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Delgamuukw Trial Transcripts
British Columbia. Supreme Court
In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial.
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65 Opening by Mr. Joseph and Mr. Muldoe 1 SMITHERS, B.C. 2 May 12, 1987 3 THE REGISTRAR: Order in court. In the supreme court of British 4 Columbia, this 12th day of May, 1987, Delgamuukw, also 5 known as Ken Muldoe, suing on his own behalf on behalf 6 and on behalf of all other members of Delgamuukw, and 7 others and her Majesty the Queen in Right of the 8 Province of British Columbia and the Attorney General 9 of Canada, at bar. 10 THE COURT: Thank you. Mr. Rush. 11 MR. RUSH: Yes, my Lord. We're prepared to start the opening, 12 and I would like to ask Gisday Wa, Alfred Joseph, and 13 Chief Delgamuukw, Ken Muldoe, to make the opening on 14 behalf of the Gitksan and Wet'suwet'en chiefs. 15 THE COURT: All right, thank you. Who's first, please? 16 MR. JOSEPH: My Lord, I'll read my address now. My name is 17 Gisday Wa. I am a Wet'suwet'en Chief and a plaintiff 18 in this case. My House owns territory in the Morice 19 River and Owen Lake area. Each Wet'suwet'en 20 plaintiff's House owns similar territories. Together 21 they own and govern the Wet'suwet'en territory. As an 22 example, the land on which this courthouse stands is 23 owned by the Wet'suwet'en Chief, Gyolugyet, in Kyas 24 Yax, also known as Chief Woos' House. 25 MR. MULDOE: My Lord, I am Delgamuukw. I am a Gitksan Chief and 26 a plaintiff in this case. My House owns territories 27 in the Upper Kispiox Valley and Upper Nass Valley. 28 Each Gitksan plaintiff's House owns similar 29 territories. Together, the Gitksan and Wet'suwet'en 30 Chiefs own and govern the 22,000 square miles of 31 Gitksan and Wet'suwet'en territory. For us, the 32 ownership of the territory is a marriage of the Chief 33 and the land. Each chief has an ancestor who 34 encountered and acknowledged the life of the land. 35 From such encounters come power. The land, the 36 plants, the animals and the people all have spirit, 37 they all must be shown respect. That is the basis of 38 our law. 39 MR. JOSEPH: The chief is responsible for ensuring that all the 40 people in his House respect the land, respect the 41 land, and in all living things. When a Chief directs 42 his House properly and the laws are followed, then 43 that original power can be recreated. That is the 44 source of the Chief's authority. That authority is 45 what gives the 54 plaintiff's their right to bring 46 this action on behalf of their House members, all 47 Gitksan and Wet'suwet'en people. That authority is 66 Opening by Mr. Joseph and Mr. Muldoe 1 what makes the Chiefs the real experts in this case. 2 MR. MULDOE: My power is carried in my House's histories, songs, 3 dances and the crests. It is recreated at the feast 4 when the histories are told, the songs and the dances 5 performed and the crests displayed. With the wealth 6 that comes from respectful use of the territory, the 7 House feeds the name of the Chief in the feast hall. 8 In this way, the law, the Chief, the territory and the 9 feast become one. The unity of the Chief's authority 10 and his House's ownership of its territory are 11 witnessed and thus affirmed by other Chiefs at the 12 feast. 13 MR. JOSEPH: By following the law, the power flows from the land 14 to the people through the Chief; by using the wealth 15 of the territory, the House feasts its Chief so he can 16 properly fulfill the law. This cycle has been 17 repeated on my land for thousands of years. The 18 histories of my House are always being added to. My 19 presence in this courtroom today will add to my 20 House's power, as it adds to the power of other 21 Gitksan and Wet'suwet'en Chiefs who will appear here 22 or who will witness the proceedings. All of our 23 rolls, including yours, will be remembered in the 24 histories that will be told about by my grandchildren. 25 Through the witnessing of all the histories, century 26 after century, we have exercised our jurisdiction. 27 MR. MULDOE: The Europeans did not want to know our histories, 28 they did not respect our laws or our ownership of our 29 territories. This ignorance and this disrespect 30 continues. The former Delgamuukw, Albert Tait, 31 advised the Chiefs not to come into this court with 32 their regalia and their crest-blankets. Here, he 33 said, the Chiefs will not receive the proper respect 34 from the government. If they are wearing their 35 regalia, then the shame of the disrespect will be 36 costly to erase. 37 MR. JOSEPH: Officials who are not accountable to this land, its 38 laws or its owners have attempted to displace our laws 39 with legislation and regulations. The politicians 40 have consciously blocked each path within their system 41 that we take to assert our title. The courts, until 42 perhaps now, have similarly denied our existence. In 43 our legal system, how will you deal with the idea that 44 the Chiefs own the land? The attempts to quash our 45 laws and extinguish our system have been unsuccessful. 46 Gisday Wa has not been extinguished. 47 MR. MULDOE: If the Canadian legal system has not recognized our 67 Opening by Mr. Joseph and Mr. Muldoe 1 ownership and jurisdiction but at the same time not 2 extinguished it, what has been done with it? Judges 3 and legislators have taken the reality of aboriginal 4 title as we know it and tried to wrap it in something 5 called aboriginal rights. An aboriginal rights 6 package can be put on the shelf to be forgotten or to 7 be endlessly debated at Constitutional Conferences. 8 We are not interested in asserting aboriginal rights. 9 We are here to discuss territory and authority. When 10 this case ends and the package has been unwrapped, it 11 will have to be our ownership and our jurisdiction 12 under our law that is on the table. 13 MR. JOSEPH: Our histories show that whenever new people came to 14 this land, they had to follow its laws if they wished 15 to stay. The Chiefs who were already here had the 16 responsibility to teach the law to the newcomers. 17 They then waited to see if the land was respected. If 18 it was not, the newcomers had to pay compensation and 19 leave. The Gitksan and Wet'suwet'en have waited and 20 observed the Europeans for a hundred years. The 21 Chiefs have suggested that the newcomers may want to 22 stay on their farms and in their towns and villages, 23 but beyond the farm fences the land belongs to the 24 Chiefs. Once this has been recognized, the court can 25 get on with its main task, which is to establish a 26 process for the Chiefs' and the newcomers' interests 27 to be settled. 28 MR. MULDOE: The purpose of this case then, is to find a process 29 to place Gitksan and Wet'suwet'en ownership and 30 jurisdiction within the context of Canada. We do not 31 seek a decision as to whether our system might 32 continue or not. It will continue. I will explain to 33 my people in my town what I have just said. 34 THE COURT: Well, excuse me, I'm sorry, Chief. Have 35 arrangements been made for an interpreter of this part 36 of the opening, or is it -- 37 MR. RUSH: My Lord, the idea was to provide a short summary of 38 what had been said rather than to translate throughout 39 the statement of the address, and I understand it's 40 the wish of the Chiefs to summarize briefly what it is 41 they've just said in English. 42 THE COURT: Well, I have no difficulty with that, Mr. Rush, if 43 what is about to be said is not to be deemed to be 44 part of the record at this trial. If it's to be part 45 of the record of this trial it seems it must be 46 translated. 47 MR. RUSH: I'm certainly happy to have it translated. Opening by Mr. Joseph and Mr. Muldoe 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT: Is there someone available for that purpose? MR. RUSH: Yes, there is. Mr. George Holland can translate for the Wet'suwet'en, and Fern -- THE COURT: Well, it would seem that following my expressed desire yesterday to have this trial conducted as close as possible in conformance with the regular procedure of the court, that the interpreter should be sworn. MR. RUSH: Thank you. THE COURT: Or affirmed. Could we have the name of the interpreter, please. MR. RUSH: My Lord, Alice Sampson will interpret the words of Delgamuukw. THE COURT: And for the purposes of the registrar administering the oath, how should the language or dialect be described? MR. RUSH: As the Gitksan language. THE COURT: Gitksan? Madam registrar, are you able to administer the oath to the interpreter? ALICE SAMPSON - Interpreter sworn THE REGISTRAR: Please state your name for the record? THE INTERPRETER: Alice Sampson. THE COURT: Chief Delgamuukw, can you please make your statement in short bursts so that it can be interpreted, or translated, I suppose. MR. MULDOE: My Lordship, ladies and gentlemen, I will tell you what has been said today. It has been centuries now since they've taken our ancestor's land, and this is where our strength lies in. We are here to discuss our territories. These are our territories, it belongs to us, and it's not for what you call Canada to run this land as they wish, the territory. That is the end of my address. THE COURT: Thank you. MR. RUSH: My Lord, I'll ask Mr. George Holland to translate on behalf of the Wet'suwet'en. GEORGE HOLLAND - Interpreter sworn THE REGISTRAR: Please state your full name for the court? THE INTERPRETER: George Holland. MR. JOSEPH: Your Lordship, what I have said to you I will reiterate to the Chiefs. Your Lordship here has been notified of our intention and why we are here. We are here to explain how we have asserted our laws and how we have practised our laws within the Feasts, and the 69 Opening by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE THE MR. THE MR. THE MR. COURT COURT RUSH: COURT RUSH: COURT RUSH: defence here does not believe in our laws, and that is why we are here to explain everything to them. Your Lordship has been notified of the situation of where the courthouse is situated, which is in Gyolugyet's territory, and Gyolugyet is here in the courthouse. He lives on his own territory within -- within his territory, and he is also paying for living there, and that is one of the reasons why we are here. We are going to find out the reasons for that. There is a lot of people living in the same area here that are from overseas. We are not here to chase anybody away, we are -- we are going to find out how we are going to be able to live amongst other people besides ourselves. And that is the extent of my address. : Thank you gentlemen. : Mr. Rush. My Lord, we've provided with you the blue-bound volume of the opening. : Yes. The presentation of this opening will similarly be divided between Mr. Grant and I, and I will submit to you for about the half-way mark of the opening and Mr. Grant will then take the rest. : Thank you. My Lord, the Gitksan and Wet'suwet'en, in asserting their rights of ownership and jurisdiction over their territory, are affirming the foundations upon which their civilizations are based and have been based for for over 5,000 years. In denying that these rights exist, the Province of British Columbia and the Federal Government of Canada are denying the very existence of those civilizations. The foundations of Gitksan and Wet'suwet'en societies are firmly entrenched in their own laws. But in the face of Provincial and Federal disrespect for these laws and the injustice this has brought, the Gitksan and Wet'suwet'en have come to this court to secure those foundations in Canadian law, law which the Province and Federal governments can be compelled to respect. Only then will the Gitksan and Wet'suwet'en people be able to negotiate a just resolution of their relationship with Canada. This case is therefore a search for the legal pathway to justice. This is not the first time the Gitksan and Wet'suwet'en Chiefs have sought recognition of their rights to ownership and authority over their territory. Indeed, their efforts span the last 70 Opening by Mr. Rush 1 century. In 1884, the Gitksan Chiefs of Gitwangak 2 told the Provincial Government that the influx of 3 miners to Lome Creek within their territory, without 4 there consent, was wrong and had to be stopped. I 5 will read from their statement: 6 7 "From time immemorial the limits of the district in 8 which our hunting grounds are have been well 9 defined. This district extends from a rocky point 10 called 'Andemane' some two and a half or three 11 miles above our village on the Skeena River to a 12 creek called 'She-quin-khaat', which empties into 13 the Skeena about two miles below Lome Creek. We 14 claim the ground on both sides of the river, as 15 well as the river within these limits, and as all 16 our hunting territories, fruit gathering and 17 fishing operations are carried on in this district, 18 We can truly say we are occupying it. 19 The district is not held unitedly by all the 20 members of the tribe, but is portioned out among 21 the several families, and no family has a right to 22 Trespass on another's grounds: so that if anyone 23 family is hindered from hunting on their own 24 ground, there is nowhere else for them to go, they 25 lose all the benefits they derived from their 26 hunting. As they cannot follow the animals across 27 the bounds into their neighbours' grounds. We 28 would liken this district to an animal, and our 29 village, which is situated in it, to its heart. 30 Lome Creek, which is almost at one end of it, may 31 be likened to one of the animal's feet. We feel 32 that the white men by occupying this creek are, as 33 it were, cutting off a foot. We know that an 34 animal may live without one foot, or even without 35 both feet, but we also know that every such 36 loss renders him more helpless, and we have no wish 37 to remain inactive until we are almost or quite 38 helpless. We have carefully abstained from 39 molesting the whitemen during the past summer. We 40 felt though we were being wronged and robbed, as we 41 had not given you the time nor opportunity to help 42 us, it would not be right for us to take the matter 43 into our own hands. Now we bring the matter before 44 you, and respectfully call upon you to prevent the 45 Inroads of any whitemen upon the lands within the 46 fore-named district. In making this claim, we 47 would appeal to your sense of justice and right. 71 Opening by Mr. Rush 1 We would remind you that it is the duty of the 2 government to uphold the just claims of all 3 peaceable and law-abiding persons such as we have 4 proved ourselves to be. We hold these lands by the 5 best of all titles. We have received them as the 6 gift of the God of Heaven to our forefathers, and 7 we believe that we cannot be deprived of them 8 By anything short of direct injustice. In 9 conclusion, we would ask you, would it be right for 10 our Chiefs to give licences to members of the tribe 11 to go to the district of Victoria to measure out, 12 occupy, and build upon lands in that district now 13 held by whitemen as grazing or pasture land? Would 14 the whitemen now in possession permit it, even if 15 we told them that as we were going to make a more 16 profitable use of the land they had no right to 17 interfere? Would the government permit it? Would 18 they not at once interfere and drive us out? If it 19 would not be right for us so to act, how can it be 20 right for the whiteman to act so to us?" 21 22 This territory, my Lord, described in 1884 is the same 23 territory as is claimed in this action today by the 24 Gitksan Chiefs of Gitwangak. 25 In 1889, Chief Gyetm Galdoo from Gitanmaax framed 26 his appeal to justice in this way: 27 28 "There is land belonging to me and my tribe in the 29 lower Delta, near the confluence of the Skeena and 30 Haguil-get Rivers. This land mentioned belongs to 31 us, to times back as far as can be remembered. The 32 land in question is part of our hunting, trapping, 33 Snaring and especially fishing grounds. A fish 34 house is thereon and has been there for many years 35 back. All this has been taken up by the people not 36 belonging there. Houses are hereon and more being 37 built. Those people came there to erect a school 38 house as a pretense, but turned the same into a 39 trading establishment for the purpose of gain. 40 I strictly protest against all these proceedings 41 and appeal to the law, to aid and protect me in 42 this matter." 43 In 1908, Gitksan Chiefs travelled to Ottawa to 44 present a petition to the Federal Government to stop 45 the wrongful appropriation of their territory. In 46 1910, some of the Chiefs met Prime Minister Sir 47 Wilfrid Laurier at Prince Rupert. His response to 72 Opening by Mr. Rush 1 them was clear: 2 3 "The only way to settle this question --" 4 5 That is the Indian land question: 6 7 "that you have agitated for years is by a decision 8 of the Judicial Committee, and I will take steps to 9 help you." 10 11 In the face of the refusal by Premier Richard 12 McBride of British Columbia to agree to any reference 13 to the courts which included the issue of aboriginal 14 title, the Federal and Provincial Governments 15 established a Royal Commission to address the question 16 of Indian reserves. In addressing the Commission the 17 Chiefs insisted on talking about their territories and 18 rejected the idea that their rights to ownership and 19 authority could be contained or restricted to 20 reserves. 21 One of those Chiefs who appeared before the Royal 22 Commission known as the McKennat McBride Commission, 23 Charles Wesley, stated this to the Royal Commission: 24 25 "I wish to tell that you this Reserve that you have 26 just spoken about is something that we don't wish 27 for... this country originally belonged to our 28 ancestors, we were placed here originally by God, 29 and it is only quite recently that the government 30 has sent men out here to measure this land 31 immediately around us, we were not notified of it 32 when they did. Then the Provincial Government came 33 in and sold the remaining land immediately around 34 us... and what we most strenuously object to is 35 that you insist upon us having his Reserve. I was 36 one that signed the petition in 1908 which we sent 37 down to Ottawa. We asked that the land which the 38 Provincial Government has sold be returned or given 39 back to us...this is where our inheritances come 4 0 from and where they were handed down from 41 generation to generation." 42 43 Efforts to have the courts address the issues of 44 territory and authority were responded to by the 45 Governments by amending the Indian Act in 1927, making 46 it an offence, punishable by imprisonment, to raise 47 money to press for land claims. That law was not 73 Opening by Mr. Rush 1 repealed until 1951. 2 Recently the hereditary Gitksan and Wet'suwet'en 3 Chiefs have endeavoured to resolve the conflict 4 between Gitksan and Wet'suwet'en jurisdiction and the 5 Federal and Provincial Governments through 6 negotiation. After a massive undercover operation by 7 the Government of Canada against Gitksan and 8 Wet'suwet'en fishermen in 1977, the Chiefs authorized 9 an effort to negotiate a recognition of Gitksan and 10 Wet'suwet'en management of the fishery on the Upper 11 Skeena. In 1979 these negotiations came the closest 12 to agreement when the department of Fisheries and 13 Oceans and the Gitksan and Wet'suwet'en Chiefs entered 14 into an interim agreement, under which the river was 15 open seven days a week except for conservation 16 closures. It was agreed that the Gitksan and 17 Wet'suwet'en Chiefs would have to agree that the 18 closure was necessary for conservation. 19 Unfortunately, this breakthrough was short-lived. 20 In subsequent years although there were -- although 21 there were continued efforts to negotiate, the 22 Government of Canada refused to recognize the Gitksan 23 and Wet'suwet'en jurisdiction over the fishery and to 24 negotiate as equal partners in its management. This 25 continued even after the entrenchment of section 35 in 26 the Constitution Act of 1982. 27 As an alternative, Gitksan and Wet'suwet'en people 28 endeavoured between 1983 and 1986 to implement by-laws 29 under the Indian Act which recognized the authority of 30 the hereditary Chiefs. Finally, in April 1986 these 31 by-laws were passed by the Minister of Indian and 32 Northern Affairs. Ones again, however, the apparent 33 recognition of Gitksan and Wet'suwet'en authority was 34 short-lived. In June 1986, the Provincial Government 35 applied and obtained an interim injunction in this 36 court, prohibiting Indian people from exercising their 37 rights to fish under a validly enacted by-law. 38 Some 50 years ago, the Gitksan and Wet'suwet'en 39 registered traplines in the belief that to do so would 40 both protect their territories against encroachment 41 and secure a measure of recognition of their authority 42 from the Province. Yet, throughout the territories of 43 the Gitksan and Wet'suwet'en, they have seen 44 increasing destruction by clear cut logging. In an 45 effort to provide for some interim level of 46 co-operation, the Gitksan and Wet'suwet'en Chiefs 47 recently commenced negotiation with the Province for a 74 Opening by Mr. Rush 1 blanket trapline. This proposal would have allowed 2 for joint management of the fur-bearing and animal 3 resources, while recognizing that the Gitksan and 4 Wet'suwet'en laws of succession would apply, and that 5 the Gitksan and Wet'suwet'en would determine trapline 6 boundaries within the overall context of Gitksan and 7 Wet'suwet'en territory. The Government of British 8 Columbia withdrew from any negotiation, for the same 9 reason as the Federal Government refused to negotiate 10 on the fishery. For both governments, the Gitksan and 11 Wet'suwet'en had no rights to the resources or to 12 their management. 13 In 1982 the Constitution of Canada patriated. 14 Clauses protecting aboriginal rights were included. 15 There have been constitutional conferences at which 16 representatives of the Gitksan and Wet'suwet'en Chiefs 17 have been present in 1983, 1984, and 1985. The end 18 result of these constitutional conferences has 19 provided no recognition of the Gitksan and 20 Wet'suwet'en authority and jurisdiction over their 21 territory. Unfortunately, at the conclusion of the 22 last conference in March of 1987, it became clear that 23 the Government of British Columbia would never agree 24 to amendments to the Constitution which defined 25 ownership and jurisdiction of the Gitksan and 26 Wet'suwet'en as part of their aboriginal rights. 