like to 27 deal with that as soon as I complete, very briefly, 28 the feast evidence in the early part of this century. 29 And that will be what I conclude this position with in 30 connecting these laws to the right sought. 31 And the third point was that raised by Mr. 32 Justice Hutcheon with respect to the fishery. The 33 legend on almost all of the maps in your map atlas is 34 admitted, except that it shows in the index in map 35 22 -- not the legend, the commentary was excluded. 36 The commentary was written by Mr. Morale, a witness, 37 and by Ms. Marsden, a witness, jointly, and it was 38 excluded by the trial judge. However, there is 39 evidence going directly to the issue of the boundaries 40 of territories at the rivers where there is fishing 41 sites and, if it is satisfactory to your lordship, I 42 would like to deal with that in the context of tab 5 43 this afternoon where it fits in and then I will answer 44 that directly and provide you with that evidence, 45 which answers your question in another way. 46 So, firstly, I would like to direct the court 47 to the trial judgment at page 324 and 325. And this 596 Submissions by Mr. Grant 1 is one of several places in which the trial judge 2 refers to Mr. Loring, but here he adopts, I will call 3 it the Macaulay theory because Mr. Macaulay advanced 4 it, of what Loring said and the federal respondent 5 recycles this theory or approach in their factum. 6TAGGART, J.A.: Mr. Grant, are we now answering a question? 7MR. GRANT: This goes to the question, yes, the first question 8 of why the feast. 9TAGGART, J.A.: Where did that question arise in your factum, at 10 what point were you in your factum? 11MR. GRANT: It was the very end of yesterday when Mr. Justice 12 Wallace asked why are we concerned with the 13 prohibition? And I should direct you to where we 14 were. 15TAGGART, J.A.: Just for note purposes. 16MR. GRANT: I appreciate that, my lord. I would like to -- the 17 prohibition is referred to at paragraph -- 18TAGGART, J.A.: 481? Loring declared the potlatch is put down 19 for good? 20MR. GRANT: Yes. And that is where the question arose. 21WALLACE, J.A.: 481 did you say? 22MR. GRANT: Paragraph 481. 23WALLACE, J.A.: At page 210. 24MR. GRANT: That's right. The question also arose at paragraph 25 485, which is where I ended yesterday, or 484 I should 26 say. 27 If you could just refer to the judgment -- and I 28 don't have this in the reference books -- at 324. The 29 trial judge stated this: 30 31 "By 1910 Loring reported that land claim 32 agitation had died down but the old people had 33 not abandoned the idea, and by 1916 he wrote 34 that 'in general, the situation regarding the 35 land question has entirely subsided.' I think 36 Mr. Macaulay was correct when he submitted that 37 the following conclusions can be extracted from 38 the Loring reports." 39 40 And I'd like to go to each of these. 41 42 "The Gitksan traditional economy was not 43 providing adequate subsistence for the 44 population of the central and western villages 45 by 1890. " 46 47 Now, I submit that that is not correct on the full 597 Submissions by Mr. Grant 1 evidence. There is evidence of the continuance of 2 subsistence, that is, that people were living off of 3 the land in the central and western villages well 4 beyond 1890. But that's one point. But I'm -- we're 5 not refuting each of these seven points. The more 6 important point, and I ask except for all but one of 7 the points, is so what? It does not affect the 8 rights. And that's key to the federal argument. The 9 federal factum even here before your lordships, we 10 don't know what they're going to say, but they go on 11 and on about these kinds of facts. But it does not 12 affect the rights. There is no question and we never 13 have argued, my lords -- and we'll hear Mr. Adams this 14 morning talking about Dr. Daly's evidence -- we've 15 never argued that the economies of the Gitksan and 16 Wet'suwet'en did not change as a result of contact. 17 We've never even suggested it. But that does not 18 affect the right. 19 The second point, he says, 20 21 "The northern villages, Kisgegas and Kuldo, 22 where the traditional economy was still in 23 place, were starting to lose their population 24 by 1902. " 25 26 On that point, it's true that certainly at Kuldo the 27 people were moving down closer into the centre in that 28 area, not so much so in Kisgegas. 29 30 "The winter hunting and fishing villages, and 31 the outlying canyon fisheries were abandoned." 32 33 Once again, with respect to the trial judge, there 34 was no evidence among the Gitksan of winter hunting 35 villages. They were out on their territory. There is 36 evidence, and it's shown on the McDougall map, in 37 1910, eight years later, of the Wet'suwet'en winter 38 hunting villages, which Mr. Rush referred you to. But 39 he's here presumably talking about the Gitksan, 40 because Kisgegas and Kuldo are in the north, and there 41 was no such thing as winter hunting villages in that 42 sense. 43 And the third point is, 44 45 "The traditional economic activities, fishing, 46 hunting, and trapping, were losing their 47 central position in the lives of the Gitksan 598 Submissions by Mr. Grant 1 and Wet'suwet'en as other economic alternatives 2 were taken up." 3 4 Now, once again, we never suggest there wasn't an 5 impact on the economy as a result of the change of 6 contact. But, again, the point here is, we are not 7 saying the right is a pristine -- that noble savage or 8 resonian idea that some pre-contact person did certain 9 things and that's the only right. If that's what the 10 federal Crown is saying in their argument, and that's 11 why they think these facts are relevant, we say 12 they're wrong in law, as Mr. Jackson said. But in 13 terms of the change of economic activities, certainly 14 there was a change, and I showed you that yesterday 15 with the tens of thousands of dollars going to the 16 feast. 17 Fourthly, 18 19 "Disputes between families and crests over 20 fishing stations and trapping and hunting 21 grounds were frequent and continued throughout 22 the period of Loring's tenure as Indian Agent." 23 24 Now, with respect to this reference, Loring himself, 25 and I will provide you with the reference, referred to 26 the genesis of many of the disputes as a result of 27 succession of names as a result of disease. The 28 influenza epidemics that occurred in the early part of 29 this century very much impacted on the Gitksan and 30 Wet'suwet'en. I mentioned the amalgamation of house. 31 And what Loring was talking about here, is that 32 suddenly there's these disputes as to succession. 33 But, as I have said with respect to the feast, his 34 official reports, and his letters are official 35 reports, he says, "I've settled the disputes," which 36 was part of his job, "and I've prohibited the feast 37 successfully," which was part of his job. And, of 38 course, there was no one second-guessing him at that 39 time. There was no supervisor travelling through the 40 area on a regular basis saying, "Well, what's going 41 on?" That didn't happen until Barbeau came in 1920 42 and saw that what Loring was saying was just quite 43 incorrect. 44 Now, the fifth point is, and this is the one 45 where the feasting is important, 46 47 599 Submissions by Mr. Grant "Traditional methods of dealing with ownership and claims to ownership of fishing stations, smokehouses, trapping and hunting grounds, if any, were no longer employed." And with respect, this is the aspect of the Loring report that we are challenging in the findings of the 8 trial judge. We say that Loring, and Mr. Macaulay's 9 rendition of what Loring is saying, and the trial 10 judge's finding are wrong. 11WALLACE, J.A.: Are you saying there is no evidence to support? 12MR. GRANT: We're saying that, in fact, as I — 13WALLACE, J.A.: Or are you saying they shouldn't have been 14 15 16MR. GRANT 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31WALLACE, 32 33 34MR. GRANT 35WALLACE, J.A.: I'm trying to — 36MR. GRANT: I understand. 37WALLACE, J.A.: Looking at this from the appeal point of view. 38MR. GRANT: What I'm saying is, Mr. Macaulay in his argument 39 before the trial judge quoted extracts at length from 40 the Loring letters. And a few days after he did that, 41 or at the end of that argument, he gave a little 42 checklist, and this is the checklist, and he says, 43 "From everything I've said, this is what you should 44 find." Now, what he did was he took out parts, as is 45 fair enough, of the letters and he did that. The 46 trial judge adopted all of the points he made. What 47 we're saying, of course, with most of those points is accepted? In light of the other evidence, that this conclusion should not have been accepted? Not only in the light of the other evidence, in the light of Loring's own evidence, because his own evidence is a reluctant testimony, as we say in our factum, to the continuance of the feast. And the problem with Loring, as we say in our factum, is this: Remember, Loring's job and his direction from 1890 on was to ban the feast. And from the Barbeau's visit with Loring, he didn't go to feasts. Loring did not go to feasts. So he didn't know what was going on. But what we do have is Barbeau, the chief archivist for the archives of Canada, going to the feast in 1920 and he does see what's going on, which I'll take you to in a moment, and what is going on is traditional methods of dealing with ownership, ownership of fishing stations, all of that is going on. J.A.: Are you saying that the Chief Justice should have -- the trial judge should have accepted Barbeau's evidence rather than Loring's? Well — 600 Submissions by Mr. Grant 1 it doesn't make any difference. But on this point is, 2 and this is why we have shown you, or I'm attempting 3 to show you, how wrong the rendition was, and 4 presuming the trial judge relied on Mr. Macaulay's 5 rendition, and that, in fact, Loring's evidence was a 6 testimony to the feast. Yes, he said the feast is 7 dead. He said that in 1898 and he says that in 1918. 8 The trouble is, he says except for a few old people, 9 except for them doing this old fashioned dance, except 10 for them using old regalia, except for the passage of 11 some territories and names. Except for a few things, 12 every single year he says it's dead. And I'll come to 13 three key points that I want to conclude with to show 14 how wrong he was from independent persons, not just 15 Barbeau. And, my lord, in answer to your question, 16 what I say is, that the Chief Justice, or the trial 17 judge had to have disregarded or not brought to his 18 mind's attention these other components when he made 19 this finding on this fifth point. And when you look 20 at it I think it's obvious what was really occurring. 21 On the sixth point, 22 23 "The Gitksan of central and western Skeena, 24 particularly Gitenmaax, Kispiox, Kitsegukla, 25 Kitwanga and later the Wet'suwet'en started 26 joining the cash/wage economy in the later 27 years of the last century." 28 29 Well, as Mr. Adams will refer you to this morning, we 30 brought evidence on that very point. We don't dispute 31 it. We didn't need Loring. We had an anthropologist 32 who analysed the economy and the change of their 33 economy over the last 150 years. And there is no 34 doubt that they became part of a cash/wage economy. 35 That was part of what they did. It doesn't affect the 36 rights. 37 Now, the fifth point is unclear -- I'm sorry, the 38 seventh. 39 40 "Society in the central and western villages, 41 and later in Hagwilget and Moricetown, was 42 increasingly based on family units, housed in 43 single family dwellings." 44 45 Now, if by that Mr. Macaulay and the trial judge, more 46 importantly, is saying the people move from long 47 houses to smaller houses, we never disputed that. Mr. 601 Submissions by Mr. Grant 1 Macaulay asked the first witness that if she lived in 2 a long house and she hadn't, although she was born in 3 1919. There was no question that people moved from 4 the big houses, the long houses, to individual family 5 units. So there is no problem with that. If by that 6 the suggestion, and it's unclear from this, is that 7 the people stopped using the house system, we say it's 8 not a correct rendition. And, of course, this is 9 where Mr. Loring does not really reflect the social 10 organization in his material, just as with Mr. Brown. 11 You must remember, what is these person's objectives 12 that road in these historical times? Mr. Brown was 13 trade, so he focussed on those things that concerned 14 trade. Mr. Loring was concerned with many different 15 things, one of them was people moving down, becoming 16 civilized and assimilated. That was the policy of the 17 department at that time, the federal Crown at that 18 time, and people becoming civilized. Living in family 19 houses would be an indicia, one would presume, in 20 Loring's mind, of becoming civilized. But the point 21 of it was, is that it doesn't affect at all the house 22 system which you've heard a lot about already. Now, I 23 can only say that we've mentioned this to your 24 lordships in our opening and I just ask you to make a 25 note here of paragraph 9 of the opening that Mr. Rush 26 made on the first day which we set out that it is of 27 fundamental importance to recognize that the societies 28 are aboriginal because they pre-existed assertion of 29 British sovereignty and not because they conformed or 30 conform to any particular pattern of resource use. If 31 that's the point of what Mr. Macaulay was trying to 32 make out of the Loring material, we say it's 33 completely irrelevant to the issue before the court. 34 Do people lose their rights -- and these are the kinds 35 of questions they were asked -- because they move into 36 houses with glass in them? Because they take electric 37 power? Because they drive cars? Such a proposition, 38 we say, is absurd. So the point that I'm raising here 39 is only number 5, and I'd like to very quickly take 40 you to Volume 10, the Hagwilget feasts that Barbeau 41 attended in 1920, Volume 10, tab 484. And I will 42 start at the second page in, this would be R-10. 4 3TAGGART, J.A.: Tab? 44MR. GRANT: Tab 484, my lord. 45WALLACE, J.A.: A-10? 46MR. GRANT: R-10, my lord. It's the reference book. Tab 484. 47 This is the second page in. I ask you to, in 602 Submissions by Mr. Grant 1 considering my argument, I ask you to make a special 2 note of this tab because I think when you read it in 3 its totality you'll see, my lord, that it is probable 4 that it just doesn't fit with what is concluded about 5 the demise of the feasting system. The dating is 6 important. This is the end of Loring's time, end of 7 his 30 years. And the argument of Canada was that 8 basically he saw the demise of the Gitksan and 9 Wet'suwet'en system. This is the end of his term. A 10 new Indian agent comes in shortly after who starts to 11 rigorously enforce the feast prohibitions and Gitksan 12 and Wet'suwet'en are later arrested. But, in any 13 event, I've referred you, I'm sorry, yesterday I 14 believe, to Father Godfrey and this is when your 15 lordship made the comment -- askedme and that's at the 16 bottom of page 2, the top of page 3. And if you go 17 over to page 4, "Tuesday night," this is Barbeau's 18 note, 19 20 "I was taken up in an auto by recent 21 acquantainces; we were going by way of Hag.; at 22 nine p.m. when we pass there we see smoke, a 23 fire, hear dim of tin can, hear high pitched 24 voices in what was unmistakenly Indian song. 25 Drew near. Big crowd gathered outside, in a 26 space between two houses. I mixed with the 27 Indians, sitting on logs in a square, two rows. 28 Question here, a question there." 29 30 Now, I'm going to just ask you to go in the same 31 reference to page 8. This is the first of three 32 feasts and the pagination is sort of difficult here 33 because there's actually three different 34 extracts, but if you go to page 8, at the top, 35 36 "Then group song men broke into a grave song, 37 unlike the first, low with fewer notes; less 38 distinct. Someone said: 'People of the Frog, 39 still squatting at the other end -- are sad. 40 The Grizzly Bear will entertain them; will make 41 their heart glad.' Then an old man put on red 42 flanneled shirt, with danglers, deer hoofs, 43 thimbels all over the fringed on the knee; bead 44 patterns on the skirt; others would help him. 45 Oil was now sprinkled and spread over fire, 46 which in the dark was raising in flames and 47 clouds of black suie; Solemnity. 603 Submissions by Mr. Grant 1 And then I can take you over to -- if you continue on, 2 after page 10 you start a page which is 7E. Actually, 3 this is the beginning of the second potlatch. And if 4 you go there, he, at the top, describes how he 5 referred to Dr. Winch, that he was taking a box of 6 sweetstuffs. And Dr. Winch was half smiling and half 7 grinning of hostility. Then he's questioned at the 8 bottom of that page, Barbeau, when he goes to the 9 feast, that, 10 11 "People think you are connected with Police and 12 want to tell Government about Potlatch. I 13 protest that I am not a spy, and turn away from 14 him. The tall young Indian who acts as a 15 master of ceremonies to whom I have a film 16 rolls in the afternoon take takes me in after 17 all have entered, and ushers me into the right 18 hand corner." 19 20 He then describes -- I'll summarize. He describes 21 that his sweetmeats are given out and announced as a 22 gift from him, and at that point the people accept him 23 and realize that he himself is participating in the 24 potlatch, in the feasting appropriately. 25 If you go over page 3 of this second feast, 26 potlatch, halfway down he says after this, "Candies 27 from Ottawa, given by Mr. Baber, he says, 28 29 "This was all among the preliminaries. Now the 30 people are called to attention; some more 31 people come in among the most importants; names 32 shoutes describe them; large faced women, old 33 wrinkled men in coloured costumes; women with 34 children." 35 36 So they're announcing the people coming in and it goes 37 on and describes that. 38 Now, if you continue to the last page of the 39 second potlatch, which is page 13. It is sequentially 40 numbered. It's actually page 13 and it's only a half 41 a page there. It's not the last page of this 42 reference. At the very bottom he's told by Ada Michel 43 and another, 44 45 "...that Hagwelgate potlatches take place twice 46 a year; in the summer and at Christmas time." 47 604 Submissions by Mr. Grant 1 This is what he's being told by people at this time 2 when they've accepted him into the feast. 3 I would ask you to go to the third feast that he 4 attends after a few days. At page 3, you can see 5 about 8 lines down, it's the line starts -- "At the 6 feast house," is the top line. 7 8 "Then secret society performers come in in 9 peculiar attire; staff bearer, first; down on 10 head; chief performer with (over) two poles 11 with folding curtain real cedar-ring around the 12 neck; faces painted. Faces grave and solemn -- 13 no longer themselves, filling a timetron ? from 14 the past. Go into house; chants break out from 15 inside, dancers perform..." 16 17 And he describes the whistles or the shrieks and what 18 he's talking about here is obviously what I referred 19 to and what Barbeau -- or I mean Brown saw in 1820 20 that boy performed a Nox Nox performance. Here a 21 hundred years later we see the same performance being 22 performed. The same type of performance. 23 Just going to page 12 of the third feast, at the 24 top is the reference I gave you yesterday. I'll take 25 you to the bottom of page 11, the bottom of page 11 of 26 the third feast, my lords. 27 28 "The potlatch begins, groups count up money 29 received; and other money is announced and 30 turned in. This moon and 'next potlatch and 31 feast given by the laxtsamosya company to show 32 what they have got' given by chief Mackenzie." 33 34 That would be a reference to the clan. 35 36 "Much property distributed as at other 37 potlatches, but more especially money. At one 38 count not far from $700. counted on one 39 blanket." 40 41 That would be to one chief. 42 43 "Some young men being figures on sheet, while 44 distribution of money is on; I am given $100. 45 in silver..." 46 47 And then he describes how embarrassed he is by that. 605 Submissions by Mr. Grant 1 This is what he's referring at that time as to the 2 potlatch and the feasting occurring at the end of 30 3 years of Loring's saying that it does not occur. 4 And then I've referred paragraphs -- I'm back to 5 my factum. And I just ask you to note that if you're 6 going to consider what the trial judge found because I 7 submit that in the face of the Barbeau description, 8 the detail of the feast, it goes into the crests, 9 everything is described there including the passage of 10 names and territory. It does not match the Macaulay 11 summary on point 5 of what was really happening, 12 although Loring certainly implied it. But if you 13 look -- I will not refer you to paragraphs 485 to 488 14 but refer you to those and, again, it's references to 15 Loring. And his suggestion, as you see in 487, that a 16 custom in 1913 and in December 1916, a custom which 17 not ^obtains with the Hagwilgets of late years. He 18 says the Hagwilgets, that's these people, are not 19 feasting in 1913 and 1916. We have a four-day feast 20 going on and confirmation that it goes on every summer 21 and winter. 22 Now, if you go to paragraph 489, I'd like to refer 23 you here to somebody who is not a supporter of the 24 feast, as Barbeau might have been considered, but 25 somebody who certainly is opposed to it. And this is 26 February 17th, 1919, letter to Fellow-Workers from 27 Robert Tomlinson at Kispiox. I'm in the factum, my 28 lords. He shows the persistence and the importance of 29 the feast and Gitksan laws of marriage and 30 inheritance. It also shows that Loring was either 31 unaware of what was happening around him, or unwilling 32 to disclose to his superiors that the feast, which he 33 was charged with suppressing, was flourishing. In 34 particular, Tomlinson indulged in none of Loring's 35 evasions about the feast being in decline or practice, 36 only by the old or only by non-Christians. I just 37 take you to the tab at 489 at pages 3 and 4, and I 38 again would ask that you look at the whole document 39 because it just completely refutes what Loring is 40 suggesting. But if you go to page 3 you see the 41 "Saving on Soap in Order to Scatter Money at the 42 Feast." 43 44 "In the fall of the year it is very evident who 45 is going to give a feast for the dead. It is 46 to be seen by the dirt of the children and 47 their poorly clad condition. A man who used to 606 Submissions by Mr. Grant 1 wear a collar and tie and come to church every 2 Sunday discards his collar, dresses himself in 3 rags and is hardly ever seen in the church. He 4 cannot afford to pay for some soap, he has to 5 save everything for the one event. And should 6 you ask him to give a contribution for 7 missions, he tells you he can't do it, for he 8 has one, two or three dead; he must give them a 9 'proper send off,' therefore he cannot give 10 anything this year. But when the time of his 11 feast is on he will fill a large basin with 12 coins and go around giving money away. To some 13 of the chiefs he may give ten dollars each, to 14 others he may give five...some he will give 15 two...others one...while to the children he 16 will give twenty-five cents all around." 17 18 And then at the bottom of the next paragraph he 19 describes the village demoralized by the feast. 20 21 "There is no limit placed on what is to be given 22 away: horses, cattle, guns, harness, and in one 23 case I hear of a girl being given to a man (old 24 enough to be her father) to be his wife." 25 26 That may well have been an adoption situation. He is 27 saying that he heard of that. Clearly, Tomlinson 28 himself was not attending the feast. 29 And then he describes at the bottom of that page, 30 31 "There are at this present time thousands of 32 dollars owing among the people of this village, 33 nearly all of it caused by the feasts." 