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Delgamuukw Trial Transcripts
British Columbia. Court of Appeal
British Columbia. Supreme Court
application/pdf
495 Submissions by Mr. Grant 1 Vancouver, B.C. 2 May 12, 1992 3 4 CORAM: Taggart, Lambert, Hutcheon, Macfarlane, Wallace, J.J.A. 5 6 THE REGISTRAR: Order in court. In the Court of Appeal of 7 British Columbia, Tuesday, May the 12th, 1992. The 8 matter of Delgamuukw versus Her Majesty The Queen at 9 bar, my lords. 10 TAGGART, J.A.: Mr. Grant. 11 MR. GRANT: Thank you, my lord. I was referring the court to 12 the argument with respect to jurisdiction and 13 specifically with respect to the resources at page 157 14 of Tab 4 of the factum, paragraph 321. And I will be 15 taking you to the reference book which is R-8 at Tab 16 321 as well. 17 As the appellants set out, and this is in the 18 context of what I raised yesterday in my opening, that 19 both the Gitksan and Wet'suwet'en witnesses testified 20 to the body of rules which have been developed to 21 ensure successful harvest of resources and a healthy 22 continuing ecosystem. In Gitksan this body of 23 observances and practises is called "sesatxw" and in 24 Wet'suwet'en "hahl'ala". This body of knowledge and 25 procedures includes technical skills, practical 26 workmanship, knowledge of the terrain, of the life 27 cycles and habits of the target species, and a 28 regiment of self-denial and personal discipline which 29 involves sexual abstinence and the physical cleansing 30 of the body. 31 And I have referred you there to a number of 32 references, and just as an example I would like to 33 take you to the second reference, which is to Stanley 34 Williams after the first brown sheet in the tab. And 35 I would like to take you to page 14 of that reference. 36 This is Mr. Williams who, as I described earlier, was 37 born in 1908, describing as a young man, as a boy 38 actually, his father's training regarding the grizzly 39 bear. Line 15: 40 41 "Q Do you recall a particular event regarding the 42 hunting of grizzly bear where your father 43 helped with your training? 44 A I remember everything that he's taught me and I 45 remember that we went to a mountain where he 46 shot a grizzly. After he shot the grizzly, the 47 grizzly was struggling, the grizzly was still 496 Submissions by Mr. Grant 1 alive, he took a knife and he cut the tongue of 2 the grizzly and he gave it to me to eat. I did 3 eat the tongue of the grizzly and after this he 4 took the grizzly and he rubbed it, the grizzly 5 was still alive, and he rubbed it against my 6 face and my head." 7 8 And at page 16 Stanley Williams describes his 9 training regarding mountain goat hunting in the same 10 tab two pages over. 11 12 "Q Did your father do anything to prepare you to 13 help you to hunt mountain goats when you were 14 young? 15 A My grandfather trained me -- I mean my -- I 16 always say grandfather. My father trained me a 17 lot of things and he also trained me how to 18 hunt the goats. During my training with my 19 father we shot some goats with Robert Harris, 20 Frank, and Tommy Harris. In the evening when 21 he was training me how to travel on the 22 mountain to get the goats, what my father did 23 is he cut off the hooves of the goat and he put 24 it on the fire until the -- until the hooves 25 came off the -- came off the bone, and he took 26 the hooves and he put it on my toes. The -- 27 while he was doing this, the hooves are still 28 hot and he -- after this he takes the hooves 29 and then he goes up to the mountain and he puts 30 these hooves in the cracks of the mountain. 31 After he put the hooves in the cracks of the 32 rocks up the mountain he -- he came down and he 33 takes a bath four times in the -- in the water. 34 The fourth time he did this, and this is the 35 reason why I always feel what he -- he is doing 36 the purification, what he went through too. 37 After he -- he did this and I -- after I went 38 to the mountain I could feel that, what my 39 father did by the purification. I could feel 40 it when I was travelling up the mountains. 41 Whenever I -- I chase a goat on the mountain, 42 it's just like a flat surface for me. It 43 doesn't seem rough at all." 44 45 WALLACE, J.A.: How might you use this anecdotal history to 46 assist me in resolving this? 47 MR. GRANT: I appreciate your lordship's question. 497 Submissions by Mr. Grant 1 WALLACE, J.A.: I can see this at trial level, but the Court of 2 Appeal level it seems -- 3 MR. GRANT: As you recall what I said yesterday, I commented on 4 his and directed you to his lordship's comments about 5 the beliefs and about the facts. That's the first 6 point. 7 And the second is the point that I wish to raise 8 out of this, and there are other examples, is it's not 9 a question here, of course, for this court, or even 10 for counsel, whether or not this practice assisted Mr. 11 Williams in his hunting or not. That's not the point. 12 The point is, and it's not only Mr. Williams, but 13 there are many other examples, that the Gitksan and 14 the Wet'suwet'en performed these practises which are 15 not derivative of European practises. What I say this 16 establishes is, that their hunting of mountain goats 17 pre-dated the Europeans. Now, where did they go to 18 get mountain goats? They went far from the villages. 19 How did they get the mountain goats? They did it 20 under a system of laws and practises. And in my 21 argument, my lord, I am going to come back to this in 22 referring to how we look at how your lordships should 23 look at the laws of these people, which is in a 24 different context than, of course, how we look at the 25 laws in the court under the crest behind your 26 lordships. 27 What I am saying is this is as much in the 28 aboriginal perspective a part of their laws as what we 29 are dealing with here in the common law. And all I am 30 stating about this particular example, my lord, is 31 that it's not a difficulty that -- for the court to 32 say, "Well the Gitksan believed these things assist, 33 this practice assists in hunting." We don't have to 34 decide whether it does or not, and there was no effort 35 to prove whether it was better if they practised 36 sesatxw or not practice sesatx. That wasn't the 37 point. The point is that the Gitksan have laws to 38 manage the resources. They have training for specific 39 persons to be the hunters. Here is an example of one. 40 And the only way to describe it, you say it's an 41 anecdotal, and it is, but the only way to describe it 42 is from the witness's experience. They say, "This 43 happened to me. I am one of the specialized hunters." 