27 The Gitksan and Wet'suwet'en Chiefs have seen parts 28 of their territory destroyed. This will only increase 29 as large corporations build faster, more efficient 30 computer-operated sawmills which will increase the 31 rate at which trees are turned into lumber and 32 exported out of the Gitksan and Wet'suwet'en 33 territory. The Gitksan and Wet'suwet'en hereditary 34 Chiefs have watched their land being stripped bare. 35 They have seen the destruction of fishing sites and 36 spawning grounds and the extinction of salmon stocks. 37 They have protested and they have resisted. Whenever 38 possible they have enforced their own laws. They have 39 continually insisted on their recognition as peoples 40 with authority over the territory in which they have 41 exercised stewardship for many thousands of years. 42 Johnny David, a Wet'suwet'en Chief, who has lived 43 for approximately 100 years, was asked in his 44 commission evidence why the Chiefs have come to court. 45 This was his answer: 46 47 "You can see throughout our territory all the 75 Opening by Mr. Rush 1 stumps and the white people have pocketed millions 2 and millions of dollars. All the money taken from 3 our territory, we want that back and we want our 4 territory back. Once get back the money, we would 5 like to go back to our old Indian laws to make life 6 better for our people. The other hereditary Chiefs 7 as well as the other leaders are thinking about the 8 same way and it is with their words and my words 9 that I am giving you today. It is the generation 10 that will follow me that will use the resources. I 11 will not be able to use it. I am ready to go." 12 13 Today the Gitksan and Wet'suwet'en enter the 14 Canadian legal system to seek justice. This is an 15 opportunity for the courts to find a just and lawful 16 process to place Gitksan and Wet'suwet'en ownership 17 and jurisdiction within the context of Canada. 18 If the courts provide no mechanism for a solution 19 then the people will have to guarantee the survival of 20 their societies for themselves. As Delgamuukw and 21 Gisday Wa have said this morning, they will continue 22 to survive. The Gitksan and Wet'suwet'en and their 23 laws are not going to go away. 24 But this court can set the foundation for a 25 resolution of the impasse which has characterized the 26 history of the last 100 years. In coming to such a 27 resolution, we urge you to initially set aside your 28 task of determining appropriate remedies and 29 concentrate on the evidence of the complexities and 30 intricacies of the Gitksan and Wet'suwet'en societies 31 from which the nature of their aboriginal rights will 32 emerge. It will be from this evidence that the legal 33 pathway to a just resolution can be found. 34 This court, my Lord, in hearing the evidence which 35 will be presented in this case will be faced with a 36 series of legal and intellectual challenges and 37 opportunities of nature not normally found in matters 38 that come before the bench. These are challenges and 39 opportunities which we as counsel also have had to 40 face and with which we continue to grapple. 41 The Gitksan and Wet'suwet'en in seeking recognition 42 from this court of their rights to ownership and 43 jurisdiction over their territory are seeking 44 recognition of their societies as equals and 45 contemporaries. The challenge here, both for the 46 court and for us as counsel, is to understand and 47 overcome the tendency to view aboriginal societies as 76 Opening by Mr. Rush 1 existing at an earlier stage of evolutionary 2 development. The assumption underlying such a 3 position offers persistent, powerful and ultimately 4 distorting conclusions as to the real nature of Indian 5 society. The persistence of this assumption can be 6 readily seen in the judgments of the Court of Appeal 7 in the Calder case as recently as 1971. There, the 8 court stated in relation to the Nishga, neighbours of 9 the Gitksan and Wet'suwet'en, "that they were 10 undoubtedly at the time of settlement, a very 11 primitive people with few of the institutions of 12 civilized society and none at all of our notions of 13 private property". The sense of superiority implicit 14 in such a statement is expressed in many different 15 ways as a function of social development that places 16 the native people at the bottom of the ladder and 17 western man at the top; or as a result of divine 18 preference and appointment of Judeo-Christian religion 19 as the ideal with the corollative rejection of 20 aboriginal shamanism and cosmology, or as a result of 21 technological sophistication that entail obligations 22 to improve the lot of other less advanced peoples. 23 Evidence will be presented as to the way these 24 assumptions have been manifested on the frontiers of 25 British Columbia within the territories of the Gitksan 26 and Wet'suwet'en in the form of missionaries, federal 27 Indian agents and provincial government 28 representatives. 29 A belief in white Euro-Canadian superiority has 30 powerful implications not only in its devaluation of 31 Indian societies as "primitive", but also in terms of 32 their asserted rights to their territories and to 33 their authority over their resources. If the white 34 people of European ancestory are the representatives 35 of the highest of human, moral, social and technical 36 achievements, then is it not right and in everyone's 37 interests, that whatever rights the Indians may have, 38 be extinguished and vested in us? The links between 39 moral, policitical, economic hegemony and cultural 40 dominance are not hard to see. We will be inviting 41 this court through its rulings to reject any legal 42 theory of aboriginal rights which depends upon such 43 evolutionist and supremacist assumptions. 44 A second challenge for the court, very much related 45 to the first, involves the problem of communication 46 between very different cultures. The problems here 47 are not simply those inherent in the necessity to 77 Opening by Mr. Rush 1 translate from Gitksan or Wet'suwet'en into English 2 and vice versa, as would be the case in a situation 3 where the witnesses were Francophone. French and 4 English cultures, although different, trace common 5 intellectual and historical roots and share a world 6 view. The Gitksan and Wet'suwet'en world view is of a 7 qualitatively different order. 8 Anthropologists have long realized that a people's 9 world view is composed of two interrelated parts: 10 First, the notion of how the world is structured, of 11 how its parts have been fashioned into a cohesive 12 whole; and second, a set of rules by which that 13 structure is set into motion and of how that motion 14 can be controlled or directed. There is a natural 15 tendency, to which lawyers and judges are not exempt, 16 to look at Indian societies using a model of the world 17 that derives from western consents of the nature of 18 the world and society. The dangers of this are that 19 what Indian people say and do is either not understood 20 or is distorted into shapes and concepts which deprive 21 Indian societies of their essence. The challenge for 22 this court in listening to the Indian evidence is to 23 understand the framework within which it is given and 24 the nature of the world view from which it emanates. 25 The Western world view sees the essential and 26 primary interactions as being those between human 27 beings. To the Gitksan and Wet'suwet'en, human beings 28 are part of a interacting continuum which includes 29 animals and spirits. Animals and fish are viewed as 30 members of societies who have intelligence and power, 31 and can influence the course of events in terms of 32 their interrelationship with human beings. In Western 33 society causality is viewed as direct and linear. 34 That is to say, that an event has the ability to cause 35 or produce another event as time moves forward. To 36 the Gitksan and Wet'suwet'en, time is not linear but 37 cyclical. The events of the "past" are not simply 38 history but are something that directly affects the 39 present and the future. 4 0 The nature of the continuum between human, animals 41 and the spirit world, within cycles of existence, 42 underpins much of the evidence you will hear. The 43 Gitksan and Wet'suwet'en believe that both humans and 44 animals, when they die, have the potential to be 45 reincarnated. But only if the spirit is treated with 46 the appropriate respect. If bones of animals and fish 47 are not treated with that respect, thereby preventing Opening by Mr. Rush 1 their reincarnation, then they will not return to give 2 themselves up to humans. In this way, a person's 3 actions not only interact with those of the animals 4 and the spirits, but also have repercussions for 5 future generations, deprived of the food that will 6 ensure their survival. Pivotal events in Gitksan and 7 Wet'suwet'en history, such as the dispersal from 8 Temlaxam over 3,000 years ago, will be explained by 9 reference to human beings failing to observe the 10 prescribed respect for salmon and mountain goats and 11 the spirits of these fish and animals. 12 It is important to reflect on how such a view of 13 causality would be rendered conceptually from within a 14 Western framework. Such a view would not be regarded 15 as "scientific" and such attribution of events to the 16 powers of animals or spirits would be characterized as 17 mythical. Both of these adjectives imply that what 18 Indian people believe is not real, or at least, if it 19 is real for them, it represents primitive mentality 20 pre-scientific thinking, which is to say, magic. On 21 either basis, Indian reality is denied or devalued. 22 Their history is not real history but mythology. The 23 binding rules which determine how Indian people should 24 relate to animals are not real laws but primitive 25 rites. 26 The interconnectedness between human beings and 27 other life forms is only the beginning of the 28 different ways in which the Gitksan and Wet'suwet'en 29 see the world from those of us that are brought up in 30 the Western tradition. The distinction we as lawyers 31 make between constitutional, criminal and commercial 32 law are part of a vast array of distinctions such as 33 those between law and morality, politics and 34 economics, science and religion. Of particular 35 importance to us are such fundamental distinctions 36 between the secular and the sacred, the spritual and 37 the material, the natural and the supernatural. Many 38 of the distinctions which we make in order to make 39 sense out of the world are absent in the Indian world 40 view. It is not difficult to see, therefore, and 41 indeed it is inevitable that if we apply our 42 distinctions without discrimination and caution to 43 what Indian people say, we will make nonsense out of 44 their evidence. The integration of what to us are 45 discreet and separate parts of life infuses Gitksan 46 and Wet'suwet'en thinking and permeates their most 47 important institutions. 79 Opening by Mr. Rush 1 At the outset of this case it is important, 2 therefore, to give the court an overview of the 3 evidence of Gitksan and Wet'suwet'en societies in 4 order to illustrate this interconnection between the 5 Indian world view and the distinctive elements of 6 these societies. 7 The Gitksan and Wet'suwet'en are two societies 8 whose peoples, while speaking different languages, 9 share many common elements in their social 10 organization and institutions which they have, 11 however, developed in their own ways so as to give 12 meaning to their separate identities as Gitksan and as 13 Wet'suwet'en people. Over the centuries, through 14 intermarriage, adoption, trade and the introduction of 15 each other's ideas, they have forged their own 16 distinctive form of confederation. 17 Both Gitksan and Wet'suwet'en witnesses, in 18 identifying their place in their respective societies, 19 will refer to their House and and to their Clan. 20 Houses and Clans are the two most important units of 21 Gitksan and Wet'suwet'en society. A person is born 22 into a particular House and Clan by virtue of laws of 23 matrilineal descent. The four Gitksan clans are Lax 24 Gibuu, Wolf; Lax Xskiik, Eagle; Giskaast, Fireweed; 25 and Laxseel/Lax Ganeda, Frog. There are five 26 Wet'suwet'en clans: Gitdumden, Wolf; the Gilserhyu, 27 Frog; the Laksilyu, Smal Frog Clan; the Laksamshu, 28 Fireweed; and the Tsayu, Beaver. Within each Clan 29 there are a number of related Houses, which are 30 identified in the Statement of Claim. These groups 31 are called Houses because, in the past, their members 32 would live under one roof. Over the course of 33 history, some Houses, as a result of population 34 increase and decline, have split off from or 35 amalgamated with other houses. In terms of the 36 difference between House and Clan, the House is a 37 matrilineage of people so closely related that the 38 members usually know their relationship. In the case 39 of Clan affiliation, there is the assumption that all 40 the Clan members are related, although the precise 41 nature of that relationship may or may not be known. 42 As you will hear in the evidence, the relationship 43 between House and Clan is complex and is differently 44 expressed in the Gitksan and Wet'suwet'en systems. 45 You will hear how each Gitksan House is identified 46 by its crests, images that encapsulate and provide a 47 visual record of the major historical events 80 Opening by Mr. Rush 1 experienced by the ancestors of this group. The 2 Gitksan crests, ayuks, commemorate the group's 3 origins, odysseys from ancient villages, moments when 4 the people drew upon the assistance of spirit power, 5 the the defeat of neighbouring peoples who threatened 6 their security, or the discovery of new ways to 7 survive the natural disasters they periodically 8 experienced. With the crest goes the ada'ox, the 9 verbal record of the event. Key images within the 10 ada'ox are evoked by songs, limx'ooy, a determining 11 song, that comes out of the ancient past, literally 12 from the breaths of the ancestors, to take the 13 listener back in time by the very quality of their 14 music and the emotions they convey. 15 The formal telling of the oral histories in the 16 feast, together with the display of crests and the 17 performance of the songs, witnessed and confirmed by 18 the Chiefs of other houses, constitute not only the 19 official history of the House, but also the evidence 20 of its title to its territory and the legitimacy of 21 its authority over it. The oral history, the crests 22 and the songs of a House are evidence, however, of 23 something more than even its history, title and 24 authority. They represent also its spirit, its power, 25 its daxgyet. 26 The witnessing and validation of the House's 27 historical identity, territorial ownership and spirit 28 power is integral to the feast. But also integral is 29 the House's demonstration of its prosperity through a 30 distribution of its wealth. A House's wealth is 31 directly linked to its territory. In very early 32 times, sometimes a cane was touched to the land, to 33 signify the power of the Gitksan House group merging 34 with that of the land, and the existence thereafter of 35 a bond between the group and their territory. The 36 cane used to forge the bond between the House and its 37 territory foreshadowed the crest pole or totem pole. 38 The pole which encodes the history the House through 39 its display of crests, also recreates, by reaching 40 upwards, the link with the spirit forces that give the 41 people their power, while at the same time is planted 42 in the ground, where its routes spread out into the 43 land, thereby linking man, spirit power and the land 44 so they form a living whole. Integral to this link 45 and the maintenance of the partnership, is adherence 46 to the fundamental principles of respect for the land 47 and for its life forms. 51 Opening by Mr. Rush 1 You will hear evidence of pole-raising feasts, 2 including the feast given by Guxsan within the past 3 year. In the pole-raising feast, the power which 4 flows from the pole not only links the House to its 5 territory and the life forms that feed them, it also 6 spreads out to strengthen the network of human 7 relations forged by this and other feasts. The power 8 is shared with all members of the House and feeds the 9 other Houses and Clans witnessing it. 10 In each pole-raising feast, the display of the 11 crests, the telling of the ada'ox, the singing of the 12 songs, recreates the historical events they represent. 13 This history is relived in the feast. The identity 14 and power it confers on the House group is thus kept 15 alive through its continuous recreation by each 16 generation. 17 Many of the Gitksan ada'ox refer to extensive 18 migrations of the Gitksan ancestors in the 19 establishment of their territories. By contrast, the 20 Wet'suwet'en oral tradition does not detail the 21 immigration of the Wet'suwet'en into their territory. 22 As you will hear, from the earliest time, they depict 23 the Wet'suwet'en sharing a salmon village, a salmon 24 fishing village, with the Gitksan and other groups at 25 Dizkle, on the Bulkley River, not far from the present 26 site of Hagwilget. There, the Wet'suwet'en, like the 27 Gitksan, lived in large cedar planked houses, presided 28 over by a head Chief. The territory is described as 29 belonging to a Wet'suwet'en Chief whose people had the 30 sole right to use the territory. Thus, from their 31 most ancient history the evidence will show that the 32 Wet'suwet'en identify their system as one in which the 33 territory is held by a named hereditary Chief on 34 behalf of House members. The oral history, or Kungax, 35 depicts a series of battles until the Chief decides to 36 make piece by holding a Feast. In this way, in 37 Wet'suwet'en history, the Feast was initiated as an 38 international mechanism for settling disputes and 39 demonstrating ownership of a contested territory. 40 Wet'suwet'en witnesses will explain to you how in a 41 settlement of a dispute in a Feast, eagle down is 42 distributed to mark the binding nature of the 43 resolution. This symbolizes that truly peaceful 44 relations require respect being shown not only between 45 human beings but also between human beings and 4 6 animals. 47 The evidence will show that the Wet'suwet'en kungax 32 Opening by Mr. Rush 1 operate on a number of different levels, the 2 explication of which will illustrate some of the 3 subtle differences of the Wet'suwet'en system with 4 that of the Gitksan. The word kungax is the 5 possessive form of the word kun. Kun means song. It 6 also means spirit or spirit power. Kungax, depending 7 on context, can mean a person's own spirit power or 8 his own song or his personal crest. It can also mean 9 a "trail of song". The Wet'suwet'en songs, which 10 express the spirit trail of a Chief's name, and the 11 enactment of personal crests, serve as a validation of 12 succession to a Chief's name and its association with 13 a particular territory. What the ada'ox are for the 14 Gitksan, the kungax, the trails of song, are for the 15 Wet'suwet'en. As the Wet'suwet'en follow the trails 16 to their territories, so they seek to capture the 17 songs that go with their titles to their territories. 18 The songs link the land, the animals, the spirit world 19 and the people. The power of hereditary names and 20 crests is continually renewed for the Wet'suwet'en by 21 the highly personal and individual experience of being 22 captured by song. 23 The distinctive Indian world view has directed 24 implications in this court's understanding of the 25 evidence relating to the nature of the Gitksan and 26 Wet'suwet'en societies and their institutions, 27 particularly those institutions through which the 28 plaintiffs exercise their jurisdiction or authority. 29 Societies marked by centralized government such as 30 Canada possess discrete institutions and departments 31 for conducting political life, economy, social 32 welfare, education, dispute resolution, peace keeping, 33 religion, and so on. Non-state societies, such as 34 those of the Gitksan and Wet'suwet'en, do not have 35 institutions which can be viewed as discretely 36 political, economic, domestic or spritual, rather 37 their institutions simultaneously perform a 38 multiplicity of functions. 39 This, my Lord, will be most vividly revealed in the 40 evidence dealing with the most significant Gitksan and 41 Wet'suwet'en institution, the Feast. While we will be 42 referring to the feast generically as the lynchpin or 43 fulcrum of the Gitksan and Wet'suwet'en systems, it 44 should be borne in minds that there are different 45 kinds of feasts to which you will be referred in the 46 course of the evidence. These include pole-raising 47 feasts, funeral, headstone, and shame feasts. These 33 Opening by Mr. Rush 1 and others collectively comprise the feast system. 2 When today, as in the past, the hereditary Chiefs 3 of the Gitksan and Wet'suwet'en houses gather in the 4 Feast Hall, the events that unfold are at one and the 5 same time policitical, legal, economic, social, 6 spritual, ceremonial, and educational. The logistics 7 of accumulating and borrowing to make ready for a 8 Feast, and the process of paying debts in the course 9 of the feast, have many dimensions; they are economic 10 in that the Feast is the nexus of the management of 11 credit and debt; they are social in that the Feast 12 gives impetus to the ongoing network of reciprocity, 13 and renews social contracts and alliances between 14 kinship groups. The Feast is a legal form for the 15 witnessing of the transmission of Chiefs' names, the 16 public delineation of territorial and fishing sites 17 and the confirmation of those territories and sites 18 within the names of hereditary Chiefs. The public 19 recognition of title and authority before an assembly 20 of other Chiefs affirms in the minds of all, both the 21 legitimacy of succession to the name and transmission 22 of property rights. The Feast can also operate as a 23 dispute resolution process and orders peaceful 24 relationships both nationally, that is within and 25 between Houses, and internationally with other 26 neighbouring groups. 