34 35 And in the factum itself you can see where he says he 36 parallels what was said by Brown a hundred years 37 earlier at page 213 at the end of paragraph 489. 38 39 "The church bell can ring for a week-night 40 service, but while the feasts are on no one 41 turns up for the meeting. Everything has to 42 give place for these feasts." 43 44 And also the other reference in the factum itself is 45 that the children have no right to any of their 46 father's property, all has to be handed over to the 47 successor. Now, here's a contemporary account of a 607 Submissions by Mr. Grant 1 missionary in Kispiox and the feast is going on right 2 under his nose. And he certainly knew that the feasts 3 were occurring and were very active. 4 I again refer you and ask you to look at the 5 references at 490 and 491 and I'm just going to give 6 you the dates where Loring claims the Wet'suwet'en 7 didn't hold feasts. If you go to 491 I'm going to 8 give you -- in the list of exhibits you see under the 9 quote there Loring's claim, Exhibit 1209B-84 is July 10 15th, 1897, the next exhibit is December 30th, 1911, 11 the next January 31st, 1913, and the last in that 12 listing, Exhibit 1209F-405, is December 14, 1916. So 13 over the course of 20 years he's denying the 14 Wet'suwet'en are holding feasts. And in the 1919 15 feast, in 1919, the newspaper accounts refer to it, 16 paragraph 494, they are in your references, and I 17 won't take you to them, confirm the thousands of 18 dollars changing hands. 19 But I'd like to conclude this point with paragraph 20 495. This is a memorial of the Indians in 1922 to the 21 Superintendent-General of Indian Affairs giving a 22 description of the potlatch, which makes clear, in our 23 submission, its legislative features in the sense of 24 in the context of it being a decision-making process, 25 halfway down that quote, 26 27 "The extent of the events thus proclaimed was 28 extremely wide, including political or 29 administrative, judicial, economical and 30 social. Amongst the many others, it included 31 any event in the life of the individual, or 32 family such as birth, the giving of a name, the 33 attainment of the age of puberty, marriage, 34 making of warriors, adoption, divorce, election 35 to Chieftaincy, initiation into one of the 36 various phratries, death and many others; it 37 included agreements between tribes, peace 38 treaties and declaration of war; economically 39 it included ratification of all contracts, 40 transfer of property, transfer of the property 41 rights in names, crests, dances or songs, 42 either by heredity or by contract; judicially 43 it included the administration of both criminal 44 and civil law, granting of divorces ... in short, 45 any event which would require definite 46 statement before those interested and some 47 degree of publicity, in order to make it a 60? Submissions by Mr. Grant matter of record. In my submission, that description accurately describes the feast evidence as an institution, a central institution of the Gitksan and Wet'suwet'en recorded from the time of the oral histories 3,500 years ago, through Brown in the 1820's, Barbeau in the 8 1920's, Loring's allusion in 1897, and contemporary 9 witnesses. 10 The last paragraph or the next paragraph sets 11 out — 12LAMBERT, J.A.: Just before we leave that paragraph. 13MR. GRANT: Yes. 14LAMBERT, J.A.: You've got legislative in quotes, and I 15 understand the paragraph itself. If I were 16 categorizing the functions at the feast as to which 17 were legislative, which were administrative, and which 18 were judicial, almost everything that's in there I 19 would describe as administrative in our 20 classification. 21MR. GRANT: In our division of powers, yes. 22LAMBERT, J.A.: In our classification. That is, if you define 23 legislative power as power to make laws of general 24 application that will be promulgated and known by 25 everyone or to change laws of that nature, then I -- 26 almost nothing in that paragraph is legislative in 27 that sense. Perhaps making declarations of war or 28 concluding peace treaties could be regarded as 29 legislative in that sense. I don't really understand 30 why we have to get into a distinction between a 31 legislative function and an administrative function. 32MR. GRANT: Right. 33THE COURT: Am I right in saying we don't? 34MR. GRANT: Right. The only reason it's in quotes is it was the 35 language in the trial judgment. But it's not -- and 36 as Mr. Justice Hutcheon raised yesterday, I agree that 37 once you get into that kind of pulling apart and then 38 we get into the troubles that the courts have said 39 about you have to look at the rights as they are and 40 it's an artificial distinction and I agree that these 41 functions are not legislative in the sense of "law 42 making." If we see that, they fit into judicial and 43 other functions, but there is no need to go into that 44 distinction. 45MACFARLANE, J.A.: What do they show us then in the end? That 46 it was an organized society? 47MR. GRANT: An organized society that governed the land, the 609 Submissions by Mr. Grant 1 resources and the people. That's what it shows. 2MACFARLANE, J.A.: Well, you see — all right. The Chief 3 Justice said the feast was not a legislative body. 4 That's the language we come back to time and time 5 again. And you concede, the appellant concedes, did 6 so at the opening of the trial, that the feast was not 7 a legislative body. 8MR. GRANT: That's right, we didn't argue it was. 9MACFARLANE, J.A.: And so when we look at the feast we're not 10 looking at an occurrence at which laws of general 11 application are passed that apply to the whole 12 territory. 13MR. GRANT: Not that they're passed. 14MACFARLANE, J.A.: What I see in it is some evidence of an 15 organized society. 16MR. GRANT: Yes. 17MACFARLANE, J.A.: But I don't see in it necessarily evidence of 18 the existence of laws which govern the whole 19 territory. For one thing, when we're looking at a 20 feast, we're looking at an event which is organized by 21 a family, a chief of one family, we have witnesses, 22 you say we have guests from other families, and we 23 have the chief making assertions one way or another, 24 as you say are assertions of ownership. 25MR. GRANT: And the guests confirm those. 26MACFARLANE, J.A.: And the guests don't object to it. 27MR. GRANT: No, they confirm it at the end of the feast. 28MACFARLANE, J.A.: And unless we're satisfied that when there is 29 a feast that the guests comprise all of the Indian 30 nations in the territory, I wouldn't think one would 31 draw the inference that there was -- that they were 32 giving their blessing to laws of universal 33 application, that is, of application throughout the 34 whole territory. I'm looking at the map of the 35 Gitksan territory and of the Wet'suwet'en territory 36 and all of the internal boundaries and all of the 37 different families that there are. As I read the 38 judgment in its context I thought the Chief Justice 39 was saying that we don't question that there was 40 feasting, there was no question as to what occurred at 41 the feasts, no question that it wasn't a legislative 42 body, you agree with that, but that the evidence 43 wasn't sufficient overall to ground the conclusion 44 that what was recognized at a particular feast was a 45 binding authority on all of the other families in the 46 territory. And, therefore, was not evidence of the 47 existence of universal laws applying to the whole of 610 Submissions by Mr. Grant 1 the territory, which, in my mind, is important in 2 considering the question I raised last week about 3 resources, control over resources. I don't think 4 there can be any doubt that the people used the 5 resources and they had laws relating to conservation, 6 to put it the other way, that they had -- I suppose 7 law is good enough -- as to the use of the resources 8 and the conservation of resources, that's so. But 9 whether those were universal in their application 10 there is such a nature as to lead to the conclusion 11 that they formed a body of law which applied to the 12 whole of the Indian territory and which can now be 13 said to be something that is to be preferred to the 14 provincial law when they come into conflict. I don't 15 understand that anything that I've heard in the last 16 few days leads to that conclusion. 17 Let me just finish one other thought. As I 18 listened to all of this evidence I conceded that it's 19 directed at and it's striking at the trial judge's 20 conclusion that ownership was related only to villages 21 here and there and not to larger areas, I can 22 understand that. And Trader Brown's references and 23 all the others that we see really indicates something 24 more than a people who just lived off in a village 25 here and a village there. That's so. So all right. 26 But that doesn't mean to say that they're universal 27 laws of ownership of land, universal laws relating to 28 the resources of the land. That's the problem I'm 29 having is where this all carries us. I understand a 30 lot of the things you're saying and I think that's so 31 and I don't think the Chief Justice really said it was 32 not so. But where does it take us? 33MR. GRANT: I'm unclear, my lord, because I want to be clear in 34 answering you, when you say but it doesn't show 35 universal ownership -- or I think you said or 36 universal laws relating to the land. I'm not sure 37 where you're finding that missing. 38MACFARLANE, J.A.: Maybe I can — well, I don't know that I want 39 to say I'm finding it missing. I think what I'm 40 saying is that, as I read the judgment, I understand 41 the trial judge to be saying not that there wasn't a 42 significance to the feast, not there wasn't 43 recognition of a system of regulations and so on by 44 chiefs and perhaps by bodies of chiefs but, rather, 45 that there were -- the evidence doesn't go far enough 46 to say that all of the chiefs of all of the houses and 47 all of the territory were of one mind as to the laws 611 Submissions by Mr. Grant 1 as to who owned what and the laws which would apply in 2 the territory. That seems to me what his conclusion 3 was in the end. 4 Now, there is some of these remarks that were made 5 in the course of the judgment which you've taken issue 6 with, such as Trader Brown, Trader Brown's diaries 7 being referred to as equivocal. Well, I don't agree 8 with you. They don't appear on their face to be 9 equivocal in the sense that they don't -- well, I 10 don't find the language to be equivocal. The language 11 seems to be straightforward and understandable. The 12 diaries may be equivocal, in one way, if you're asking 13 whether they establish that -- if they establish 14 ownership as such or that particular people had title 15 to particular regions or you get into the specifics, 16 in other words, they may be regarded -- you may regard 17 them as a general statement of what the people were 18 saying. Obviously they lived there. Obviously they 19 asserted the right to occupy the lands where they were 20 living. Obviously they asserted the right to own 21 those lands. But that doesn't answer the whole 22 question. So I say, well, okay, you can make an 23 attack on the use of the word equivocal but, you know, 24 it doesn't really carry a great far and I don't 25 understand where the attack on the feast proposition 26 carries you because he doesn't give it any different 27 meaning than you give it. I don't read that judgment 28 as finding the trial judge says that the feast was of 29 no importance, I think he uses the word importance. 30 They don't deny it was an important institution. 31MR. GRANT: And it may be the language that he uses, "it's not a 32 legislative," and you say you take issue with certain 33 of the language in the judgment. But let me just give 34 you one example, and I would like to think of what 35 you've raised and come back to it this afternoon. But 36 one example I can give you, and I'm concerned, my 37 lord, because in giving you this overview in the last 38 few days, Mr. Rush and I, it appears that some things 39 we may have just not been clear on. One example is 40 this, let us look at the Wet'suwet'en feast. You see 41 all of these people, all of these houses in this 42 southern territory along from this line down and there 43 is, I agree, there is a large number of territories. 44 When you count up the houses you have 13. And the 45 evidence before the Chief Justice and the evidence of 46 the feast, if we take you into the feast books and all 47 of that, which for time and other reasons we're not 612 Submissions by Mr. Grant 1 doing, although we're trying to refer you to them, is 2 that all of those houses are represented at the 3 Wet'suwet'en feasts, so when one of those houses has a 4 pole raising feast and announces their territory and 5 says this is where it is and this is the history and 6 this is our territory, all of the Wet'suwet'en houses 7 are at that feast. That is the evidence. Now, I say 8 that with respect to the Wet'suwet'en. And I want to 9 say this, that one thing I probably -- 10MACFARLANE, J.A.: When does the trial judge say something 11 different? 12MR. GRANT: Well, as I recall, he doesn't say that one way or 13 the other. But I'm trying to direct myself to what 14 you're raising, because one of the things you said, 15 well, if all the chiefs, if all of the people are 16 there or represented there and agree that this person 17 is the owner of this territory, I may be taking what 18 you said wrong, my lord, but I understood you to say 19 that's one of the problems. You just have these 20 feasts that a family puts on. It's not quite that way 21 and I didn't mean to imply it was that way. So that 22 you have all of the Wet'suwet'en confirming. 23 The other point is that in the evidence there's 24 been disputes about this and there was evidence that 25 where in a feast a chief stands up and says yes, this 26 is my territory and it's referenced under paragraph 27 496-F and 496-D, the Stanley Williams example. The 28 chief, the guest chief stands up and says you're 29 wrong. And it's dealt with right there. And if it 30 can't be dealt with there, then the other chief who is 31 disputing that claim is obligated to hold a subsequent 32 feast solely to deal with that issue. And, again, at 33 that feast all of the houses are brought in. 34 So what I'm saying is that yes, the feast is an 35 important institution, legislative in the sense that 36 Mr. Justice Lambert was trying to look at that 37 distinction. It's not necessarily law making. If you 38 talk about it as an enforcement of the rights, it's 39 there. And going to the Gitksan because of the large 40 number of them -- 41MACFARLANE, J.A.: But does the trial judge say anything 42 different? 43MR. GRANT: Well, he doesn't find that the feast is an 44 institution reflective of law. The trial judge, 45 remember, found that there were -- he found that the 46 feast was in place. 47MACFARLANE, J.A.: Let me just stop you. You have repeated 613 Submissions by Mr. Grant 1 references in your factums to the use by the trial 2 judge of the words that "the feast was not a 3 legislative body." 4MR. GRANT: Right. 5MACFARLANE, J.A.: Okay. And when we trash our way through all 6 that we find that you agree with that, it's not a 7 legislative body. And so there is no error there. 8 Now, I know what you're saying to us and you're saying 9 to me, but my problem is that I'm not the trial judge. 10MR. GRANT: I understand that. 11MACFARLANE, J.A.: And I haven't read all the evidence from the 12 start to the finish and before I'd overrule a trial 13 judge I would read all the evidence from start to 14 finish. And so what I'm saying is, well, what is it 15 that the trial judge says that is so patently wrong 16 that I would say that he couldn't have said that if he 17 had regard to the evidence. That's your argument. 18MR. GRANT: I can take you to page 373 where he does deal 19 specifically with that. 20THE COURT: Obviously, I haven't got this all firmly in mind but 21 I continue to struggle with particularly this problem 22 of the feast. 373 you say? 23MR. GRANT: Yes. This is at the bottom of page 373 (k) where 24 the appellants claim confirmation of ownership of a 25 jurisdiction of a territory through the feast system. 26 And this is where the trial judge says, 27 28 "I do not question the importance of the feast 29 system in the social organization of 30 present-day Gitksan and I have no doubt it 31 evolved from earlier practices but I have 32 considerable doubt about how important a role 33 it had in management and allocation of lands, 34 particularly after the start of the fur trade. 35 I think not much, for reasons which I have 36 discussed in other parts of this judgment." 37 38 And, of course, here one can only imply he's referring 39 to inter alia his reliance on the Macaulay thesis on 40 Loring. 41 42 "Perhaps it will be sufficient to say that the 43 evidence about feasting is at least equivocal 44 about its role in the use or control of land 45 outside the villages." 46 47 And what we say, my lord, is we say that -- and above 614 Submissions by Mr. Grant 1 that under (f) he says in the last sentence, 2 3 "I do not accept the ancestors 'on the ground' 4 behaved as they did because of 'institutions.' 5 Rather I find they more likely acted as they 6 did because of survival instincts which varied 7 from village to village." 8 9MACFARLANE, J.A.: All of that may be wrong and a wrong 10 perception of the evidence, but -- and that's fine. 11 And what's said on page 373 is a lead in to what is 12 said on page 374 in the last paragraph which is the 13 one you have repeatedly come back to as being wrong. 14 But I was looking at this and this paragraph is 15 contained in the section of the judgment dealing with 16 aboriginal jurisdiction or sovereignty. And it starts 17 out with the reference to Neil Sterritt and to the 18 brief he submitted to the Penner Commission, and which 19 he says in that brief, 20 21 "...the feast hall was our seat of government. 22 It filled a legislative and judiciary function. 23 It taught us how and why to govern..." 24 25 and so on. And then the Chief Justice makes 26 statements to which you object not being a legislative 27 body which is a follow-up of what he said at 373 28 really. And then we get into three pages of the 29 evidence of Mr. Sterritt, cross-examination, at which 30 time Mr. Sterritt over and over again when he's 31 asked -- this is an example: 32 33 "Q Is it your understanding that the plaintiffs 34 claim that such laws supersede the laws of the 35 province if the two are in conflict? 3 6 A I don't know." 37 38 And so on. He says, "I don't know," and we've got all 39 the answers there. And it's only after we get through 40 three pages that we find that consistently he doesn't 41 really know, and then in re-examination he finally 42 says yes, it is so. But anyway, the Chief Justice has 43 started out making these remarks to which you complain 44 but it's in a context of an examination of what he 45 perceived to be important evidence in this case on 46 this question, and obviously he thought the evidence 47 of Neil Sterritt was of prime importance on this 615 Submissions by Mr. Grant 1 question and that's where the focus was. And he 2 refers to Ceril Shelford's evidence somewhere in here. 3 And Ceril Shelford's operating the territory and never 4 ran into anybody who claimed ownership. 5MR. GRANT: But he knew a lot about land claims he mentioned. 6MACFARLANE, J.A.: Of course he did. 7MR. GRANT: Yes. The point about Ceril Shelford — I'm sorry, 8 my lord. 9MACFARLANE, J.A.: So did I, because we're both there in the 10 legislature of Frank Calder, you know, in the 1960s. 11 But the focus of the trial judge's judgment here in 12 the section, he makes these general statements what he 13 thinks about the feast but then he gets into the 14 specifics of the evidence, Neil Sterritt's evidence. 15 And then he turns at page 378 to your argument. 16MR. GRANT: Yes. 17THE COURT: And he addresses your argument and takes extracts 18 from the transcript with respect to your argument. 19 And he goes on. And then he gets down to 380 and he 20 deals with what he thought to be inconsistencies in 21 the evidence, you dealt with those the other day, 22 that's (a) to (m) . 23MR. GRANT: Taking that one law as an example. 24MACFARLANE, J.A.: Yes. We have to look at all of that again. 25 But what I'm saying is that you're asking me, I 26 understand, and the rest to draw the conclusion that 27 he disregarded the evidence in reaching his conclusion 28 with respect to ownership and yet, when you look at 29 the judgment, that section of the judgment, I find 30 that what he has done is he has not disregarded the 31 evidence so much as he's emphasized what he thought 32 was the important evidence and most important evidence 33 was Neil Sterritt's evidence. And I don't think you 34 would try to tell me that Neil Sterritt's evidence 35 wasn't some of the most important evidence given at 36 the trial. And so how then can I say oh, well, I've 37 listened to Mr. Grant and Mr. Rush make these 38 excellent submissions on the basis of all the things 39 they've referred us to and I've come to a different 40 conclusion. The Chief Justice is quite wrong as a 41 matter of fact. He's entitled to look at all the 42 evidence that he looked at there and come to that 43 conclusion. And I have difficulty saying that, in 44 that context, that I would, you know, could step in 45 and just overrule the finding. I mean, there are 46 certain aspects of it I agree with, I have a question 47 about, but I don't know whether they play that large a 616 Submissions by Mr. Grant 1 role in the conclusion he finally reaches. 2MR. GRANT: First of all — 3MACFARLANE, J.A.: Let me just finish that. And he didn't 4 disregard your submissions. 5MR. GRANT: He quoted those submissions. 6MACFARLANE, J.A.: That's important. 7MR. GRANT: My lord, first of all, what we say, and maybe 8 because it's focussed in the factum in a different way 9 it's a problem, but what we say is on page 372 and 10 373, his heading is "Aboriginal Jurisdiction and 11 Ownership Before Sovereignty." The focus of our 12 argument when we were asked by the trial judge, when 13 we were asked by the court what do you mean by those, 14 we took the court to paragraph 57 of the Statement of 15 Claim. And here is what he does with paragraph 57. 16 We say this is what we're talking about. And what he 17 does on 372 and 373, in our submission, is that's 18 where he makes his findings, those are his 19 conclusions. He accepts (a) they lived within the 20 territory. And he goes through each of those. If 21 there is a central part of his judgment on this issue 22 that we are challenging, it is the particular findings 23 on 372 and 373. 24 Now, on the next page I agree we focus on the 25 paragraph of Brown's reports and Loring's reports. 26 Why do we focus on those? Because in that section on 27 aboriginal jurisdiction or sovereignty, my lord, that 28 is where he deals with what we say is a central 29 institution that shows jurisdiction, the feast. He 30 deals with it in Brown -- he refers to Brown and 31 Loring. The cross-examination of Mr. Sterritt was 32 not, and I confess I have not read it this morning 33 since you've just referred me to it again, but from my 34 recollection is not about the feast. The 35 cross-examination of Mr. Sterritt was close to the 36 kinds of questions that your lordship was asking and 37 which we will respond to in terms of our closing 38 argument in terms of the remedy. Mr. Sterritt, do 39 these laws supersede? Quite frankly, my lord, with 40 respect, do they take precedence over the laws of B.C. 41 and Canada? Quite frankly, that answer -- there can 42 be two answers there, a political answer and a legal 43 answer. A factual answer is not what this court -- 44 it's a question of law. Which laws take priority? 