44 And it wasn't Mr. Williams himself who said that, but 45 other witnesses who said he was specially trained to 46 do this. 47 So what I am saying is, is this is an example in 498 Submissions by Mr. Grant 1 the Gitksan perspective of their management and laws 2 of conservation and of how they prepare themselves for 3 the harvest of the resources. 4 And when you look at this, my lord, all I ask you 5 to question is could this have arisen after -- from 6 some European influence. 7 WALLACE, J.A.: Assume this is a practice that the individual 8 parents, hunters taught others the importance of 9 hunting. Where does that take us? One would assume 10 that any hunter has got to be trained by somebody 11 sometime in order to be more proficient hunter. 12 MR. GRANT: But this is a special practice by which the hunter 13 is trained to -- not just trained in how to shoot 14 better or those kinds of things, which of course you 15 expect, but is trained in the spiritual relationship 16 with the particular species so that he will be a 17 better hunter. That's what I am referring to here. 18 This is from the aboriginal perspective. And what I 19 say is it's indicative of the laws of the Gitksan. 20 It's indicative of their laws. And it's not for this 21 court -- you don't have to find the specific law that 22 the Gitksan have to carry out this practice to hunt, 23 but what I ask you to find, my lord, what I am asking 24 you to recognize, is that the Gitksan have laws with 25 respect to the resources. If you only go that far, 26 that's all that I am asking you to do -- the 27 appellants are asking you to do. 28 WALLACE, J.A.: It could be characterized as a practice, 29 couldn't it, Gitksan practises in respect to hunting? 30 Even if it went that far, because it's only an 31 individual incident. 32 MR. GRANT: Well, yes, but I am not going to take you, of 33 course, to the multitude of incidents. It's not an 34 individual, what I say, it's a communal, as is the 35 right is communal. 36 WALLACE, J.A.: Every boy had to eat the tongue of the bear? 37 MR. GRANT: In terms of his training, yes. Art Mathews 38 described how he was directed to go into the grizzly 39 bear's den in the winter in his evidence. Another 40 aspect of the practice. What I am saying is -- 41 WALLACE, J.A.: Well, that's what I meant, practice. 42 MR. GRANT: Okay. What I am saying is that when you take the — 43 I appreciate what you say. Eating the tongue of the 44 grizzly itself may be a practice focused on this 45 house, as with Art Mathews' house, as specialized 46 hunters and grizzly bears as well, and he described 47 his training, but the law is that there is the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. GRANT: WALLACE, LAMBERT, 499 Submissions by Mr. Grant performance of sesatxw, the spiritual preparation for hunting. In this case it is this method, in other cases it's other specific aspects. Okay. But there is a law for the preparation for hunting, and that is reflective of the aboriginal relationship to the resources and management and conservation of the resource. And what I say to you, my lord, is this is why Mr. Brown -- WALLACE, J.A.: Okay. MR. GRANT: I'm not sure if I — WALLACE, J.A.: You know my concerns. I am just wondering where this is going to advance -- your particular recitation of these facts are going to advance the principle that you are -- Later this morning I am going to come to the laws and how you should look at the laws, and I think then we can reflect back on this and answer your lordship. J.A.: I may understand it then. J.A.: I think perhaps I should leave my concerns until you reach that stage too. If you're going to relate them to the concept of aboriginal rights that was explained by Mr. Jackson last week in relation to the right of occupancy, in relation to the land, and what this demonstrates in respect of that asserted right, then I'll just wait until I see you tie it all together. Yes, I will do that. Now, if I could take you to the last, after -- I'm sorry, I'll just say there is James Morrison's evidence and then I'll take you to Dr. Daly's report in the same tab. And at the top of page 253 he refers to this. He talks about: "In Gitksan this body of observances and practices is called sesatxw; in Wet'suwet'en: hahl'ala. Properly observed, sesatxw/hahl'ala is said to empower the hunter to succeed in his mission, especially in the winter-long task of food-getting. Today among families whose members actively harvest the resources of their territories at least some features of the sesatxw/hahl'ala are observed, although this aspect of Gitksan and Wet'suwet'en culture is not readily revealed to outsiders. Younger members of House groups are tutored in sesatxw/hahl'ala as part of their training by their fathers or olders members of their MR. GRANT: 500 Submissions by Mr. Grant 1 house." 2 3 And then he referred to the reluctance to explain 4 the practice in detail with reference to some of the 5 evidence at the trial. 6 Now, I go to paragraph 322 and I say the trial 7 judge's finding of common sense subsistence practises, 8 entirely compatible with bare occupation for the 9 purpose of subsistence, is completely at variance with 10 the extensive evidence given regarding technology 11 employed in the processing and storage of a variety of 12 resources, including fish, hides, meat, fur, wood, 13 berries and other plants. 14 And I take you to Tab 322 only because it has the 15 other comment of the Chief Justice, the trial judge in 16 the case. At page 372 he says under C: 17 18 "I have no difficulty finding that the Gitksan 19 and Wet'suwet'en people developed tribal 20 customs and practises relating to chiefs, clans 21 and marriage and things like that, but I am not 22 persuaded their ancestors practised universal 23 or even uniform customs relating to land 24 outside the villages. They may well have 25 developed ...," 26 27 And I emphasize this: 28 29 "... a priority system for their principal 30 fishing sites at village locations." 31 32 I would like to take you to the village site 33 issue, and I refer you to paragraph 323. Dr. Daly and 34 many witnesses described the processing of fish in the 35 summer months. For example, Dr. Daly in the quote -- 36 I am in the factum itself, my lords. 37 38 "A phenomenal amount of labour was expended in a 39 matter of a few summer weeks. Martha Brown, 40 Xhliimlaxha, explained to me that she and her 41 mother would annually process three thousand 42 sockeye for the family's winter needs, usually 43 at a three week period beginning in late July, 44 then smoke one thousand to two thousand 45 humpbacks on which to feed the dogs over the 46 winter. Then, by way of holiday, they would 47 pick and smoke-dry forty to sixty packloads of 501 Submissions by Mr. Grant 1 berries." 