27 The Feast is charged with the power of the spirit 28 world in the form of the Crests used in the feast and 29 in songs and dances performed. Furthermore, the 30 public and ceremonial emphasis upon giving, paying 31 debts, recognizing and legitimizing the status and 32 authority of the Chiefs and the ownership of 33 territories and maintaining the etiquette of 34 reciprocity, all of these aspects of Feasting are 35 highly educational. By means of their practice, there 36 repetition and recombination through the course of the 37 feast, the essential values of the culture are both 38 given expression and transmitted from generation to 39 generation. 40 You will hear evidence how, through its many 41 facets, the Feast weaves each generation into the 42 fabric of Gitksan and Wet'suwet'en history and 43 sustains them as they move forward into the 44 complexities of their future. Despite the efforts of 45 missionaries and Indian agents, aided by the legal 46 prohibition of the Feast from 1884 to 1951, the Feast 47 has remained a bastion of Gitksan and Wet'suwet'en 84 Opening by Mr. Rush 1 societies. It has remained so because the system of 2 ceremonial, reciprocal relations expressed in the 3 Feast remains a model for everyday interpersonal 4 transaction between kin, Houses, Clans and villages as 5 well as between human beings and the non-human world 6 with whom they share their territories. The 7 transactions in the Feast Hall give meaning to what it 8 is to be Gitksan and Wet'suwet'en. 9 This conjunction and combination of what, in state 10 societies are seen as discreet, will also be 11 manifested in the evidence of other institutions 12 through which the Gitksan and Wet'suwet'en exercise 13 authority over their territories. This case is 14 brought in the name of the hereditary Chiefs. But 15 these are not personal names. They are names which 16 the Gitksan and Wet'suwet'en can trace back over the 17 centuries and in themselves they represent 18 incapsulation of the people's history and its 19 projection into the present and future. Indeed, some 20 of the Gitksan and Wet'suwet'en hereditary Chiefs' 21 names stand among the oldest continuously held titles 22 that exist anywhere in the world. 23 You will hear evidence that on his or her 24 succession to a high Chief's name, the person holding 25 that name accedes to ownership of the House territory. 26 As the proprietary representative of the House, the 27 Chief has a range of responsibilities dealing with 28 allocation and disposition of rights to use the 29 territory amongst House members and non-House members. 30 He also directs and safeguards the House's production 31 components: The fruits of land, labour, knowledge and 32 skills which are utilized in relation to the 33 territory, so as to secure for its members and 34 frequently for there relatives and in-laws, an 35 appropriate standard of living. The Chief, as the 36 proprietary representative, also has the 37 responsibility for defending the integrity of the 38 territory against the claims of other House groups or 39 other nations. However, in addition to succeeding to 40 the proprietary responsibility for the territory, the 41 Chief also assumes a reciprocal stewardship of lands 42 grounded in the people's sharing of the land with the 43 animals, the fish and other life forces. 44 As steward, the Chief is responsible for ensuring 45 that the animals and the fish are accorded the respect 4 6 which Gitksan and Wet'suwet'en law demands. Thus, by 47 ensuring that salmon are not wasted, the Chief 35 Opening by Mr. Rush 1 maintains his House's relationship with the salmon to 2 ensure their annual return to provide for the needs of 3 House members. In accordance with Gitksan and 4 Wet'suwet'en world view, if something goes wrong with 5 the relationship, it is not considered an accident. 6 In his or her role as representative of the House in 7 the animal and spirit world, the Chief is responsible 8 for determining the reason for the breach and for 9 correcting it. 10 The roles of the Chief are not limited to those 11 relating to the proprietorship or stewardship of the 12 territory. Both within the Feast Hall and outside of 13 it the hereditary Chiefs mediate and resolve disputes 14 between House members, between Houses and with 15 neighbouring Indian nations. Sometimes the exercise 16 of this peace-keeping and conflict resolution role is 17 highly visible in the Feast Hall; at other times his 18 authority is excercised informally, operating through 19 consensus and consultation. You will hear evidence of 20 this process of consultation, involving elders and 21 what the Gitksan will refer to as the "wings of the 22 chief" and the Wet'suwet'en as "the head push". These 23 are the men and women who are the holders of other 24 high names or titles within the House associated with 25 crests, kungax and songs. 26 The Gitksan and Wet'suwet'en Chiefs have another 27 important responsibility within the overall Gitksan 28 and Wet'suwet'en system when they are invited to 29 Feasts of other Houses and Clans. That is to perform 30 the essential role of witnesses and validators to the 31 claims to chiefly titles and territories made by other 32 Houses. In order for Chiefs to perform their role as 33 witnesses to this distinctive form of public 34 acknowledgement of land title, they are trained by 35 their predecessors in the boundaries of their own 36 House's territories, and the boundaries of the 37 territories of their neighbours, and those with whom 38 they are socially closest. They are taught to 39 understand the power of the poles from the crests that 40 proclaim the origins and the legitimacy of the House's 41 right to possession of their lands. 42 This is yet more to the role of the Chief. The 43 Chief inherits, along with the Chief's name and the 44 House territory, the crests enfused with spirit power. 45 Gitksan and Wet'suwet'en Chiefs exercise their 46 authority and carry out their responsibilities with 47 the aid of this spritual power. In the course of the 36 Opening by Mr. Rush 1 trial you will also hear evidence from the Gitksan 2 witnesses as to the Naxnox performances which take 3 place in the Feast Hall. Some of these dramatize the 4 implications for a people whose members lack respect 5 for the rights and territory of others and who lie, 6 boast or disdain their social responsibilities. If 7 ignored, these dark qualities grow to become a 8 destructive force that threatens the social order and 9 welfare of the society. The performance is the ritual 10 taming and controlling of this negative force thereby 11 creating order, peace and harmony. The Chief as the 12 embodiment of the House and the individual whose 13 spritual strength is most involved must use that 14 strength to contain or mitigate these destructive 15 qualities. The Chief controlling one of these forces 16 takes on its name as one of his own. Each Chief 17 holding such a naxnox name tames that anti-social 18 force for his House and for the society as a whole. 19 Naxnox performances of this kind can be considered as 20 an enactment of the process of civilization. 21 My Lord, this might be a convenient time to break. 22 THE COURT: Yes, All right. We'll take the morning adjournment. 23 Thanks you. 24 THE REGISTRAR: Order in court. This court stands adjourned for 25 15 minutes. 26 27 (MORNING RECESS TAKEN AT 11:00) 28 29 I hereby certify the foregoing to be 30 a true and accurate transcript of the 31 proceeding herein transcribed to the 32 best of my skill and ability 33 34 35 36 Graham D. Parker 37 Official Reporter 38 United Reporting Services Ltd. 39 40 41 42 43 44 45 46 47 37 Opening by Mr. Rush 1 (PROCEEDINGS RESUMED AT 11:15) 2 THE COURT: Mr. Rush. 3 MR. RUSH: Thank you, my lord. Continue then at the top of page 4 36. 5 My lord, you will also hear about other forms of 6 naxnox and the power of the halayt. And in this 7 context the halayt means seer. You will also hear 8 evidence that the authority of the Wet'suwet'en chiefs 9 derives not only from the assumption of the high 10 chiefs' names, but also from individual contact with 11 the spirit realm which comes from dreams, visionary 12 experiences, and what the Wet'suwet'en will refer to 13 as habo'stat. 14 Clearly the Gitksan and Wet'suwet'en hereditary 15 chieftainship is a complex institution. In its 16 perpetual succession it shares the characteristics of 17 what in the common-law is classified as a corporation 18 sole, the principal examples of which are the English 19 monarchy and the office of the Archbishop of 20 Canterbury. Indeed, the attributes and 21 responsibilities of the hereditary chief share some 22 characteristics with both of these other institutions. 23 The wisdom, judgment, political and moral leadership, 24 and spiritual strength, and stewardship expected of 25 monarchs and archbishops are part of the attributes 26 demanded of the Gitksan and Wet'suwet'en chiefs. 27 In the course of this trial, you will hear repeated 28 references by Gitksan and Wet'suwet'en witnesses to 29 their law. Yet, you will not hear evidence locating 30 the power to legislate in any Gitksan legislature. 31 You will not hear of any Wet'suwet'en Supreme Court 32 House, inhabited by a specialized judiciary, charged 33 with interpreting and applying the law. Nor will you 34 see any Wet'suwet'en policeman or Wet'suwet'en 35 bailiffs, who make their living enforcing Gitksan and 36 Wet'suwet'en law. What the court will hear about are 37 principles in rules which entrench fundamental Gitksan 38 and Wet'suwet'en values, establish a basis for social 39 order, and provide for the peaceful resolution of 40 conflict. In this regard, Gitksan and Wet'suwet'en 41 law shares common features with the legal systems of 42 all civilized societies. Although Gitksan and 43 Wet'suwet'en do not divide up their laws and its 44 administration in the manner of Canadian law, much of 45 the evidence you will hear about their laws can be 46 understood in terms familiar to lawyers trained in 47 common and civil law. Thus, evidence will be Opening by Mr. Rush 1 presented which shows the existence of what we would 2 call property law. Rules which deal with the 3 delineation and public recording of boundaries, the 4 right to exclusive possession, the right to grant or 5 withhold a subsidiary interest to use the land for a 6 limited time and on conditions, rules which deal with 7 rights of access to land by children and spouses, 8 rules which deal with trespass and the right to 9 protect the land from trespassers, rules which 10 regulate the succession of property and which 11 determine its alienability. Evidence will be 12 presented of other laws which can be analogized to 13 natural resources law, laws relating to the allocation 14 of harvesting rights and regulation of harvesting 15 activities. You will be told about laws which are 16 readily recognizable as Family Law and Succession, 17 dealing with marriage, adoption and divorce and the 18 orderly disposition of interests in property and 19 titles on death. But evidence will also be presented 20 on laws which are not the subject of study in any 21 Canadian or, indeed, Western law school, laws dealing 22 with the appropriate conduct of human beings in 23 relation to animals. Environmental law does not begin 24 to capture what it is when the Gitksan and 25 Wet'suwet'en talk of the law of respect for the 26 natural world. 27 Although Gitksan and Wet'suwet'en law represents a 28 more integrated legal order than Canadian law, it 29 recognizes what Madam Justice Wilson referred to in 30 the Motor Vehicle Reference case when dealing with 31 section 7 of the Canadian Charter of Rights as the 32 "bedrock principles that underpin a system". You will 33 hear that the legal connection between a high chief's 34 name and territory is one such principle. You will 35 hear that succession to the name gives authority over 36 the territory is another; that succession, the name, 37 territory and authority must be witnessed and 38 validated by the other Houses is a third; that in 39 exercising their authority the chief and all other 40 House members must observe proper respect for the 41 animals and fish that sustain them. Over the course 42 of the trial, these and other principles that underpin 43 their distinctive system will be identified. You will 44 also hear in the evidence of the chiefs the ways in 45 which another fundamental principle -- that Gitksan 46 and Wet'suwet'en law be obeyed -- has been repeatedly 47 breached federal and provincial governments. 39 Opening by Mr. Rush 1 The foregoing is an outline of some of the most 2 significant aspects of Gitksan and Wet'suwet'en 3 societies, their institutions and their systems of 4 authority and ownership of territory. Never before 5 has a Canadian court been given the opportunity to 6 hear Indian witnesses describe within their own 7 structure the history and nature of their societies. 8 The evidence will show that the Gitksan and 9 Wet'suwet'en are and have always been properly counted 10 amongst the civilized nations of the world; that their 11 ownership of their territory and their authority over 12 it has always existed; and that they have shaped a 13 distinctive form of confederation between Houses and 14 clans. The challenge for this court is to hear this 15 evidence, in all of its complexity, in all its 16 elaboration, as the articulation of a way of looking 17 at the world which pre-dates the Canadian constitution 18 by many thousands of years. 19 We have so far talked about the challenges facing 20 the court in understanding the Indian world view and 21 the distinctive nature of Gitksan and Wet'suwet'en 22 institutions and law. There is another crucial aspect 23 of Gitksan and Wet'suwet'en society which bears 24 directly on the nature of the evidence which will be 25 presented to this court. The Gitksan and Wet'suwet'en 26 languages have not, until the last century, been 27 written down. Their societies are in the oral 28 tradition. The evidence in support of the plaintiffs 29 assertions of ownership and jurisdiction will include 30 evidence of the chiefs and elders in which they will 31 relate the history of their Houses' territory and of 32 their name. Their accounts go back to the most 33 ancient remembered village and territory, including 34 migrations or dispersal of the group to other villages 35 and territories since then; they include an account of 36 the major hostilities that took place when boundaries 37 were being established or re-established. The 38 significance of this evidence is that it will 39 demonstrate the evolution of Gitksan and Wet'suwet'en 40 society and the origins of the clans, the Houses, the 41 Feast and the laws. It not only relates to the 42 essential elements of Gitksan and Wet'suwet'en 43 ownership and jurisdiction to a time long before 44 Europeans came into their territories, but it 45 documents the depth of the Indian peoples' presence in 46 and relationship to these territories. It explains 47 the incredulity of the Gitksan and Wet'suwet'en chiefs 90 Opening by Mr. Rush 1 in the face of the assertion by the Province that the 2 events of the last 100 years have had the result of 3 divesting them of their ownership and authority which 4 they have exercised for more than 5000 years. 5 How should this court view the evidence of Gitksan 6 and Wet'suwet'en history stretching back over the 7 millennia in the absence of the usual written 8 historical record? Some assistance will be provided 9 to the court in the form of archaeological and 10 geological evidence which relates significant events 11 and places which relates significant events and places 12 referred to in the ada'ox and the kungax to 13 conventional 'scientific' proof. 14 For example, the Gitksan ada'ox of Medeek describes 15 the destruction of Temlaxam by a terrible force which 16 ripped through the forest, bringing down trees in its 17 wake and causing a rapid rise in the waters of a 18 nearby lake. This destructive force is attributed in 19 the ada'ox to a giant grizzly bear. The ada'ox 20 describes this in graphic detail. Using the detail of 21 the account in terms of the nature of the event and 22 its physical location, "scientific" evidence will be 23 presented relating this event to a landslide or debris 24 flow that occurred in what is now known as the Chicago 25 Creek drainage, accompanied by the damming of and rise 26 in the waters of Seeley Lake. This event occurred, 27 according to the scientific evidence, some 3500 years 28 ago. 29 The Wet'suwet'en kungax of the House of Goohlaht 30 describes its origins in the ancient village of 31 Dizkle, where enemies had killed off all but one of 32 the inhabitants and the lone survivor, a woman, 33 unearthed, two-and-a-half feet under the ground, an 34 inert Chief Goohlaht, with a crown of grizzly bear 35 claws on its head, the sign of being a shaman. The 36 woman brings him back to life, marries him and 37 together they build a new house at the Dizkle site, 38 establishing a totem pole with a raven on top to warn 39 them of any other impending attacks. This is the 40 first Wet'suwet'en totem pole and the founding of the 41 first Wet'suwet'en House. Archaeological evidence 42 will be presented as to analysis of artifacts and 43 contextual archaeological data from sites in the 44 Morricetown and Hagwilget Canyons, which indicates 45 continuous human occupation in the middle Skeena River 46 drainage for at least 6000 years up to the present. 47 Archaeological evidence of salmon processing 91 Opening by Mr. Rush 1 activities, food storage facilities, large house 2 structures, evidence of participation in widespread 3 trade networks and evidence of warefare, will be used 4 to support the position that the cultural patterns of 5 the Gitksan and Wet'suwet'en, as described in their 6 oral histories, have been operating in their present 7 territories for a long period of time. 8 Because we have no written contemporary account of 9 the landslide at Stekyooden, or the founding of the 10 House of Goohlaht, must the Court view the scientific 11 geological and archaeological evidence as the only 12 real evidence of the time depth of Indian occupation 13 of the territory? Must the plaintiffs' own accounts 14 of events which took place hundreds and thousands of 15 years ago be deemed unscientific and mythical, mirages 16 and reality, rather than the real evidence of history? 17 For the Court, however, to deny the reality of 18 Gitksan and Wet'suwet'en history except where it can 19 be corroborated by expert evidence in the western 20 scientific tradition is to disregard the distinctive 21 Gitksan and Wet'suwet'en system of validating 22 historical facts. 23 In Gitksan and Wet'suwet'en society the chiefs are 24 responsible for their part of the society's history 25 and for knowledge of their particular territory. 26 However, chiefs are reluctant to answer questions 27 about histories or places that probably belong to 28 someone else. It is as if to speak of another's 29 territory were to constitute a trespass. As a total 30 system of knowledge, therefore, Gitksan and 31 Wet'suwet'en facts are shared out. The totality of 32 the historical record exists in the minds of the 33 chiefs that feast together, those feasting together 34 being those whose historical paths have crossed. In 35 this way, the record of Gitksan and Wet'suwet'en 36 history exists in its totality in the minds of those 37 whose duty it is to remember it. Each chief tells his 38 history in the living context of the knowledge of 39 other minds. Thus, when a chief describes the events 40 that took place long ago, events that he or she could 41 not possibly have witnessed, these can be told as 42 established truths by virtue of having been tested and 43 validated at a succession of narrations. These 44 typically occur at the Feast where other chiefs are 45 responsible for ensuring that all that is told is told 46 as it should be. Elders know that the important parts 47 of their history, contained within the ada'ox or 92 Opening by Mr. Rush 1 expressed through the kungax have been told, heard and 2 acknowledged many, many times. This accumulated 3 validation lies behind the present day chiefs 4 insistence that a particular story is true and is not 5 anything like mere hearsay. 6 In the course of his commission evidence, Fred 7 Johnson, Chief Lelt, several times insisted that 8 things he was saying were true because they had been 9 witnessed and acknowledged. He used the Gitsksan word 10 nidn't, which Glen Williams, the translator at the 11 time, rendered in English as acknowledged, confirmed, 12 witnessed. Translation of this term is difficult 13 precisely because it is used to establish validity of 14 a type which is deeply unfamiliar to Western ideas of 15 truth. 16 For Chief Lelt, historical facts are facts by 17 virtue of nidn't. They are confirmed by being 18 acknowledged by a succession of witnesses who, thanks 19 to their specialized training as high chiefs, can be 20 trusted to police distortions. We can thus begin to 21 see the analogy between Gitksan and Wet'suwet'en 22 nidn't-based fact and what, in other cultures, or 23 epistomology, is taken to be scientific fact. Western 24 tradition distinguishes between what is experienced 25 and what is hearsay; the Gitksan and Wet'suwet'en 26 chiefs make this distinction in a different but 27 analogous form, by virtue of testimony and witnessing 28 at the Feast. Western tradition distinguishes between 2 9 opinion and knowledge; a individual can have his views 30 of any matter, but only properly qualified specialists 31 or experts can venture to offer information that 32 transcends individual opinion. 33 The test of the experts' truth in the Western 34 scientific tradition has two facets: on the one hand, 35 there is expertise by virtue of special training and 36 discipline, while on the other hand, there is 37 discovery and truth by virtue of testing hypotheses 38 under controlled conditions. In the Gitksan and 39 Wet'suwet'en system of knowledge, there are properly 40 qualified specialists: Hereditary chiefs and elders, 41 and they have responsibility for facts that are more 42 than individual opinions. Also, a chief has undergone 43 specialized training and study, thanks to which he or 44 she can be trusted to ensure that facts are stated and 45 ordered in the proper manner. Finally, this stating 46 and ordering amounts over long periods of time, often 47 reaching far beyond the lifetime of any single chief, 93 Opening by Mr. Rush 1 to a test of truth. By surviving in the Feast system, 2 facts acquire a higher status, and come to constitute 3 a part of accepted knowledge -- much as scientifically 4 verified facts assume the status of knowledge in the 5 Western tradition. 