45 And in that respect, my lord, in the analysis of the 46 trial judge of the Chief Justice's ruling there is, 47 with respect, I say he jumped off, he missed the boat 617 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 2 6HUTCHEON, 27 28 2 9MR. GRANT 30 31TAGGART, 32 on the jurisdiction. He missed it. And the only place he really deals with the feasting is he makes his comments under (f) on 373. We specifically say they confirm ownership and jurisdiction through the feast system. That's what we want you to find. He makes his finding. "...the evidence about feasting is at least equivocal about its role in the use or control of land outside the villages." This is the bottom of 373. That's what he says. That's what we're trying to say. With respect, he had to have disregarded the evidence or not taken it properly under account under the government test. That is the issue. And I appreciate that by restating in different parts of our factum the paragraph about Brown and Loring on the feast we may have implied to the court that we want you to overturn that. That was an introduction to when we analysed what Brown says and what Loring says. And all we can say about the Chief Justice or the trial judge is that certainly it was important for him, his analysis of Brown and Loring when he looked at the feast, and we say, unfortunately, with respect, he was wrong. J.A.: Can I just ask a question. What is the origin of this memorial on page -- paragraph 495? Do we have some evidence? Yes, it's in the materials, my lord. It was a report to the Superintendent of Indian Affairs by -- J.A.: I take it by this time there had been, either by a change in the Indian Act or Regulations, I don't 33 know which, maybe both, then a cessation or a 34 prohibition against, in some legislative form, there 35 had been a prohibition against the feasts. 36MR. GRANT: Since 1885. 37TAGGART, J.A.: Yes. And that's still on the statute books and 38 this memorial was directed at the repeal of that. I 39 haven't read it all but it seems to me -- 40MR. GRANT: Yes, I believe that's the case. 41TAGGART, J.A: That's the context, is it? 42MR. GRANT: I don't have the entire document. I think I can 43 give you the answer, but I'd rather be sure. 44HUTCHEON, J.A.: It sets out what the appellants now claim is 45 the purpose of the feast, is it not? 4 6MR. GRANT: Yes. 47HUTCHEON, J.A.: Written in 1922. So I'm interested in its 618 Submissions by Mr. Grant 1 origin. Was it made up by somebody out of whole cloth 2 or does this represent somebody's experience? 3MR. GRANT: My understanding — 4HUTCHE0N, J.A.: Going back through the years. 5MR. GRANT: I'll provide you the answer to that. 6HUTCHE0N, J.A.: And it's speaking for the Indians of British 7 Columbia as a whole? 8MR. GRANT: Yes. 9HUTCHE0N, J.A.: It's not purporting to relate, I take it, to 10 the Gitksan alone? 11MR. GRANT: Certainly including but not alone, that's right. 12HUTCHEON, J.A.: If you were to describe that as the purpose of 13 the feast, then it seems to be contrary to what the 14 Chief Justice has held. 15MR. GRANT: Yes. And that's what these authors found in 1922. 16HUTCHEON, J.A.: That's what I don't know who they are. 17MR. GRANT: Let me come back to you with respect to that. 18HUTCHEON, J.A.: All right. 19MR. GRANT: My lord, I've referred in paragraph 496 and the 20 response is certainly -- and disputes over fishing 21 sites. I have sub-tabbed that paragraph for you so 22 it's (a) to (1) in the reference book but (d) and 23 (f) -- and I'd ask you to highlight Stanley Williams 24 at (d) and references at (d) of Mary Johnson and Ada 25 Michell. 26 Now, I'd like to answer the question raised by 27 your lordship Mr. Justice Wallace yesterday and Mr. 28 Justice Lambert expands on it. My understanding, my 29 lord, Mr. Justice Wallace asked yesterday what is the 30 relationship between the practice of Stanley Williams 31 in terms of preparation for hunting and the law, or 32 the Gitksan laws, in this case it was a purification 33 law, how does it help you to give you those examples? 34 And my understanding of the question of your lordship 35 Mr. Justice Lambert was what is the relationship 36 between those practices and the rights to which we are 37 asserting. 38 Now, firstly, the first point is that the 39 particular practices to prepare in this case for 40 hunting, which varies from house to house, I gave you 41 one house example but they have different practices, 42 are examples of a normative rule or law which governs 43 Gitksan and Wet'suwet'en management and harvest of 44 resources from their territory. In order to properly 45 manage and harvest the resources, you have to be in a 46 proper position and a proper training and proper 47 skill. This is not just the training, as I indicated 619 Submissions by Mr. Grant 1 yesterday, to shoot a gun or to use an arrow, or 2 whatever, this is the training of your proper 3 preparation, it's part of your whole personality, it's 4 part of how you train yourself. Now, that's part of 5 the normative rule or law which govern the Gitksan and 6 Wet'suwet'en. It's unique to them. It's not 7 something that I would expect my father or my brother 8 to do. As Mr. Justice Taggart stated -- asked last 9 Friday, are the activites, in this case the practice, 10 provide evidence of the rights, and I say yes, in this 11 case the right to harvest, manage and conserve the 12 resources, the right to govern the resources, it's one 13 example. The relationship between the practice 14 established in the evidence, the practice in this case 15 of setsaht, and the laws of the appellant is analagous 16 to the relationship discussed last week by Mr. 17 Jackson, between the practice or activity of hunting 18 and the larger right of ownership or exclusive 19 possession, or possession. As Mr. Jackson stated last 20 Friday, the right is a right to enjoyment and 21 profitable possession of the territory, in answer to 22 Mr. Justice Lambert's question, to which the 23 underlying title of the Crown is subject. The 24 appellants have in the past and to the present -- 25LAMBERT, J.A.: Not to which the underlying title of the Crown 26 is subject, but subject only to the underlying title 27 of the Crown. 28MR. GRANT: Yes, yes. 29LAMBERT, J.A.: Sorry to interrupt you. 30MR. GRANT: Thank you, my lord. The appellants have in the past 31 and to the present, and this is what Mr. Jackson was 32 referring to, continued to exercise that right, and 33 that is the right of enjoyment of profitable 34 possession of the territory inter alia through hunting 35 and fishing and other activities. 36 Now, coming back to this point on jurisdiction, 37 in the same way particular practices, such as those 38 described by Stanley Williams, on how he was trained 39 in Gitksan law, including the Setsaht for hunting, are 40 evidence of specific example of how the appellants 41 exercised aboriginal right to govern the land, the 42 resources, and the harvest, manage and conserve the 43 land in those resources. 44 Now, I appreciate, my lord, that when we look at 45 something like setsaht it's one of the most difficult 46 to see, and I appreciated your question, it's one of 47 the most difficult to see how this works. So I'd just 620 Submissions by Mr. Grant 1 like to allude to what I've referred to otherwise. 2 I've provided the court in the last few days with 3 examples of laws relating to dispute resolution in the 4 case of a death, an accidental death. The case of Mr. 5 Wesley where land was transferred in 1958. Four other 6 examples, and there is an example in the reference in 7 paragraph 496 (f) under Mary Johnson of a 1900 death 8 of a Kispiox man that I didn't refer to. That law, I 9 say, those examples provide evidence of a Gitksan and 10 a Wet'suwet'en law or normative rule that reflects 11 that compensation must be made, including in many 12 cases compensation of land, land rights, a person or 13 money. This is ratified and occurs in the feast. 14 This is yet another example of how the appellants 15 governed and continue to govern themselves as part of 16 their aboriginal right of self-government. Similarly, 17 the laws relating to adoption, divorce, access to land 18 by specific relatives that Mr. Rush referred to is a 19 further example. And I, with liberty, my lord, to 20 paraphrase what your lordship Mr. Justice Lambert said 21 last week, the aboriginal right is the aboriginal 22 right to self-government. These are only specific 23 examples of the form of that right. The specific laws 24 or normative rules are example of the exercise of an 25 aboriginal right and a foundation on the evidentiary 26 base that there is such a right and that such a right 27 was practiced at the pertinent time which we have said 28 was 1846 for the court to assess the system that was 29 recognized in the common law principle of aboriginal 30 rights. And, of course, I'm not intending, nor did we 31 intend before the trial judge, to give an exhaustive 32 example of all of the laws. It's not to say -- 33 therefore it's very important in the area of 34 self-government, that we're not asking you to say we 35 recognize that they have rights of laws of 1, 2, 3 and 36 4. The right is the right of self-government. 37 And then that comes to the point raised by Mr. 38 Justice Macfarlane, not this morning, my lord, but on 39 Friday, that that right is, of course, how we 40 characterize that when we come back to remedies is the 41 same with respect to the resources in terms of the 42 issue of co-existence and how that intermeshes. 43 That's my response to your lordship's question. I'm 44 not sure if I -- 45TAGGART, J.A.: Are we passing now to another paragraph or 46 another point? 47MR. GRANT: We're passing to another speaker, another section. 621 Submissions by Mr. Adams 1TAGGART, J.A.: Would it be a convenient time to take the 2 morning break? 3MR. GRANT: It certainly would, my lord. 4THE REGISTRAR: Order in court. Court is adjourned for a 5 brief recess. 6 7 (PROCEEDINGS ADJOURNED FOR MORNING RECESS) 8 (PROCEEDINGS RESUMED at 11:40 a.m.) 9 10THE REGISTRAR: Order in court. 11TAGGART, J.A.: Yes. 12MR. ADAMS: My lords, it's been some time since counsel were 13 introduced. It's Murray Adams for the appellant. I 14 will be speaking to Appendix E of the appellant's 15 factum which is concerned, in general, with expert 16 opinion evidence but, overwhelmingly, with 17 anthropological opinion evidence, to some extent 18 historical opinion evidence, and I will be relying on 19 the trial judgment, on the factum and on the four 20 volumes of references which are R-25 through 28 21 inclusive. I will be taking you to a few of the 22 references in the back, for the most part I will be 23 following the factum. 24 My lords, for the last couple of days you have 25 been hearing argument from Mr. Rush and Mr. Grant. 26TAGGART, J.A.: I'm sorry, where are you in the factum? 27MR. ADAMS: I have some introductory remarks, my lord, then I 28 will be going to the first paragraph of Appendix E. 29 You've been hearing from Messrs. Rush and Grant 30 about social, political and economic organization of 31 the Gitksan and Wet'suwet'en societies stretching back 32 before the assertion of sovereignty and before their 33 first contact with non-Indians. And they have 34 referred you, on many occasions, to the opinion 35 evidence of the anthropologists, Drs. Daly and Mills, 36 and Mr. Brody, and the historical geographers 37 Professor Ray and Dr. Galoia. But the trial judge 38 rejected as both unnecessary and is entitled to no 39 weight all the expert anthropological evidence of the 40 witnesses I have mentioned, and some of the expert 41 historical evidence called by the appellants to 42 illuminate these matters. 43 And, my lords, I say further to some of the 44 questions asked in court this morning, in particular, 45 these witnesses spoke to the nature and existence of 46 what can be understood as laws which govern behaviour 47 throughout the territories in the sense of rules that 622 Submissions by Mr. Adams 1 people regard as binding on them wherever they are 2 within their territories. 3 And in further response to a concern raised in 4 court this morning, this was evidence which explicitly 5 was wholly disregarded. There is no question of it 6 having been weighed, it was tossed out. And the 7 commentary on this evidence in the judgment occurs on 8 the very few pages, it begins at page 169, in the 9 Western Weekly Reports of the judgment, and goes 10 through to paragraph -- or page 172. And, in 11 particular, at page 172 the trial judge had this to 12 say -- I'm in the second full paragraph on page 172: 13 14 "Apart from urging almost total acceptance of 15 all Gitksan and Wet'suwet'en cultural values, 16 the anthropologists add little to the important 17 questions that must be decided in this case. 18 This is because, as already mentioned, I am 19 able to make the required important findings 20 about the history of these people, sufficient 21 for this case, without this evidence." 22 23 My lords, the appellants -- and I'm now at 24 paragraph 2 of the factum -- the appellants called 25 three anthropologists, whose names were given, to give 26 evidence on the Gitksan and Wet'suwet'en organized 27 societies. 28TAGGART, J.A.: Paragraph 2 of Appendix E? 2 9MR. ADAMS: Appendix E. 30TAGGART, J.A.: Do we need the factum itself for this? 31 We can get along with Appendix E alone? 32MR. ADAMS: I have some cross-references to make but they won't 33 require looking at the factum itself. 34 Continuing in paragraph 2 of Appendix E, my lord. 35 Their evidence, if accepted, would have established 36 that from long before the advent of European influence 37 the Gitksan and Wet'suwet'en societies have had 38 central features, including institutionalized 39 ownership and management of large, widespread 40 territories; institutionalized political authority 41 over themselves; and a commerce in primary and 42 manufactured products, both within the territories, 43 and beyond their boundaries. 44 And to illustrate that as the thrust of these 45 witnesses' evidence I want to take your lordships to 46 some of the references listed under paragraph 2. And 47 all should be at E-2 in Volume R-25. And the first is 623 Submissions by Mr. Adams 1 Dr. Mills, and this is the first reference under E-2 2 at page 2. She was an anthropologist, as we'll see, 3 with long experience, not only with the Wet'suwet'en 4 but dealing with other linguistically and otherwise 5 related Athapascan peoples. And this is what she says 6 beginning about eight lines down on page 2, this is 7 her opinion report from the trial which was admitted 8 into evidence, even though it was subsequently wholly 9 disregarded. She says, 10 11 "...from their most ancient history the 12 Wet'suwet'en described themselves as taking 13 part in the north west coast system in which 14 territory is held by particular, named 15 hereditary chiefs on behalf of House members. 16 The kungax," 17 18 and your lordships will recall it's a reference to the 19 oral history performances and songs, 20 21 "depict a series of battles between the Dizkle 22 Chief Goohlaht," 23 24 who is one of the named plaintiffs, 25 26 "and people from down river, until the chief 27 decides to make peace by holding a feast to put 28 an end to further warring. Thus the feast was 29 instituted as an international mechanism" -- 30 31TAGGART, J.A.: Sorry, Mr. Adams, we're having problems. 32MR. ADAMS: E-2, my lord, the second page. I'm now into the 33 first full paragraph past the middle of the page. 34 35 "Thus the feast was instituted as an 36 international mechanism for settling disputes 37 and demonstrating ownership over contested 38 territory in the very earliest Wet'suwet'en 39 history. The feast continues today to have the 40 function of making clear who has succeeded to 41 the chiefs' titles, associated with 42 jurisdiction over the discreet Wet'suwet'en 43 territories. The feast operates as a forum, in 44 which Wet'suwet'en law is enacted and upheld." 45 46 Now, I pause, my lord, to say that all of these 47 witnesses spoke to the difficulties of identifying law 624 Submissions by Mr. Adams 1 and the law-making function in these kinship societies 2 and the fallacy of looking for the place where the 3 laws are made in the sense of being enacted where you 4 could see a law of general applications spring up all 5 at once and thereafter to be applied. That's not part 6 of the argument that I was going to make this morning. 7 It is a set of references that the appellants will 8 provide your lordships with, references from each of 9 Dr. Daly, Dr. Mills and Mr. Brody that address that 10 very question, that may be of some assistance in 11 considering the question of law. 12 Carrying on in that same reference at page 4, Dr. 13 Mills in the first full paragraph on page 4 says this: 14 15 "The Wet'suwet'en annual cycle included trips to 16 trade the specialties of their land: Saskatoon 17 arrow shafts, soap, berries, furs and hides for 18 the rich ooligan grease, coastal foods and 19 ornaments. The Wet'suwet'en traded not only 20 with the Gitksan and the Tsimshiam, but with 21 the Nishga on the Nass and the Kitimat or 22 Northen Kwakiutl to their southwest. 23 The exchange of goods over a long period 24 prior to white contact was facilitated by the 25 aboriginal adoption by the Wet'suwet'en of the 26 clan, crest and feast name system of the 27 Gitksan and Nishga." 28 29 And the next reference to Dr. Mills is now, my 30 lords, at the back, the third from the back of this 31 tab E-2. There is some coloured dividers which are 32 additions, the first pink divider at the back of the 33 tab. And Dr. Mills says this: 34 35 "The Wet'suwet'en feast, in which titles within 36 the Houses and the clans are conferred on the 37 chosen representative, who assumes stewardship 38 of the associated territory, is central to the 39 Wet'suwet'en government. From most ancient 40 history, through the time of contact until 41 today the feast system stands as the central 42 structure of the Wet'suwet'en." 43 44LAMBERT, J.A.: I'm sorry, I don't have it. There is no pink 45 divider I can find. You said it was at page 8? 46MR. ADAMS: I may be misleading you and my friends by referring 47 to the colour of the dividers. Mine are pink, it may 625 Submissions by Mr. Adams 1 not be. It's the third reference from the back of 2 E-2. 3HUTCHE0N, J.A.: My page 8 starts out differently. 4LAMBERT, J.A.: Mine does, too. 5MR. ADAMS: My lords, the same page is elsewhere in E-3, which 6 is a very long tab, the sixth reference from the back. 7 And it's about three-fifths of the way through the tab 8 and the page starts, "People from different 9 territories." The problem is there are two pages 8, 10 one is from Mr. Brody's report, one is from Dr. Mills. 11LAMBERT, J.A.: Are we looking for Dr. Mills? 12WALLACE, J.A.: What lines are at the top of the page? 13MR. ADAMS: "People from different territories," my lord. The 14 passage I read was the only full paragraph at the 15 bottom of that page. 16WALLACE, J.A.: Why don't you provide us with it later and carry 17 on. 18MR. ADAMS: Thank you, my lord, I'll do that. That was Dr. 19 Mills and she was writing about the Wet'suwet'en. 20 Dr. Daly, his mandate was to study the historical and 21 contemporary economies of both the Gitksan and the 22 Wet'suwet'en. And at the back of E-2, I have it as 23 the second last reference, should be a page 1 headed 24 "CHAPTER I, THE SUBJECT, SOURCES AND METHODS." And 25 this is Dr. Daly introducing his report and he says, 26 27 "This report is an anthropological opinion about 28 the claim by the Gitksan and Wet'suwet'en House 29 chiefs that their respective peoples possess a 30 system of ownership of land and fishing sites - 31 on and around the Skeena, Bulkley and upper 32 Nass Rivers - where they have managed, 33 harvested and conserved resources both before 34 the arrival of Europeans and to the present 35 day; that in these territories the Gitksan and 36 Wet'suwet'en have processed, stored and 37 distributed goods derived partly from the 38 application of labour and knowledge of the 39 resources and partly through trade, barter and 40 intermarriage with neighbouring peoples; that, 41 despite the changes to this economy in the past 42 century (namely it's articulation with the 43 political economy of Canada) the Gitksan and 44 Wet'suwet'en economy is still focussed around 45 the core of hunting and fishing activities on 46 the territories; that these activities are 47 organized on the basis of kinship relations... 626 Submissions by Mr. Adams 1 That's his investigation that, my lords, with 2 allowance for his conclusions about the extent to 3 which there have been changes in these economies and 4 Mr. Grant has referred to some of those and I will 5 refer you to some more. 6MACFARLANE, J.A.: Is that Dr. Daly? 7MR. ADAMS: That's Dr. Daly. 8MACFARLANE, J.A.: Exhibit 884. 9MR. ADAMS: Exhibit 884-1, my lord. 10LAMBERT, J.A.: I wonder if you could just give me how I find my 11 way to the documentary reports of Dr. Daly, Dr. Mills 12 and Dr. Brody. 13MR. ADAMS: Yes, my lord. Dr. Daly's report is Exhibits 884-1 14 and 884-2, it was in two volumes. Dr. Mills' report 15 is Exhibit 906 and Mr. Brody's report is Exhibit 991. 16TAGGART, J.A.: Give me Brody again, please. 17MR. ADAMS: Exhibit 991, my lord. 18LAMBERT, J.A.: Are you able to add anything that would lead me 19 from here to there, that is, do you know anything 20 about where the appeal books -- are these in the hard 21 copy appeal books somewhere? 22MR. ADAMS: My understanding is that they are, my lord. 23LAMBERT, J.A.: You can't give us, for example, the appeal book 24 number for these three reports? 2 5MR. ADAMS: I can't, my lord. I can find one but I don't have 26 it at hand. 27LAMBERT, J.A.: If you could ease the task of locating these 28 three things for me or us at lunchtime, or some such 29 time, or whenever you can, then I would appreciate it. 3 0MR. ADAMS: Yes, my lord. 31 My lords, there is a further reference under 32 paragraph 2 to Dr. Daly's report, and this should be 33 the very last reference of tab E-2, page 43. And 34 there Dr. Daly writes, 35 36 "Through my study of the oral histories and 37 archaeological reports I have found no evidence 38 which suggests that general features of the 39 Gitksan and Wet'suwet'en economy - its system 40 of matrilineally owned territories, its 41 seasonal round, its feasting exchanges, and its 42 reliance upon an annual seasonal round of 43 subsistence goods obtainable by means of 44 hunting, trapping and fishing - did not exist 45 prior to the proto-contact period." 46 47 And your lordships may recall that proto-contact is 627 Submissions by Mr. Adams 1 used in some of the literature to refer to a time when 2 there is thought to have been non-Indian influence but 3 no non-Indian presence in the form of persons, that 4 is, precontact. 5 6 "The archaeological record of consistent 7 habitation on the Skeena watershed for the past 8 five thousand years generally supports the 9 peoples' view that the seasonal round of 10 harvesting salmon and game has been practiced 11 in the river systems of the claimed Gitksan and 12 Wet'suwet'en territories for a very long time." 13 14 And, finally, dealing with Dr. Daly, my lords, in 15 the same tab, E-2, at the second reference from the 16 front of the tab, which should be Chapter III of his 17 report, I would like to refer your lordships to pages 18 163 and 164, which are a few pages in from the start 19 of the divider. And I'm at the bottom of 163, my 20 lord, beginning, "It is my opinion..." Dr. Daly says, 21 22 "It is my opinion that at the time of European 23 contact the Gitksan and Wet'suwet'en organized 24 their lives on an effective, rational and 25 socially responsible basis, even though they 26 did not enjoy the benefits of modern technology 27 and knowhow, and they lacked the hierarchical 28 structures of centralized administration upon 29 which the main Canadian society is based. The 30 aboriginal peoples lived with the benefit of a 31 rational system of law and order, of religion 32 and morality, an orderly and publicly 33 sanctioned system of proprietorship over land, 34 and rules for the management of the wealth and 35 power contained within the land. Without such 36 a system, regular social and economic 37 intercourse is not possible in any society." 38 39 And I emphasize that sentence, my lord, in light of 40 the trial judge's reference to survival instincts, the 41 opinion coming from the anthropologist Dr. Daly, which 42 is fleshed out at some length but captured in that 43 sentence, is you can't have a society that runs on 44 survival instincts. Societies do not run on 45 instincts. 