2 3 And if I take you to Tab 323, after that first 4 Dr. Daly what you have is two photographs. And these 5 are photographs of a site you may be familiar with 6 from the Nikal case because it is photographs of the 7 Moricetown Canyon prior to the fish ladders being 8 installed, but it is of the gaffing in the canyon. 9 Now, I would like to just ask you to note in your 10 factum here that there are several witnesses who 11 describe the fishing sites I am going to take you to 12 in a moment. For example, Olive Ryan. And I believe 13 I have asked the Registrar to pull out Exhibit 29-5, 14 which is a map. It's not in the reference book. 15 It's a map of the Kitsegukla fishing sites. If you 16 just examine that, you can see the markings of the 17 fishing sites where the triangles are. She named 18 those sites, and the first name is the name of the 19 site, the second name is the name of the clan, and the 2 0 name under that is the name of the owner. So that 21 would be the House group that owns the site. 22 Now, Pete Muldoe also gave evidence on this point, 23 and Stanley Williams and Martha Brown and Glen 24 Williams and Walter Wilson. 25 The cumulative effect of that evidence -- and 26 maybe, Mr. Registrar, there is another smaller version 27 of this map for Mr. Justice Hutcheon and Mr. Justice 28 Wallace in case you can't see. This is the map in the 29 map atlas, but I have got the enlarged version here 30 which is also an exhibit. At the bottom here and for 31 those of you that want, it's in the map atlas at map 32 22 in the small map atlas. But the Kitsegukla sites 33 that Martha Brown described are here on the bottom. 34 I should just locate you -- unfortunately, the 35 cartographer was of the view that we could go on an 36 east/west axis and nobody would be confused. I think 37 we've all proven him wrong. So I put this sideways. 38 This is the north at the top and this is the north end 39 of the territory. 40 Now, what's significant, and in the copy you can 41 see there, is there is no doubt, as the trial judge 42 found, that significant fishing sites are located 43 within the canyon sites. For example, you have in 44 here the Kispiox area. And what happens is in the 45 darkened area here, just so that you can understand 46 this, here is the Kispiox, Skeena area, and it's 47 actually lined to this, which is the Skeena and 502 Submissions by Mr. Grant 1 Kispiox River sites. So those dark green areas on 2 your map are actually enlarged along the side and 3 there is actually lines that go to them that you can 4 see on the small version. 5 What's significant is when you look at this map, 6 my lords, is that you see that there are fishing sites 7 way up in the north and there are fishing sites way 8 down in the south and there are fishing sites along 9 the Skeena River. Here is Kitwanga here. This one 10 was not used as an enlargement, but there are fishing 11 sites right down to the site Mr. Rush referred you to 12 last week called Xsugwink'aat. And that site, of 13 course, is the site of Gitanga'at, which is in the 14 oral history, and it's described as the fishing site 15 of a House and the oral histories describe it. 16 So these fishing sites are spread throughout the 17 territory. In the Wet'suwet'en area the fishing sites 18 are way down in the lake areas, including areas 19 excluded by the trial judge in his map 5, and I say 20 that it demonstrates the fishery was widespread. It 21 was not solely focused at the fishing villages. 22 There is no doubt that the fishery is of 23 significance and was one of the key economic features 24 that distinguished the Gitksan and Wet'suwet'en from 25 other groups that they had to deal with. 26 In paragraph 324 I just ask you to refer to that. 27 I won't read it to you. It's there. But Dr. Daly 28 describes the types of gear that were used. 29 And at paragraph 325 I would like to take you back 30 to Art Mathews' evidence. And this demonstrates again 31 how they distinguish the fish from different groups. 32 If you go to page 4651 at the beginning of that tab. 33 At the bottom of the line he is talking about what 34 happens in the fishery. And he says at line 45: 35 36 "A And they would take these fish and split them 37 open one along the back and side. They would 38 split it open and start filleting the fish. 39 When it is half dry, and do the other side, and 40 each house have a distinctive mark -- marking 41 the way it is filleted for identification to 42 know where it came from. This is a strict law 43 in our house where I know it's done. My mother 44 cut half the fillet and cut two lines this way 45 across the fish. If that was the head and that 46 was the tail, when they fillet, they cut two 47 slots across like this. 503 Submissions by Mr. Grant 1 Q And is that inside or outside? 2 A Inside .... And when my wife, I remember I 3 told her -- she was from Kit katla. She makes 4 two other lines here and I tried to tell her do 5 it this way and she said no, it is my fish, 6 I'll do it the way as my mother taught me as 7 our own distinctive sign. So each house has 8 its own distinctive sign, identification from 9 where these fish come from. 10 Q Do other Gitksan houses have a distinctive sign 11 too? 12 A Yes." 13 14 LAMBERT, J.A.: Well, every woman does it the way her mother 15 taught her. 16 MR. GRANT: Yes, the evidence is clear, every woman does it the 17 way her mother taught her, but what's also significant 18 is that each house group does it in a different way. 19 And Olive Ryan gave such evidence too, and they have 20 shown it. And so even in the same village different 21 house groups do it different ways. 22 Now, if I could just take you in the same tab to 23 Dr. Daly at page 391. So it's two brown sheets over. 24 25 "The salmon are the anchor ..." 26 27 Dr. Daly's opinion was this, and this is 28 corroborated by other anthropologists. 29 30 "The salmon are the anchor and focal point of 31 the subsistence economy." 32 33 And by "subsistence" here he does not mean merely 34 survival. He explains that in anthropological terms 35 means a whole economy, including trade and other 36 aspects. 37 38 "They comprise the mainstay, in terms of the 39 protein needs of the people. When this protein 40 is combined with their own fat content and that 41 of other fish and game species, as well as with 42 the seasonally available carbohydrates (mainly 43 berries, sap, bark and bulbs), the salmon 44 provided a secure and balanced diet to the 45 pre-contact Gitksan and Wet'suwet'en. 46 In their book, Gathering What the Great 47 Nature Provided the Gitksan list twenty-four 504 Submissions by Mr. Grant 1 names associated with delicacy cuts of the 2 salmon, succulent parts of the anatomy, methods 3 of preparation of everything from oversmoked 4 fresh salmon to salmon roe, eyes and the rich 5 and delicious belly strips called ts'okw ..." 6 7 Going to the next paragraph. 