6 The difficulty we in the Western tradition have is 7 in seeing the nature of facts in another, different 8 kind of cultural arrangement. If one culture refuses 9 to recognize another's facts in the other culture's 10 terms, then the very possibility of dialogue between 11 the two is drastically undermined. The challenge for 12 this court in understanding the nature of Gitksan and 13 Wet'suwet'en validation of facts and in accepting 14 Gitksan and Wet'suwet'en history as real, is part of 15 the Court's task in treating Gitksan and Wet'suwet'en 16 societies as equals. 17 The historical evidence which will be presented to 18 this Court is also intended to address some of the 19 distorting cultural biases with which we typically 20 view Indian societies. Even though it may be 21 acknowledged that Indian people have lived in British 22 Columbia for thousands of years before Europeans came, 23 that enormous span of time is viewed as a period in 24 which little, if anything, of historical consequence 25 happened. To the extent that it is admitted that 26 Indian peoples had their own cultures and their 27 distinctive ways of making a living, these are seen as 28 static as well as primitive. In this way native 29 peoples are commonly viewed by Western societies as 30 being without history. As recently as 1966, Hugh 31 Trevor-Roper, the Regius Professor of Modern History 32 at Oxford university, claimed that Africa had no 33 history prior to the era of European civilization. He 34 says: "Perhaps, in the future, there will be some 35 African history to teach, but at present there is 36 none, or very little: There is only the history of 37 the Europeans in Africa. The rest is largely 38 darkness ... and darkness is not a subject for history: 39 .... which is essentially a form of purposive 40 movement." In the same superiorist vein, the history 41 of British Columbia begins for us when our ancestors 42 arrived. Part of this Western historical perspective 43 is that starting from the point of European contact, 44 Indian societies started to change. The adoption of 45 European trade goods and the incorporation of new 46 economic opportunities, along with the incorporation 47 of new religions, are seen as a gradual abandonment of 94 Opening by Mr. Rush 1 the real traditional Indian life. This view of the 2 nature of historical change has direct implications 3 for the legal issues in this case. It has given rise, 4 in some of the judicial statements of aboriginal 5 rights, to a definition of those rights as frozen, as 6 of the time of the assertion of European sovereignty 7 and European contact. According to this legal theory, 8 the evidence must then be focussed on demonstrating 9 the nature of the Indian society at that point, to 10 determine the nature of their aboriginal rights. You 11 will hear evidence from the Indian people themselves 12 and from historians and anthropologists which will 13 show that, at the legally relevant time according to 14 this view of aboriginal rights, the Gitksan and 15 Wet'suwet'en systems, and in particular, their 16 concepts of ownership and authority, were in place. 17 You will also hear legal argument that this test of 18 frozen rights is misconceived. 19 There are other legal implications for this 20 particular view of historical process which dates real 21 "Indianness" to a point determined by European 22 contact. To the extent that Indian life has changed, 23 assertions of aboriginal title in the contemporary 24 world are seen as historically and legally outmoded, 25 because Indians are not now sufficiently aboriginal. 26 There is then seen to flow from the inexorable course 27 of history the abandoning of "real traditional 28 aboriginal life" and with that the withering of the 29 raison d'etre for aboriginal rights. We suggest that 30 this thesis underlies the real defence of the 31 provincial Crown in this case. 32 MR. GOLDIE: Perhaps my friend might let me speak as to what the 33 defence is of the provincial Crown. 34 THE COURT: I am sure he will, Mr. Goldie, in time. 35 MR. RUSH: My lord, we will be arguing that this court should 36 not endorse a frozen concept of aboriginal rights. We 37 will be arguing that the entrenchment of aboriginal 38 rights in the Charter is inconsistent with such a 39 view. We will also be arguing that the aboriginal 40 rights of the Gitksan and Wet'suwet'en are not to be 41 defined exclusively by reference to some fixed notion 42 of traditional Indian society. We will be presenting 43 evidence that the division between traditional and 44 non-traditional is false and misleading. It is 45 misleading, my lord, because it implies judgments 46 about Indian life and culture that we would not apply 47 to our own. These judgments also tend to place a 95 Opening by Mr. Rush 1 cultural obligation on Indian people to live according 2 to limiting and unchanging rules. The application of 3 such a dichotomy denies to "traditional" cultures a 4 right to be modern, a right to change, a right to 5 evolve, a right to progress, and thus consigns these 6 cultures to the past. 7 Evidence will be presented to this court to support 8 the position that the Gitksan and Wet'suwet'en systems 9 are open and adaptive, and that many of the 10 developments in their territories since white contact 11 are not the symbols of their demise as Indian 12 societies, but are a product of their vitality; many 13 developments have been incorporated into an existing 14 framework and structure of their society in ways which 15 are a part of a chain of continuity with the past. 16 We will be presenting evidence describing the 17 ecological and economic facets of the Gitksan and 18 Wet'suwet'en relationship to their territories. That 19 evidence will show how the major Gitksan and 20 Wet'suwet'en villages occupy an ecosystem that is 21 uniquely favourable to human habitation. Compared to 22 the surrounding region, the mild, dry climate of the 23 middle Skeena produces an abundance of food and plants 24 as well as being best suited for the smoke-drying 25 preservation of foods. Here are also found the most 26 productive salmon fishing canyons of the Skeena 27 system. This same ecosystem lies at the conjunction 28 of three major North American climatic and biotic 29 zones: The Pacific coast, the interior plateau, and 30 the boreal forest. From their villages the Gitksan 31 and Wet'suwet'en can efficiently travel to a wide 32 diversity of rich valley and Alpine environments that 33 comprise their territories. This has enabled the 34 Gitksan and Wet'suwet'en societies to sustain higher 35 population concentrations than is normally found in 36 other societies that depend upon hunting and fishing. 37 These concentrations necessitated harvesting animals 38 more intensely than is customary in such economies. 39 This, coupled with the importance of trade, has meant 40 that ecological monitoring, the orderly conduct of 41 harvesting activities and defined rights of ownership 42 to territories and fishing sites, have always been 43 important to the Gitksan and Wet'suwet'en systems. 44 The evidence will also show that trade has long 45 been a significant part of Gitksan and Wet'suwet'en 46 economies. By virtue of their location at the meeting 47 of coast and interior environments and peoples, the 96 Opening by Mr. Rush 1 Gitksan and Wet'suwet'en are actively engaged -- were 2 actively engaged in trade long before the arrival of 3 Europeans. From the earliest days some part of the 4 food, clothing, along with much material culture, has 5 been the subject of import and export between the 6 Gitksan and Wet'suwet'en and their northwest coast 7 neighbours. Trade routes and trails created a web of 8 interconnection throughout the northwest coast. No 9 one community existed in economic isolation and the 10 use or value of resources was not limited to its place 11 of harvesting. Oolichan grease, a important part of 12 both Gitksan and Wet'suwet'en diet, was transported 13 from one river system to another and sold. Dried 14 berries, dried seaweed, smoked Oolichan, the meat of 15 animals, dried salmon, all these figure in a trade in 16 foodstuffs. Caribou and especially moose skins were 17 also brought into the area, notably for distribution 18 at the Feasts. Obsidian, used in the manufacture of 19 tools, according to the archaeological evidence, was 20 traded into northwest British Columbia for some 21 thousands of years. A trade in dentalia shells, also 22 part of what the archaeologists refer to as the "tool 23 kit", was also of considerable historical depth. This 24 trade depended upon labour -- the men and women who 25 carried boxes, skins and other goods from one 26 community to another. At the same time, trading 27 canoes moved up and down the Skeena. These were 2 8 crewed, supplied and welcomed by various men and women 29 of villages between the Queen Charlotte Islands and 30 Gitanmaax. 31 It is within the context of an economy which was 32 never isolationist, and which combined elements of 33 domestic production and consumption with an elaborate 34 complex of trading networks, that the more recent 35 history of contact with Europeans must be assessed. 36 Historical evidence will review the observations of 37 the early traders, and in doing so, provide an 38 evidentiary antidote to some well-entrenched 39 stereotypes regarding the nature of the relationship 40 it between the Hudson Bay Company and Indian traders. 41 The evidence will document the difficulties the early 42 white traders experienced in their dealings with the 43 Indians of the Upper Skeena because of the strength of 44 pre-existing trading patterns. The Indians controlled 45 the communication corridors and were jealous of their 46 trading alliances. In order to participate in the 47 regional trading economy, the Hudson Bay Company had 97 Opening by Mr. Rush 1 to fit into the ongoing system, contrary to the common 2 assumption that it was the Indians who were brought 3 within the encircling web of the Bay's system. 4 You will hear how Peter Ogden in his first journey 5 to Hotset -- the site of the ancient village of Kya 6 Wiget and the present site of Morricetown -- in 1821, 7 identifies the Wet'suwet'en chiefs by the names which 8 appear on the statement of claim in this case and 9 refers to them as "men of property". The observations 10 of these early Hudson's Bay traders indicated that 11 access to resources was regulated by a land tenure 12 system in which tracts of land were managed by the 13 hereditary chiefs. The chiefs also controlled access 14 to trails that traversed their Houses and teritories. 15 The historical evidence will demonstrate that while 16 there was an intensification of competition with the 17 advent of European trading enterprises, and some 18 distortion in the Feast or Potlatch system, 19 particularly amongst the Indians on the coast, in the 20 interior amongst the Gitksan and Wet'suwet'en, 21 increased trading opportunities were incorporated into 22 a existing economic and social system. 23 The evidence will show that the participation of 24 Gitksan and Wet'suwet'en men and women in new forms of 25 economic opportunity in the late 19th and early 20th 26 centuries, constitutes not discontinuous change but 27 evolution based upon existing patterns. Thus the 28 evidence will show that with the increased volume of 29 traffic on the Skeena, occasioned by the establishment 30 of Hazelton as a major supply depot, Indian freighters 31 formed the most significant part of the transportation 32 network. When the Grand Trunk Pacific Railway line 33 was built through the territory, Indian fishermen 34 regularly sold fish to the construction crews. When 35 white settlers began to farm the Bulkley, Kispiox, 36 Skeena and Kitwanga bottomlands, they quickly 37 established arrangements for trading farm produce to 38 the Gitksan and Wet'suwet'en for salmon. The 39 development of logging and sawmill operations to 40 provide poles and tiles for white transportation, and 41 communication corridors, such as the railway and 42 telegraph, are other significant examples of trade and 43 exchange of human and natural resources of the Gitksan 44 and Wet'suwet'en Houses and territories. The advent 45 of opportunities for wage labour provided a new 46 dimension in pre-existing exchange arrangements. Many 47 people began to spend the summer months working in the Opening by Mr. Rush 1 fishing industry, either in the canneries or in the 2 commercial fishery. This activity was again 3 incorporated in the ongoing network of reciprocity, in 4 that those who stayed at home caught and prepared 5 salmon for those working on the coast, who, in return, 6 reciprocated with store-bought commodities and cash. 7 The evidence will show how these new forms of 8 economic opportunities have been layered on to 9 existing and dynamic economic systems. It will make 10 clear that Gitksan and Wet'suwet'en economies were 11 never based on subsistence alone. If we equate 12 "traditional Indian life" with subsistence, the 13 Gitksan and Wet'suwet'en have not been traditional 14 since time immemorial. The absurdity of this kind of 15 conclusion is some indication of how misleading 16 seeking to confine aboriginal rights to some proto- 17 typical definition of tradition can be. They blind us 18 to the way in which Gitksan and Wet'suwet'en economies 19 are open and mixed. The element of subsistence is 20 part of a continual but changing economic balance. 21 By avoiding the mistaken and sterotypic 22 implications of the idea of "traditional" subsistence 23 economic life, the gain in understanding is extensive 24 for it means this court can see Gitksan and 25 Wet'suwet'en societies in the same kinds of terms as 26 we usually discuss our own society. That is to say, 27 by reference to institutions of ownership and 28 jurisdiction of territories as socio-economic 29 foundations. Societies without these foundations are 30 properly understood as ethnic groups or sub-cultures. 31 Societies with these foundations look to their 32 boundaries and territories as the basis for well-being 33 and identity in the present and future as well as the 34 past. 35 So it is with the Gitksan and Wet'suwet'en people. 36 The rights which they assert in this case are 37 ownership and jurisdiction over their territory and 38 not to any particular economic form or way of making 39 use of these territories. It is important not to 40 misunderstand the implication of this assertion. 41 Economic activities centering around the fishery 42 remain to this day, as they have been for centuries, 43 the economic well-spring of Gitksan and Wet'suwet'en 44 well-being. This will be evidenced not only outside 45 of the court by the enormous activity and energy which 46 will be generated this summer and fall by the the 47 plaintiffs and their Houses on the Skeena, Babine, 99 Opening by Mr. Rush 1 Bulkley, Nass and Nechako Rivers but also in the court 2 through the evidence you will hear as to the efforts 3 that have been made in the development of a fishery 4 management plan. This plan, while building upon the 5 people's immense knowledge of and relationship to and 6 respect for the salmon, integrates appropriate 7 technology and scientific information sources 8 regarding fish stocks. The use by the Gitksan and 9 Wet'suwet'en of computer technology in this regard, is 10 not a demonstration of their abandonment of their 11 cultural inheritance, any more than the incorporation 12 of new forms of trade and labour represents a slide 13 from a time of real and pristine "Indianness" to one 14 of contamination by alien economic elements. What the 15 evidence will show is that there is a continuity which 16 relates the Gitksan and Wet'suwet'en to their 17 territories, and to their distinctive form of 18 ownership of, and responsible stewardship over, their 19 resources. 20 The theme of continuity and change will also be 21 reflected in the evidence you will hear regarding the 22 incorporation of Christianity into Gitksan and 23 Wet'suwet'en spiritual systems. This evidence will 24 also demonstrate something else -- the determination 25 of Gitksan and Wet'suwet'en to maintain their central 26 institutions and laws in the the face of a concerted 27 effort to stamp them out. 28 You will hear in the evidence that many Gitksan and 29 Wet'suwet'en are members of Christian churches. You 30 will hear also these witnesses describe the continuing 31 significance of their spiritual beliefs centred on 32 their relationships with animals and the spirit world. 33 How can these beliefs exist side by side with 34 Christianity? Is not the assumption of the mantle of 35 Christianity the assumption of the benefits of a 36 progressive civilization and the inevitable withering 37 of "paganism"? You will hear evidence that over the 38 past century and a half, the Gitksan and Wet'suwet'en 39 have integrated aspects of Christianity into their 40 systems and maintained both absolutely. They are 41 participants in Anglican, Catholic, Pentacostal and 42 Salvation Army churches; at the same time, songs, 43 dreams, spirit power and reincarnation continue to 44 keep them in personal contact with the spiritual 45 forces that have always animated their lives and which 46 inform their practice of Christianity. 47 You will hear evidence that the introduction of 100 Opening by Mr. Rush 1 missionary work amongst the Gitksan and Wet'suwet'en 2 took place at a time when their peoples had been 3 decimated by the introduction of white epidemics of 4 measles and smallpox. In Gitksan and Wet'suwet'en 5 cosmology there is no such thing as accidental death. 6 If misfortune befalls a person and there is a death, 7 someone must be responsible. Deaths by new diseases 8 were no exception; the act causing the death had to be 9 located. The chiefs and shamans -- those endowed with 10 special powers for dealing with sickness and death -- 11 were obliged to make some sense of, even if they could 12 not minimize, the devastation that early contact 13 caused. Part of that explanation had to be found in 14 the fact that white newcomers seemed to be exempt from 15 the effects of the epidemics. It is not surprising, 16 then, that the Gitksan and Wet'suwet'en saw 17 missionaries as the white man's equivalent of their 18 shamans. Nor were the missionaries slow to see the 19 analogy and to use it to try and challenge the 20 authority of the Gitksan and Wet'suwet'en spiritual 21 authorities. Not only did the missionaries advance 22 the theory that the Indians died because they failed 23 to be Christians, they also insisted that Christianity 24 offered eternal life. On the one hand, these new 25 ideas seemed to explain the disaster; on the other 26 hand they seemed to offer a escape from its 27 consequences. 28 The evidence will show that despite missionary 29 activity and the diseases by which they were proceeded 30 and aided, the Gitksan and Wet'suwet'en did not give 31 up their own systems. In turning to or accepting 32 Christianity, the chiefs did not abandon their own 33 authority, rather they sought to supplement it or 34 adopt some of its terms of reference. A major example 35 of how the Wet'suwet'en incorporated Christianity 36 within the context of their own system will be 37 described in the evidence about their most famous 38 prophet, Chief Kweese, who took the full name of Bini. 39 Bini fits into an ancient tradition of prophets 40 amongst Indian societies in different parts of North 41 America. Indian shamans responded to the influx of 42 disease and the missionaries' message about the death 43 and resurrection of the Son of God by a heightening of 44 the shamanic role in which the shaman leaves his body, 45 travels to the sky realm and comes back to re-animate 46 his body, bringing with him songs, dances, and 47 prophetic messages as to how the people must conduct 101 Opening by Mr. Rush 1 themselves to prepare for the changes that lie ahead. 2 You will hear evidence about how Bini's account of his 3 ascent to heaven and return to earth links the 4 spiritual journeys set out in an ancient Wet'suwet'en 5 kungax with New Testament prophecies. 6 You will hear how the Christian missionaries did 7 not share the ecumenical perspective of the Gitksan 8 and Wet'suwet'en. Whereas the Gitksan and 9 Wet'suwet'en were prepared to accord Christianity and 10 its practitioners a proper measure of respect, the 11 missionaries were not content with co-existence. 12 Their mission demanded and acceptance of the 13 superiority of the Christian ethos as part of the 14 process of civilizing the Indians. In this regard, 15 the efforts of missionaries and Indian agents, also 16 bent on bringing Indians into the pale of 17 civilization, were well reflected in the legislative 18 prohibition of the Feast in 1884. You will hear 19 evidence of the efforts within the Gitksan and 20 Wet'suwet'en territories to eradicate the Feast from 21 the fabric of Indian society. You will hear evidence 22 of apparent missionary success in persuading the 23 Wet'suwet'en chiefs to burn their Feast regalia in 24 honour of the Bishop in 1901. You will hear evidence 25 of a petition of Kispiox chiefs in 1914 apparently 26 endorsing the prohibition of the Feast. But these 27 events, placed in their proper historical and cultural 28 context, will be shown not to be the acts of voluntary 29 abandonment but Indian efforts to accomodate new 30 beliefs in terms of the form of the Feast without 31 changing its convention function. Despite the 32 outlawing of the Feast, you will hear evidence of the 33 Feast given by Chief Nikateen in the 1930s to protest 34 the legislation. You will hear evidence of the Feasts 35 held in the 1940s. But the best evidence of the 36 failure of missionaries, Indian agents and the Indian 37 Act to eradicate the Feast will be found in the 38 evidence of the Gitksan and Wet'suwet'en chiefs that 39 the Feast continues today to be their overarching 40 institution. 