46 Carrying on with Dr. Daly's opinion, 47 628 Submissions by Mr. Adams 1 "This opinion is based upon the available 2 documentary evidence of the nineteenth century, 3 as well as upon comparative understanding of 4 other, similar cultures 'discovered' by 5 Europeans in the past two centuries. It is 6 also based upon my understanding of the 7 present-day Gitksan and Wet'suwet'en kinship 8 society and oral culture, as explained in the 9 previous chapters." 10 11 And still within that tab, that reference, my 12 lord, at page 174, at the very bottom of the page, Dr. 13 Daly is commenting on the connection between ownership 14 of property in these systems and jurisdiction. And he 15 says at the bottom of the page, 16 17 "Conversely, the above-cited definition of 18 property includes a system of government, which 19 in its own way will help the owner exclude 20 others from the use or enjoyment of the owner's 21 property. Among the Gitksan and Wet'suwet'en, 22 ownership is predicated upon a system of 23 decentralized, kinship government. Here, the 24 means of decision-taking and enforcement is 25 worked out between Houses and clans according 26 to established rules and laws which ensure a 27 form of social control and public order. When 28 these rules are violated the violators are met 29 with socially approved negative sanctions, such 30 as the House's right in former times, to warn, 31 and eventually kill, trespassers, and today, to 32 warn trespassers in the community and publicly 33 exert pressure on them in the feast hall to 34 acknowledge their violation and conform to the 35 law." 36 37 My lords, Mr. Brody, also an anthropologist, I 38 want to take you to just one reference at this point 39 from his report. It's in tab E-2 and it's in the next 40 divider just after page 177 of Dr. Daly. I'm sorry, 41 it's after page 351. There is a further extract from 42 Dr. Daly's report and then Mr. Brody's report starts 43 with page 40 and I want to refer your lordship to 44 pages 52 and 53. And in the last paragraph on page 45 52, my lord, Mr. Brody says this: 46 47 629 Submissions by Mr. Adams 1 "The Firewood, Frog and Wolf clans, (three units 2 of Gitksan society) trace their migrations in 3 adaawk that show links across a very wide 4 area - from the Queen Charlotte Islands to the 5 central coastal areas to the headwaters of the 6 Nass and Skeena. Throughout this area, the 7 feast system reveals and expresses the 8 ownership of and jurisdiction over all 9 essential resources. And the feast system 10 assures that rules governing most aspects of 11 socio-economic life are explicit with their 12 form and due observance repeatedly witnessed. 13 The rules, moreover, establish clear ideas of 14 property and include precise ways of dealing 15 with trespassers. At the feast, where rules 16 are put into effect, rolls and seating are 17 matters of exacting concern. 18 In all these respects, the various societies 19 found along the routes covered by Gitksan 20 adaawk would seem to share characteristics 21 fundamental to settled forms of organization. 22 But Gitksan life is not quite the same as 23 Iroquois or even Tlingit life. The adaawk 24 themselves refer to repeated relocation. A 25 turning point of Gitksan history is often said 26 to be the dispersal from Temlahamid. And a 27 comparison between life in large, sedentary 28 communities with the spread of small, rather 29 mobile Houses is a repeated theme in Gitksan 30 oral testimony. These moves occurred long ago, 31 perhaps as much as 3,000 years B.P, but the 32 adaawk in which they are recorded has existed 33 ever since." 34 35 And Mr. Grant will be addressing you specifically this 36 afternoon on the question of the admissibility and the 37 weight of the oral histories. But I offer those 38 references, my lords, as giving the flavour of the 39 opinions that Dr. Daly, Dr. Mills and Mr. Brody put 40 before the trial judge and the kinds of questions that 41 they address and would have been able to assist with 42 had their evidence been considered. 43WALLACE, J.A.: Well, he considered their evidence, didn't he, 44 at page 172, he said, 45 46 "Dr. Mills ... showed she was very much on the 47 side of the plaintiffs. She has almost 630 Submissions by Mr. Adams 1 2 3 4 5 6 7 8 9 10 11 12 13MR. ADAMS 14WALLACE, 15MR. ADAMS 16 17WALLACE, 18 19 20 21 22 23 24 2 5MR. ADAMS 26WALLACE, 27 2 8MR. ADAMS 29 30 31 32WALLACE, 33 34 35 3 6MR. 37 38 39 40 41 42 43 44 45 46 47 ADAMS completely changed her opinion from that contained in her June [1986] draft...and this is a startling departure from a large body of professional opinion on the part of a witness closely associated with the beneficiaries of her new opinion. ...apart from urging almost total acceptance of all Gitksan and Wet'suwet'en cultural values, the anthropologists add little to the important questions that must be decided," and so forth. So he certainly considered the answers. : My lord my point is -- J.A.: He should have accepted it. : -- these witnesses were rejected twice over, rejected as unnecessary explicitly on page 172. J.A.: It wasn't necessary for him, in the light of the other evidence that was adduced at the trial. In other words, he had the evidence that the anthropologists did of those people who described the various feasts ceremonies and other traditions and laws of the tribe and he had almost all the evidence that they had to base their opinion, did he not, presented at the trial? : He had available that evidence, he did, my lord. J.A.: Historical reference, the same historical records? : Yes. The thrust of this argument, my lord, is that these were people qualified by him as entitled to draw inferences from that evidence that should have been -- could have been of assistance. J.A.: But he didn't need to accept it. He heard it, he considered it, and he didn't particularly -- he decided he could draw his own opinions from the same type of evidence. : My lord, I will be addressing two parts of that, one is to address the specifics of the reasons he gave on one side of this equation for rejecting this evidence, whether or not it was necessary. But I'll also be addressing the legal point that this -- these were witnesses in a position to draw inferences that the ordinary person -- the ordinary trial judge is not in a position to draw, even with the same material in front of them. And to be sure this evidence is to be weighed and sifted, but to disregard it entirely, which, in my submission, on reading of the whole judgment will sustain that's what happened, was a 631 Submissions by Mr. Adams 1 legal error. 2WALLACE, J.A.: Well, I'll be interested in hearing that 3 submission. 4MR. ADAMS: My lord, I'm at paragraph 3 of Appendix E where we 5 note that after ruling the anthropologists be 6 qualified and their opinion reports to be admissible 7 at trial, the trial judge then said -- it's the 8 passage I've already quoted to your lordships, that he 9 is able to make the required findings without this 10 evidence. And, my lords, in my submission, that's 11 more than a matter of saying, well, I have the same 12 materials as you do and I'll draw my own conclusions, 13 thank you. This is related to a point that has been 14 related to your lordships a number of times. The 15 trial judge got off on the wrong foot in his inquiry 16 because of his conclusions about the a priori nature 17 of the legal possibilities that aboriginal rights to 18 be said to cover, he wasn't looking to this evidence 19 to find out if there could be ownership and 20 jurisdiction because he had ruled out ownership and 21 jurisdiction as legal possibilities before he ever 22 came to the evidence. And it's in that light that, in 23 my submission, when he says he's able to make the 24 required findings without the evidence, it's related 25 to that initial error in conceiving that there could 26 be no question of ownership, could be no question of 27 jurisdiction to be adjudicated on the facts because it 28 was ruled out by the law. And Mr. Jackson has already 29 addressed your lordships on that question at some 30 length. 31 My lords, Dr. Daly, as well as submitting a 32 two-volume opinion report, testified orally for 11 33 days. Dr. Mills submitted an opinion report and 34 testified for 5 days, as did Mr. Brody. And further 35 into the Appendix, my lords, you will see that each 36 had conducted participant observation in the appellant 37 societies and had read wildly in the primary and 38 secondary sources dealing with the present and the 39 past of the appellant societies. 40 And, my lords, at paragraph 4 we say the writings 41 of other anthropologists and ethnographers who have 42 also studied the Gitksan and Wet'suwet'en and their 43 neighbours directly were similarly dismissed in a 44 single sentence. And that's set out there and the 45 reference is given. 46 Then we say the trial judge went on from those 47 decisions about the not needing the anthropological 632 Submissions by Mr. Adams 1 evidence to make numerous significant findings of 2 anthropological fact which were often in the face of 3 this very expert evidence which he had dismissed, in 4 our submissions, as unnecessary. And I make the point 5 again at paragraph 6 that the genesis of this error, 6 in our submission, was ruling out ownership and 7 jurisdiction as legal possibilities before the 8 evidence was even considered. 9 In paragraph 7 at the top of page 3 we list a 10 number of what we say are anthropological conclusions 11 reached by the trial judge in the course of his 12 judgment. There is reference to behaviour that was 13 not related to institutions such as survival 14 instincts, the fact that the appellant ancestors do 15 not consider themselves bound to specific lands; that 16 the feast has never operated as a legislative 17 institution in the regulation of land. That's the 18 clause we have been discussing at some length this 19 morning. The Gitksan and Wet'suwet'en laws and 20 customs are not sufficiently certain to permit a 21 finding that they or their ancestors governed the 22 territory according to aboriginal laws; the commercial 23 activities were confined to some bartering in 24 subsistence products, and that social, political and 25 economic organization was a consequence of the 26 European fur trade. My lords, I say these were all 27 matters on which the appellants submit anthropologists 28 who studied the societies should have something to 29 say. And we say that -- 30WALLACE, J.A.: Well, they may have something to say but is 31 there any reason why a trial judge couldn't reach a 32 conclusion on those particular issues from the 33 evidence that was adduced at this trial? 34MR. ADAMS: Yes, my lord. We say there is a reason, and that is 35 these people are uniquely qualified to draw inferences 36 from that material by virtue of their training, by 37 virtue of their experience in the societies, by virtue 38 of the research methods that they followed in reaching 39 these opinions, and all of those I intend to refer 40 your lordships to. 41WALLACE, J.A.: You say a trial judge could not on the evidence 42 put before him, in this case the historical documents, 43 the evidence of the witnesses as to customs and what 44 took place, procedures, could not reach a conclusion. 45 You have to be an anthropologist to be able to form a 46 conclusion on those items? 47MR. ADAMS: My lord, I say that the judgment is an illustration 633 Submissions by Mr. Adams 1 2 3WALLACE, 4 5 6MR. ADAMS 7 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 of the parel of attempting to reach conclusions on those questions without this kind of assistance. J.A.: Judgment in the sense that he didn't reach the conclusion that you didn't consider he ought to have reached. : No, my lord, in the sense that it draws what we say are impermissible inferences from the material that was before the trial judge. That's exactly what the expert's assistance is intended to be in law, in my submission, and I reach that point in the next paragraph, my lord, at paragraph 8. The foundation of admissibility of expert evidence in cases which raise factual issues about human behaviour is set out by the Supreme Court of Canada in Lavallee in the passage reproduced there. And I draw your lordships attention to the highlighted passage. "The need for expert evidence in these areas," that is, addressing human behaviour, "...can be obfuscated by the belief that judges and juries are thoroughly knowledgeable about 'human nature' and that no more is needed. They are, so to speak, their own experts on human behaviour. Expert testimony is admissible to assist the fact-finder in drawing inferences in areas where the expert has relevant knowledge or experience beyond that of the lay person." My lords, I say the balance of that judgment makes it clear that the lay person is to be equated for the purpose of the admission of expert evidence with a trial judge. My lords, at paragraph 9 the appellants submit that these considerations apply with particular force to the opinions of the anthropologists in a case where the court has to try to understand the behaviour in question that a social organization across both profound cultural divide, and from a distance of 200 years and more. And we set out there a quotation from the anthropologist Bruce Trigger and it's important for your lordships to note it was Dr. Trigger's caution about, not his rejection, but his caution 634 Submissions by Mr. Adams 1 about the use of oral history which his lordship took 2 very much to heart in placing little reliance on the 3 oral histories of the appellants. But this is what 4 Dr. Trigger had to say on the present question: 5 6 "Historical records can be interpreted only when 7 the cultural values of both the observer and 8 the observed are understood by the historian. 9 In the study of modern Western history, the 10 experience of everyday life may suffice to 11 supply such knowledge. Yet this implicit 12 approach does not provide an adequate basis for 13 understanding the behaviour of people in 14 earlier times or in cultures radically 15 different from our own." 16 17 My lords, beginning at paragraph 11 there are a 18 number of references in quotations from cases in which 19 anthropological evidence has both been admitted and 20 helpful. And as I go quickly through them I ask your 21 lordships to note two points in particular. The 22 similarities between the kinds of evidence that are 23 being -- kinds of evidence that is being adopted in 24 those cases by the courts and the evidence that was 25 offered by Drs. Daly and Mills and Mr. Brody. And 26 I'll ask you also to note the emphasis that is placed 27 in those cases on the direct study of the particular 28 people and areas involved as a factor in the weight 29 afforded to the evidence. 30 My lords, at paragraph 12 of the Appendix we 31 refer to Calder where the anthropologist Wilson Duff 32 testified "as to the nature of the Nishga civilization 33 and culture in great detail." Mr. Justice Hall quoted 34 from this evidence extensively, including evidence to 35 the effect that the Nishga had occupied their 36 territory since "time immemorial...[and]...were owners 37 of that territory." And he also stated, he being Mr. 38 Duff, with respect to the ownership of the territory: 39 40 "The territories in general were recognized by 41 the people themselves by other tribes as the 42 territory of the Nishga Tribe. Certain of 43 these territories were used in common for 44 certain purposes... . 45 These people were great traders and they 46 exploited their territories to a great degree 47 for materials to trade to other Indians and 635 Submissions by Mr. Adams 1 2 3 4 5 6 7LAMBERT, 9 10 11 12 13 14 15 16MR. ADAMS 17 18 19LAMBERT, 20 21MR. ADAMS 22LAMBERT, 23 24 25 2 6MR. ADAMS 27 28 29 30 31 32 33 34LAMBERT, 35 3 6MR. 37 38 39 40 41 42 43 44 45 46 47 ADAMS later to the white man." My lords, the reference for Calder, this Supreme Court decision, is A-3 tab 64. I draw your attention within the passage quoted to the emphasis on territories and trade which were aspects of the appellants' witnesses evidence as well. J.A.: Could I interrupt for just a second. You were going to find out the appeal books in which the evidence of Dr. Daly and the other two anthropologists would be found. I'm not sure on the basis on which Wilson Duff's conclusions with respect to the Gitksan and Wet'suwet'en went into evidence. Did they go in by reference to his published works as authorities which were never evidence, or did his published works go in as evidence? : My lord, the conclusions that are being referred to in this extract from Calder were conclusions with respect to the Nishga. J.A.: And what's more, he gave oral evidence in Calder. : Yes. J.A.: But that's not my question. My question is what were his conclusions with respect to the Gitksan and Wet'suwet'en? What basis did they go in to evidence in this case? : My lord, my recollection is there was a small extract from the Indian history of British Columbia which was in a 1965 publication of Mr. Duff's. By and large his published writings did not go in to evidence in this case. There were also -- may also have been some other articles of Mr. Duff's. I can track down the further references, my lord. I don't have them at hand. J.A.: I would be obliged if you would, at your convenience. : My lords, paragraphs 13 and 14 refer to the Supreme Court of Canada judgment in Sparrow which is A-l tab 22. And there the court relied on the evidence of anthropologist, a Dr. Suttles, for the conclusion that the appellant in that case was fishing in ancient territory where his ancestors had fished from time immemorial. There is some further indication in paragraph 14 about the sources of that opinion and says, "Dr. Suttles was qualified as having particular qualifications in respect of the ethnography of 636 Submissions by Mr. Adams 1 the Coast Salish Indian people of which the 2 Musqueams were one of several tribes." 3 4 Again, my lords, there is the emphasis on 5 qualifications related to those peoples. 6 7 "He thought that the Musqueam had lived in their 8 historic territory, which includes the Fraser 9 River estuary, for at least 1,500 years... As 10 part of the Salish people, the Musqueam were 11 part of a regional social network covering a 12 much larger area but, as a tribe, were 13 themselves an organized social group with their 14 own name, territory and resources. Between the 15 tribes there was a flow of people, wealth and 16 food." 17 18 And, my lords, I point to the opinion given there 19 about the antiquity of the Musqueam living in their 20 historic territory as something which could only be a 21 matter of inference because there could be no document 22 that could be in front of a trial court which could 23 answer that sort of question and, in my submission, 24 the anthropological evidence is full of such 25 situations where inference is required because the 26 historical documentary record, even if one were able 27 without assistance to understand it, help is still 28 needed in order to draw inferences on anthropological 29 questions. 30 Going to paragraph 15, my lord. In the trial 31 judgment in Bear Island, Mr. Justice Steele held this: 32 33 "Dr. Rogers is an ethnologist and any opinions 34 he may formulate based on information received 35 from living Indians as to their oral traditions 36 admissible in court. ...If his study had been 37 of the Temagami Indians directly, his evidence 38 would be clearly admissible and of considerable 39 weight." 40 41 And the reference in the authorities, my lords, is A-6 42 tab 105. And I point, again, my lords, to the 43 emphasis on the need for a direct study of the 44 societies involved. That's something that each of the 45 witnesses, Drs. Daly and Mills and Mr. Brody, were 46 involved in, as you'll see. 47 In Re Paulette Mr. Justice Morrow followed Mr. 637 Submissions by Mr. Adams 1 Justice Hall's judgment in Calder in admitting and 2 relying on anthropological evidence. He says, 3 4 "The two anthropologists called to 5 testify...admitted as experts in their field 6 and as persons who had made on-the-spot 7 investigations of the very areas that are 8 encompassed by the enclosed proposed caveat, 9 confirmed as far back as their historical 10 examinations could take them, and as far back 11 before that that reliable archaeological finds 12 could take them, the continuous use and 13 occupation of this land by the ancestors of the 14 present Indian bands." 15 16 My lords, the reference there is A-27 tab 30. 17 My lords, in paragraph 17 the Australian case of 18 Milirrpum has an extended discussion of the 19 admissibility and the usefulness of anthropological 20 evidence because it was contested in that case at 21 every turn, its admissibility. 22WALLACE, J.A.: There's no question of admissibility here. 23MR. ADAMS: There is not, my lord. 24WALLACE, J.A.: It's just a question of usefulness that the 25 trial judge thought or decided this evidence would 26 provide by way of assistance in reaching a conclusion 27 he was required to reach. 28MR. ADAMS: Yes, my lord. There is a question of the reasons 29 that he gave for rejecting it whole. And I will 30 address each of those. 31 And after that discussion in Milirrpum, which 32 takes place, generally, between pages 161 and 163, he 33 said, 34 35 "Both the experts were qualified by their 36 experience in anthropology, and in particular 37 their knowledge of the Australian aboriginal, 38 to express an opinion on the permanence of a 39 social group and of its relationship to a 40 particular piece of land, and therefore on the 41 likelihood that such a relationship existed in 42 1788." 43 44 And, my lords, I'm not going to take you into the 45 authorities but carrying on in that passage at page 46 163 it's apparent that Mr. Justice Blackburn 47 differentiated between the two witnesses he's talking 638 Submissions by Mr. Adams 1 about here by saying, well, I put more weight on one 2 because he has a closer connection with those 3 particular peoples and that particular territory. 4 Now, my lords, that brings me at paragraph 19 to 5 the specific reasons given by the trial judge for 6 rejecting all the evidence of Dr. Daly, Dr. Mills and 7 Mr. Brody. And we say there each was highly qualified 8 and each followed standard research methods which 9 included direct study of the Gitksan and Wet'suwet'en. 10 And we say, moreover, the specific criticisms levelled 11 at each by the trial judge were unfounded in law and 12 fact. And, my lords, I add to that, it's important to 13 note that the trial judge was not choosing a firsthand 14 account of the society given by another witness to 15 which he attached more weight, rather, we say he was 16 rejecting out of hand three different accounts of the 17 societies by three different anthropologists with 18 firsthand experience of them. 19 And, my lords, in the paragraphs beginning at 20 paragraph 20 we review the qualifications and 21 methodology, first, of Dr. Daly. 22 And I should add a note that Exhibit 885 referred 23 to under paragraph 20 is Dr. Daly's C.V. 24 And just running quickly through the paragraphs 25 beginning at paragraph 20, Dr. Daly has a Ph.D. in 26 anthropology. He's done several years of research on 27 the Iroquois, worked in the Royal Ontario Museum, 28 specializing in north Pacific coast Indian cultures. 29 Going to paragraph 22, he had previous experience 30 in ethnohistorical research. He had done analysis of 31 the Jesuit Relations, and had also been exposed to 32 archaeological materials. He had previous experience 33 as a participant observer in an Indian society with 34 the Iroquois, and he had extensive experience in field 35 work as well as archival research prior to the 36 research on the Gitksan. 37 At paragraph 24, in 1988 he was awarded a Social 38 Sciences and Humanities Research Council grant to do 39 research on the economic development by Canadian 40 native peoples. 41 At paragraph 25, he's a member of the Canadian 42 Ethnology Society and the American Anthropological 43 Association. 44 And, my lords, at paragraph 26 we want to take 45 you briefly to Dr. Daly's own description of his 46 methodology and it's to be found at E-26 and that is 47 the last tab in Volume R-25. 