8 9 "Much energy was, and still is, invested in the 10 summer food fishery." 11 12 And he is there referring to the methods used. 13 And if you go over to two more tabs to Mary 14 Johnson. Now, Mary Johnson, I believe I indicated 15 she -- and this is in transcript 10 at page 1617, she 16 was born August 4th, 1909. She was talking about when 17 she was young in the Kispiox, and she describes there 18 how -- page 776 of Mary Johnson, starting at line 17, 19 and she describes from there over to the next page at 20 line 31 both the methods of smoking and the trading 21 with the people at Kisgegas, which is one of the other 22 Gitksan villages to the north. And I'll come back to 23 the trade when we deal with the evidence beyond the 24 villages. 25 Just as with fish, it was the same with berries. 26 And as I say at 326, organization and production of 27 various berry crops which grow in the appellants' 28 territories also demonstrates a high degree of 29 management and cooperation with the house and its 30 members. 31 And I take you to Tab 326, page 1139. It's in the 32 second page in of Olive Ryan. Line 7. 33 34 "Q Could you describe to the court how the berries 35 were dried and what was done? 36 A Well, they cook the berries in the rocks. They 37 build a fire and put the rocks in the fire and 38 they put the berries in the box. And they -- 39 and there is another box for the water, pail of 40 water, and they take the rocks out of the fire 41 and dip it in the water. They clean the rocks 42 before they put it in the berries, and that's 43 what they did. They put he rocks in the box 44 and the berries and they laid the berries on 45 top of the rocks and add some more berries 46 until the box is full, and they put the mat 47 over the box and tied it and let it stand for 505 Submissions by Mr. Grant 1 overnight. And the next day they put it on the 2 rack and they build the fire under the rack, 3 while the berries was -- cooked berries on the 4 rack. That's how they do when they dried the 5 berries. And they saved the juice when, you 6 know, after they cook the berries, and save the 7 juice in the other box. And they put the 8 berries on a rack. They used skunk cabbage. 9 That's what they used over the rack, so the 10 berries on top. And they saved the juice, they 11 call it sa ga t'ikxw." 12 13 Now, what she is talking about, of course, is the 14 process of berry preservation. And if I could take 15 you for a moment to the map atlas, I would just like 16 to show you that you can see commencing with maps -- 17 actually, and I won't take you to every one of them, 18 but maps 3 to 10, this is Sybille Haeussler's 19 evidence, show the different berry species. 20 Now, if you look at map 3, you see the abundance 21 of soapberries, which was one of the species that's a 22 prime feature not only for use but for trade, is 23 within the Gitksan and the Wet'suwet'en territory. 24 And what I would like you to note is the significant 25 feature on these maps is that in this case there are 26 berries that are productive, are primarily internal, 27 and then in other places -- I'm sorry, interior, and 28 in other places they are coastal. So here -- and this 29 is a feature that Dr. Daly observed in terms of the 30 importance of trade. So soapberry is a prime feature 31 of trade from the Gitksan and the Wet'suwet'en to the 32 coastal groups. And you see similarly with Saskatoon 33 and Tab 4. 34 I would like to take you to one where you see a 35 different feature. Well, one of them is the oval 36 leafed blueberry and the high bush cranberry, and 37 that's at maps 8 and 9. And there what you see is the 38 opposite feature. The berry production is most 39 prevalent in the coast going inland. And Mr. Mathews, 40 Tenimgyet, described -- just bear with me. I'll take 41 this out of the way. He described how he would pick 42 berries and would trade them to other Gitksan. If you 43 look at those maps, you will see that this area here, 44 the most western most Gitksan area of Tenimgyet, is 45 one in which there are these species that are coastal 46 and they are not interior. So he described how they 47 picked -- they used the berries here and traded them 506 Submissions by Mr. Grant 1 to other Gitksan. The few areas as it juts out to the 2 west so far. 3 I won't refer you to the other references in 326. 4 I would ask you, in considering the use of that 5 resource, that you look at those. 6 And 327, back in the factum, I wish to refer you 7 to the evidence of harvesting and preparation of meat, 8 hides and furs of various animals for purposes of 9 domestic consumption, trade and fulfilling feast 10 obligations. 11 Now, here I would like to ask you to at least 12 cross-reference or go back to page 114, paragraph 13 4-185 of the argument. Here is the observation of 14 Daniel Harmon in 1810 and 1812. And he says: 15 16 "The following ceremonies attend such festivals. 17 The person who makes the entertainment, who is 18 always a chief, boils or roasts several whole 19 beavers; and as soon as his guests are seated 20 around a fire, which is in the centre of his 21 house, he takes up a whole beaver, and with a 22 raised voice, relates how and where he killed 23 it, that all present may know that it came from 24 his own land." 25 26 Now, I want to advise your lordships that from a 27 review of the judgment the trial judge did not refer 28 specifically to Harmon and certainly did not refer to 29 this. Harmon here is ten years before William Brown. 30 And even if one suggests there is an impact of the 31 coastal fur trade, and we say that that -- the impact 32 would have been at a time much later with the Gitksan, 33 because they are an interior group, it's certainly at 34 the time of Harmon. This is certainly something that 35 could not have been created at that time. 36 When you contrast what Harmon said in 1810 with 37 what I am going to refer you to, and I'll take you to 38 Tab 327, Mary McKenzie, the first reference. And here 39 is what she says. She is being asked here about the 40 feast today where Clara, a chief at a headstone feast, 41 has put in money. That's what leads up to this. 42 She's asked: 43 44 "Q Why does she do that, why is she putting money 45 in? 46 A It's Gitksan law that -- let me -- I tell the 47 modern and before. The older time they didn't 507 Submissions by Mr. Grant 1 use money, but they use the hides of the 2 animals, like the beaver or the ground hog or 3 the hide of a moose, or deer, and these are 4 brought in in the whole portion. Then the 5 moose hide is cut up in portions about 12 6 inches to probably 24 inches, the same way with 7 deer hide, and ground hog, three or four are 8 sewn together, they're put in, and same way 9 with the beaver hide. Now, all this is