41 The evidence relating to history and nature of 42 Gitksan and Wet'suwet'en societies will be lead not 43 only in order to enable the court to understand the 44 Gitksan and Wet'suwet'en system of ownership and 45 jurisdiction, but also to understand the response of 46 the Indian peoples to the assertion of authority by 47 colonial, provincial and federal agents and 102 Opening by Mr. Rush 1 governments. It is part of the Province of British 2 Columbia's defence, which they seek to support through 3 historical evidence, that the Gitksan and Wet'suwet'en 4 readily submitted to the arrival of the whiteman, his 5 activities, his laws and authorities, and that in so 6 doing, they have acquiesced in the incremental 7 extinguishment of whatever rights they may have once 8 possessed. This evidence relies on "primary" 9 historical material, by which is meant the archival 10 papers of the provincial governments, the diaries and 11 correspondence of the officials, missionaries and 12 other private individuals. It is, in other words, the 13 historical record and contemporary newspaper stories 14 of those who live at the frontier and those who bring 15 "civilization" to the frontier. Where it speaks of 16 the Indian voice, my lord, it does so through the 17 distorting lens of superiorist ideology with its 18 mixture of lack of understanding and disdain for 19 Indian societies. 20 The evidence which the plaintiffs will present, 21 while dealing with many of the same events which are 22 relied upon by the Province to show "acquiescence" and 23 "submission" to Canadian authority, will explain these 24 events in terms of the authentic Indian voice. And 25 the Indian understanding of these events within their 26 cultural framework. So explained, the evidence of 27 so-called "submission" and "acquiescence" will take on 28 a totally different character. A graphic illustration 29 of this, which will be referred to in the evidence, is 30 the burning of the village of Kitseguecla in 1872, 31 which may be regarded as the first significant 32 conflict with whites. The fire was caused by a group 33 of miners who had neglected to extinguish their 34 campfire. The resulting conflagration destroyed 12 of 35 the Gitksan Houses and most of their contents together 36 with 12 crest poles. 37 As we have already stated, in the Geiksan world 38 view there is no such things as a accident. The 39 persons responsible must acknowledge their culpability 40 and make suitable public restitution. When this 41 failed to materialize, the Kitseguecla chiefs 42 blockaded the Skeena to all trading and supply boats. 43 The provincial government sent two gun boats to the 44 mouth of the Skeena and a meeting took place on board 45 H.M.S. Scout, between the Lieutenant-Governor and the 46 Attorney-General and the Kitseguecla chiefs, who 47 attended wearing their ceremonial regalia. The 103 Opening by Mr. Rush 1 Lieutenant-Governor, Joseph Trutch, while maintaining 2 the provincial government could accept no 3 responsibility for the fire, stated that the 4 government was prepared to make a present as an act of 5 grace to the people of Kitsseguecla and that, while 6 the blockade of shipping would be overlooked on this 7 occasion, in future the rule of law must prevail. As 8 reported by the Victoria Colonist, the payment 9 promised amounted to some $600 and after its 10 distribution to the chiefs, the indians "fired off 11 their muskets and sang songs expressive of their love 12 for the Whites." The ship's guns were also fired at 13 the conclusion of the meeting and again, according to 14 the Colonist, "the shot and shells as they crashed 15 through the trees or ricocheted through the water, 16 seeming no to impress the savages very forcibly with 17 an idea of the power of the whites." 18 There is not Kitseguecla Colonist which we can 19 consult for the Indian account of these events (and 20 the Victoria Colonist did not have a regular Gitksan 21 columnist on its staff) but the Indian account has not 22 gone unrecorded. In the archival material 23 Barbeau-Beynon, a series of detailed interviews 24 conducted by an eminent White ethnographer and an 25 eminent Tsimshian ethnographer, we are provided with a 26 important window into these and other critical events 27 relating to the early days of Indian-White contact. 28 Through a review of this archival material, and an 29 appreciation and understanding of Gitksan law, the 30 evidence will show that the meeting at Kitseguecla can 31 be seen in terms other than the affirmation of White 32 law and authority and order, coupled with a charitable 33 benovolence towards the poor beknighted natives. 34 Viewed against this historical background and cultural 35 perspective, the evidence will illustrate that the 36 meeting on board H.M.S. Scout had certain elements of 37 the traditional Feast. The chiefs of the Kitseguecla 38 Houses were there as well as the chiefs from Victoria; 39 the chiefs wore their regalia indicating their titles; 40 there were formal speeches, food was distributed; 41 there was a dramatic presentation of power accompanied 42 by songs. In terms of, and in accordance with, 43 Gitksan law, a settlement of a dispute was reached and 44 witnessed, accompanied by demonstrations of power, 45 payments were promised in recognition of wrongdoing, 46 and agreement reached that in future there would be 47 harmony instead of discord. 104 Opening by Mr. Rush 1 The Gitksan response to the burning of Kitseguecla 2 will provide this court with an important insight into 3 the nature of the Gitksan and Wet'suwet'en systems. 4 They place great emphasis on respect and compensation. 5 These two are closely connected. You show respect by 6 sitting in your appropriate place in the Feast Hall as 7 well as by aabiding by rules for use of House 8 resources. Failure to show respect, a breaking of the 9 law requires some form of compensatory payment. 10 Compensation redresses wrongdoing symbolically, in the 11 the form of public admission of liability through a 12 Feast and then materially, often with payments of 13 money, land or, in extreme cases in the past, with a 14 life. The result is a negotiated settlement in which 15 a wrong is put to right. 16 Throughout the history of White-Indian contact in 17 north-west British Columbia, Indians have made many 18 demands for respect and compensation. When Whites 19 break Gitksan or Wet'suwet'en laws, as the evidence 2 0 will show they have done in a cumulative manner over 21 the last 100 years, Gitksan and Wet'suwet'en people 22 have expected to be compensated. A failure of 23 compensation demonstrates lack of respect for their 24 system. Lack of respect for the system constitutes a 25 further form of wrongdoing requiring additional 26 redress. Indian demands for compensation cannot be 27 interpreted as a demonstration that Indians in return 28 for money are prepared to abandon their rights. 29 Payment, so far as it equals compensation, 30 acknowledges and endorses the Indian system and is the 31 very opposite of acquiescence in its demise. 32 The central role in Gitksan and Wet'suwet'en law of 33 compensation and restitution has other implications in 34 terms of some of the evidence this court will hear. 35 When Gitksan and Wet'suwet'en elders relate what has 36 happened in the past in terms of the abuse and 37 disregard of their ownership and authority, they are 38 not consigning their culture to history. This court 39 should not see this as a lament for times and rights 40 now lost, but rather a demonstration of the continuing 41 life in the tissue of the system which causes elders 42 and chiefs to pay restitutional attention to the 43 insult and injury of which much of the recent history 44 is composed. 45 My lord, this was the point in the opening that I 46 intended to stop and Mr. Grant was going to pick up 47 from this juncture. And looking at the hour, it might 105 Opening by Mr. Rush 1 be an appropriate time to commence in the afternoon. 2 THE COURT: All right. Thank you. We will adjourn then until 2 3 o'clock. 4 5 (PROCEEDINGS ADJOURNED FOR LUNCH) 6 7 8 I hereby certify the foregoing to be 9 a true and accurate transcript of 10 proceedings herein to the best of my 11 skill and ability. 12 13 14 15 16 17 Wilf Roy 18 Official Reporter 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 106 Opening by Mr. Rush 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 47 106 Opening by Mr. Grant 1 (PROCEEDINGS RESUMED AT 2:00) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Grant. 5 MR. GRANT: Thank you, my Lord. My Lord, we have split the 6 argument at this point at page 72 because it is 7 natural to move from my colleague's description of the 8 evidence of the plaintiffs to the more recent history 9 and the evidence of the last hundred years. I'll 10 start at page 72. 11 The principal basis upon which the Province of 12 British Columbia alleges that the Gitksan and 13 Wet'suwet'en have given up whatever ownership and 14 jurisdiction they may have had, is that they requested 15 from the various Indian Reserve Commissions that 16 additional lands be set aside as Indian reserves. The 17 defendant's thesis here is that by accepting reserves 18 and seeking to add to them the Indian people 19 acknowledged the loss of their larger territories and 20 accepted the reserves as a settlement of their 21 asserted rights to those territories. This thesis is 22 the legal analogy to a commonly held view that the 23 Indian reserve represents the symbol of Indian 24 capitulation to European presence in North America. 25 To see the reserve as such a symbol is to imply a 26 particular historical process: Indians once had their 27 territories, and now adays they have their reserves. 28 This alleged continuum of contracting land contains a 29 stereotype which is closely allied to the evolutionism 30 which Mr. Rush has already brought to the attention of 31 this court; the roaming hunter, with the life of 32 limitless freedom that comes with dependence only on 33 subsistence resources is progressively confined. 34 There is a perceived inexorable logic that Indians who 35 once had territories in their "traditional" life now 36 have the remnants of those territories, their very 37 small reserves, matching the remnant of their 38 "traditional" culture. There are further corollaries 39 to this view. The reserves are those places which we, 40 the non-Indians, have given them, the Gitksan and 41 Wet'suwet'en, so we acknowledge them to be their 42 lands. On this view, the rest of the land is not 43 theirs but ours. What does this mean in this case, my 44 Lord? 45 The Gitksan and Wet'suwet'en reserve lands 46 presently amount to 45 square miles. The thesis 47 embodied in paragraph 34 of the Province's Statement 107 Opening by Mr. Grant 1 of Defence is that the Gitksan and Wet'suwet'en 2 villages that make up most of the 45 square miles 3 represent the fitting conclusion of this historical 4 process. The plaintiffs will be presenting to this 5 court extensive evidence relating to the establishment 6 of Indian reserves and the Gitksan and Wet'suwet'en 7 responses to this process. That evidence will show 8 that Gitksan and Wet'suwet'en Chiefs have always 9 rejected the reserve system, and that this rejection 10 is a thread that runs through, and in many ways ties 11 together, many of the key events of this last century. 12 Gitksan and Wet'suwet'en life never could, and never 13 did, allow itself to be confined to a small set of 14 reserve lands. 15 You will hear much evidence relating to the 16 establishment of the McKenna-McBride agreement and the 17 ensuing McKenna-McBride Commission, also known as the 18 Royal Commission on Indian Affairs for the Province of 19 British Columbia, which held hearings throughout 20 British Columbia between 1912 and 1915. The 21 circumstances leading up to the agreement are of great 22 significance to this case, linking together as they do 23 a period of accelerating Indian protest and assertion 24 of their aboriginal rights to their territories, 25 including petitions to the English Crown and efforts 26 to obtain judicial rulings from the Privy Council, 27 then of course the highest court to which an appeal 28 could go from this country. They also prove an 29 important window into provincial and federal responses 30 to these initiatives, which, in the form of the 31 McKenna-McBride agreement, resulted in an accord to 32 deal with -- only with the resolution of outstanding 33 federal-provincial issues relating to Indian reserve 34 lands and specifically excluded any determination of 35 the issue of aboriginal rights. That issue was to be 36 set aside for future consideration. As you will hear 37 later this was not the first nor the last occasion in 38 which, in the spirit of co-operative federalism, a 39 principled resolution of Indian rights was deferred. 40 In the extensive hearings which the McKenna-McBride 41 Royal Commission conducted across the province, Indian 42 attempts to raise the issue of aboriginal title were 43 met with the response by the Commissioners that this 44 was beyond the Commission's terms of reference. Of 45 great relevance to the position taken by the Province 46 in its defence in this case is the assurance Indian 47 witnesses were given that participation in the work of 10E Opening by Mr. Grant 1 the Commission would not prejudice their claims based 2 on aboriginal title. Thus, you will hear evidence of 3 the following exchange between the Chairman of the 4 Royal Commission and Chief Haalus, William Holland, at 5 the meeting of the Kuldoe Band. William Holland is 6 the father of the present Chief Gyolugyet, Mary 7 Mackenzie, who will be the first witness that you will 8 hear on the stand. Her father said this 76 years ago 9 to the commission: 10 11 "The chief wants me to speak for him. We just want 12 one thing, and that is to get back our land again. 13 The land was here before we were here and we want 14 to get it back, all the land along the Skeena 15 River." 16 17 The chairman: 18 19 "Some of the Indians, and those who are supporting 20 your claim, thought at one time that if you applied 21 to us for certain lands and we gave them to you 22 that you were, to some extent, giving up some of 23 your privileges; that if you accepted those lands 24 you would not have the further right to take this 25 matter up in the Courts, but a further 26 Order-in-Council was passed expressly stating that 27 this would not affect you in the least." 28 29 Paragraph 34 of the Province's Statement of Defence 30 would seek to make a liar out of the Chairman of this 31 Royal Commission. 32 The evidence of Gitksan and Wet'suwet'en Chiefs at 33 the Royal Commission hearings is significant in 34 understanding Indian attitudes to reserves. You have 35 already been referred to the statement of another 36 Chief, Charles Wesley, to the Commission, where he 37 told the commission: 38 39 "I wish to tell you that this reserve that you have 40 just spoken about is something that we don't wish 41 for. This country originally belonged to our 42 ancestors, we were placed here originally by God, 43 and it is only quite recently that the government 44 has sent men out here to measure this land 45 immediately around us, we were not notified of it 4 6 when they did. Then the provincial government came 47 in and sold the remaining land immediately around 109 Opening by Mr. Grant 1 us, and what we most strenuously object to is that 2 you insist upon us having this reserve. I was one 3 that signed the petition in 1908 which we sent down 4 to Ottawa. We asked that the land which the 5 provincial government had sold be returned or given 6 back to us. This is where our inheritances come 7 from and where they are were handed down from 8 generation to generation." 9 10 And again, you will hear evidence from the 11 Wet'suwet'en Chiefs of an exchange between the 12 Commission and one of their Chiefs, where the Chief 13 said in describing the reserves: 14 15 "If you want to help us there is only three things 16 we want and that's the first thing just people 17 dead. It's just the same thing as tying them up 18 and letting them die." 19 20 The commissioner questioned him on this: 21 22 "You mean that to restrict or confine the Indians 23 to their reserves, you mean that is killing you." 24 25 The Chief's answer was simple and affirmative. 26 27 My Lord, the evidence you will hear will leave you 28 in no doubt that the Gitksan Chief's statements to the 29 Royal Commission stand as a testament to the 30 affirmation of their rights to their territory and not 31 their voluntary participation in their demise. 32 Evidence will be presented to you as to the role 33 that the Gitksan and Wet'suwet'en reserves play in 34 Indian life in order for the court to understand that 35 they are not the capital of a residual Indian culture. 36 Many of these reserves are ancient village sites, 37 where Indian people have chosen to spend at least part 38 of each year over a period of centuries, and in some 39 cases, millenia. They include Kitwanga, Kitsequecla, 40 Kispiox, Kisgagas, Kuldoe, Gitanmaax, Hagwilget and 41 Moricetown. Other reserves such as Glen Vowell are 42 places which missionaries thought were a good place 43 for Indians to relocate. Indian agents and 44 missionaries encouraged Indians to move to or remain 45 living all year round on reserves through a set of 46 incentives in the expectation that ultimately and 47 inevitably Indians would become like us. 110 Opening by Mr. Grant 1 But the evidence you hear will show that reserves 2 were never seen nor accepted by the Gitksan or 3 Wet'suwet'en as centres of assimilation. Conceived by 4 the early Indian agents as a legal and administrative 5 fence to confine, control and to monitor Indians, the 6 reserve has never succeeded in confining the Gitksan 7 and Wet'suwet'en culture and economy within its 8 limits. The evidence of the activities of each 9 historical period will show this failure, and I may 10 say will show it dramatically. The ever developing 11 round of Gitksan and Wet'suwet'en economic life, most 12 notably in the growth of the mixed economy, for 13 example, the inclusion of small-scale logging and 14 sawmill operations, will indicate that the Gitksan and 15 Wet'suwet'en life was not confined to the reserve in 16 the 1940's and 1950's. The importance of trapping for 17 so many Gitksan and Wet'suwet'en families shows that 18 there was no such confinement in the 1930's. The way 19 in which the many threads of Gitksan and Wet'suwet'en 20 life led people and produce along trails, that 21 criss-cross through the territories, shows the active 22 life of the cultures beyond reserves in the 1920's. 23 And I may say, my Lord, that the evidence will show 24 that many of the routes that you saw in those coloured 25 maps yesterday are routes -- are routes that have been 26 travelled by hundreds of years by the Wet'suwet'en, 27 Gitksan and Wet'suwet'en before the arrival of the 28 Europeans. The transcripts of the McKenna-McBride 29 Commission show that Indian people regarded the 30 intention to confine them to reserves as an affront 31 and an unacceptable offence against Gitksan and 32 Wet'suwet'en life and culture. The land claims 33 process, and ultimately this court case itself, 34 reveals the extent to which the Gitksan and 35 Wet'suwet'en have refused to accept the ideas implicit 36 in the reserve system. 37 My Lord, the boundaries of the Gitksan and 38 Wet'suwet'en territories are not to be found by 39 reference to the surveyed limits of their reserves. 40 Those boundaries, for many generations, have been and 41 are still being proclaimed and validated in the Feast 42 Hall. For the benefit of this court they have been 43 set out in maps. As you will hear, in preparing these 44 maps, the Chiefs went out into their territories and 45 from the mountain tops pointed out to the researchers 46 and map makers the metes and bound of those 47 territories. From up there on top of those mountains, Ill Opening by Mr. Grant 1 the reserves assumed their proper significance. In 2 the course of their evidence in this case the 3 plaintiffs will in effect walk you, the court, around 4 their territories as part of the process to obtain 5 this court's acknowledgement of what to them has never 6 been in dispute: These territories are Gitksan and 7 Wet'suwet'en. 8 In the same way it is essential that this court has 9 a clear understanding of the place of reserves in 10 Indian life in order to address the legal issues 11 raised in the Statement of Defence, so also it must 12 come to understand the issue of traplines and trapline 13 registration. These terms are charged with legal 14 significance. Traplines are registered under 15 provincial legislation, and you saw yesterday a map 16 that the defence wishes to tender of those traplines. 17 The system is administered by provincial officials. 18 Does it not follow, therefore, as argued by the 19 defendants, that a Gitksan and/or Wet'suwet'en chief 20 who has registered the trapline has, as it were, 21 attorned to provincial authority and voluntarily 22 surrendered and given up whatever aboriginal rights he 23 or she may have had in return for a grant. The 24 evidence the plaintiffs will be presenting will show 25 that trapline registration is far from an attornment 26 to provincial jurisdiction, was an attempt by the 27 Gitksan and Wet'suwet'en Chiefs to seek a measure of 28 recognition from the provincial government of their 29 rights to their Houses' territories. The evidence 30 will show that trapline registration was introduced by 31 the provincial government in the 1920's as part of a 32 practical solution to wildlife resource problems 33 emerging out of the changing frontier. The 34 registration system, together with the game 35 legislation, was the first component in an evolving 36 attempt to manage the wildlife resources in concert 37 with new agricultural and other economic activities. 38 The evidence will show that federal Indian agents 39 actively encouraged Indians to register traplines by 40 informing them that unless they did, their territories 41 would be taken up by whites, with the resultant loss 42 of their hunting -- with the resultant loss of their 43 hunting and trapping economy. Many Indians were also 44 given to understand that registration would make no 45 difference to their existing rights. The evidence 46 will show that registration of a trapline was 47 understood by the Gitksan and Wet'suwet'en to 112 Opening by Mr. Grant 1 reinforce and underpin their aboriginal rights, that 2 is their ownership and jurisdiction. Informed by an 3 understanding of the nature of the Gitksan and 4 Wet'suwet'en system, the evidence will explain why 5 this would be so. Provincial officials did not come 6 to the Feast Hall, the proper and legal forum for 7 dealing with rights to territories; therefore, the 8 Chiefs concerned about their territories, must find 9 whatever means they can to establish publically and 10 officially that they own their lands. Trapline 11 registration, therefore, was seen within the legal 12 logic of their own system as a form of validation of 13 their rights and authority. 