639 Submissions by Mr. Adams 1LAMBERT, J.A.: Before you go any further, I'm afraid I'm not 2 entirely clear why Dr. Daly undertook those two years 3 of research. 4MR. ADAMS: With the Gitksan and Wet'suwet'en. 5LAMBERT, J.A.: With the Gitksan and Wet'suwet'en. 6MR. ADAMS: He was hired to do that, my lord. 7LAMBERT, J.A.: I hadn't understood that. It wasn't a project 8 that was generated from his academic interests which 9 you've just outlined, but he was asked by the 10 plaintiffs as a well qualified person to do a 11 particular study for the length of time that it 12 required to do it adequately and then to be ready to 13 give evidence in the case, expert anthropological 14 evidence, on the basis of that study. 15MR. ADAMS: Yes, my lord. I would only add to that that it was 16 a happy meeting with his academic interests, for 17 instance, he had studied totem poles of this area 18 before anyone was in any contact with him about doing 19 this opinion. 20LAMBERT, J.A.: He was paid because he was a very well qualified 21 person to do this task. 22MR. ADAMS: Yes. 23LAMBERT, J.A.: Yes. All right. 24MR. ADAMS: And that's true of each of these witnesses. It's 25 true of each of them that they were, in essence, 26 commissioned to study and report on these societies. 27LAMBERT, J.A.: I see. The basis on which each of them did it 28 was exactly the same. 2 9MR. ADAMS: Yes, my lord. 30LAMBERT, J.A.: Were they being paid, as it were, for full-time 31 work for, in Dr. Daly's case, the two years that it 32 took. 33MR. ADAMS: My understanding is that they were not. The 34 circumstances for each of them were different. 35 Certainly for substantial periods of time they were 36 engaged in full-time work and study. Frankly, I don't 37 recall the details of which portions of that time they 38 were paid for and which they were not. 39LAMBERT, J.A.: Yes. I understand that more clearly now, thank 4 0 you. 41MR. ADAMS: My lords, at tab E-26, and this is the last thing 42 I'll try to do before the noon break, and I believe 43 it's the fourth reference in, page 17, and it's headed 44 "SOURCES AND METHODS." 45WALLACE, J.A.: E-26? 46MR. ADAMS: And then I think it's the fourth reference in, my 47 lord. 640 Submissions by Mr. Adams 1WALLACE, J.A.: Fourth brown page. 2MR. ADAMS: After a brown page there is a page 17 headed 3 "SOURCES AND METHODS." 4WALLACE, J.A.: Yes, I have it, thank you. 5TAGGART, J.A.: Page numbered what? 6MR. ADAMS: 17, my lord. This is Dr. Daly's. 7LAMBERT, J.A.: It is fourth from the front? 8MR. ADAMS: That was my count, my lord. Sometimes these 9 dividers can be missed. I'm sorry, it's the fifth, my 10 lord. There is extracts of transcript and then page 11 17. 12LAMBERT, J.A.: All right. 13TAGGART, J.A.: All right. 14MR. ADAMS: This is what he says at the top of the page. 15 16 "...this report is based upon data obtained from 17 manuscripts and published monographs which I 18 have studied in relation to my participant 19 observation research among the Gitksan and 20 Wet'suwet'en in northwest British Columbia. I 21 believe that it would be difficult for a 22 researcher who has not experienced the Gitksan 23 and Wet'suwet'en way of life as it is lived 24 today, to formulate an accurate impression of 25 the economy of these peoples. My approach has 26 been, first, to study ethnographic publications 27 concerning the Gitksan and Wet'suwet'en in 28 order to refresh my understanding of the 29 contours of the cultures and economy which were 30 the subject of this report -- and of which I 31 had gained some understanding during the years 32 when I worked at the Royal Ontario Museum. 33 I then began to gather information based 34 upon the people's own explanations of their 35 economic life. I gradually learned the social 36 context which gave broader meaning to this 37 information. This developed as my experience 38 of the Gitksan and Wet'suwet'en communities 39 increased. At this stage I turned again to the 40 documented source materials and the 41 ethnographies and assessed these against the 42 knowledge I possessed at that point in the 43 research. Since May, 1987, I have reviewed 44 some of the transcripts of evidence presented 45 in court by the Gitksan and Wet'suwet'en 46 plaintiff witnesses in the case of 47 Delgam Uukw. 641 Submissions by Mr. Adams 1 Going to page 21, my lord, in the second full 2 paragraph, 3 4 "In my assessment of documents for this report I 5 have tried to measure them against the data 6 collected during my fieldwork experience among 7 the Gitksan and Wet'suwet'en. Several 8 categories of documentation have been 9 consulted. First of all, the documents closest 10 to participant observation are the Proceedings 11 at Trial... 12 Secondly, I have gathered interview 13 information from the members of the Gitksan and 14 Wet'suwet'en communites which, in the form of 15 my fieldnotes have been submitted to the court. 16 Third, my opinion has been informed by many 17 informal discussions with Gitksan and 18 Wet'suwet'en people. Much of this information 19 has not been written down. Where it has, it is 20 part of the submitted fieldnotes. 21 Fourth, I have consulted ethnographic 22 monographs, articles and selected documents 23 including portions of the Marius 24 Barbeau-William Beynon papers, especially the 25 Gitksan, Tsimshian and Nishga ada'ox oral 26 histories and field notes pertaining to those; 27 other historical-ethnographic material 28 consulted includes the work on the Wet'suwet'en 29 by Father Morice and Diamond Jenness, and on 30 the Gitksan and Tsimshian by Boas, Garfield, 31 Duff, Adams and Halpin. 32 Fifth, I have consulted various articles and 33 books which pertain to the general culture 34 area," 35 36 and so on. He says at the top of page 23, 37 38 "The bulk of the data pertaining to this report, 39 however, have been gathered by means of 40 participant observation, a standard field 41 research approach employed by anthropologists 42 and some sociologists. Participant observation 43 is based upon the researcher living among and 44 participating in the daily life and activities 45 of the people studied. As I have already 46 indicated, this research approach seeks to 47 understand social institutions that have to do 642 Submissions by Mr. Adams 1 with the Gitksan and Wet'suwet'en economy by 2 assessing the explanations given by the people 3 themselves against the context of their history 4 and written descriptions of their society and 5 those of their neighbours." 6 7 And, my lords, on page 24 is a more extensive 8 discussion of what was involved for Dr. Daly and is 9 involved generally in conducting participant 10 observation. 11 He concludes at the bottom of page 24: 12 13 "The anthropologist seeks to build a working 14 rapport with the subject community or group of 15 people and to learn how to become a de facto 16 member of that community." 17 18 My lords, that might be an appropriate place to stop. 19TAGGART, J.A.: All right. Two o'clock. 20THE REGISTRAR: Order in court. Court stands adjourned. 21 22 (PROCEEDINGS ADJOURNED FOR NOON RECESS) 23 24 I hereby certify the foregoing to 25 be a true and accurate transcript 26 of the proceedings transcribed to 27 the best of my skill and ability. 28 29 30 31 Margot Maye, 32 Official Reporter. 33 UNITED REPORTING SERVICE LTD. 34 35 36 37 38 39 40 41 42 43 44 45 46 47 643 1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT) 2 3 THE REGISTRAR: Order in court. 4 TAGGART, J.A.: Yes, Mr. Adams. 5 MR. ADAMS: Thank you, my lord. My Lords, I was at page 9 of 6 appendix E in the appellants' factum, paragraph 27. 7 And there is a paragraph there that deals with some 8 more of Dr. Daly's methodology and with particular 9 reference to oral history. And I just note again that 10 Mr. Grant coming behind me will be dealing 11 specifically with the content of the oral history and 12 defending their value as evidence. 13 At paragraph 28 we say the trial judge found that 14 Dr. Daly was a "well-qualified, highly intelligent 15 anthropologist", but gave five grounds for rejecting 16 his evidence in its entirety. And they are listed 17 there: that Dr. Daly was an "advocate" and "became 18 too close to his clients"; secondly, that he dealt 19 almost exclusively with chiefs; third, that he did not 20 keep notes of his observations; fourth, that many of 21 his propositions were based on facts not proven in 22 evidence; and fifthly, that he did not consider a 1979 23 survey of some of the Gitksan and Wet'suwet'en people. 24 And those reasons are all enumerated in the judgment 25 at the pages indicated. 26 And I want to deal in turn with each of those 27 specific criticisms because the appellants say that 28 all of them were unfounded in law and in fact. 29 At paragraph 30 when the trial judge called Dr. 30 Daly "more an advocate than a witness", it is clear at 31 page 170, and I want to take your lordships' there, 32 that at least a major reason, and perhaps the reason 33 for so characterizing him, was his adherence to the 34 Statement of Ethics of the American Anthropological 35 Association. And you will see at the very top of page 36 170 of the judgment, actually starting at 169 with 37 reference to Dr. Daly: 38 39 "He was, in fact, more an advocate than a 40 witness." 41 42 And then this passage: 43 44 "The reason for this is perhaps found in the 45 Statement of Ethics of the American 46 Anthropological Association which Dr. Daly 47 cites. 644 1 2 And then the passage that his Lordship is set out at 3 paragraph 30 of the factum. 4 5 "In research, an anthropologist's paramount 6 responsibility is to those he studies. When 7 there is a conflict of interest, these 8 individuals must come first. The 9 anthropologist must do everything within his 10 power to protect their physical, social and 11 psychological welfare and to honour their 12 dignity and privacy." 13 14 And in paragraph 31 we say that the trial judge 15 neglected to refer to Dr. Daly's adherence to further 16 statements from that Code of Ethics to the effect that 17 an anthropologist "should not knowingly falsify or 18 colour his findings" and that he is responsible for 19 the content of his professional opinions, and for 20 integrity in explaining those opinions and their 21 bases. 22 And we say at paragraph 32 that if adherence to 23 anthropologist's ethical code disqualifies him from 24 giving evidence in court, then no ethical 25 anthropologist will ever be permitted to testify about 26 the people he or she studies because the alternatives 27 will be that breaches of the Code of Ethics will 28 presumably disqualify the person as a professional or 29 else to be hung up in the problem that was raised 30 against Dr. Daly that by acting ethically one becomes 31 an advocate. 32 And in my submission, your lordships can see from 33 the review we did this morning of the cases in which 34 anthropological evidence has been utilized by the 35 court that that simply can't be right, that these 36 presumably are ethical anthropologists who are 37 testifying and having their evidence accepted in the 38 courts. And they are not being treated as advocates 39 who are disqualified or whose evidence is entitled to 40 no weight at all. 41 At paragraph 33 we say that Dr. Daly explained in 42 his evidence both the importance of participant 43 observation as an accepted technique in 44 anthropological study, and the tension between full 45 participation and professional objectivity. 46 And, My Lords, at E-33, which is in reference 4 7 volume R-2 6, the next volume. And I am at the very 645 1 back of E-33. It should be the last reference. There 2 is a page of transcript 11423. My Lords, it appears 3 from this passage, which is by the court, that at 4 least at the stage of the consideration in the trial 5 of Mr. Brody's evidence that his Lordship was 6 sensitive to the tension and the resolution of the 7 tension that Dr. Daly had spoken about that is quoted 8 in the factum at paragraph 33. Because he says at 9 line 10, this is his Lordship speaking of Mr. Brody: 10 11 "The evidence goes so far as to suggest that 12 Mr. Brody has a bias in favour of the 13 plaintiffs. I don't dispute the fact that he 14 is in the plaintiff's camp. You can't get 15 ready for a case like this without being 16 closely associated with the people and of being 17 associated with them, but the question is does 18 it go beyond that?" 19 20 And then you see he raises the question. And on 21 that issue in the end his Lordship decided that Mr. 22 Brody was not disqualified by bias or otherwise from 23 giving admissible evidence. But the point to that as 24 recognition before the judgment by the trial judge of 25 the necessity for a person in Dr. Daly's position to 26 be closely involved in the community that he was 27 studying. That's what the technique is. And that is 28 the accepted anthropological technique. 29 TAGGART, J.A.: What is he speaking of at the top of the page: 30 31 "And it is suggested he shouldn't hear it. And 32 he said -- he puts it on the basis." 33 34 Who is "he"? 35 36 "It has been described that they may have a 37 bias in favour of theory and that seems to be 38 all right, if it is a bias in favour of the 39 truth as they see it, but it suggests in favour 40 of the truth as, but it suggests otherwise, 41 that if it is a bias in favour of a lawsuit or 42 an individual, and that seems to me to be the 43 problem in this case." 44 45 What does all of that refer to? 46 MR. ADAMS: Mr. Jackson is suggesting it may have been Wigmore 47 on Evidence. I am not sure, my lord, without going 646 1 back to the transcript, and I can do that. 2 The discussion, as I recall, was about the 3 difference between having a bias in favour of a point 4 of view, but the truth as the expert sees it as 5 opposed to a bias in favour of a party for all 6 purposes. 7 My Lords, that brings me to paragraph 35 to the 8 next of the trial judge's criticisms, in this case of 9 both Dr. Daly and Dr. Mills, where he says: 10 11 "The evidence shows that they dealt almost 12 exclusively with Chiefs which, in my view, is 13 fatal to the credibility and reliability of 14 their conclusions." 15 16 Now, My Lords, there is no other discussion in the 17 judgment of that point. There is no support offered 18 for that from the anthropological literature or 19 otherwise. There is no reasoning offered in support 20 of it. 21 So we have two submissions in response to it. One 22 is that it is not true as a matter of fact. But the 23 more significant response is that these 24 anthropologists in studying these societies were doing 25 exactly what you would expect them to do in dealing 26 with the knowledgeable members of the society's people 27 holding authority in those societies as the other 28 evidence disclosed. 29 So on the first point we say at paragraph 36 that 30 Dr. Daly did not deal almost exclusively with chiefs. 31 And that to the extent that chiefs were his principal 32 informants, there was good reason to rely on them as 33 the most knowledgeable representatives of their 34 societies. And the case cited at paragraph 37 is to 35 A-25 tab 7. And I just want to correct the page 36 reference or add to it to pages 8 to 10. 37 Paragraph 39 we say by rejecting anthropological 38 conclusions because the chiefs were the sources of the 39 information, the trial judge rejected what is at the 40 very heart of the social structure of the people -- 41 namely that their system is hierarchical, with the 42 chief as the principal leader of a kinship group and 43 that the chiefs represent and speak for all members of 44 the house. 45 We go on at paragraph 40 that the hereditary 46 chiefs were logically the source of the greatest 47 knowledge within the systems as older, more 647 1 knowledgeable members of the society. They were and 2 are the leaders. 3 The chief possessed the knowledge of the oral 4 history, the adaawk and kungax, passed to them over 5 the years of telling in the home and in the feast. 6 They are the inheritors and the repositories of the 7 history of their people. 8 We go on to say at paragraph 42 a careful analysis 9 of the Barbeau files and Duff files, which are in 10 evidence, would disclose that chiefs were the 11 principal informants of those scholars as well, and 12 for the same good reasons. 13 Paragraph 43 we say that of 30 Gitksan and 14 Wet'suwet'en people who were cross-examined on 15 territorial affidavits, 28 of those were chiefs, two 16 were not; that 18 chiefs were called as witnesses at 17 the trial; that Dr. Daly interviewed 21 chiefs for his 18 opinions, but had informal dealings with many other 19 members of the society, at feasts and otherwise. 20 We say at paragraph 44 that although the trial 21 judge said that anthropological conclusions based on 22 dealings with the chiefs were neither credible nor 23 reliable, he also said that the named appellants -- 24 everyone of them a chief -- could represent, and 25 legally bind, all the members of the two societies. 26 My Lords, you need only imagine the reaction of 27 the courts if the non-chief members of these societies 28 were to turn up next week and start a new action on 29 the theory that their chiefs could not speak for them. 30 It's a finding on the trial judge's part that these 31 leaders are entitled to speak for legal purposes, at 32 least, for the members of these societies. And in my 33 submission, it's both legally and anthropologically 34 appropriate that those same people be capable of 35 speaking for the societies when they are describing 36 them to the anthropologists. 37 That brings me at paragraph 45 to what the trial 38 judge said was his "most significant" criticism of Dr. 39 Daly or Dr. Daly's evidence in that he: 40 41 "...lived with these people for two years, 42 while this litigation was under way, making 43 observations on their activities, listening 44 and, I think, accepting everything they said, 45 without keeping any notes." 46 47 And he says again earlier in the judgment at page 169 648 1 that: 2 3 "Dr. Daly produced no notes of his 4 'observations'." 5 6 My Lords, the important point here is that in 7 raising this most significant criticism, his Lordship 8 was mistaken. Dr. Daly did record his observations. 9 He conducted written interviews which are in evidence 10 at the exhibit numbers indicated in paragraph 46, and 11 he relied on interviews taken and recorded before he 12 came to the area. And from then on, the process, as 13 he described it in his methodology and in his 14 evidence, was he was at work on his opinion report. 15 He interviewed people and immediately incorporated the 16 information they provided directly into his draft 17 report. 18 And to add to paragraph 46, a list of Dr. Daly's 19 notes of interviews with at least 16 people conducted 20 between July '86 and February '88 is in tab E-43. And 21 a sample of the notes themselves is included in that 22 tab. And I am not going to take you there, but I ask 23 you to look at them. It clearly is wrong, in my 24 submission, that Dr. Daly was not keeping any notes 25 and produced no notes. 26 At paragraph 47 Dr. Daly explained the 27 professional acceptability of participant observation, 28 even in circumstances like these where to participate, 29 the researcher could not immediately make notes of 30 interviews without destroying rapport with the 31 informants. And that had been his experience doing 32 his doctoral thesis on the Iroquois, and the members 33 of his thesis Committee accepted that he was not able 34 to gather notes while in the field. 35 Furthermore, at paragraph 48 his evidence was that 36 other sociologists and anthropologists have frequently 37 followed the same procedure. 38 The next criticism the court made of Dr. Daly's 39 evidence is that many of his propositions are based on 4 0 facts not proven in evidence. And I would come 41 shortly to deal with the specifics of that. 42 But we say at paragraph 50 that that is both an 43 inappropriate legal principle, and inaccurate as a 44 matter of fact. We rely on Lavallee. The page 45 reference there at paragraph 51 should be corrected to 46 pages 129 to 30. And the case reference is A-26, tab 47 42. And the proposition is that as long as there is 649 1 some admissible evidence to establish a foundation for 2 an expert's opinion, it is entitled to weight. 3 TAGGART, J.A.: What is the page reference, the correct one? 4 MR. ADAMS: 12 9 to 30, my lord. 5 MR. WILLIAMS: Instead of 49? 6 MR. ADAMS: Instead of 49. And we also add a reference to 7 Milirrpum at paragraph 52. And the reference there is 8 A-26, tab 23. 9 Now, to go into the specifics of things that the 10 trial judge said were not proven in evidence, at page 11 53 the trial judge gave three examples of propositions 12 in Dr. Daly's evidence which the trial judge said were 13 not proven. The first of those was the weight he 14 placed on continuing "aboriginal" activities. 15 Aboriginal is in quotes, my lord, to emphasize the 16 point the appellants have been making throughout that 17 there are no aboriginal activities. There are 18 aboriginal persons who have both past and present-day 19 rights. Their activities are neither aboriginal nor 20 non-aboriginal. 21 The second point in paragraph 53 was that Dr. 22 Daly's observations about the extent of support for 23 the feast system by non-chiefs were not accepted; and, 24 thirdly, his opinion that Houses own rights to the 25 labour of their sons and daughters, and of their 26 daughter's offspring was not accepted. 27 Paragraph 54 we deal with the first of those 28 points, the weight on continuing so-called 29 "aboriginal" activities. We say there that the trial 30 judge failed to consider that Dr. Daly was focusing 31 his research on the extent of continuing aboriginal 32 activities. And the introduction to Dr. Daly's report 33 showed that he was clearly aware of the existence and 34 importance of the cash economy. 35 And My Lords, in addition to the reference there 36 set out, in the last reference in E-55, which should 37 be an additional tab in this volume. E-55. There are 38 only two pages in the tab. I am at page 35, which is 39 the first of them. And, My Lords, in my submission, 40 this passage from Dr. Daly's report makes it clear 41 that he was doing something much more sensitive than 42 declaring that some pristine aboriginal economy was 43 functioning as of the time he was doing his study. 44 And he says this: 45 46 "In the course of interviewing people and 47 reading transcripts of interviews and 650 1 commission evidence prepared in conjunction 2 with the present legal action undertaken by the 3 chiefs, I have encountered pronouncements by 4 the older people that the Native way of life 5 has ceased to exist. The old people sometimes 6 complain that the young people no longer live 7 as Natives should, that they have adopted many 8 of the worst features of the non-Native way of 9 life. 10 On one level, these elderly people are 11 correct. The old way of life, with its 12 relatively stable annual cycle of activities on 13 the territories, and the strict code of ethics 14 that guided this way of life does not make up 15 the whole economic organization of the people 16 today. The growth of Canada and its provinces 17 has exerted a strong pressure on the way of 18 life of the Gitksan and Wet'suwet'en people. 19 At the same time, the people are by no means an 20 indistinguishable segment of the mainstream 21 Canadian society. They remain distinct social 22 and cultural entities. These entities have 23 been modified by European contact but their 24 distinctiveness remains part of a heritage 25 older than the advent of Europeans on this 26 continent." 27 28 Carrying on at paragraph 55 we say that Dr. Daly's 29 conclusion is consistent with the evidence of many of 30 the witnesses. The trial judge misconstrued the focus 31 of Dr. Daly's report on non-market features as a 32 conclusion that "the market economy of British 33 Columbia" played no role in the lives of appellants. 34 Dr. Daly didn't advance that opinion and the passage 35 that I have just read you illustrates that point. 