put 10 there and there will be piles of that, so after 11 the Europeans came, guns were brought in and 12 put in as well as the hides, because they were 13 able to buy these rifles. Hudson Bay blankets 14 were brought in and were used." 15 16 Then going to the bottom of that page. 17 18 "Now, today we use money, cash is used instead 19 of like the hides of a moose and deer, because 20 the reason why moose and deer was used and the 21 ground hog, the Gitksan people killed these 22 animals off their territory, and there was a 23 season that at prime time when these first 24 are -- and these pelts are of prime sort that 25 they -- this is why they -- it took them many 26 years probably, or a few months to get all 27 these. Now, their season is open for the 28 hunting, it's not -- although they're limited, 29 the kill, but still with every wil'na t'ahl and 30 every House of a Gitksan would have these 31 prepared for a Feasting, so this comes from the 32 territory, like the ground hog, the beaver, the 33 moose, and the deer, but today we were not able 34 to do that because the seasons are set now for 35 the people to do their hunting and trapping, so 36 we don't use those anymore in our Feasting, so 37 we use cash, but the food is there, we still 38 use the food off of the territory today. We 39 don't use the hide." 40 41 And then if you refer to the two references over, 42 that would be two brown sheets over to Dora 43 Wilson-Kenni. And she describes the preparation of 44 the moose hide at the bottom there. And I just ask 45 you to highlight her note because I am not going to 46 read it to you. Line 36 over to the next page. And 47 what she is describing there is a traditional method 508 Submissions by Mr. Grant 1 of hide preparation for the feast. 2 And then I would like to show you, if you go to 3 the next two more brown separation sheets over, and 4 you have the photograph of Sylvester William. He is 5 now deceased. He was the former Hag wil negh, 6 Wet'suwet'en chief, stretching the beaver skin at his 7 camp at Pack Lake. 8 And going back to my factum, my lords. What I am 9 saying here in 328 is that this evidence, and the 10 other references are there in paragraph 327, this 11 evidence establishes the close husbandry of animals 12 which the first white traders observed was a 13 pre-existing feature of the appellants' management and 14 conservation regime. The trial judge's conclusion 15 that there was no such regime, only common sense 16 subsistence practises, is, with respect, contrary to 17 the evidence. And that's where I say he either failed 18 to appreciate the evidence or completely disregarded 19 it. 20 I submit here, my lords, that the system of the 21 harvest management and conservation has to be more 22 than these common sense subsistence practises. 23 I then take you into the evidence of the head 24 chief having authority to manage and conserve the 25 resources, and I would like to refer you to the 26 evidence of Solomon Marsden at paragraph 329. He 27 talks about -- testified that: 28 29 "When the decision has been made for a successor 30 of the former chief, then the name is put on 31 this new chief, and the power and the authority 32 is put on this chief to make decisions on the 33 territories." 34 35 And I refer you to the evidence of Pete Muldoe, 36 which is the second tab in at Tab 329, and where he 37 says: 38 39 "After Gitludahl passed on and the name is 40 passed on to me, I have the full authority to 41 look after the place or give permission to 42 anyone that wanted to go there." 43 44 And if you go to the next tab, Mary McKenzie 45 introduces the concept of authority among the Gitksan. 46 At line 11 she's asked at page 362: 47 509 Submissions by Mr. Grant 1 "Q Is there a Gitksan word for the authority of 2 the chief to make the decisions regarding the 3 territory? Is there a Gitksan word or phrase 4 that describes that? 5 A Daxgyet, that's giving the authority." 6 7 And in fact, my lords, I just want to comment here 8 that really if you're talking about -- there is always 9 this concern when we use the English term of 10 jurisdiction at trial and the trial judge equated 11 jurisdiction with sovereignty. And as Mr. Jackson 12 said last week, that's distinctive. And in our 13 argument we refer to jurisdiction and we refer to 14 self-government. But if you were to say to a Gitksan 15 person, "What are you really talking to me about?" 16 They would say "daxgyet". And daxgyet includes that 17 authority of the chief to make decisions and control 18 the land and the resources and to seek the aid of his 19 House members to help him in the feast. 20 If you refer over to Glen Williams, which is at 21 the next sheet over at page 6812. And he says -- he 22 is asked at the bottom of the previous page about the 23 Gitksan legal system. At the top at line 3: 24 25 "Q ... who would, under the Gitksan laws, have 26 authority over the territory, let us say, the 27 territory of a particular house? 28 A It's mainly the head chiefs in that house and 29 that house itself that has authority over that 30 territory." 31 32 And he again uses the term "daxgyet" as that 33 authority. 34 And then at line 34 he is asked: 35 36 "Q Well, let me ask you this: Does the authority 37 of the house chief in the feast hall, connect 38 to the authority of the chief on the territory? 39 A Yes, it does. 4 0 Q Can you explain how?" 41 42 And here is the linking of the feast institution 43 and the territory, in my submission. I submit this is 44 a fairly important explanation and fairly clear. 45 46 "A What the chief is doing, that house group, the 47 chief in that feast, what he is doing is 510 Submissions by Mr. Grant 1 demonstrating publicly in that feast to the 2 other chiefs that he has invited in the feast 3 hall, that he has laws that he has to follow 4 for that particular feast and that he is 5 demonstrating publicly that he has land, that 6 he has fishing holes and that he has power and 7 that he has wealth and that he owns the land 8 and these are my other members of my house, 9 immediate house. That's what he is doing. He 10 is publicly telling all the people in that 11 feast hall, that this is who I am, I am a 12 chief, I am a high chief and this is my 13 authority." 14 15 And the other reference there is to the 16 Wet'suwet'en description, Mr. Joseph, which has 17 already been referred to you. 18 Now, the chief alone doesn't exercise this 19 authority. The chiefs testified to exercising 20 jurisdiction -- I'm at paragraph 330 of the factum -- 21 to harvest, manage and conserve the resources in 22 consultation with sub-chiefs of their house. Chiefs 23 also regularly delegate their power to sub-chiefs to 24 manage sections of a large territory. 