14 This confusion between white and Indian views of 15 trapline registration will be revealed in the course 16 of the evidence by the interchangeability of the 17 terms, trapline and hunting territories. Indians 18 registered at least a part of their land, without 19 giving up their claim to own and manage the whole of 20 it. The word trapline is generally used to refer to 21 the territory as a whole. Registration maps, other 22 documents, and the peoples' own accounts will show a 23 high degree of correspondence between areas registered 24 and hereditary House territories. In addition, the 25 evidence will show that many Chiefs registered a 26 "company" or group, which was in effect a House rather 27 than an individual name, facts which support the 28 conclusion that registration was undertaken within the 29 existing Gitksan and Wet'suwet'en legal system. 30 Trapline registration, properly understood in this 31 historical and cultural context, can be seen as an 32 attempt by the Gitksan and Wet'suwet'en Chiefs to 33 accommodate and incorporate certain aspects of 34 Canadian law as a measure of protection for their 35 ownership and authority. You will hear how this has 36 resulted in strains upon their existing legal systems. 37 The most significant of these has been the result of 38 differences in provincial and Indian laws of 39 succession. As we have already explained, under 40 Gitksan and Wet'suwet'en law, ownership and authority 41 of a House's territory descends with the hereditary 42 Chief's name through a matrilineal system. On the 43 contrary, under provincial law, traplines are 44 inherited patrilineally from father to son. You will 45 hear evidence of how the Gitksan and Wet'suwet'en have 46 attempted to deal with this conflict of laws. They 47 have not turned to Professor Cheshire to seek the 113 Opening by Mr. Grant 1 answer in his text on Private International Law, 2 rather, they have drawn upon the dynamic quality of 3 their own system to seek to resolve this problem. 4 The efforts at resolution themselves require an 5 understanding of the system. Although we have 6 referred you already to the principle of matrilineal 7 succession as an essential feature of Gitksan and 8 Wet'suwet'en law, this does not mean that the father's 9 side, that is, the father's House and Clan, are 10 legally or socially irrelevant. Indeed, you will hear 11 much evidence how the father's house has important 12 legal and social responsibilities towards the father's 13 children, both within and outside the Feast Hall. 14 While the children cannot inherit the House's 15 territory from their father, they are accorded rights 16 of access to that territory during his lifetime. That 17 access can be renewed after his death. It is within 18 the context of this existing recoprocity between the 19 father's side on the one hand, and the mother's side, 20 that the problems of trapline registration have been 21 addressed. 22 You will hear evidence of individuals who, as a 23 result of succession to a trapline under the 24 provincial system, used territories which rightfully 25 belonged to another House and do so as caretakers, 26 acknowledging the legitimacy of the title of the 27 rightful owners. The Wet'suwet'en term for this, 28 "negedel des", means we are here frying something. It 29 is very concrete, they are on the land cooking on the 30 land of their father. Amongst the Gitksan this 31 relationship is called "am niq cootxw", or the 32 privilege granted to the father's children. 33 The problems inherent in trapline registration 34 have, in many cases, been mitigated further by the 35 pattern of intermarriage between two Houses, as a 36 result of which, over time these interacting Houses 37 will be, one may say, feeding each other's children 38 from their own respective territories in alternate 39 generations. In fact, my Lord, you will hear evidence 40 that such interaction and intermarriage between two 41 Houses sometimes goes back for hundreds of years. All 42 of this is not to say that all of the conflict between 43 provincial and Indian law has been resolved. Indeed, 44 the very fact of conflict and ongoing attempts to 45 resolve these within the context of the Feast Hall is 46 the best evidence of the continuing vitality of the 47 Indian system. 114 Opening by Mr. Grant 1 The thrust of what we have said about the evidence 2 we will be leading on the issues of reserves and 3 traplines is that the Gitksan and Wet'suwet'en have 4 not voluntarily surrender, nor have they acquiesced in 5 the abridgement of those rights. But voluntary 6 surrender and acquiescence are only part of the 7 defence of the Province of British Columbia. In 8 paragraph 36 of the Defence, the Province pleads that 9 whatever aboriginal rights the plaintiffs may have 10 had, these rights were reduced, diminished or 11 extinguished by the Colony and Province of British 12 Columbia through the making or enactment of laws of 13 general application, by administration actions 14 pursuant to such laws and by the actions of third 15 parties in the exercise of rights and privileges 16 conferred thereby. 17 As we understand this defence, it is that the 18 rights have been granted by the colonial and 19 provincial governments under various land and 20 preemption proclamations, ordinances and acts, as a 21 result of which third parties have entered into 22 possession of lands claimed by the Plaintiffs. This 23 process, according to the Defendant, as a matter of 24 law, has extinguished the plaintiff's asserted rights. 25 Underlying this defence is a certain view of 26 realpolitik which can be set out in this way. The 27 Province of British Columbia has made grants to Indian 28 land on the basis that Indian people had no rights. 29 The parties to whom the grants were made have taken up 30 these lands and treated them as their own. If Indian 31 people in fact did have rights, it is now too late to 32 turn back the clock, and therefore, as a matter of 33 law, those rights must be held to have been 34 extinguished. My Lord, under this thesis the more 35 blatant in fact the disregard for Indians rights the 36 more self-evident in law it is that those rights be 37 disregarded. In this way injustice, like virtue, can 38 be its own reward. 39 We will have much to say about the legal bankruptcy 40 of the Province's position in our legal argument. The 41 Province will be presenting evidence, as you have 42 already seen yesterday, in the form of detailed maps 43 describing the extent of their alienations within the 44 Gitksan and Wet'suwet'en territory. The plaintiffs 45 also will be presenting evidence on the process of 46 alienation in order to recreate in this courtroom the 47 dark reality of what lies behind the Province's 115 Opening by Mr. Grant 1 colour-coded maps. 2 Your attention will be directed particularly to 3 evidence of what took place at the beginning of this 4 century right here in the Bulkley Valley on the 5 territories of the Wet'suwet'en Chiefs. The evidence 6 will show how, between the years 1901 and 1905 a 7 considerable amount of prime land in the Upper Skeena 8 and Bulkley Valley regions was conveyed by the 9 Province to private parties through the vehicle of the 10 South African war scrip. Under this scheme, a 11 volunteer from British Columbia who served in the Boer 12 War was eligible to receive scrip which entitled him 13 to take up 160 acres of "unoccupied, unclaimed and 14 unreserved Crown land" anywhere in the province. The 15 scrip could also be sold. Because of the way the 16 legislation was drafted, many veterans could not or 17 chose not to use the scrip to take up land. You will 18 read the letter of one such veteran, Mr. Dobie, who, 19 describing the legislation stated as follows: 20 21 "If the government had studied to devise a scheme 22 by which a large area of land would be turned over 23 to the hungry "land sharks" no more effective 24 scheme could have been adopted." 25 26 In fact, much of the scrip was rapidly acquired by 27 a small number of large-scale land speculators. Mr. 28 Dobie's scrip was purchased by one of the larger 29 dealers in South African scrip and was used to acquire 30 a quarter of section of land in the Bulkley Valley, 31 land which became the townsite of Telkwa, 12 32 kilometres to the east of here. Scrip was frequently 33 resold to smaller investors, some of whom held either 34 the scrip or the land waiting for it to appreciate in 35 value. In this way, title to considerable areas of 36 land were held by absentee owners for years before 37 there was any attempt at actual entry or settlement. 38 Through the medium of South African War scrip, a 39 paper transfer of title to many quarter sections of 40 land in the Bulkley valley was effected while the 41 Wet'suwet'en Chiefs and their House members continued 42 to use these territories unaware of any purported 43 changes or transfers in ownership. In many cases, the 44 Wet'suwet'en did not learn until years afterwards that 45 the Province had "alienated" the land by issuing Crown 46 grants. 47 The use of South African war scrip to take up land 116 Opening by Mr. Grant 1 in the Bulkley valley should not have resulted in the 2 dispossession of Indian families. Under the 3 legislation quoted earlier only unoccupied, unclaimed, 4 and unreserved land was available. When lands were 5 surveyed, the surveyor was required to record in his 6 field notes the existence of Indian houses or other 7 improvements. Failure of surveyors to abide by this 8 requirement was unfortunately very common. If the 9 field notes showed no Indian improvements, the Lands 10 Department in Victoria regarded the land as available 11 for sale, pre-emption, or other forms of alienation. 12 When failures to record the existence of Indian houses 13 and other improvements were brought to the attention 14 of the Commissioner of Lands, he was unwilling to 15 disturb the equities of non-Indian purchasers. He 16 noted that some of the lands alienated through use of 17 South African war scrip had been sold two or three 18 times. Examination of the record shows that a number 19 of these re-sales were between well-known dealers in 20 scrip. The record also shows that some of the 21 individuals who traded or invested in scrip were 22 individuals who held positions of trust with respect 23 to Indians, that is, government employees and church 24 mission officials. 25 You will hear that the effect of the issuance of 26 the South African War scrip was that tragically family 27 after family of Wet'suwet'en were forced from their 28 homes. Wet'suwet'en farms were simply seized; 29 clusters of houses and buildings were raised to the 30 ground. Wet'suwet'en hunters and trappers and 31 fishermen returned to their homes at the end of the 32 summer or in early winter, having completed there 33 season's fishing at Moricetown or Hagwilget, to find 34 white settlers in possession, which white settlers 35 were able to summon the police to enforce their new, 36 supposed right to these Indian lands. The deep 37 bitterness of this appalling invasion of their homes 38 was followed, in many cases, by severe hardship, with 39 winter coming on families found themselves without 40 shelter. 41 The names of the Chiefs who were dispossessed 42 appear in government documents of the day under their 43 English names, the Christian names that they were 44 given by whites who could not manage to learn, or 45 chose to disregard their Wet'suwet'en names. The real 46 names that the newcomers ignored included hereditary 47 Chief names. You will hear much evidence of the 117 Opening by Mr. Grant 1 dispossession of Round Lake Tommy, Chief Wah Tah 2 Kwets; Belnai, Madeek; Mathew Sam, Chief Woos, Auguste 3 Pete, Chief Kwees; and Johnny David, Chief Maxlaxlex. 4 Johnny David, in his commission, the person of 5 approximately a hundred years old, in his commission 6 evidence described what happened: 7 8 "In the area of North Bulkley my father had a big 9 smokehouse and when he died the white people burnt 10 it down and they kicked me off the land. My dad 11 died in 1908 and must have been around 30 or 40, 12 and I got a letter from Mr. Loring, who was the 13 Indian agent at Hagwilget. I received a letter 14 from him telling me to get off the land and he was 15 going to give me acreage in Hagwilget which he 16 never did." 17 18 To realize that these Christian names represent 19 important Chiefs in Wet'suwet'en clans leads to 20 another dimension of the damage done to Wet'suwet'en 21 life by these early settlers along the Bulkley Valley. 22 Dispossession was not simply of individuals; those 23 Chiefs were the heads of, and responsible for, large 24 extended families. Family homes and lands were taken 25 and destroyed. The suffering was therefore on a much 26 larger scale than a list of individual names suggests. 27 The nature of the dispossession and the 28 intimidation with which it was accomplished will 2 9 become evident to the court from contemporary 30 statements made by the Wet'suwet'en. Thus, the courts 31 will hear the words of James Yami, Chief Caspit as he 32 addressed officials of the Department of Indian 33 Affairs in 1909: 34 35 "The Bulkley River is our river and we get our 36 living therefrom. On the lakes are located some of 37 our houses. They are small and crude of pattern 38 but we cannot do without them. In those houses we 39 have many articles such of hunting, trapping and 40 fishing implements. A white man comes along and 41 sets fire to the houses, and on remonstration we 42 are told by the settler: 'You get away from here, 43 I bought this land and if I catch you here again I 44 will have you jailed." 45 46 The Wet'suwet'en Chiefs sought to protest their 47 dispossession in a variety of ways, ranging from HE Opening by Mr. Grant 1 confrontation to diplomatic petitions. Violence 2 against whites was averted not only by promises of 3 Indian agents that the land claims of the Wet'suwet'en 4 would be dealt with by government, but by the 5 Wet'suwet'en abiding belief in peaceful resolution of 6 disputes and respect for law. As Chief Caspit stated 7 in 1909: 8 9 "We always tried to be law abiding. If we want to 10 cut a little firewood we are stopped at once 11 By threats. If we were educated people we would 12 make more complaints. We always give way to the 13 lawless white rather than offend him. " 14 15 I believe, my Lord, as you will see, the law he is 16 referring to there is the Wet'suwet'en law. The words 17 of this Wet'suwet'en Chief must not be read as 18 acquiescence to lawlessness. They speak to the 19 importance in the Wet'suwet'en system for respect for 20 other societies, even at the point where they have 21 shown lack of respect, and they speak to a belief in 22 and commitment to the rule of law, even within the 23 Wet'suwet'en system. 24 The Wet'suwet'en still hunt and trap on such of 25 their territories as they can safely use, but in 26 travelling the Bulkley Valley they must pass by 27 farmhouses and fields where white people are now 28 living on land that, in several instances, 29 Wet'suwet'en men and women have themselves cleared and 30 fenced: "unoccupied" farmland that was made available 31 through the Boer War scrip. The feelings that 32 surround this large-scale appropriation of 33 Wet'suwet'en territory not faded into the distant 34 past, nor have these territories disappeared from the 35 Wet'suwet'en system. The court are will hear how 36 ownership of all these places is still identified in 37 the Wet'suwet'en Feast system and the territories are 38 passed on, as always, from generation to generation. 39 My Lord, to move from the written text, an example 40 of this you will hear is where a witness will describe 41 how going back to her own home she was stopped by 42 white people on the road as to what she was doing 43 looking at their farm. They go to their homes, see 44 the ruins of their homes, and they are questioned even 45 for being there. 46 Despite their own dispossession, the Wet'suwet'en 47 and Gitksan Chiefs do not consider as a measure of 119 Opening by Mr. Grant 1 justice the dispossession of those whites who have 2 settled amongst them. This is evidenced by paragraph 3 79 of the Statement of Claim. The Chiefs have 4 maturely considered this matter and have decided 5 together that the title of the settlers and the 6 security of their homes and homesteads shall be 7 confirmed and guaranteed by the Gitksan and 8 Wet'suwet'en Chiefs. But this is not to say that the 9 legacies of past dispossession are resolved. As the 10 evidence will reveal, there are outstanding issues 11 pertaining to the relationship between settlers and 12 Indians which include, but are not limited to, access 13 across lands to fishing sites. These must be the 14 subject of negotiated settlement. 15 My Lord, before proceeding to the next section on 16 the nature of the legal argument, I wish to make a 17 brief aside to assist the court as to the presentation 18 of the plaintiff's case. We intend in this case to 19 commence with the three Gitksan simgighets(?) or 20 Chiefs, who I referred you to yesterday. This is Mary 21 McKenzie, Gyolugyet; Antgulilbix, Mary Johnson; and 22 Mrs. Olive Ryan. At the conclusion of their evidence 23 we will be commencing with Wet'suwet'en evidence, and 24 I should say what the focus of these three witnesses' 25 evidence will be. It will be -- 26 MR. GOLDIE: Which three, the Gitksan? 27 MR. GRANT: The first three witnesses. 28 MR. GOLDIE: Thank you. 29 MR. GRANT: They will be dealing with an overview of the 30 authority, the jurisdiction of the Gitksan Chiefs and 31 talking about the components of the Gitksan society. 32 They will also be talking about their specific 33 territories. We will then move to Wet'suwet'en 34 evidence, and there will be a group of Wet'suwet'en 35 witnesses, commencing with Gisday Wa, who you heard 36 this morning, who will give evidence of the 37 Wet'suwet'en system, and again for lack of a better 38 word, although I think it may be as misleading as 39 helpful, it would be an overview, it would be an 40 explanation of the authority of the Wet'suwet'en 41 Chiefs, an explanation of central parts of their 42 system, such as the Feast, and a description of such 43 key components of the system. We will then continue 44 with Wet'suwet'en evidence, which will amplify on the 45 evidence of the first four Wet'suwet'en Chiefs in 46 terms of the specific witnesses relating to specific 47 territories and also referring back to the main 120 Opening by Mr. Grant 1 evidence of the system, and then we will return at the 2 conclusion of that to the Gitksan evidence, and in 3 which you will hear the balance of the Gitksan 4 witnesses. The reason we have adopted this approach, 5 my Lord, is to try as quickly as possible to give you 6 an understanding of the Gitksan system and the 7 Wet'suwet'en system, and then when you deal with the 8 specifics of the territories, the specifics of the 9 authority, it would be -- it would be in that context. 10 At the conclusion of the Gitksan evidence we will be 11 calling our expert witnesses. We anticipate, my Lord, 12 that the first witnesses will be lengthy, the later 13 witnesses will not be as lengthy, because the first 14 witnesses will be describing in great detail certain 15 components of the system and introducing you to 16 concepts which you will then become familiar with as 17 when they are referred to. Proceed now to the latter 18 part of the opening, the nature of our legal argument. 19 The pleadings in this case, the Plaintiff's 20 pleadings, assert that the Gitksan and Wet'suwet'en 21 Chiefs have ownership and jurisdiction over their 22 territory; these rights are ones which can only be 23 altered with the consent of the Gitksan and 24 Wet'suwet'en; that in the absence of any settlement of 25 the relationship between them and the colonial, 2 6 provincial, and federal governments who have come into 27 their territory, and in the absence of any conquests 28 of their peoples and their territory in just war, 29 their rights as aboriginal peoples have never been 30 extinguished and continue to exist; that those rights 31 are ones recognized by the common-law and are 32 proclaimed in the Royal Proclamation of 1763; and that 33 those rights are now entrenched in section 35 of the 34 Canadian Constitution. 35 We will be tracing in the evidence the evolution of 36 the legal relationships between the Indian nations and 37 the European governments who have established 38 settlements in North America over the past 400 years. 39 In presenting this evidence, we will be focussing on 40 what we consider to be a central legal issue in this 41 case, the identification of the fundamental principles 42 upon which we assert aboriginal rights are based. 43 This evidence is not to be viewed as an exercise in 44 antiquarianism, nor as interesting historical 45 background, a prologue to the real issues. In the 46 same way as we will be presenting evidence of the 47 history of the Gitksan and Wet'suwet'en people, to 121 Opening by Mr. Grant 1 enable the court to understand the development of the 2 fundamental principles by which their societies are 3 ordered, and to determine the scope and content of 4 their aboriginal rights, so the evidence of the legal 5 history will be tendered to identify the fundamental 6 principles which require the Gitksan and Wet'suwet'en 7 rights to ownership and jurisdiction be recognized by 8 a Canadian court. 9 The importance of the historical matrix to a 10 resolution of the legal issues was made clear by Mr. 11 Justice Dickson, as he then was, in Kruger and Manuel 12 v. The Queen, when he stated: 13 14 "Claims to aboriginal title are woven with history, 15 legend, politics and moral obligations." 16 17 The significance of historical evidence has been 18 indelibly underlined by the Supreme Court of Canada in 19 more recent pronouncements dealing with the 20 interpretation of rights entrenched in the Canadian 21 Constitution. We will be urging you to adopt a 22 purposive approach to the interpretation to section 23 35. In Regina v Big M Drug Mart Chief Justice Dickson 24 articulated the analysis to be undertaken in such a 25 purposive approach to the Charter of Rights. Such an 26 analysis requires the court to analyse "the purpose of 27 the right of freedom question by reference to...the 28 historical origins of the of the concepts enshrined". 