36 As to the point about suggesting that Dr. Daly 37 exaggerated the extent of contributions made by 38 non-chiefs, we say at paragraph 56 that that opinion 39 came from Dr. Daly's own attendance at many feasts, 40 and that it is corroborated by the evidence of a 41 number of the witnesses. It is also independently 42 proven in the evidence by the Feast Books which are 43 exhibits and show the amounts paid in at feasts by 44 different persons, many of whom are not chiefs, and 45 also by the Feast Notebooks of Mr. Sterritt. 46 At paragraph 57, the next of the trial judge's 47 reasons for rejecting Dr. Daly's opinion evidence was 651 1 Dr. Daly's opinion that: 2 3 "...in economic terms the Houses own the rights 4 to the labour of their sons and daughters' 5 offspring, and they of course own lands and 6 rivers as well." 7 8 We say, first of all, that this statement was made in 9 the context of Dr. Daly's description of past 10 practices of arranged marriages, and that he 11 distinguishes those from present marriage practices in 12 the next paragraph of his report. 13 But in addition, My Lords, it is my submission 14 that owning rights to labour can readily be understood 15 in the sense of the Houses being the beneficiaries of 16 the obligations placed on their members to participate 17 in and contribute to the feast. And there is abundant 18 evidence of that. 19 At paragraph 60 we address the question of a 20 survey conducted by the Tribal Council in 1979. And 21 the evidence was that Dr. Daly was not aware of that 22 in preparing his opinion. And the thrust of it was 23 that only 69 percent of the respondents attended 24 feasts, and that hunting and trapping were engaged in 25 by approximately 30 percent and 9 percent of the 26 respondents respectively. And the trial judge said 27 this reflected on "the sufficiency of Dr. Daly's data 28 base". 29 However, we say at 61 the trial judge acknowledged 30 that there was no proof that the survey was conducted 31 scientifically, and said that he had no way of knowing 32 whether it was accurate or representative. And we 33 asked then how it can be said that Dr. Daly's failing 34 to consider it reflected on the sufficiency of his 35 data base? 36 We say at 62, and it was put to Dr. Daly in his 37 cross-examination, and this is what we are addressing 38 here in re-examination, explained in his evidence the 39 limited utility of the 1979 survey, and also the 40 consistency of the survey with his own conclusions. 41 We say at 63 that the trial judge said he had no 42 way of knowing if the survey was accurate or 43 representative. Dr. Daly was a "well qualified, 44 highly intelligent anthropologist". And we says he 45 did have ways of assessing the survey in his 46 professional capacity. And he had his own two years 47 of direct experience of the society as well as 652 1 extensive background referred to in the literature to 2 which I have already referred. We say the 3 availability of that unverified information at trial 4 did not change Dr. Daly's opinion, and furthermore 5 there was no reason that it should have. 6 We say in conclusion on Dr. Daly that the 7 appellants submit that the trial judge erred in 8 disregarding Dr. Daly's evidence, and that he should 9 have accorded it significant weight. 10 We say further, if he had given it any weight at 11 all, he could not have reached the anthropological 12 conclusions which were set out at page 3, paragraph 7 13 above, and which I have already read out to your 14 lordships and which, in my submission, permeate the 15 judgment. 16 Now, My Lords, that brings me to Dr. Mills who was 17 the anthropologist who gave evidence with respect to 18 the Wet'suwet'en. And the approach here is the same. 19 We have a review in the factum of her qualifications 20 and then a discussion of the specific criticisms of 21 her evidence raised by the trial judge. 22 At paragraph 65 she has a Ph.D. in social 23 anthropology from Harvard, and spent 20 years doing 24 research among the Beaver Indians in northeastern B.C. 25 She is a member of the editorial board of 26 Anthropologica, a highly-respected publication. She 27 is published in her area. 28 And her methodology can be seen encapsulated in 29 paragraph of of 66. She, like Dr. Daly, reviewed the 30 ethnographic literature on the culture and history of 31 the Wet'suwet'en. She reviewed the work of the fur 32 trader of Father Morice, the missionary, and the 33 ethnographers and anthropologist Jennes, Steward, 34 Goldman, Adams and Emmons. 35 Paragraph 67 we say she relied particularily on 36 the research of the anthropologist Diamond Jenness, 37 who studied the Wet'suwet'en and recorded their oral 38 history in 1924-25 and later published a monograph on 39 them. 40 Now, My Lords, there was a person, the 41 anthropologist Jenness, who had written extensively 42 about the Wet'suwet'en, whose information and 43 assistance was available to the trial judge and was in 44 evidence. And we note that the trial judge only 45 referred to Jenness twice in the entire judgment. And 46 the references are at page 198 and a passing reference 47 connected with language and at page 434 where he 653 1 mistakenly attributed to Jenness the view that the 2 social and economic organization of these peoples was 3 likely a response to the fur trade. There is nothing 4 in the material from Jenness that suggests that that 5 was his opinion. And after that there was no further 6 consideration. So that even if Dr. Mills was somehow 7 disqualified from giving evidence that had weight, 8 there was no explanation of why none of the 9 information from Jenness was acceptable or of 10 assistance. 11 At paragraph 68 there is a further discussion with 12 Dr. Mills — 13 HUTCHEON, J.A.: Just pause for a moment. You said that at 434 14 there was a reference to Jenness? 15 MR. ADAMS: It is in the first full paragraph under "fifthly". 16 You will see a list of names. And Jenness is the 17 second from the left after Kobinsky in the third line. 18 HUTCHEON, J.A.: Oh, yes. He grouped them with a number of 19 other people? 2 0 MR. ADAMS: He does. 21 At paragraph 68 we have further material on Dr. 22 Mills' methodology. She lived in Moricetown for a 23 month and then in the area for a longer period 24 attending feasts and other events. She attended 25 twelve Wet'suwet'en and three Gitksan feasts. She 26 interviewed the head chiefs of each House. She 27 observed the Moricetown fishery, accompanied the 28 chiefs to their territories. She conducted interviews 29 in the family homes and returned there for follow-up 30 information. And she gathered genealogical 31 information and worked on the Wet'suwet'en 32 genealogies. And on the basis of that research, she 33 formed the opinion which went into her opinion report 34 and her evidence. 35 At paragraph 69 we come to the specific reasons 36 that the trial judge gives for rejecting her evidence. 37 Again, she dealt almost exclusively with chiefs. She 38 was said to be "very much on the side of the 39 plaintiffs". She changed her opinion between 1986 and 40 her final opinion report. She was "more interested in 41 reincarnation than Wet'suwet'en culture". I should 42 say, My Lords, the quote is from an argument made by 43 the Province at trial and is apparently, although not 44 absolutely clearly, adopted by the trial judge. 45 We say, as with Dr. Daly, these reasons don't bear 46 scrutiny. And we make the same comments with respect 47 to Dr. Mills' reliance on information from chiefs as 654 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 HUTCHEON, MR. ADAMS HUTCHEON, we did above with respect to Dr. Daly. And that discussion is in paragraphs 35 to 44 above for Dr. Daly. And paragraph 74 and following have some further material to the same effect that these are the people you would expect someone who wanted knowledge about the society to refer to. And then picking it up, My Lords, at page 23, paragraph 81, we say Dr. Mills' closeness to the people she was studying was necessary for the participant observation which anthropological field work requires. And that the trial judge gave no example of an opinion which was affected by Dr. Mills' supposed allegiance to the appellants. The principal evidence which was used to challenge her objectivity was of a few words she spoke at the funeral of a Wet'suwet'en chief with whom she was acquainted. And they are quoted there. And, My Lords, we say at paragraph 83 Dr. Mills acknowledged that that was a "flowery funeral service speech", but we say that the words are those of an anthropologist who is engaged in "participant observation" who is asked to speak at the funeral of a person she has come to know through her work. We say that those phrases cannot be made into a valid basis for the blanket rejection of the research and analysis of a highly qualified anthropologist who had worked in the field for 20 years. It is my submission, My Lords, that Dr. Mills did not disqualify herself entirely from giving any information about the Wet'suwet'en society by the words that are recorded in paragraph 82. J.A.: I haven't seen on page 172 any question by the trial judge of a funeral speech. Am I missing something? There seems to be nothing about that speech. : My lord, what we are endeavouring to do there in the situation of some unclarity is to look at the arguments that were made to the trial judge, and much was made in the argument of that speech, and say how can it be that she showed she was very much on the side of the plaintiffs. Now, if that speech was not intended to be captured by his lordships' observations then we go in the next paragraphs to the point he does make about changing her opinion. J.A.: Well, that's -- there didn't seem to be anything in that point number four, whatever it is. 655 1 MR. ADAMS: We will see, my lord, when we get to Mr. Brody next 2 that it is difficult to tell whether even the general 3 criticisms made of the anthropologists called by the 4 appellants are directed at Mr. Brody or not. And we 5 have simply assumed that they are because he 6 disappears without trace from the judgment. 7 Beginning at paragraph 84, My Lords, we address 8 the question of the change in Dr. Mills' opinion 9 between a draft report and her final report. 10 We say in paragraph 85 that she changed her 11 opinion only about whether the Wet'suwet'en clans were 12 "borrowed" from the Gitksan 2000 years, or whether 13 instead the two societies developed their clan systems 14 together, in the equally distant past. 15 Now, My Lords, that's a question of intense 16 academic interest, but it is a question that has no 17 bearing on any issue in this litigation. And a change 18 in Dr. Mills' opinion on that question should not be 19 seen as impacting on her ability to give useful 2 0 evidence. 21 And it is significant to note, My Lords, that at 22 172 in the judgment in the paragraph that raises this 23 question his Lordship goes on to say: 24 25 "This is a startling departure from a large 26 body of professional opinion on the part of a 27 witness closely associated with the 28 beneficiaries of her new opinion." 29 30 Well, My Lords, in my submission, the Gitksan and 31 Wet'suwet'en were neither better nor worse off when 32 Dr. Mills formed the opinion in 1986 that 2000 years 33 ago the systems were borrowed from the Gitksan as 34 opposed to her final opinion that 2000 years ago or 35 longer there was interaction so that the borrowing 36 wasn't so clear or so unit directional. It can't be 37 said that the appellants benefited in some way from 38 that change. And therefore we say it is not a 39 legitimate reason for rejecting her evidence. 40 We say at paragraph 89 that the trial judge ought 41 not to have rejected all of Dr. Mills' evidence 42 because new information from other scholars, which is 43 referred to in the preceding paragraph, and further 44 reflection moved her from one side of an academic 45 debate to another. And we observe he did not reject 46 Dr. Ray's evidence, even though he found that Dr. Ray 47 had changed his opinion about the impact of the fur 656 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 HUTCHEON, MR. ADAMS HUTCHEON, MR. ADAMS HUTCHEON, MR. ADAMS HUTCHEON, MR. ADAMS HUTCHEON, MR. ADAMS HUTCHEON, trade because of new information from the Bay records. We say at paragraph 90 the trial judge commented that Dr. Mills' evidence was attacked by the respondent Province on the basis that she was "more interested in reincarnation than Wet'suwet'en culture" and that she "did not conduct her investigation in accordance with accepted scientific practices". It is not clear, My Lords, whether that criticism is being responded to or relied on. We say at 91 that that argument presumes first that reincarnation is not part of Wet'suwet'en culture; and, secondly, that Dr. Mills did not, or could not, study reincarnation scientifically. We say both those presumptions are false. And beginning at paragraph 92 there is a series of paragraphs referring to the evidence, one, that reincarnation is a part of Wet'suwet'en culture, there is not a distinction between studying reincarnation and studying Wet'suwet'en culture; and, secondly, that Dr. Mills completely independently of this case is involved in just that study. And that's referred to in paragraph 93. And beginning at paragraph 95 there are a number of references to the evidence of the lay witnesses that establishes the belief and the importance of the belief in reincarnation in both the Gitksan and Wet'suwet'en cultures. J.A.: I'm sorry, but you go on about reincarnation. I don't think the trial judge makes anything of that. I haven't seen anything yet that he makes of it. : That's why I say, my lord, that it is not clear whether he is noting -- J.A. : It is not just that it is not clear. I just think there is an absence of it. He doesn't say anything about it. At least I haven't been shown anything. : Well, he does, my lord, at page 169. J.A.: 169. : The second paragraph from the bottom "this evidence" -- J.A.: Oh, yes, I see. : Now, what I say frankly, my lord -- J.A.: That is the basis of the attack. I see. : I can't tell whether the attack is being adopted or simply noted. And that's why I say we have proceeded from paragraph 90 as though it had been adopted. J.A.: I had been looking at 172. 657 1 MR. ADAMS: The reference, my lord, to 169 is at the bottom of 2 paragraph 90. 3 HUTCHEON, J.A.: I have it now. 4 MR. ADAMS: My Lords, at paragraph 98 we say the trial judge 5 stated that Dr. Mills was "urging almost total 6 acceptance of all Gitksan and Wet'suwet'en cultural 7 values". And the reference to the reasons there 8 should be 172 in the reported judgment. But he gave 9 no example of or explanation for that suggestion. 10 We say at 99 that what Dr. Mills did was report on 11 her data and her conclusions. She described and 12 analyzed the society. 13 And we say at 100 that her evidence did 14 demonstrate that the House and territorial system was 15 fundamental to the Wet'suwet'en culture, and that 16 Wet'suwet'en institutions and laws operated from the 17 distant past through to the present. And I have 18 sampled that evidence briefly with your lordships this 19 morning. 20 And we say in 101, as with Dr. Daly, if he had 21 given Dr. Mills' evidence any weight at all, he could 22 not have reached the anthropological conclusions which 23 are set out at page 3, paragraph 7. 24 My Lords, that brings me to Mr. Brody. And we 25 performed, beginning at paragraph 102, a similar 26 exercise with respect to his evidence. He came as an 27 expert. He was qualified as an expert in social and 28 cultural anthropology to give opinion evidence on the 29 anthropology of social, cultural and economic change 30 in continuity with particular reference to the Gitksan 31 and Wet'suwet'en, and as to the nature of Gitksan and 32 Wet'suwet'en societies and institutions. 33 And the page reference, My Lords, after paragraph 34 102 should be corrected to read 14158. And I believe 35 that's the one that appears in the reference volumes. 36 And in paragraph 103 the page reference to Exhibit 37 91 should read 103 to 07. There is no page reference 38 there at present. 39 WALLACE, J.A: What was that page reference? 40 MR. ADAMS: Paragraph 103 pages 103 to 107, my lord. 41 Now, in 104 we raise again our problem of being 42 sure of which criticism is directed at which witness 43 unless they are named. But we have proceeded as if 44 the criticisms made apparently generally of these 45 anthropologists dealing exclusively with chiefs, too 46 closely associated with the appellants, and not 47 conducting an investigation in accordance with 65? 1 accepted scientific practices were also directed at 2 Mr. Brody. 3 We observe at 105 that there was no examples of 4 those shortcomings in the judgment, and indeed Mr. 5 Brody and his evidence are never mentioned again after 6 page 169. 7 Beginning at paragraph 106 we talk about Mr. 8 Brody's qualifications that he had a combined honours 9 degree from Oxford and has done graduate work there in 10 the sociology of religion and rural sociology. 11 He is the author of two standard works on rural 12 sociology and anthropology. 13 At paragraph 108 that he has performed, at the 14 invitation of the Department of Indian Affairs, 20 15 months of anthropological field work among the Inuit 16 of the Eastern Arctic, and participated in, and 17 contributed published materials to Inuit land use and 18 occcupancy projects in the Baffin Island and in 19 Labrador, involving both interviews and archival 20 research. 21 At paragraph 109 he was a consultant to the 22 Mackenzie Valley Pipeline Inquiry with the task of 23 reviewing for the Inquiry the socio-economic evidence 24 presented to it. 25 At paragraph 110 from 1978 to '81 he contributed 26 to, and then co-ordinated, a socio-economic study of 27 Indian and settler land use and occcupancy in the 28 Treaty 8 area of northeastern B.C. Out of that he 2 9 wrote a book Maps and Dreams, which was awarded a 30 certificate of merit by the Canadian Historical 31 Association. 32 And then from 1983 on, he engaged in 33 anthropological work on the Gitksan and Wet'suwet'en, 34 including interviews, participant observation and 35 archival and historical research, the same kinds of 36 work that I have already detailed for Dr. Daly and Dr. 37 Mills. 38 Now, as your lordships have seen from the 39 transcript extract we referred to a few moments ago, 4 0 the argument was made by the respondent Province at 41 trial that Mr. Brody was disqualified all together 42 from giving evidence because he was supposedly biased. 43 And that argument was rejected by the trial judge and 44 at paragraph 112 when he ruled that bias is not a 45 disqualification for expert testimony. 46 And, My Lords, the second reference under 47 paragraph 112, which is to an unreported version of 659 1 the July 14th judgment, should be corrected. The 2 reference is A-25, tab 15. And the page references 3 are 167 and 175 to 6. 4 At paragraph 113 -- 5 TAGGART, J.A.: A-25 tab? 6 MR. ADAMS: 15, my lord. 7 Beginning at paragraph 113 we go on into some of 8 the details of Mr. Brody's prior research experience 9 and his methodology in studying the Gitksan and 10 Wet'suwet'en. 11 At paragraph 115 we refer to as archival research 12 in the Bay documents, the McKenna-McBride papers, 13 that's from the 1915 Royal Commission, the Barbeau and 14 Beynon which are oral histories, and the Department of 15 Indian Affairs correspondence. 16 And furthermore, we refer in paragraph 116 to his 17 comparative study of academic treatises on the region, 18 and some of the other things that he found it 19 necessary to learn about in order to understand what 20 he was studying. 21 We say at 117 that Mr. Brody's methodology, as 22 reflected in his record of publication and teaching, 23 has been relied upon and accepted in the academic and 24 scholarly world. 25 At 118 we make reference to the question of 26 dealing with chiefs. And, My Lords, I simply rely on 27 what I've already submitted with respect to Dr. Daly 28 and Dr. Mills. The cross-reference in paragraph 118 29 should now be to paragraphs 35 to 44 and 73 to 83 30 above in this appendix. 31 We say at paragraph 119 that the apparent 32 suggestion that Mr. Brody did not "conduct his 33 investigation in accordance with accepted scientific 34 practices" is refuted by the evidence already reviewed 35 that Mr. Brody used the same research methods for his 36 work on the Gitksan and Wet'suwet'en as he had in 37 Ireland, the Canadian Arctic, and in the northeast of 38 British Columbia, all of which produced learned 39 publications. 40 And, My Lords, before I leave Mr. Brody, it is not 41 immediately relevant to the questions that I'm arguing 42 before your lordships, but at tab E-120 I have 43 included for your lordships' consideration, I don't 44 propose to go there, but there is what amounts to an 45 essay by Mr. Brody, which is part of his opinion 46 report, which considers the question of what it means 47 to be traditional for an Indian society. And I simply 660 1 commend that to your lordships as some useful thinking 2 on that question by somebody who has experience on 3 both societies and is a trained anthropologist. 4 TAGGART, J.A.: That's in R-28? 5 MR. ADAMS: It is in E-120. 6 TAGGART, J.A.: E-120? 7 MR. ADAMS: I put it at this point just because it relates to 8 Mr. Brody. 9 Now, that brings me -- My Lords, I have two 10 further areas to deal with. Beginning at paragraph 11 121 is a critique of the qualifications and 12 methodology of an anthropologist, archaeologist, 13 cultural geography called by the respondent Province. 14 And the heart of her evidence from the point of view 15 of the appellants is that she came to defend the 16 opinion that the -- many of the more sophisticated 17 features of the Gitksan and Wet'suwet'en societies 18 understood where territoriality is understood as 19 sophistication were products of the fur trade. And 2 0 when we reach tab 5 of the main factum, Mr. Grant will 21 be addressing you on that question. 22 And in view of the time, I simply want to refer 23 you briefly to the points made beginning at paragraph 24 121. We say there that the trial judge erred in 25 apparently accepting Dr. Robinson's opinion as to the 26 influence of the fur trade over those of the 27 appellants' experts without subjecting her 28 qualifications, methodology, or motives to the same or 29 any scrutiny. 30 And your lordships will find that the only 31 references by name in the judgment to Dr. Robinson are 32 at pages 140 and 434. 33 WALLACE, J.A.: 434? 34 MR. ADAMS: 434. And at page 140 it is in the context of 35 rejecting her view that European influence commenced 36 in the territory as early as 100 years before actual 37 contact. Because he makes a clear finding at page 38 270, without naming her, that the commencement of 39 European influence in the territory was "more probably 40 around or after the turn of the century". That is 41 1,800 or later. 42 And then at 434 he puts Dr. Robinson on a list of 43 those said to hold that the social and economic 44 organization of these peoples was likely a response to 45 the fur trade. And that was the same listing which 46 Diamond Jenness' name appeared that I referred your 47 lordships to earlier. 661 1 She was the only witness put forward by the 2 Province to defend that view. And in tab 5 we 3 attacked the substance of it. The argument that 4 follows from paragraph 121, the focus is on the 5 extent -- to the extent that the trial judge was 6 relying on Dr. Robinson, and that's difficult to tell 7 reading the judgment, that her qualifications and 8 methodology were suspect and were not subjected to 9 scrutiny. 10 My lord, at paragraph 123 I just want to note that 11 there are references added to there. One is from -- 12 we are now into volume 4. One is an extract from Dr. 13 Robinson's doctoral thesis. And it is now at E-123, 14 the last reference. That is in reference book R-28, 15 my lord. My Lords, I don't want to take you to that 16 addition. I just want to make you aware that it has 17 been made. And there is a transcript reference to be 18 added to that same paragraph at 123, and that is to 19 transcript 292, pages 22011 to 12. 20 TAGGART, J.A.: Transcript? 21 MR. ADAMS: 292, pages 22011 to 12. 