25 Now, I would like to demonstrate this to you 26 because it's quite interesting in the case of Mary 27 McKenzie at Tab 330, the first page. She is asked at 28 line 29: 29 30 "Q There is although the head chief of a 31 territory. Then there is the sub-chiefs or the 32 wings? 33 A Yes. The reason, sometimes, I am going to make 34 it more clear, in Gyoluugyat territory now, 35 it's a big area and there is Houses, like you 36 say five, four, but then each one of us have a 37 portion belonging to each chief but as at 38 wil'naa t'ahl we say that whole thing, the 39 wil'naa t'ahl. No one is put out of not 40 sharing that territory." 41 42 Now, Mr. Rush referred you to this in the facts, 43 and I just want to just remind you. In this case Mrs. 44 McKenzie is talking about that right now, and this 45 happened around -- from the genealogies, it appears to 46 have happened around 1917 with the influenza 47 epidemics. It happened to a number of Gitksan houses. 511 Submissions by Mr. Grant 1 The chiefs of a number of houses came together because 2 the membership was just too small. 3 And on an anthropological point, and Heather 4 Harris' report -- Mr. Justice Hutcheon, you asked Mr. 5 Rush yesterday about this -- that in fact 6 anthropologically speaking it was assessed that a 7 group, a House group could not be smaller than 25 and 8 be survived. They really needed that as a minimum. 9 So the range is 25 to 150 members of a House group. 10 They get larger than 150, then they have to break 11 apart. 12 So there was this disease, and it appears from the 13 genealogy around 1917. It certainly appears to be as 14 a result of influenzas, the 1917/1919 influenza, or 15 one earlier in this case. But it's around that period 16 of time. 17 So what she describes is that there are four House 18 chiefs that all become into Gyolugyet, and she names 19 them, and presently some of her children hold those 2 0 names. 21 What the effect of this is -- that is a Wolf House 22 of Kuldoe, the northern village, and what you see on 23 this map is this is a -- here is Kuldoe, here is a 24 Gyolugyet territory. There is a line there and here 25 is another Gyolugyet territory, a line there and 26 another Gyolugyet territory. Now, what the evidence 27 established, that in fact these -- today it's one 28 House, Gyolugyet, but it actually is run by different 29 chiefs in that House because in previous times they 30 were separate. 31 This was a question that the trial judge had, "Why 32 do you have such disparate sizes of territories?" 33 Well, obviously one reason would be resources, but 34 another reason in some cases would be like this: You 35 in fact have an amalgamation, and Heather Harris in 36 her report describes this amalgamation process, that's 37 the genealogical evidence, but you have an 38 amalgamation, and so you see this is what's happening. 39 So what Mrs. McKenzie, Gyolugyet, is saying, is that 40 in fact we divide up the territory here. And that's 41 part of what a chief -- and the chiefs do in the 42 House. 43 TAGGART, J.A.: How many Houses would there have been at the 44 time of contact, say, when Mr. Brown was there? 45 MR. GRANT: I am not sure if there was evidence led as to that. 46 There certainly was -- I would suspect with respect to 47 the Wet'suwet'en you would probably have a similar 512 Submissions by Mr. Grant 1 number of Houses as here, except in that case two 2 clans amalgamated. The Wet'suwet'en are thirteen 3 Houses today, and they seem to have a relatively 4 stable history. 5 With the Gitksan, because of this, the larger 6 populations, you went from seventy-four, and there is 7 descriptions that there were over a hundred Houses, a 8 hundred to a hundred and five Houses originally. When 9 I say originally, my lord, what I am saying is that 10 you go to a House like Gyolugyet and you say that's 11 five Houses that is now one House today, but they say 12 if you put them altogether, broken up, you would have 13 one hundred to one hundred and five. 14 TAGGART, J.A.: And Wet'suwet'en were how many? Thirteen? 15 MR. GRANT: I'm sorry? 16 TAGGART, J.A.: Wet'suwet'en were thirteen Houses? 17 MR. GRANT: There are thirteen Houses today. And Mr. Rush has 18 referred me to, and I just ask you to note, paragraph 19 194 of Tab 4, which is the reference to Brown where he 20 talks of twenty chiefs of different gradations and 21 sixty-seven married men as heads of families and 22 possessors of lands. 23 Now, that's the best we have from him. So it 24 would suggest that there may have been twenty separate 25 Houses at that point of the Wet'suwet'en. On the 26 other hand, he is talking -- clearly when he talks 27 about possessors of lands and heads of family, he is 28 talking about sub-chiefs and Houses. It's a point I 29 am going to come to later. 30 TAGGART, J.A.: What would the population of the Wet'suwet'en 31 area have been at that time? 32 MR. GRANT: At contact — I believe that's referred to in our 33 factum. Ray's opinion with respect to the Gitksan was 34 at seven thousand. 35 TAGGART, J.A.: At contact? 36 MR. GRANT: At contact. And there is not evidence of the 37 Wet'suwet'en, although Harmon and Brown both talk 38 about very large tribes -- Harmon talks about a very 39 large tribe to the west, Nate-ote-tains, which I'll 40 come to, signifying that they were -- his information 41 was that they were much larger than the Stuart Lake 42 Carrier that he was dealing with. 43 TAGGART, J.A.: How would that seven thousand population at 44 contact compare with the population today? 45 MR. GRANT: There is fifty-five hundred Gitksan today. I should 46 say at trial, my lord. 47 TAGGART, J.A.: And Wet'suwet'en? 513 Submissions by Mr. Grant 1 MR. GRANT: And Wet'suwet'en there are two thousand. 2 I'll just refer you just for the record to -- for 3 your own reference to note here, Exhibit 964-05, which 4 is the 1822/23 report of Brown. He talks about 5 Hotset, which is Moricetown, as the largest and most 6 populous of the Babine villages. And he refers to -- 7 as I say, he is there talking about 140 to 150 married 8 men, an equal number of married women, 162 to 200 9 young men, and he goes on. He talks about 20 chiefs 10 of different gradations, and those chiefs are listed, 11 and a number of those chiefs are head chiefs of Houses 12 today, but there also are ones that are within those 13 Houses. Because of the absence of historical 14 material -- there is certainly evidence that the two 15 clans amalgamated because of disease among the 16 Wet'suwet'en, but not -- 17 TAGGART, J.A.: Post-contact? 18 MR. GRANT: Yes. That would be around the 1860s. 19 WALLACE, J.A.: Where would I find that exhibit to which you 20 referred? 21 MR. GRANT: The exhibit is Exhibit 964-05. And in the reference 22 books it's at Tab 4-194. 23 TAGGART, J.A.: That's R-8, is it? 2 4 MR. GRANT: R-6. 