29 The historical evidence will show that from the 30 earliest stages of colonial settlement, treaties and 31 agreements were entered into with Indian nations for 32 the acquisition of territory and jurisdiction. The 33 process was initiated by the Dutch. These early Dutch 34 treaties date back to the early 17th century and make 35 specific reference to the protocol of acquiring the 36 consent of the Indians in full council. They 37 acknowledge the jurisdictional authority of Indian 38 Chiefs and recognize as pre-existing the Indian system 39 of land ownership. Establishment of English 40 settlement was also accompanied by agreements with the 41 Indian nations for the acquisition of rights to land. 42 The language in contemporary documents, which will be 43 submitted to this court, indicates that the colonists 44 did not see their rights pursuant to Royal Charters as 45 giving them title to the land, but only the right to 46 acquire title from the Indians. Thus, you will hear 47 of agreements describing the Indians as "the native 122 Opening by Mr. Grant 1 inhabitants and true owners" of their territory and of 2 English Royal Commissioners who, in reviewing colonial 3 laws dealing with Indian lands, affirm that "no doubt 4 the country is theirs until they give it or sell it." 5 A review of early colonial documents will also throw 6 important light on the nature of the political 7 relationship between the Indian nations and the 8 British colonists, particularly in terms of the 9 recognition of Indian jurisdictional rights. The 10 evidence will show the extent to which here also 11 changes in jurisdictional arrangements were the 12 subject of negotiated settlement through treaty 13 making. 14 The evidence will reveal the extent to which, in 15 the 17th and 18th centuries, the formal protocol of 16 treaty making constituted the legal paradigm for the 17 consolidation and expansion of colonial interests, and 18 the ways in which the fundamental principles 19 underpinning the relationship between the Indians and 20 the British emerged, and were forged, and as a result 21 of such treaty making. Of greatest significance, was 22 the principle that Indian rights to their territory be 23 respected, and that there lands could only be 24 alienated to colonial authorities with Indian consent, 25 given by authorized representatives. This principle, 26 as you will see, was to become the centrepiece of the 27 Royal Proclamation of 1763 and a founding principle of 28 the common-law, as it was articulated by Chief Justice 29 Marshall in the early 19th century. 30 The evidence will show how the maintenance of the 31 Indian alliance became of critical importance to the 32 British at the outbreak of hostilities with France in 33 the mid-18th century. The Indian nations made it 34 clear that the pre-condition for maintaining that 35 alliance with the British colonies was recognition of 36 their territorial rights, and the redress of frauds 37 and abuses of colonial land speculators. It was 38 largely the inabilities of the colonial authorities to 39 properly address these vital concerns of the Indians 40 relating to their lands rights that led, in 1753, to 41 the Imperial authorities in London taking charge of 42 Indian policy and placing Imperial imprimatur on the 43 affirmation and enforcement of Indian rights to their 44 territories. The evidence will leave you in no doubt 45 that the British authorities came to understand that 46 the integrity of the British Empire in North America 47 in its continuing struggle with the French for 123 Opening by Mr. Grant 1 hegemony, was grounded in Indian insistence and 2 British acknowledgement that Indian rights must be 3 respected. 4 Generations of Canadian students have come to know 5 that 1763 was the year in which the treaty of Paris 6 was signed and the imperial struggle between France 7 and England was resolved in favour of the English. 8 Canadians know that the outcome of the encounter 9 between the English and the French continues to 10 reverberate in contemporary Canadian life regarding 11 the constitutional and political status and role of 12 Quebec in the Canadian confederation. But 1763 is 13 also of great importance to the relationship between 14 Canadians and Indian nations. As with Quebec, the 15 events of that year continue to resonate with 16 contemporary legal and constitutional significance. 17 On October 7th, 1763, what will be referred to 18 throughout this case as the Royal Proclamation of 1763 19 was issued. You will be hearing much evidence from 20 both the Plaintiffs and the Defendants regarding the 21 nature, geographical scope and proper interpretation 22 of this document. As we understand the Province's 23 position, they will be arguing that the Proclamation 24 was conceived at a particular historical juncture at a 25 time of great Indian unrest; that its measures were 26 designed to ensure peace on the North American 27 frontier, and to protect the interests of the British 28 manufacturers by containing westward expansion of the 29 existing and newly created colonies. Placing the 30 Proclamation in a narrow historical framework, they 31 argue that it was never intended to apply to British 32 Columbia, and its provisions are therefore of no legal 33 or constitutional significance to the resolution of 34 the issues before this court. 35 Our position is different. Based upon the 36 historical evidence we will be presenting, we say that 37 the Proclamation is the Imperial affirmation and 38 recognition of the fundamental principles upon which 39 the legal relationship between Indians and the Crown 40 are to be resolved. Mr. Justice Hall, in the Calder 41 case referred to the Proclamation as the Magna Carta 42 of Indian rights. Like the Magna Carta, the Royal 43 Proclamation is not the source of aboriginal rights 44 but an affirmation of their existence. Our historical 45 evidence will how essential features of the 46 Proclamation are pre-figured in prior treaty making, 47 and thus the document affirms principles agreed upon 124 Opening by Mr. Grant 1 by the Indian nations and the colonial and Imperial 2 authorities. 3 The principles so affirmed by the Royal 4 Proclamation are first, that Indian nations are 5 recognized by the Crown as possessing rights to their 6 territory, territory which they are entitled to 7 possess and which is reserved to them until they 8 surrender those rights to the Crown. The preamble to 9 the Indian provisions of the Proclamation reads: 10 11 "Whereas it is just and reasonable and essential to 12 our interest and the security of our colonies, that 13 the several Nations or Tribes of Indians with whom 14 we are connected and who live under our protection, 15 should not be molested or disturbed in the 16 possession of such part of our dominions or 17 territories, as not having been ceded today or 18 purchased by us, are reserved to them as their 19 hunting grounds." 20 21 The second principle of the Proclamation is that 22 Indian rights are to be acquired by the Crown by 23 consent in accordance with formal treaty making 24 protocol. The Proclamation states: 25 26 "If at any time any of the said Indians should be 27 inclined to dispose of the said lands, the same 28 shall be purchased only for us, in our name at some 29 public meeting or assembly of the said Indians to 30 be held for the purpose by the Governor or 31 Commander-in-Chief of our colony respectively." 32 33 Other provisions of the Proclamation make clear its 34 effect: The Indians are not to be disturbed in 35 possession of their lands; representatives of the 36 Crown are not to make grants of unsurrendered lands; 37 private individuals cannot purchase Lands from 38 Indians; private individuals settled on lands on which 39 have not been acquired in accordance with proscribed 40 procedures are to leave; and if the Crown wishes to 41 make use of Indian lands for the purpose of 42 settlement, those lands must be purchased by the Crown 43 at a meeting between the representatives of the Crown 44 and the Indian nations. 45 In contrast to the Province's position we will 46 argue that the recognition and the Royal Proclamation 47 of aboriginal rights and of a process by which those 125 Opening by Mr. Grant 1 rights can be transferred to the Crown, continued upon 2 the consent of the Indians, are not transient notions 3 limited in time and geography by a narrow reading of 4 the events of 1763. We will be arguing that, as a 5 basic constitutional, document the Proclamation must 6 be given a large and and liberal interpretation; that 7 placed in its proper historical context, it confirmed 8 pre-existing law and policy and serves as a 9 codification that law and policy to be applied as 10 British settlement advanced westward. 11 We will be presenting evidence as to the 12 contemporary interpretation of the Proclamation those 13 colonial officials charged with its implementation. 14 We will also be presenting extensive evidence of the 15 over 500 treaties which have been made between the 16 Crown and the Indian nations within Canada since 1763, 17 treaties which we say are the best evidence of the 18 Proclamation's prospective application. 19 We will be arguing that the Royal Proclamation 20 placed legal and constitutional limitations on the 21 authority of colonial governors to grant Indian lands, 22 except where those lands were surrendered with Indian 23 consent, in accordance with the Proclamation's 24 prescribed procedures. We will further argue that a 25 proper interpretation of the Colonial Laws Validity 26 Act requires that all colonial enactments must be read 27 down to be consistent with the operation of the Royal 28 Proclamation. We will argue therefore that the 29 colonial Proclamations and Ordinances relied upon by 30 the Province of British Columbia, in their Statement 31 of Defence, to extinguish the aboriginal rights of the 32 Gitksan and Wet'suwet'en, cannot have that legal 33 effect. 34 However, our case does not hang on a single legal 35 hinge that the Royal Proclamation applies to British 36 Columbia. Paralleling our argument on the Royal 37 Proclamation, we say that the fundamental principles 38 which are reflected in the Proclamation have also 39 become embodied in the common law. The legal 40 relationship of the Indian nations with Britain and 41 the United States was the subject of extensive 42 judicial consideration, in a series of judgments of 43 the United States Supreme Court, written by Chief 44 Justice Marshall in the early 19th Century. You will 45 be referred extensively to these, as they have come to 46 be regarded by the highest courts of Britain, Canada 47 and other Commonwealth countries as the authoritative 126 Opening by Mr. Grant 1 decisions on the common-law of aboriginal rights. In 2 reaching his decisions, Chief Justice Marshall engaged 3 in an extensive analysis of British Crown and Indian 4 relationships in North America. As such, they have 5 direct legal relevance to Canada. This point has been 6 clearly articulated by Canadian judges, most recently 7 by the Supreme Court of Canada in the Guerin case. 8 My Lord, before proceeding with those, it may be an 9 appropriate time for the break. 10 THE COURT: Yes, all right. We'll take the afternoon 11 adjournment. 12 THE REGISTRAR: Order in court. This court is adjourned for 15 13 minutes. 14 15 (PROCEEDINGS ADJOURNED AT 3:00) 16 17 I hereby certify the foregoing to be 18 a true and accurate transcript of the 19 proceedings herein transcribed to the 20 best of my skill and ability. 21 22 23 24 25 Graham D. Parker 26 Official Reporter 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 127 Opening by Mr. Grant 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 127 Opening By Mr. Grant 1 (PROCEEDINGS RESUMED AT 3:15 P.M.) 2 MR. GRANT: Before proceeding, a few pages back I referred to 3 the Magna Carta and there was typographical error. 4 There are a few other errors within the text and we 5 will provide a corrigendum. 6 THE COURT: You would have inhuman secretaries if there wasn't 7 the odd typographical error. 8 MR. GRANT: On the bottom of page 109 of the opening, my lord, I 9 was referring to the judgment of Chief Justice 10 Marshall. 11 The judgment of Chief Justice Marshall in Worcester 12 v. Georgia is properly regarded as the centrepiece of 13 the common law of aboriginal rights. In Worcester, 14 Chief Justice Marshall espoused as fundamental to the 15 common law a "universal conviction that the Indian 16 nations possessed a full right to the lands they 17 occupied until that right should be extinguished by 18 the United States with their consent." 19 It is more than an interesting historical 20 coincidence that this statement of common law 21 principles regarding aboriginal rights was made within 22 a decade of Peter Ogden's first journey to the ancient 23 Wet'suwet'en village of Kya Wiget, which today is 24 called Morricetown, and his recognition of the 25 Wet'suwet'en chiefs as "men of property". 26 As you will hear, Worcester and Georgia came before 27 the Supreme Court of the United States in the wake of 28 attempts by the state of Georgia to take over the 29 lands and jurisdiction of the Cherokee nation in 30 violation of a treaty between the Cherokee nation and 31 the United States. That litigation was referred to in 32 1847 by a New Zealand judge, Mr. Justice Chapman, in a 33 search to identify what he called, and I quote 34 "certain established principles of law applicable 35 to...the intercourse of civilized nations and 36 especially of Great Britain, with the aboriginal 37 natives of America and other countries during the last 38 two centuries". Mr. Justice Chapman's search for 39 fundamental principles yielded this conclusion, and I 40 quote from his decision: 41 "The practice of extinguishing native titles by 42 fair purchases is certainly more than two 43 centuries old. It has long been adopted by the 44 government in our American colonies, and by that 45 of the United States. It is now part of the law 46 of the land...In the case of the Cherokee Nation 47 v. State of Georgia, the Supreme Court through 12E Opening By Mr. Grant 1 its protective decision over the plaintiff- 2 nation, against a gross attempt at spoliation; 3 calling to its aid, throughout every portion of 4 its judgment, the principles of the common law as 5 applied and adopted from the earliest times by 6 the colonial laws ... whatever may be the opinion 7 of jurists as to the strength or weakness of 8 their native title., it cannot be too solemnly 9 asserted that it is entitled to be respected, 10 that it cannot be extinguished (at least in time 11 of peace) otherwise than by the free consent of 12 the native occupiers." 13 MR. GOLDIE: I wonder if it would be convenient to my friend to 14 give us the citation for that? 15 MR. GRANT: I will provide the citation for that tomorrow with 16 the corrigendum. 17 We will be arguing that, as with the Royal 18 Proclamation, the common law of England as it was 19 received in British Columbia, imposed a legal 20 obligation on the Crown to acquire lands for 21 settlement with the consent of the Indian nations. 22 We will be placing before this court evidence 23 which documents the intention of the British Crown 24 that the rights of the Indians of British Columbia be 25 respected in accordance with the obligations imposed 26 by the Royal Proclamation and the common law. You 27 will hear of the instuctions issued to Captain James 28 Cook in 1776. On Cook's third voyage he explored 29 what is now the coast of British Columbia and British 30 claims to the land rest in part on Cook's 31 discoveries. Cook was thus instructed: 32 33 "You are also with the consent of the natives to 34 take possession in the name of the King of Great 35 Britain of convenient situations in such countries 36 as you may discover, that have not already been 37 discovered or visited by any other European 38 power." 39 40 You will read the instructions given to Captains 41 Nathaniel Portlock and George Dixon to purchase land 42 from the Indians on which to build trading posts 43 which they were said to establish at Nootka Sound on 44 the west coast of Vancouver Island. 45 You will hear evidence that with the establishment 46 of the colony of Vancouver Island as a British 47 settlement in 1849, the Crown grant of land to the 129 Opening By Mr. Grant 1 Hudson's Bay Company carried with it the same burden 2 of extinguishing Indian title as that which rested on 3 the Crown. The evidence of the early history of the 4 colony of Vancouver Island will show how James 5 Douglas, as governor of Vancouver Island, concluded a 6 series of treaties for the acquisition of Indian 7 territories required for settlement purposes. The 8 analysis of evidence drawn from contemporary 9 documents will show that these treaties were 10 understood to be in conformity with the law and 11 policy of recognizing Indian title and of 12 extinguishing such title only with the consent of the 13 Indians. That same evidence will show that both the 14 Imperial and colonial authorities contemplated that 15 treaty making would be continued. You will be 16 referred to a petition from the House of Assembly in 17 Victoria forwarded to the Duke of Newcastle in which 18 funds are requested to extinguish Indian title to 19 certain lands in the colony of Vancouver Island. In 20 his letter of transmittal, Governor Douglas noted 21 that the Indians expected that settlement would 22 proceed only with their consent and that the failure 23 to make proper arrangements boded ill for the future 24 of the colony. Douglas' words have a contemporary 25 significance for this case. He wrote: 26 27 "As the native Indian population of Vancouver 28 Island have distinct ideas of property and land, 29 and mutually recognize their several exclusive 30 possessory rights in certain districts, they would 31 not fail to regard the occupation of such portions 32 of the colony by White settlers, unless with the 33 full consent of the proprietory tribes as national 34 wrongs." 35 36 Evidence will be presented to you showing that 37 while then as now, public opinion was divided on this 38 issue, there existed a considerable body of public 39 opinion that recognized the existence of native title 40 to their territories, and regarded it as a matter of 41 justice and the upholding of the honour of the Crown, 42 to negotiate for the surrender of Indian lands 43 required for settlement. 44 It is in the historical context of this evidence 45 that you will be able to assess the strength of the 46 Province's argument that ordinances and Proclamations 47 passed by Douglas and the House of Assembly during 130 Opening By Mr. Grant 1 this period were intended to extinguish Indian title 2 unilaterally, without fair purchase, without Indian 3 consent. 4 You will hear extensive evidence regarding the 5 policies of the colonial administrations who 6 succeeded to the governance of British Columbia after 7 James Douglas's retirement. From 1864 until the 8 admission of British Columbia into Confederation in 9 1871, Indian policy came under the influence of 10 Joseph Trutch. You will find in his views on Indians 11 and Indian rights the historical source of the 12 statement of defence of the Province of British 13 Columbia. My lord, his ghost rattles within their 14 pleadings. 15 Not to put too fine a point on it, Joseph Trutch 16 was an archetypical colonialist who represented the 17 ideology of the frontier with all its implicit and 18 explicit assumptions regarding the superiority of 19 European civilization and the inferiority of native 20 people. You will hear how he arrived in British 21 Columbia in 1859 with years of experience behind him 22 in the United States as a surveyer and farmer. After 23 working for five years in British Columbia as a 24 surveyer and engineer, he became the colony's Chief 25 Commissioner of Lands and Works. His interest in the 26 gold colony in the early days was in building roads 27 and bridges, in surveying townships and establishing 28 farms, and in amassing a personal fortune. 29 For Joseph Trutch, Indians and Indian rights stood 30 in the way of his view of civilization. His attitude 31 towards Indian rights was expressed in this statement 32 which he made in 1867. He wrote: 33 34 "The Indians have really no right to the lands they 35 claim, nor are they of any actual value or utility 36 to them, and I cannot see why they should... 37 retain these lands to the prejudice of the general 38 interests of the colony or be allowed to make a 39 market of them either to government or to 40 individuals." 41 42 Two years prior to this, in responding to Indian 43 land claims in the Thompson River area, Joseph Trutch 44 responded that he was quite "satisfied from my own 45 observations that the claims of the Indians over 46 tracts of land, and on which they assume to exercise 47 ownership, but of which they make no real use, 131 Opening By Mr. Grant 1 operate very materially to prevent settlement and 2 cultivation." To Joseph Trutch, Indian life was 3 invisible and their rights were to be disregarded as 4 obstacles to progress. 5 Our evidence will direct your attention to the 6 terrible paradox of history by which this 7 archetypical colonialist became recognized as a 8 expert on the Indian question and was called upon to 9 defend the Province's position on Indian policy, in 10 the face of the criticism that it disregarded Indian 11 rights, contrary to law. You will hear how, in 1870, 12 Joseph Trutch took the opportunity to claim that 13 British Columbia had always denied the idea of 14 aboriginal title. He wrote that "the title of the 15 Indians in fee of the public lands, or any portion 16 thereof, has never been acknowledged by government, 17 but, on the contrary is distinctly denied." 18 Not surprisingly, Trutch does not explain why the 19 Vancouver Island House of Assembly should ask the 20 Imperial Government in 1861 for money to extinguish 21 an Indian title, the existence of which they did not 22 recognize. 