22 And just before I leave paragraphs 123, My Lords, 23 I should explain the quotation set out in paragraph 24 123 is from Dr. Robinson's dissertation and referred 25 to prehistoric times. And what she was doing was 26 adopting a statement of Wilson Duff's. 27 And when she was cross-examined on the suggestion 28 that when she was writing that: 29 30 "Concepts of property ownership were well 31 developed in the northern northwest coast 32 region...that there was ownership...by House 33 groups and clan divisions ... that... procedures 34 for securing rights to resource areas, as well 35 as for protecting them...were commonly 36 recognize and reinforced in institutionalized 37 ways." 38 39 Her opinion at trial in respect to the Gitksan and 40 Wet'suwet'en was a departure from that in that she was 41 suggesting that it was a consequence -- that those 42 things were consequences of the fur trade. And so 43 when she was cross-examined on this passage, and it 44 was put to her that that passage also referred to the 45 Gitksan and Wet'suwet'en, she said: Well, I can't 46 tell without looking in my footnote. And the footnote 47 reference, My Lords, was to Mr. Duff's Indian History 662 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 a but in the Because it seems to have got you. I have of British Columbia, page 85. And we are already engaged in a search to be able to tell your lordships which publications of Mr. Duff are in evidence. The only extract from that publication that I'm aware of in evidence is pages 38 to 44 in Exhibit 855. But in the passage that Dr. Robinson was adopting by footnote, Mr. Duff was speaking about B.C. Indians in general. And therefore, in my submission, Mr. Duff should be taken as applying that passage to the Gitksan and Wet'suwet'en, whatever it is that Dr. Robinson thought. HUTCHEON, J.A.: Should we read 123 with dissertation she has written? conflict with -- oh, I see. I it. MR. ADAMS: My Lords, from paragraph 124 on, as I've said, are a critique of Dr. Robinson's qualifications and methodology. And just to pick some high points of that, at paragraph 128 we say Dr. Robinson called herself a "cultural geographer" and purported to give opinion evidence in the field of ethnohistory and historical geography. But in correspondence to the Province she acknowledged limitations on her "expertise", and the word was in quotes in her own writing. In the second reference there, instead of being to 1192 page 5 it should be to 1192-2 page 5. And this is what she wrote there. And this has been added to E-128. It's the very last page of the tab in the last paragraph. This was in correspondence before she wrote her opinion to counsel for the Province. She indicated: "A critical appraisal of the standard anthropological sources and early historic records pertaining to the Gitksan and Wet'suwet'en could be profitable." And I pause, My Lords, to say that was what the appellants' anthropologists and historians in this case conducted. And she went on: "This, however, would require considerable mastery of a considerable documentary base." And I pause again, My Lords, to say that's what the 663 1 appellants' anthropologists and historians had for 2 this case as can be seen from the review of their 3 methods and sources. 4 MACFARLANE, J.A.: Let me stop you for a minute to ask a 5 question. Were qualifications a question at trial? 6 That is was a submission made that she was not 7 qualified to give expert evidence in this field? 8 MR. ADAMS: It was, my lord. And that submission was not 9 accepted. 10 MACFARLANE, J.A.: And where was -- have you got a reference to 11 where the -- where we can find what the judge said 12 about that? 13 MR. ADAMS: I can get you one, my lord. 14 MACFARLANE, J.A.: And your point right now is to attack her 15 qualifications? 16 MR. ADAMS: My point, my lord, is to say that part of her 17 evidence was a question that substantively we will be 18 addressing in tab 5. And Mr. Grant will be speaking 19 to that. That is what influence did the fur trade 20 have on the shape of these economies and societies. 21 MACFARLANE, J.A.: That's not my question. You are dealing with 22 her qualifications now. Are you dealing with them in 23 a general sense in order to inform us of her general 24 qualifications, or are you pursuing an argument which 25 says that the trial judge was wrong in not rejecting 26 her evidence completely as being given by an 27 unqualified person? Is that your point? 2 8 MR. ADAMS: No, my lord. We don't go that far. 29 MACFARLANE, J.A.: So your point is weight, then? 30 MR. ADAMS: The point is weight. If, as is difficult to tell, 31 that her evidence was being preferred to other 32 experts. 33 MACFARLANE, J.A.: All right. As long as I understand. I just 34 wanted to know. 35 MR. ADAMS: Yes. My lord, we are not saying that she was 36 improperly qualified in the sense of making it over 37 the threshold to give evidence. 38 MACFARLANE, J.A.: All right. 39 MR. ADAMS: We do observe at paragraph 129 that she had no 40 training or experience in the field of ethnology, that 41 is: 42 43 "a branch of anthropology that analyzes 44 cultures, expecially in regard to their 45 historical development and the similarities 46 and dissimilarities between them." 47 664 1 We note at 130 that she has not been involved 2 academically in anthropology or history since she 3 completed her doctoral degree in 1984. 4 We note at the bottom of page 35 in the footnote 5 that Dr. Robinson was free of the ethical restraints 6 that caused problems for Dr. Daly only because she 7 didn't belong to any association which had such a 8 code. 9 We make the point at 131 at the top of page 36 10 that she did no field work anywhere among anyone, and 11 certainly not with the Gitksan or Wet'suwet'en. 12 That she neglected, in paragraphs 132, in 13 following primary data on these societies. 14 In 134 she did not rely on Beynon's recordings of 15 the oral histories. 16 At paragraph 136 that she did no archival research 17 for her opinion report and neglected historical 18 records. And your lordships have already heard from 19 Mr. Rush the submission or the observation that Dr. 20 Robinson was the person who said that the historical 21 record on these societies, that is at the time of 22 contact, was virtually mute. That was her reaction to 23 the Hudson's Bay records. 24 At paragraphs 137 through 139 we raise questions 25 about her attempt to compare ecologically different 26 societies with the Gitksan and Wet'suwet'en. 27 And we say, summarizing these points at 142, that 28 she drew sweeping inferences, which she admitted were 29 speculative and conjectural, from secondary 30 information about geographically disparate aboriginal 31 groups with different environments, different social 32 structures, and different historical circumstances 33 from those of the appellants. 34 And then we say in 143, which is the point of this 35 attack, My Lords, that despite the weakness or absence 36 of her qualifications in the areas covered by her 37 evidence, and despite the gaps in her sources and 38 methodology, the trial judge apparently adopted the 39 opinion he attributed to her. 40 At the top of 39: 41 42 "that the social and economic organization of 43 these peoples was likely a response to the fur 44 trade," 45 46 or the rather more limited opinion she expressed 47 herself was that so-called: 665 1 2 "classic patterns of Gitksan and Wet'suwet'en 3 resource use and ownership are post contact 4 phenomena." 5 6 And we conclude at 144 by saying that her opinions 7 ought not to have been given weight. 8 My Lords, the final section of this appendix -- 9 TAGGART, J.A.: It is 3 o'clock. We will take a brief 10 adjournment. 11 THE REGISTRAR: Order in court. Court stands adjourned. 12 13 (AFTERNOON RECESS) 14 15 THE REGISTRAR: Order in court. 16 TAGGART, J.A.: Yes, Mr. Adams. 17 MR. ADAMS: Thank you, my lord. I am at page 39 and paragraph 18 145 of the appendix of the appellants' factum. 19 My Lords, in light of the time pressure we are 20 under, I am not going to take you over all of this 21 material. But I am going to introduce it to you to 22 explain what it is doing here. 23 And the appellants relied on opinion evidence from 24 historians who examined, interpreted, and drew 25 inferences from historical documents. 26 And the two principal examples of that activity 27 were Professor Ray, about whom you've heard in some 28 detail, and Dr. Galois, who you've also heard referred 29 to. 30 The division of labour between them as witnesses 31 is that Professor Ray produced an opinion which 32 essentially is a snapshot of the societies in the 33 1820's, and then draws inferences about the probable 34 state of those societies and influences on them before 35 that time. 36 Dr. Galois started with the records that begin to 37 become available in the 1860's and carried on up into 38 the 1920's, and broadly characterized that history as 39 indicating not only persistence of the core features 40 of these societies, that is territoriality, feasting, 41 trade and so on, but also said that the documents 42 could be interpreted as indicating a persistent 43 assertion of rights to ownership and jurisdiction 44 among the appellants. 45 We refer again at paragraph 146 to Lavallee for 46 the proposition that expert testimony is admissible to 47 assist the fact-finder in drawing inferences in areas 666 1 where the expert has relevant knowledge or experience 2 beyond that of the lay person. We say that was true 3 of both Professor Ray and Dr. Galois who are 4 professional historical geographers. 5 And we say at paragraph 147 our submission is that 6 interpreting documents and generalizing on the broad 7 sweep of activity are the very areas in which expert 8 historians are knowledgeable and experienced, and 9 therefore in a position to assist the court. 10 Paragraph 148 through 151 is just a capsule review 11 of Professor Ray's qualifications in evidence and the 12 trial judge's treatment of them. 13 At paragraph 152 we refer to Dr. Galois' 14 qualifications in evidence. 15 And then we come at paragraph 153 to the ruling by 16 the trial judge that that this section is a reaction 17 to. And what he said in an interlocutory ruling was 18 that: 19 20 "Qualified experts may give many useful 21 opinions, based on inferences from the 22 documents about recorded facts of history in 23 order to explain matters in issue, but they may 24 not, in my view, either construe a written 25 document which is the province of the court, or 26 generalize upon the broad sweep of history 27 which is so often subject to learned agreement 28 and revision." 29 30 And there is a further observation in his lordship's 31 reasons at page 172 in the third full paragraph when 32 he speaks of the document collections of the 33 historians speaking for themselves. 34 And we say that the opinion evidence of both 35 Professor Ray and Dr. Galois is an illustration of the 36 principle that document collections don't speak for 37 themselves. They are matters of interpretation and 38 construction. And again the point is that historians 39 are in a good position to assist the court by doing 40 that. 41 We say at the bottom of page 41 in the footnote 42 that the trial judge did not give any example of an 43 opinion of either of these witnesses which was 44 inadmissible under his ruling. We argue in tab 5, the 45 section -- I'm sorry, tab 4 in the section on land 46 ownership in organized societies that the trial judge 47 could only have reached his conclusions by 667 1 disregarding the clear inferences which Professor Ray 2 drew from the Bay documents, but his lordship did not 3 say that this was connected with his ruling on 4 historical opinion evidence. 5 But we do say that to the extent that this ruling 6 was his lordship's reason for rejecting some of 7 Professor Ray's evidence and largely ignoring Dr. 8 Galois', to that extent we say that the propositions 9 which he enunciated as legal propositions -- that 10 historians as expert witnesses can neither construe 11 documents nor express general conclusions about 12 historical events -- are wrong in law. 13 And we draw the court's attention in paragraph 155 14 to the Supreme Court of Canada judgment in Horseman, 15 which adopted opinion evidence from Professor Ray 16 which did just those things, construed documents, 17 commented on the purposes for which legislation was 18 passed, and drew general conclusions on the economic 19 history of the large Treaty 8 area. 20 And we rely in paragraph 156 on the Ontario Court 21 of Appeal decision in Zundel for the propositions set 22 out there that historical opinion evidence is 23 admissible in both the circumstances that is 24 contraverted questions of general history, and even 25 where the historian is required to construe the 26 documents. And the principles under which the Zundel 27 court admitted such evidence are set out there under A 28 and B under paragraph 156. 29 And then in paragraphs 157 through 159, we simply 30 refer to Supreme Court of Canada judgments in Calder, 31 Simon and Sioui in which the Supreme Court of Canada 32 has again made use of evidence which appears and has, 33 in our submission, the same character as the 34 historical opinion evidence which the trial judge here 35 ruled to be inadmissible as a matter of law. 36 We say in conclusion in carrying on from those 37 cases that similar opinions given by the historians 38 here were both admissible and entitled to weight. And 39 we observe that they were given under even greater 40 circumstantial guarantees of trustworthiness than the 41 historical opinion evidence relied upon by the courts 42 in Zundel, Calder, Sioui, and Simon, because unlike 43 the contested evidence in Zundel and Calder, the 44 documents were before the court, and, unlike the 45 treatises considered in Sioui and Simon, the documents 46 were there and subject to cross-examination. 47 My Lords, in conclusion I refer, first of all, to 66? 1 the judgment in the reported judgment at page 2 02. 2 And this goes back to something that, my lord, Mr. 3 Justice Wallace raised this morning which was to 4 question whether the trial judge with the same 5 materials as the anthropologists and historians was in 6 a position to draw his own conclusions without their 7 assistance. 8 And what he says at the very bottom of 202 in the 9 final paragraph is: 10 11 "I heard so much evidence, and I was given so 12 much literature, that it is impossible to do 13 more than extract from it an impression of what 14 was going on in the Babine territory before and 15 during trader Brown's time there." 16 17 And, My Lords, my submission is that the evidence 18 that I've been addressing you on today -- 19 WALLACE, J.A.: That was initially my question. Given the facts 20 and the documents and so forth and all the histories 21 whether he can draw his own conclusion as distinct 22 from that of accepting the expert's. 23 MR. ADAMS: Yes. It is that question I am trying to address, my 24 lord. And I will try. And if I haven't -- 25 WALLACE, J.A.: What he says there is he found it impossible to 26 do more than extract an impression. But I was 27 wondering as to his legal competence of performing his 28 own opinion rather than accepting the expert's. 29 MR. ADAMS: And my answer, my lord, is contained in the 30 observations that these witnesses, whose evidence I 31 have been through this morning and this afternoon, 32 were people who were clearly from their evidence 33 capable of doing more than that, able to do more than 34 gain a general impression about what these societies 35 were about and what was going on in these territories. 36 And I say on that basis that it is evident that his 37 lordship was not able, unassisted, to deal with this 38 evidence and draw the appropriate inferences. 39 We say in conclusion on this appendix, My Lords, 40 that our submission is that the trial judge erred in 41 law in completely disregarding the evidence of the 42 anthropologists called by the appellants and any 43 evidence from the historians called by the appellants 44 which spoke to the construction of historical 45 documents, or what his lordship called the broad sweep 46 of history. 47 But his lordship went on to make findings clearly 669 1 within the competence of these experts, and clearly 2 contrary to their evidence without their assistance. 3 The appellants submit that his lordship's 4 anthropological and historical conclusions reached 5 without such assistance are manifestly in error and 6 should be reversed by this court. 7 And, My Lords, we say finally that one might think 8 that the rejection of the non-Indian experts left the 9 field free for the Gitksan and Wet'suwet'en's own 10 account of their histories and their social 11 organization. But the trial judge also rejected their 12 rich and detailed oral histories as reliable evidence 13 on these matters. 14 And Mr. Grant will be addressing you next in 15 defence of that evidence. And that completes the 16 appellants' submissions on appendix E. 17 TAGGART, J.A.: Thank you. 18 MR. GRANT: I am at appendix C on oral histories, My Lords, 19 which is in the same volume, volume 2. And I will be 20 referring to three volumes of references. And I, of 21 course, will try to edit down my references to it. 22 The first is volume R-22. And I will be taking you to 23 the first tab in R-22. 24 TAGGART, J.A.: And appendix which? 2 5 MR. GRANT: Appendix C? 26 TAGGART, J.A.: C for Charlie? 27 MR. GRANT: Yes. It is in the same volume. 28 TAGGART, J.A.: Do we need your factum? 29 MR. GRANT: No. If you have R-22 and Appendix C that should be 30 sufficient. 31 TAGGART, J.A.: And R — 32 MR. GRANT: 22. 33 TAGGART, J.A.: In your factum where you left off this morning 34 at tab 4, page 220 — 35 MR. GRANT: Yes, I did. And because the break — I think 36 because you suggested that the break was late I didn't 37 indicate that I was intending -- that was the 38 completion of that tab and I had made my submissions 39 on tab 4. And I did not really deal with the 40 conclusion which is in writing there. Of course I 41 asked you to refer to it. But I referred you to that 42 in answers to Mr. Justice Lambert's questions instead. 43 If you could go to tab C-l in R-23 I have put 44 there the reasons of the trial judge which we are here 45 considering under the oral histories. And I would 46 refer you to page 180. 47 MACFARLANE, J.A.: You said R-23. 670 1 MR. GRANT: R-22. I'm sorry, My Lords. 2 MACFARLANE, J.A.: That's the confusion. 3 MR. GRANT: C-l at page 180. The trial judge stated at page 180 4 his reasons: 5 6 "As I have said, unwritten oral history and 7 traditions of a House and the culture of a 8 people are admissible out of necessity as 9 exceptions to the hearsay rule because they 10 cannot be proven in any other way." 11 12 And he had ruled on the admissibility of oral 13 histories earlier in the trial. 14 15 "The plaintiffs assert that references to their 16 territory in their adaawk are powerful evidence 17 establishing occupation and use of land over 18 many, many years. The weight to be given to 19 this kind of evidence depends, of course, upon 20 its trustworthiness. The plaintiffs argue that 21 adaawk or kungax are particularily trustworthy 22 because of their antiquity and because they are 23 authenticated by public statement and 24 restatement in accordance with the practice 25 that what is stated at the feast must be 26 challenged then and there, at once, or not at 27 all." 28 29 And at the bottom of that page after he referred to 30 Trigger and an article by Drs. Bishop and Ray, that's 31 Dr. Ray who gave evidence here, which I'll come back 32 to, he said: 33 34 "Admissibility and weight of evidence are two 35 completely different concepts. While I have 36 not been troubled by the former, the doubts I 37 have about the latter preclude me from treating 38 the adaawk and kungax as direct evidence of 39 facts in issue in this case except in a few 40 cases where they could constitute confirmatory 41 proof of early presence in the territory. 42 My reasons are principally threefold." 43 44 Now, I would just like to -- and I am going to 45 come back to his reasons at paragraph 3. But I would 46 just like to take you to the second brown sheet at tab 47 C-l. And I am referring there to the evidence of Mary 671 1 McKenzie in which she, as one of the early witnesses, 2 described what these are so that you can appreciate 3 what we are dealing with here and the verification. 4 At page 235, line 38: 5 6 "Q I asked whether the Adaawk refers to other 7 chiefs of the Wolf Clan who moved from 8 Kuldo'o to Kispiox? And then you can just 9 proceed with that, the history of that 10 movement from Kuldo'o to Kispiox. 11 A Like I said, that every House of a chief 12 has their own Adaawk. Now what I am 13 expressing now is the Adaawk of how 14 Suuwiigos lived in Gitangasx, how he 15 Fought these battles, that's the Adaawk, 16 and how the movement of other chiefs, when 17 Kuldo'o was founded. This is in the 18 Adaawk. Without saying how the movement of 19 the people, it has to go down in Adaawk, 20 it's not just a story. Adaawk in Gitksan 21 language is a powerful word of describing 22 what the House stands for, what the chief 23 stands for, what the territory stands for. 24 It is not a story, it's just how people 25 travelled in the Adaawk. And it's the most 2 6 important thing to have an Adaawk. Without 27 Adaawk you can't very well say that you are 28 a chief or you own a territory. Without 29 the Adaawk, it has to come first, without 30 the Adaawk, names come after, songs come 31 after, crests come after, and the territory 32 that's held, fishing places, all those come 33 into one and that's the Adaawk. It's not a 34 story, it's Adaawk to the Gitksan people." 35 36 And I want to say when she is saying "it is not a 37 story", she in questioning said there are other 38 stories. They are called in Gitksan Antlemaxw. These 39 stories are like ferry tales and moral lessons. 40 Now, just going to page 237. She describes when 41 adaawk are told at line 31. 42 43 "Q You described the beginning, before you 44 started to tell your Adaawk, that this 45 Adaawk has been told in the Feast, could 46 you tell the court now when, in the Gitksan 47 Feast process, are Adaawks told? In other 672 1 words, at what kinds of feasts and why are 2 they told and to whom are they told? 3 A In the feasting of a burial of a chief, 4 these Adaawks are not told deeply, it's 5 just a changing of successor is a burial 6 Feast. But when a totem pole is erected, 7 that's when the adaawks come out of, of the 8 erection of a totem pole, our crests are 9 carved on these totem poles and they, these 10 questions tell the Adaawk of the family and 11 erecting of a totem pole, the chiefs all 12 gather at an erection, the chief tells, 13 illustrates or tells the story of the 14 Adaawk of these crests." 15 16 Now, in this case the oral histories that are told 17 are, I submit, and I will come to them, are something 18 that have been very seriously considered for a long, 19 long time by academics in the field, not just in this 20 case. And one of the key examples is Drucker. A 21 document tendered by the defendant Province at the 22 time Indians of the Northwest Coast, Phillip Drucker. 23 It is at the third tab. And this is what he says at 24 page 151. It is highlighted and bolded. I'm sorry, 25 My Lords, I am still at C-l at the third reference 26 right after Mary McKenzie. 27 28 "Traditions of many of the clans indicate that 29 their ancestors originally came from the south, 30 near the mouth of the Skeena River, apparently 31 prior to the arrival of the Coast Tsimshian, 32 while others came from the interior, from what 33 is now northern British Columbia. In 34 connection with these traditions..." 35 36 And he is talking here about what we are dealing with, 37 38 "...it must be pointed out while the Indians 39 had no written records and had to rely on oral 40 transmissions of their clan and family 41 histories, the traditions of all the groups 42 from Vancouver Island northward are so specific 43 and consistent -- and insofar as they can be 44 checked, so correct -- that there is little 45 doubt that for the most part they are 46 historically accurate, except for the 47 occasional supernatural events they recount 673 1 which may be regarded as a sort of literary 2 trimming." 