25 TAGGART, J.A.: Tab 4-1 — 26 MR. GRANT: 94. And you should note 4-195, which includes 27 Exhibit 964-12, the debt list of Brown. And in that 28 debt list he refers to a large number of Wet'suwet'en 29 chiefs. 30 WALLACE, J.A.: Give me that reference again. 31 MR. GRANT: Tab 4-195. It's again in R-6, and it's Exhibit 32 964-12. 33 And, your lordships, neither of those particular 34 references are transcribed. So if you look at them 35 and wish to have it -- I can read them, but it may be 36 that they are not that easily read. You get used it 37 to it after awhile. 38 TAGGART, J.A.: Find some younger eyes than mine. 39 MR. GRANT: They are not as small as some of us writing. 40 Now, if I can take you to paragraph 331. The 41 chief -- as I say, this goes to the wealth of the 42 territory being distributed at the feast. This is, of 43 course, depending on the chief properly managing the 44 territory and fufilling the obligations of the House 45 on the land and at the feast to fathers and spouses of 46 its members. 47 And you remember in the matrilineal systems that 514 Submissions by Mr. Grant 1 Mr. Rush explained that the fathers would be a 2 different House and clan, so would the spouses because 3 of clan exogamy, but they assist at the feast and have 4 obligations and they also are repaid. The wealth of 5 the territory will be distributed, enhancing the name 6 of the chief and benefiting the whole community. 7 As Alfred Joseph stated: 8 9 "Head chiefs when he takes a name, like I said, 10 the territory goes with it and you have to see 11 that the rest of the sub-chiefs and other - see 12 that all the clan members are using the 13 territory, have a place to go, and the more 14 people that go out to use the territory, that 15 means the head of each House has more power and 16 wealth to distribute or pay for anything, that 17 is any services that have been performed by 18 other clans, especially on the father's side." 19 20 Now, I would like to refer you here to Dr. Daly, 21 and I want to emphasize here in paragraph 332 that 22 this is Dr. Daly's opinion. It's not just based on 23 his work with the people, but also it's consistent 24 with that of other anthropologists that have studied 25 northwest coast cultures. But Dr. Daly -- and you 26 will hear later today about the anthropological 27 evidence and the judge's conclusions on that. But Dr. 28 Daly's opinion, I say, demonstrates that the 29 harvesting and management is "consistent with bare 30 occupation for the purpose of subsistence" is directly 31 at odds with the opinion evidence of Dr. Daly and, as 32 I say, and other anthropologists and the evidence of 33 the chiefs. Dr. Daly at line 33 of the factum: 34 35 "The Chief has to assess these piles of 36 commodities in the homes of his or her House 37 members and know the general state of the 38 domestic economy and the bank balances of House 39 members so as to be able to assess the House's 40 ability to acquit itself well, when called upon 41 to support a relative's feasts ... 42 In the course of managing the economic 43 round, the Chief has to bear in mind the need 44 to attract and hold as large and hard working a 45 group of people as possible, whose day to day 46 endeavours will eventually contribute to the 47 House's ability to engage in feasting, and 515 Submissions by Mr. Grant 1 thereby pay for its ownership rights in 2 society." 3 4 And I would like to take you for a moment to the 5 second reference in Tab 332. This is the reference of 6 Johnny David. This is the oldest witness that you 7 have been introduced to, the oldest witness at trial. 8 At line 12 of page 4 of the second reference. The 9 first reference is to Dr. Daly's report on that point. 10 11 "Q Now, in normal cases who does the Head Chief 12 -- who would the Head Chief of your House allow 13 to use your House territory? Would all members 14 of the House usually be given the right to use 15 the territory? 16 A Okay, the different members of the House or the 17 clan are allowed to use the territory with the 18 permission of the Head Chief and the person who 19 is given permission to use the territory at a 20 feast redistributes the meat or the money to 21 members of the House and this is our own Indian 22 law and it is not the white man's law. 23 Q Would the husbands or wives of members of the 24 House be allowed to use the territory? 25 A Okay, the spouses -- spouses as well as the 26 relatives who are honest and trustworthy are 27 allowed to hunt in the Laksilyu territory." 28 29 He is talking there, of course, about his own 30 clan, about Laksilyu. 31 Now, at page 13, just one brown sheet over of 32 Johnny David's evidence, he answers at line 14 about 33 the feast being combined. 34 35 "You would have three feasts in the old days but 36 now that doesn't happen. It is combined." 37 38 And then at line 26 he says: 39 40 "Okay. This person who is going to take over 41 the name, he goes out to his hunting territory 42 and a date is set. When the date is set he 43 brings all the animals he has killed and this 44 is distributed at the feast." 45 46 Now, if you can go past that to the next 47 photograph, the next tab with the photograph. I will 516 Submissions by Mr. Grant 1 only take you to this because it's in this order. 2 This is Sarah Layton, one of the witnesses, at a feast 3 in the early 1980's, the feasts for her House. The 4 point of this photograph, as demonstrated by the 5 evidence, I don't want this court to be misled that 6 they just took the goods from the land. What Dr. Daly 7 said is they gathered the resources from the House, 8 and that, of course, includes wage labour, it includes 9 money. Here is Mrs. Layton at the feast when she took 10 on the name from her grandmother, that's the chief's 11 name Knedebeas. She is one of the plaintiffs. She is 12 standing in front of the goods that she and her House 13 has brought in. As you can see, there are -- actually 14 that's only the first row. There are several rows of 15 these large, large bags of sugar. I don't need to 16 tell you what's in the Paul's Bakery. They are full 17 of bread. We are talking about not hundreds but 18 thousands and often tens of thousands of dollars worth 19 of goods being distributed at these feasts. 20 And I would just ask you to note, because I will 21 come back to it later this morning, early this 22 afternoon, that in 1920, when we talk about the 23 post-contact, Barbeau himself went to the feast of 24 Hagwilget. And I will refer you to the reference 25 later and give you the exhibit number. I believe it's 26 in Exhibit 1045, but I'll confirm that. But Barbeau 27 confirms that he himself in 1920 is given a hundred 28 dollars in silver and gold coins and, he says, "I see 29 chiefs with blankets with seven hundred dollars in 30 coins put down at one of the feasts." There were four 31 feasts in a row that he went to in 1920. 