23 Joseph Trutch's self-serving memorandum of 1870 24 provides the script for British Columbia's position 25 in this courtroom today. It is a script which has 26 been read to the Indians of British Columbia for over 27 100 years. Its repetition does not make it right 28 either as a as a matter of fact or as a matter of 29 law. 30 In our argument we will be submitting to you that 31 the period 1864-1871 is properly to be viewed as an 32 attempt by colonial administrators to flout the 33 fundamental principle embodied in the Royal 34 Proclamation and the common law, and it should be 35 exposed for what it represents -- the distortion of 36 fundamental principles of justice in the interests of 37 racism. 38 In the course of our evidence and argument, you 39 will be referred to the protectorate or trust 40 responsibility of the Crown. In the Royal 41 Proclamation of 1763 the preamble refers to the 42 nations of Indians "with whom we are connected and 43 who live under our protection." We will be 44 submitting that this protectorate was not by way of 45 diminution of the rights of the Indian nations to 46 exercise their jurisdiction over their territory 47 (except in accordance with treaty making), but was 132 Opening By Mr. Grant 1 conceived as a legal and political measure to ensure 2 the protection of Indian rights from such diminution. 3 As our evidence of the history of the period 4 preceding the Royal Proclamation will demonstrate, 5 the need for protection of Indian rights from abuse 6 and fraud by whites at the frontier of the colonies, 7 and the inability or unwillingness of local 8 governments to protect such rights, spurred the 9 consolidation and codification of Imperial 10 recognition of Indian rights. 11 Nor did this cease to be an important concern of 12 the Imperial authorities after 1763. In the evidence 13 you will be referred to the report of the Select 14 Committee of the British Columbia House of Commons in 15 1837 which predicted a potential conflict of interest 16 situation should the jurisdiction to administer Crown 17 obligations regarding Indians fall to the 18 legislatures of the colonies. In considering the 19 measures to be adopted to guard against this, the 20 report stated that Britain held a trust "peculiarly 21 belonging and appropriate to the executive government 22 as administered either in this country or by the 23 governors of their respective colonies. This is not 24 a trust which could be conveniently be confided to 25 the local legislatures." 26 The evidence regarding the policies of Joseph 27 Trutch will demonstrate that the Select Committee's 28 concerns were well-founded. It was for the reason 29 given by the Select Committee that jurisdiction of 30 Indians and lands reserved for Indians was vested in 31 the Federal Government in section 91 (24) of the 32 Constitution Act of 1867. We will be presenting 33 legal argument that section 91 (24) in conjunction 34 what section 109 of the Constitution Act provides the 35 framework for the constitutional protection of 36 aboriginal rights. 37 But constitutions are not self-executing. The 38 Federal Government, in the exercise of its 39 constitutional obligations, and in particular its 40 protectorate role did, shortly after British 41 Columbia's admission into confederation, exercise its 42 power of disallowance of provincial laws on the basis 43 that the B. C. Land Act of 1874 did not adequately 44 recognize the aboriginal rights of the native people 45 of British Columbia. You will be referred to the 46 opinion of the then federal Minister of Justice who 47 stated: 133 Opening By Mr. Grant 1 "There is no shadow of a doubt that from the 2 earliest times England has always felt it 3 imperative to meet the Indians in Council, and to 4 obtain surrenders of tracts of Canada as from time 5 to time such were required for the purposes of 6 settlement." 7 8 The Minister of Justice went on to recite the 9 provisions of the Royal Proclamation and concluded 10 that: 11 12 "The undersigned feels that he cannot do otherwise 13 than advise that the Act in objectionable, 14 as tending to deal with lands which are assumed to 15 be the absolute property of the Province, an 16 assumption which completely ignores, as applicable 17 to the Indians of British Columbia, the honour and 18 good faith which the Crown has, in all other cases 19 since its sovereignty in North America, dealt with 20 their various Indian tribes." 21 22 Unfortunately, as our evidence will show, the 23 later history of the federal government's exercise of 24 its protectorate or trust responsibility was formed 25 more by a concern for the protection of federal- 26 provincial relationships than the protection of the 27 interests of the Indians from provincial incursions. 28 The statement of defence filed in this case by the 29 Attorney-General of Canada constitutes the best 30 evidence of the federal government's contemporary 31 understanding of its protectorate responsibility. 32 The extent to which Indian rights have been 33 subordinated to federal-provincial interests is well 34 illustrated by the debate leading up to the passage 35 of section 35 of the Constitution Act of 1982. The 36 decision to entrench aboriginal and treaty rights in 37 the constitution was first reached on January 30, 38 1981. In November of that same year, the federal 39 government agreed to delete the aboriginal and treaty 40 rights clause in exchange for a broader political 41 accord with the provinces. That about-face created a 42 storm of protest, extensive lobbying and lengthy 43 negotiations, which ultimately led to a new agreement 44 to entrench the present form of section 35. 45 The speeches in Parliament, by leaders of all 46 three political parties at the time of that 47 agreement, show that the legislative objective of 134 Opening By Mr. Grant 1 including aboriginal and treaty rights in the 2 constitution of Canada was to restore the honour of 3 the Crown in its dealings with the Indian nations. 4 I would like to refer you to the statement of the 5 Right Honourable Joe Clark, then leader of the 6 opposition: 7 "I want to speak for a moment, if I might, of 8 the nature of that duty, the nature of our 9 responsibility to the aboriginal people of the 10 country. One in this nationalist age would be 11 reluctant to quote a poet from the United 12 States except perhaps in the case of 13 aboriginal title, because the aboriginals were 14 here before the United States or Canada was, 15 before the 49th parallel meant anything more than 16 another widening in the trees. I am struck by 17 the words of Robert Frost who came late to this 18 continent. He said: 19 'The land was ours before we were the 20 lands.' 21 Mr. Frost was speaking of the white 22 population, not the natives. The land of this 23 continent belonged to, was used by, the original 24 people well before the concept of land took root 25 as something that was possessed and parcelled 26 out. Land to the natives was where you lived, 27 where you worked, and where you took your nature. 28 It was heritage, not just territory. In a very, 29 very real sense, land and people were the same. 30 We took that away, we who came later. We took 31 it away as an inevitable consequence of our 32 civilization and the compensation we offered was 33 often meagre, often mean, sometimes nothing at 34 all. But the original people were here before 35 our civilization. Our treatment, our meagre, 36 mean treatment of them, has increased our 37 obligation, not diminished it. 38 We cannot reverse history, but we can take 39 account of it. A minimum step must be for this 40 Parliament to put in a document that deals with 41 the rights of our people and to acknowledge at 42 least the particular rights of our first people 43 to draw their life and their culture from what we 44 made our land." 45 4 6 The Honourable John Munro -- then the 47 minister of Indian Affairs of the government of the 135 Opening By Mr. Grant 1 day also made a statement which I wish to refer to. 2 He said: 3 "Members of the House, I cannot over-emphasize the 4 significance that I place on the events of the 5 last couple of days in view of the outcome. The 6 distance that native people have come in those 7 few short days, by gaining recognition for their 8 aboriginal and treaty rights in what is soon to 9 become the highest expression of the law of this 10 land, is immeasurable at this time. However, I 11 predict that history will prove it to be a giant 12 step. 13 I want the Indian people especially to 14 understand why I feel as I do. To be sure, the 15 contrast between my disappointment of a few days 16 ago and my mood today is uplifting. But that is 17 not the only reason. Honourable members, we are 18 here today in the House of Commons with a motion 19 that proposed to accord to native peoples a 20 unique status in the highest law of the land." 21 Notwithstanding the inclusion of section 35, 22 Indian Nations from Alberta and the Maritimes took a 23 case to England to urge Britain to refuse patriation, 24 on the basis that Britain had not transferred formal 25 Crown obligations to Canada with the Indian consent. 26 In refusing the application, the Court of Appeal held 27 that the Crown obligations had passed to Canada at 28 least with the passage of the Statute of Westminster. 29 Lord Denning said this about his view of the effect 30 of section 35: 31 "It seems to me that the Canada bill itself 32 does all that can be done to protect the rights 33 and freedoms of the aboriginal peoples of Canada. 34 It entrenches them as part of the Constitution, 35 so that they cannot be diminished or reduced 36 except by the prescribed procedure and by the 37 prescribed majorities. In addition, it provides 38 for a conference at the highest level to be held 39 so as to settle exactly what their rights are. 40 That is most important, for they are very 41 ill-defined at the moment. 42 There is nothing, so far as I can see, to 43 warrant any distrust by the Indians of the 44 Government of Canada. But, in case there should 45 be, the discussion in this case will strengthen 46 their hand so as to enable them to withstand any 47 onslaught. They will be able to say that their 136 Opening By Mr. Grant 1 rights and freedoms have been guaranteed to them 2 by the Crown -- originally by the Crown in 3 respect to the United Kingdom -- now by the Crown 4 in respect of Canada -- but, in any case, by the 5 Crown. No parliament should do anything to 6 lessen the worth of these guarantees. They 7 should be honoured by the Crown in respect of 8 Canada 'so long as the sun rises and the river 9 flows.' That promise must never been broken." 10 As this you are aware, through Constitutional 11 amendment to section 37, a series of 12 federal-provincial conferences have been held with 13 the participation of the aboriginal peoples of 14 Canada. What emerged from these conferences is the 15 the overarching concern of the aboriginal peoples was 16 to ensure the entrenchment of their right to 17 self-government. In March of this year, the 18 Conferences ended with no accord. The exhaustion of 19 this process has made it clear to the Gitksan and 20 Wet'suwet'en Chiefs that there is not the political 21 will in this country to come to grips with historical 22 and legal reality of aboriginal rights. The 23 politicians, have, in effect, deferred the matter to 24 the courts. 25 As our evidence will show, the subject of 26 aboriginal rights in British Columbia has its own 27 history of being deferred. Indeed, the decision by 28 the Supreme Court of Canada in the Calder case, in 29 which the court split evenly on the substantive issue 30 of whether the aboriginal title of Nishga Indians had 31 been lawfully extinguished, was wildly regarded as a 32 judicial deferral of the issue back to the 33 politicians. The Government of British Columbia, 34 however, has taken a narrow, technical view of that 35 decision as confirming its intransigent position that 36 the Indians of British Columbia do not have existing 37 aboriginal rights. The B. C. Court of Appeal in the 38 Meares Island case has made to clear, not only that 39 the Province's position on the effect of Calder is 40 misconceived, but also that the issue is to be 41 deferred no longer. Mr. Justice Seaton stated: 42 43 "There is a problem about tenure that has not been 44 attended to in the past. We are being asked to 45 ignore the problem as others have ignored it. I 46 am not willing to do that." 47 In bringing this case to court, the Gitksan and 137 Opening By Mr. Grant 1 Wet'suwet'en chiefs are not, however, simply 2 religating the issues raised in Calder, nor are they 3 re-presenting the same evidence in argument. In 4 Calder, there was no argument about the scope of 5 aboriginal rights. The issue was limited to the 6 Nishga rights of ownership to their territory; there 7 was no claim to jurisdiction or authority over it. 8 In Calder the legal argument related to 9 extinguishment turned on a debate between whether 10 aboriginal rights could be extinguished implicitly by 11 the provisions of the colonial Ordinances and 12 Proclamations cited in the Province's statement of 13 defence or whether such rights could only be 14 extinguished by specific legislation expressly 15 directed to that purpose. There was no argument that 16 aboriginal rights could only be extinguished with 17 Indian consent. 18 My lord, it is, however, the nature of the 19 evidence which will be presented to this court that 20 most distinguishes it from Calder. It is a 21 remarkable feature of aboriginal rights litigation 22 that some of the most important cases have been 23 argued in the absence of Indian evidence. Indeed, 24 one of the leading Canadian authorities, the St. 25 Catherine's Milling case was decided in the context 26 of a federal-provincial dispute over lands which had 27 been surrendered in a treaty in accordance with the 28 procedures of the Royal Proclamation, so that 29 therewas no representation of the Indian interest at 30 all, let alone any Indian evidence before the court. 31 Other cases have proceeded on agreed statement of 32 facts. The Calder case proceeded on a combination of 33 agreement of fact and limited Indian evidence. No 34 court in grappling with the issues of aboriginal 35 rights has had the opportunity which this court will 36 have of hearing Indian witnesses describe their 37 history, the nature of their society, their 38 institutions and their legal order from which their 39 rights to ownership and jurisdiction are derived. 40 The evidence of the chiefs will not only provide 41 you with a understanding of the substance of their 42 rights, but it will also inform your judgment on the 43 Province's principle defence in this case. That 44 defence is that the assertion of ownership 100 years 45 ago in colonial Ordinances and Proclamations by 46 implication has the legal effect of extinguishing the 47 ownership and jurisdiction of a civilization that has 13E Opening By Mr. Grant 1 existed for more than 5000 years. In a case 2 involving the search for fundamental principles for 3 for determining the legal relationship between the 4 Gitksan and Wet'suwet'en chiefs and the provincial 5 and federal governments, we will be arguing that 6 there is no room for a legal doctrine that 7 countenances the extinguishment of the rights upon 8 which a civilization is based through the stroke of a 9 colonial pen. I wish to refer you to one of your own 10 judgments in which you referred to the common law as 11 "a statement of the accumulated wisdom of history -- 12 a dynamic force which is always ready to respond to 13 the reasonable requirements of civilization." We 14 will be submitting to you that the principle of 15 Indian consent to the acquisition by other 16 governments of ownership and authority over their 17 territory represents a fundamental principle of the 18 common law. It was fundamental to the integrity of 19 the British Empire in 1763. It is no less 20 fundamental to the integrity of Canada in 1987. 21 We have already referred to the judgment of Mr. 22 Justice Dickson in the Kruger case and his Lordship's 23 reference to aboriginal rights being interwoven with 24 history, legend, moral obligations and politics. By 25 granting the declarations the plaintiffs seek in this 26 case the court will be acknowledging the real history 27 of the Gitksan and Wet'suwet'en and ensure their 28 rightful place in the history books of British 29 Columbia and Canada; by granting the declarations the 30 court will also put legal fibre into the moral 31 obligations on the provincial and federal 32 governments. But most important of all, by declaring 33 that the plaintiffs have rights of ownership and 34 jurisdiction over their territories and that these 35 rights have not been extinguished, this court will be 36 charging the provincial and federal governments with 37 the legal and constitutional obligation to negotiate 38 with the Gitksan and Wet'suwet'en a just settlement 39 of their relationship on the basis that they have 40 existing aboriginal rights. 41 My lord, you are used to charging juries. The 42 charge we are asking to you make in this case is 43 perhaps the most important one any judge in British 44 Columbia has ever been asked to make. From this 45 perspective, it is appropriate that you sit as the 46 Chief Justice of the Supreme Court of this Province. 47 But challenges of a similar order of magnitude have 139 Opening By Mr. Grant 1 been made to other Chief Justices to affirm the legal 2 rights of native people in the face of government 3 disregard. We have already referred you to the 4 judgments of Chief Justice Marshall. In the face of 5 the attempted disposition of the Cherokee nation, he 6 affirmed that the Cherokees were indeed a nation of 7 Indians with rights to their territory. That 8 affirmation was not enough in the face of the 9 doctrine of Manifest Destiny to stop the 10 dispossession of the Cherokees under the guise of a 11 fraudulent treaty and their horrible forced march 12 along the Trail of Tears to Oklahoma. The Gitksan 13 and Wet'suwet'en have also suffered the effects of 14 dispossession from significant parts of their home 15 lands. But the dispossession and destruction of 16 their territories must stop from this point on and 17 legal acknowledgement must be made of the extent of 18 the Province of British Columbia's disregard of the 19 fundamental principles of justice upon which 20 aboriginal rights are based, and from which a just 21 settlement of the relationship between the Gitksan 22 and Wet'suwet'en and the provincial and federal 23 governments must evolve. 24 In the Meares Island case Mr. Justice Macfarlane 25 acutely observed that litigation is "but a part of 26 the whole of a process which will ultimately find its 27 solution in a reasonable exchange between governments 28 and the Indian nations." But litigation is a 29 necessary and vital part. This case offers you , my 30 lord, an historic opportunity, based on evidence no 31 other court has ever heard, to render judgment that 32 will move Canada closer to the achievement of a true 33 Confederation which includes its founding Indian 34 nations. 35 That is the conclusion of our opening. 36 THE COURT: Thank you, Mr. Grant. 37 All right. I don't suppose you want to do 38 anything else this afternoon do you, Mr. Grant or Mr. 39 Rush? 40 MR. GRANT: I would propose we adjourn until tomorrow morning 41 for the commencement of the evidence. 42 MR. GOLDIE: My lord, the desirability of the defendant making 43 an opening at this stage of the case is, although 44 questionable, in this particular case Mr. Rush and 45 Mr. Grant have embarked upon a discussion of the 46 Province's case, which is not wholly accurate, and my 47 friend, Mr. Grant, I think chose the right word when 140 Opening By Mr. Grant 1 he said argument. I don't propose to respond in the 2 same vein. There are, however, I think, some aspects 3 of the case, in light of the characterization of 4 certain defences as principle, which I think your 5 lordship ought to know. 6 And unless your lordship would prefer me not to, I 7 would propose to say something along those lines 8 tomorrow morning. 9 THE COURT: Mr. Macaulay? 10 MR. MACAULAY: I had not intended to make an opening address 11 on behalf of the Attorney-General of Canada until the 12 usual time, that is, before we open our case. I may 13 be -- I may find it necessary to make some form of 14 reply, depending on the nature and extent of Mr. 15 Goldie's submissions. I don't know what they will 16 be. But I will have to govern myself accordingly. 17 THE COURT: All right. Thank you. Mr. Rush or Mr. Grant, do 18 you want to reply to what Mr. Goldie last suggested? 19 MR. RUSH: My lord, I think we will reserve our position on 20 this. I can think of certain constraints on Mr. 21 Goldie's right of makin an opening when his case 22 starts, should he decide to make an opening tomorrow. 23 And I am not entirely sure what our position would 24 be. I note under the rules what the normal order of 25 openings is and I think we would enjoy the evening to 26 consider our position on it. 27 THE COURT: All right. I think that Mr. Goldie is entitled to 28 know, for the purposes of scheduling his time, that 29 my present view is that I would allow him to make an 30 opening tomorrow, confined to a reply to those 31 comments made by plaintiffs' counsel where they 32 stated their view of what the defence of the Province 33 was as disclosed by the pleadings. I think that's 34 all Mr. Goldie has suggested and that is all I would 35 allow, were I ruling now. But I send Mr. Goldie that 36 message, but reserving any final disposition of his 37 suggestion until I have heard from you further 38 tomorrow, Mr. Rush and Mr. Grant. 39 All right. If there is nothing else we will 40 adjourn until -- I am sorry, there is one other 41 matter. What do counsel think about starting time 42 tomorrow? I am in counsels' hands. 43 MR. GRANT: I would prefer us to start at 10 o'clock. 44 THE COURT: All right. 45 MR. GOLDIE: In the circumstances, I agree, and this may be the 46 last time I agree with my friend. 47 THE COURT: All right. 10 o'clock. Thank you. 141 Opening By Mr. Grant 1 (PROCEEDINGS ADJOURNED UNTIL 10 O'CLOCK A. M., 2 WEDNESDAY, MAY 13, 1987) 3 4 5 I hereby certify the foregoing to be 6 a true and accurate transcript of 7 the proceedings herein to the best 8 of my skill and ability. 9 10 11 12 13 14 Wilf Roy 15 Official Reporter 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
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.
[Proceedings of the Supreme Court of British Columbia 1987-05-12]
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