3 4 This is what Drucker, a renouned ethnologist, wrote in 5 1965 in Indians of the Northwest Coast. 6 Now, My Lords, I submit in the factum at paragraph 7 2 that the oral histories, if accepted, would have 8 established that the Gitksan and Wet'suwet'en were 9 organized in societies and owned their territories 10 long before the arrival of Europeans. 11 Now, the trial judge, and the quote at paragraph 3 12 is the next page from the judgment I referred you to 13 at page 181. And the trial judge lists -- we've 14 listed right in the factum the comments he makes. He 15 says first, the reason he rejects it: 16 17 "First, I am far from satisfied that there is 18 any consistent practice among the Gitksan and 19 Wet'suwet'en Houses about these matters. The 20 early witnesses suggested that the adaawk are 21 well formulated and the contents constantly 22 sifted and verified. I am not persuaded that 23 this is so." 24 25 That's the first reason he rejects them. 26 27 "Secondly, the adaawk are seriously lacking in 28 detail about the specific lands to which they 29 are said to relate." 30 31 That's his second reason. 32 33 "Thirdly, these adaawk are sprinkled with 34 historical references making them suspect as 35 trustworthy evidence of pre-contact history." 36 37 Now, I point out in the next paragraph that despite 38 those comments, the trial judge concluded that slavery 39 and starvation was not uncommon and wars with 40 neighbouring peoples were common in pre-contact times. 41 The only source for such information, the only source 42 for that opinion was the oral histories. How can it 43 be that the oral histories are both ancient and 44 accurate when they refer to Indian slavery, starvation 45 and war, but suddenly become recent and untrustworthy 46 when they refer to Indian territories and political 47 authority? 674 1 We submit, my lords, that the rejection of these 2 oral histories effectively made the appellants people 3 without history prior to the 1820s. Now, what is 4 unusual here is that the Gitksan and Wet'suwet'en oral 5 histories, there are so many of them and they are so 6 detailed. They have been accepted and relied upon by 7 anthropologists and archaeologists for decades. If 8 the histories are entitled, as the trial judge found, 9 to little or no weight, I submit there is not an 10 aboriginal people in Canada who would have an oral 11 history that could be relied upon to establish the 12 existence of character of pre-contact societies. 13 Now, when you combine that with the trial judge's 14 creation of a new test for existence of rights, the 15 long, long, long time test, prior to the assertion of 16 British sovereignty, this judgment effectively makes 17 the proof of aboriginal rights impossible. 18 I point out in paragraph 7 that you have to couple 19 that with his rejection of the anthropological 20 evidence as unnecessary, as Mr. Adams referred to this 21 morning and now. The archaeological evidence he found 22 as unhelpful because "any aboriginal people could have 23 created these remains", that is in his reasons at page 24 182. Genealogical evidence "does not intrude far 25 enough back into history to establish a time-depth of 26 presence in any specific part of the territory". And, 27 of course, my submissions yesterday on the genealogies 28 I endeavored to establish that he was in error there 29 because they go back to the 1820s. But the historical 30 records from which early "minimal levels of social 31 organization" could be inferred were "equivocal" when 32 it came to proving land ownership. 33 It is against that background of all of these 34 other findings that we must consider the reliabilities 35 of all of these oral histories. 36 I have three main points here to make. The first 37 is the scientific evidence. These oral histories were 38 corroborated by the scientific evidence. And I would 39 just ask you, and I am not going to take you to it at 40 this point, but it is in the tab. You should put a 41 reference there under paragraph 9 to the reasons at 42 pages 185 to 192. This is where the trial judge went 43 through the Seeley Lake evidence and the Madiik 44 adaawk. 45 And I referred you to this yesterday where the 46 adaawk describing the huge landslide came down towards 47 the ancient city of Temlaham on the banks of the 675 1 Skeena River from the outflow of Seeley Lake. And I 2 pointed that out to you. It is right in the centre of 3 the large map but close to the south edge of the 4 Gitksan territory with the Wet'suwet'en. 5 And it is described as: 6 7 "A gigantic force that was coming down the 8 valley of the creek. As it came the forest was 9 torn apart, trees uprooted, tramped down. A 10 wide gash in the greenery told of its passing. 11 At last a giant grizzly bear appeared at the 12 edge of the Skeena." 13 14 As I've submitted, My Lords, we established through 15 independent scientific evidence, which was accepted by 16 the trial judge, that more than 3500 years ago a major 17 event occurred at Seeley Lake located across from the 18 village, ancient village of Temlaham. Independent 19 scientific evidence established as a result of that 20 major landslide the lake was dammed and rose sharply. 21 No other major landslide occurred in this area which 22 paralleled the event which occurred 3500 years ago. 23 And if I can take you to reference at C-ll in the 24 same volume, I would like to take you to page 9168 of 25 Mr. Gottesfeld's evidence. It is the last page in the 26 tab. Dr. Gottesfeld is the geologist who studied the 27 landslide and studied debris flows, and one of the two 28 experts to give opinion evidence on this. And he was 29 asked by Miss Mandell at line 16 — 30 TAGGART, J.A.: Is he a sociologist? 31 MR. GRANT: Geomorphologist is the correct way of describing 32 him, which basically is that he studies rock flows and 33 things like this in ancient times. Miss Mandell asked 34 him after he described his scientific report, which is 35 not -- he referred to it here, but it is in evidence, 36 of course, about what happened. And the trial judge 37 refers to it at length. But she says at line 16: 38 39 "Q I am asking you whether or not, if you were 40 standing three or six kilometres downstream 41 from Seeley Lake at the bottom of Chicago 42 Creek when this event happened, what you 43 would have heard and seen?" 44 45 She is trying to place him where the oral history 46 placed these people at the time. 47 676 1 "A Well, if you could see the mountain from 2 where you were standing, there would be a 3 tremendous noise, overwhelming loud 4 noise, a great cloud of material, swaths of 5 forest being cleared as the debris slide 6 came down across the Chicago Creek fan. 7 The -- continuing down Chicago Creek, I 8 invisioned the debris tarring where lots of 9 water was incorporated and debris and there 10 would be this great mud-charged mess of 11 material coming down the valley, great 12 rolled wall of brown material, trees tossed 13 around, just a swath of countryside being 14 cleared that would come towards you, I am 15 sure you would be frightened and run away. 16 That's the time where you make sure you are 17 standing up on a good hill or something." 18 19 Now, in the next reference I would just like to 2 0 take you to Dr. Mathewes' report. And he was the 21 paleobotanist who studies -- one of the few in Canada, 22 who studies different climactic changes through taking 23 core samples thousands of years ago. 24 But if you go to figure 3, which is all that I 25 will take you to. It is the third page in in tab C-ll 26 after that next brown sheet. You see the diagram. 27 And if you can see the debris flow flowing down where 28 "N" is there. It looks like this, my lord. It is 29 just a sketch. And you can see where the debris flow 30 flows down Chicago Creek. And right beside the end 31 would be where Temlaham is. So that's where the 32 debris flow was. And you see the coring sites and 33 Seeley Lake and the rise of the lake as a result of 34 this debris flow. 35 Now, the trial judge, I am returning to my factum, 36 says the link, by date and description, between the 37 Seeley Lake landslide and the Gitksan adaawk, 38 corroborates -- I'm sorry, this is what we submit, 39 corroborates Gitksan presence within the heart of the 40 territory for millenia, with the elaborate 41 institutions and highly-developed technology for 42 harvesting and processing resources. 43 Now, the trial judge did not reject that evidence. 44 What he did, though, is he said he didn't find it 45 necessary to rely on it except to be corroborative of 46 other evidence that people were in some parts of the 47 territory for a long time. Its value as independent 677 1 confirmation of the accuracy of oral histories in 2 their description of major historical events, and the 3 antiquity of Gitksan presence in their territories as 4 an organized society, was effectively ignored. 5 Because once he says it is only some corroboration, he 6 doesn't use it or he doesn't accept it, to show that 7 there is historical validity to not necessarily a 8 supernatural effect of the oral histories, but to the 9 oral histories themselves. 10 Now, I referred you yesterday in my argument to 11 paragraph 13. And I will just take you to page 6 of 12 the factum where -- this is from the Madiik adaawk 13 where -- I didn't take you to this. If you compare 14 this 1936 description of Walter Wright of the event 15 with Mr. Gottesfeld's scientific description at the 16 top, line 2. 17 18 "Ominous events were taking place far back in 19 the forest. These soon attracted the attention 20 of the people. As they watched they saw great 21 trees thrown high above the top of the forest. 22 The disturbance came nearer. Some gigantic 23 force was coming down the valley of the creek. 24 As it came, the forest was torn apart, trees 25 uprooted, tramped down. A wide gash in the 26 greenery told of its passing. 27 Closer and still closer to the river came 28 the turmoil. At last a bear came out on the 29 river's margin. A bear - but it was unlike any 30 bear the people had ever seen - a giant grizzly 31 bear; one capable of uprooting trees; of 32 snapping giant trunks as though they were 33 blades of grass. The bear paused and glared at 34 [Temlaham]." 35 36 Then it describes the warriors fighting hand to hand 37 and fighting this monster that came out of the forest 38 and, of course, to no avail. 39 And then if you look at line 41: 40 41 "In the days that followed brave men crossed 42 the river to view the devastation wrought by 43 the giant grizzly in that timbered land. They 44 followed the trail from whence he had come. 45 The trail led up the valley of the creek. It 46 came to where the creek flowed out of the lake. 47 There it disappeared. Quite evidently, the 67? 1 creature - this Narnak - had come out of the 2 Lake of Pavilions." 3 4 And then they realized this was a penalty to them. 5 What is significant, as I say in paragraph 14, of 6 this 1936 rendition of the Madiik and the dating of it 7 at 3500 years ago is that you see detailed references 8 to laws, ranked chiefs, crests and totems, medicines, 9 technology for harvesting and processing resources and 10 manufacturing tools and weapons, elaborate dances, 11 costumes and festivals, and trade with the coast. And 12 this is in a temporal sequence after the narration of 13 the Mountain Goat Adaawk in which feasting is 14 described. 15 So we submit that on this basis the Gitksan were 16 in their territories harvesting, managing and 17 conserving resources and governing themselves to the 18 feast at least 3500 years ago. 19 And as I say at paragraph 17, the point of that is 20 that it goes to the scientific evidence of the oral 21 histories generally. 22 Now, the next point I want to take you to is to 23 paragraph 18 and to the point of the scholars have 24 recorded and relied on oral histories. 25 Now, oral histories of the Northwest coast Indian 26 peoples, including the Gitksan and Wet'suwet'en, have 27 been carefully recorded and relied upon by reputable 28 scholars since the early years of this century. 29 Ethnographers such as Emmons, Sapir and Morice, 30 anthropologists including Barbeau, Duff, Jenness, and 31 Cove, and archaeologists including MacDonald and Ames 32 have verified the accounts in the histories by 33 comparing successful tellings. Some histories have 34 been told many times over several generations with 35 little deviation in content. 36 This is what Drucker is talking about. This is 37 quite unique. According to the scholars the oral 38 histories of Gitksan, Nishga, and Coast Tsimshian are 39 among the most comprehensive oral histories gathered 40 from any aboriginal society in the world. So this is 41 a relatively unique situation. 42 I then list a large series of references. And I 43 want to advise your lordships that when originally 44 putting together these references which are in 45 evidence of the oral histories, it would be 10 46 reference binders alone. It is 10 volumes of these 47 size of binders for the oral histories as recorded, as 679 1 commented upon, as analyzed. 2 And I will just take you firstly to -- I am not 3 going to take you to most of these, but to Dr. Daly's 4 report, because he -- he is the one who testified in 5 evidence and was examined on the example of the oral 6 histories. 7 Now, I will take you -- I have his whole extract 8 pages. And the first reference at tab C-18 is to Dr. 9 Daly's evidence from pages 11905 to 11931, so that 10 reference should really be changed. I would like to 11 take you to page 11914 and refer you -- just have you 12 note that here he is talking about the accuracy of the 13 Men of Madiik adaawk in terms of how long it took to 14 transpose it. 15 And then to page 11915. At the bottom I ask him 16 the question, his last statement from his opinion 17 report. 18 19 "Q Can you expand on why you say, that last 20 statement, why you concluded that: 21 "The oral tradition is a worthy 22 historical source material when it is 23 treated as a whole, a corpus of 24 linked and overlapping records of 25 events that have been reiterated down 26 through the generations." 27 A Well, the assessment is based on the -- my 28 experience with the adaawk material. There 29 is a large body of materials everybody 30 knows and there are many tellings of 31 similar events. But they are all told 32 by -- from the perspective of the family 33 that owns the history, the specific 34 history, so there are overlapping 35 commentaries on events, but there is no 36 overview of the whole system." 37 38 Now, this is as one would expect with a kinship's 39 title society that you have -- each House group has 40 its own portion of the history and they come together 41 when they are all collected together. 42 43 "A And it's only someone who is going to 44 approach the whole thing as one body of 45 material that can make any assessment about 46 the validity, because you have to 47 cross-reference and cross-check so many 680 1 different accounts and have an 2 understanding of who is speaking when the 3 adaawk is being told, and whether the 4 person who told the anthropologist or the 5 recorder was a legitimate spokesperson for 6 that group or not. There are many factors 7 that have to be weighed. 8 But we have so much material for this 9 area, and it is one of the cultural 10 regions, one of the few in Canada where 11 there is in reliance on a linear sense of 12 history in the cultural framework of the 13 people that goes back, according to the 14 people, a long, long way, thousands of 15 years they say. 16 Q When you say, "There is a reliance on 17 linear history," you are referring to 18 reliance by the Gitksan or by the 19 Wet'suwet'en? 20 A Yes, yes. 21 Q Okay. 22 A And what I'm referring to as "oral history" 23 is not the same as individual reminisces of 24 an elder. I'm referring to that body of 25 historical material which has been selected 26 and filtered for its significance of the 27 telling group down through the generations 28 and then it has been trained into each 29 generation in a specific way and it's 30 performed and used in a very specific way. 31 So there are various ways of testing 32 general validity. Of course we don't know 33 the specifics of historical situation of 34 10,000 years ago or even a thousand years 35 ago, but we can get a general feeling and a 36 general probability of the historical -- 37 general historical accuracy on such things 38 as migrations and they use -- the use of 39 the place names is very important as well. 40 The same place names that are in existence 41 today are recounted as stops on the way in 42 certain migrations." 43 44 And if you go over to 11923 of his evidence, this is 45 his whole section really of his explanation. I am 46 just noting here one point that Mr. Adams referred you 47 to was that Dr. Daly had done similar research. His 681 1 doctoral thesis was on the Iroquois. And in his 2 thesis of dealing with the Iroquois he had to deal 3 with oral histories of the Iroquois. And he says at 4 line 29: 5 6 "Q Is there any parallel with the Iroquois 7 study you did? 8 A There is a similar procedure for the 9 important documents that are passed down 10 with the Iroquois, and they use mneumonic 11 devices. Oh, it is a word which means 12 memory devices for remembering the 13 important events and those parts of their 14 heritage which are important to the present 15 day social structure. The wampum belt is 16 one example. And the speaker in the winter 17 ceremonies of the Iroquois has a cane 18 called a memory cane which has various 19 notches and insignia on it much like a 20 rosary, and they feel it as they are 21 reciting. It's a long recitation. It 22 takes three days. The history of the 23 earth is involved, the formation of their 24 polictical system, and so on. They go down 25 over the notches which informs them of the 26 relationship between the different events 27 and the different characters." 28 29 Now, my lord, Mr. Justice Hutcheon raised, I believe 30 it was a few days ago, about the question of the 31 crests and the relation to territory. What is 32 significant here, when you think back to the 33 photographs that Mr. Rush showed you, is to a Gitksan 34 when they look at that crest they see more than what 35 you or I see, or to a Wet'suwet'en. They see the 36 history. That crest is a mneumonic device. And a 37 person like Olive Ryan, who testified she was at the 38 feast in 1945 and the feast in 1987, two pole raisings 39 of her House, the crests there are her history of her 40 House and the oral history of the House. 41 Now, I would just like to refer you, and I am not 42 going to take you to them, but if you go back to the 43 factum you see, My Lords, I would like to correct 44 because Mr. Justice Lambert asked my colleague Mr. 45 Adams about Duff. Duff's: Histories, Territories and 46 Laws of the Kitwancool should be Exhibit 448. That is 47 one of the Duff publications. And it's extracted in 682 1 tab C-18 here. It is Exhibit 448. That was put in 2 evidence in this case. 3 Duff: Images: A Way of Seeing and a Way of 4 Thinking was a publication he did I believe shortly 5 before his death on stone implements. And in that 6 publication, which is Exhibit 912-26. It is after the 7 second tab. And I don't have the time to take you to 8 it. But he talks specifically there about rocks, 9 stone carvings in Hagwilget, rock carvings that are 10 actually artistic carvings that are several thousand 11 years old. 12 Duff's Notes on the Barbeau-Beynon Files, Exhibits 13 1044, 1045A and 1045B. You probably recall Mr. Adams 14 referring you to Duff's comments in the Calder 15 decision that he looked at the Barbeau-Beynon 16 materials. At that time, of course, those were his 17 own personal files. Since his death they have been 18 kept at the University by his colleague Ms. Haltman. 19 They were released to the appellants here. And those 20 three volumes are his notes of the Barbeau-Beynon 21 files which he did in his year of research. All of 22 those are in evidence. And if they were all brought 23 here to the court they are three large volumes of 24 documents equivalent to one of the reference books. 25 Now, the other reference I would like to refer you 26 to in here is MacDonald's "Epic of Nekt". And I 27 should just -- if I take you -- this is in C-18. 28 There is the first brown sheet is the histories, 29 territories and laws. The second one is Images. The 30 third one is to the index and extracts from the Duff 31 files with green sheet separators in between them. 32 That covers the third, fourth and fifth. 33 And I should advise your lordships that what this 34 compendium is is these are some extracts of Duff's 35 notes on the Barbeau-Beynon files relating 36 specifically to the Gitksan. Well, it starts with a 37 brown sheet. It is Exhibit 1044. 38 Now, if I could take you to -- maybe if I go from 39 the back it is easier, my lord. There is one brown 40 sheet at the back of this volume to the back of the 41 volume itself at tab C-18. The second one back, the 42 third one. And then you come to a page of MacDonald, 43 The Cultural Setting. It's a one page extract. It is 44 after all of those green separator sheets, actually. 45 It is the next one after the Duff files. It is called 46 The Cultural Setting. That's chapter one or part one, 47 The Cultural Setting. 683 1 WALLACE, J.A.: After the Epic of Nekt? 2 MR. GRANT: It is just before, my lord. Just one page before. 3 WALLACE, J.A.: I see. All right. 4 MR. GRANT: Just one page before the Epic of Nekt. 5 Now, George MacDonald, the curator of the National 6 Museum, worked on the Kitwanga fort site. And this 7 publication, which is the full publication, is in 8 evidence. He refers to The Cultural Setting that: 9 10 "The oral history of the Skeena tribes has 11 engaged the interest of a number of 12 anthropologists beginning with Franz Boas who 13 collected many legends from the Gitksan and 14 Tsimshian at Port Essington on the lower Skeena 15 late in the last century. Lieutenant George 16 Thornton Emmons ..." 17 18 And he reiterates some of them. Then he goes to the 19 next paragraph: 20 21 "The richness of the Boas, and Barbeau/Beynon 22 narratives attracted the attention of Claude 23 Levi-Strauss who chose the myth of Azdiwal from 24 the Skeena-Nass River as the vehicle for 25 several essays on structural analysis, with 26 many rejoinder articles by colleagues which 27 continue to appear in the anthropological 28 j ournals. 29 Although this rich resource of textual 30 material runs to thousands of pages, there is a 31 much smaller, but not insignificant amounts 32 that relate to the Kitwanga fort hill. The 33 most extensive notes are those of 34 Barbeau/Beynon in the files of the Canadian 35 Center for Folk Culture Studies of the National 3 6 Museum." 37 38 What this publication is, is that just with 39 respect to findings in ancient Greece based on 40 mythology, MacDonald in the last -- this publication I 41 think is in 1980, he found one of the fort sites of 42 the Gitksan based on their oral history. So it is a 43 second corroborative piece of information. 44 And the next tab, the Epic of Nekt, is an article 45 he did with respect to that. And he came to some 46 conclusions, some of which are not widely accepted. 47 He makes some generalized statements. But he 684 1 certainly, in terms of his archaeological work in 2 which he is a renouned expert, he made very 3 significant archaeological finds based on oral 4 history. 5 TAGGART, J.A.: Mr. Grant, we are past 4 o'clock. 6 MR. GRANT: I see that, my lord. 7 THE REGISTRAR: Order in court. Court stands adjourned until 10 8 o'clock tomorrow. 9 (PROCEEDINGS ADJOURNED) 10 11 I hereby certify the foregoing to 12 be a true and accurate transcript 13 of the proceedings transcribed to 14 the best of my skill and ability. 15 16 17 18 19 20 Lisa Reid, 21 Official Reporter, 22 UNITED REPORTING SERVICE LTD. 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
Vancouver : University of British Columbia Library
Vancouver : United Reporting Service Ltd.
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Original Format: University of British Columbia. Library. Law Library.
[British Columbia Court of Appeal 1992-05-13]
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