32 So the cash outlay is large at these feasts. It's 33 not symoblic. 34 TAGGART, J.A.: Where do those funds come from? 35 MR. GRANT: The funds come from, in the feast system, the 36 House -- this is what Dr. Daly was explaining -- the 37 head chief and the House members contribute those 38 funds. They are all paid in at the feast. 39 TAGGART, J.A.: How do they establish the basis of payment in? 40 MR. GRANT: The basis is — it's paid in and it's demonstrated 41 in the feast books. Let's us say, for example, and 42 this occurred and was evidence of this feast, the 43 feast of the former Delgamuukw, Albert Tait. He was a 44 Frog chief. The first -- the highest amounts paid in 45 would come from the successor to his name, who was 46 then Ken Muldoe, and he put in some thousands of 47 dollars. Ken Muldoe's mother, who, of course, is in 517 Submissions by Mr. Grant 1 the same House, would be the next major contributor. 2 And then the other -- there are, and Mr. Rush referred 3 you to these seating charts that are in these tabs, 4 but there are the head chief Delgamuukw, then there is 5 a series of chiefs along the side close to him in the 6 feast hall when they are sitting. Each of these 7 chiefs in order of their priority and importance would 8 put in. 9 So, for example, in that case, and I'm going from 10 memory, if he put in $3,000, maybe that his mother, 11 who held the sub-chief's name in that House, would put 12 in $2,000, and so would another chief. It would go 13 down and then a lower level -- a person with a lower 14 chief's name may put in $500, and then what you have 15 is all the members of the House right down to the 16 children would put in maybe $20 or $30 or $50. Then 17 all of the other Frog Houses would put in for that 18 feast as well. So you have these contributions. And 19 in the feast books, which were established in 20 evidence, and in the evidence of the chiefs, they 21 describe these contributions being paid in. 22 What happens then is you have a pot at the end, 23 not only of all the goods like Mrs. Layton shows, but 24 of cash, and it may be -- in the feast of Delgamuukw, 25 I believe, it was between 20 and $30,000 all cash. 26 That cash is then distributed. The father -- a side 27 of Albert Tait who buried him would first be paid for 28 all their work, and they are paid outright in the 29 feast and it's announced. Then the other high chiefs 30 who are guests from the Fireweed and the Wolf clan, 31 they are paid, and it goes like that. The chiefs are 32 paid the most. They might be given in a large feast 33 3, 4, $500. In a feast of a lower named person they 34 might be given a $100 or $50 until all of the money is 35 distributed. And as Barbeau -- it's interesting in 36 his description in 1920. He says, "I felt 37 embarrassed", because he wasn't a giver, he was just a 38 receiver of money. He says, "I didn't know what to 39 do. I had been given $100." And he was told you have 40 to give the $100 -- or you have to accept it. You 41 cannot refuse it. 42 So that's what happens in the feast and that's 43 what goes on today. And, as described, all of the 44 goods in the Layton feast are also distributed. For 45 example, at that feast there, a person of the rank of 4 6 Johnny David would be given maybe one or two of those 47 huge sacks of sugar. Those would be given only to the 518 Submissions by Mr. Grant 1 chiefs and other goods would be given out to other 2 people in the feast. 3 So, you have an exchange system that Dr. Daly 4 endeavoured to explain to the court, summarize, and 5 lay witnesses did, of you are talking of tens of 6 thousands of dollars. And the feast books that Mr. 7 Rush referred you to that are in evidence demonstrate 8 that in the 1980's, and one of those, it's an appendix 9 to our material, where we have summarized the total 10 amount in feasts, out of those feast books you can 11 look and you can see well over 100, $200,000 being 12 exchanged in the feast, being given out. 13 TAGGART, J.A.: How does the economy of that area support this? 14 It's one thing to talk about hunting and fishing and 15 gathering from the land and maintaining the flow of 16 those feasts so that you can do that. 17 MR. GRANT: Right. 18 TAGGART, J.A.: And partake in the feasts and distribute. 19 That's one thing. You don't find $100,000 lying 20 around on trees, and it doesn't generate itself 21 MR. GRANT: Well, Art Mathews, who I think that the trial judge 22 described him as an enthusiastic weekend aboriginal 23 hunter, because he was also a shop steward in the 24 mill, and he was -- he's a high chief as well and he 25 worked in the mill for 20 years. He was asked 26 directly that question, "How do you connect your work 27 at the mill with your role as a chief?" And he said 28 he works at the mill in part because he uses that 29 money, his income in the feast. 30 I can only say, my lord, I think your question is 31 directly appropriate, because it's surprising and 32 perplexing, but you see the cashflow in, and it's 33 cash. It's not I.O.U.'s, it's not rubber cheques, 34 it's all cash. That's where all of the House has to 35 come together. So if you end up with a chief who 36 basically says I am going to give all these big names 37 to my kids, and that kind of thing may or may not 38 happen, you see then all of a sudden a feast comes up, 39 that chief's got themselves some big problems because 40 they got ten children with big chief names but nobody 41 that can contribute. So it's all of the House and all 42 of the clan has to come together to contribute. And 43 that's where you have these feasts going on and, as I 44 say, 20 and $30,000, and depending upon the rank of 45 the chief the money will be higher. 46 Of course this was exactly what shocked Barbeau 47 when the feast was, of course, banned. And I'll come 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 WALLACE, MR. GRANT: MR. GRANT: 519 Submissions by Mr. Grant to that where Loring kept saying from 1899 to 1919 that the feast was dying and dying out, and there was Barbeau goes to a feast in 1920 and it's in the newspaper that $7,000 is raised at a feast in 1920. Now, My lord, I wasn't alive in 1920, but my recollection from history is that that would be a significant amount of money at that time, $7,000 to be contributed in a feast. Now you see it in the twenties and thirties. J.A. : One thing -- I gather from what you said, that this was all distributed again amongst the members of the feast, so it's a redistribution procedure. Among those that are not hosting the feast, the guests. There is the Frog who hosts it and the other clans would be guests. That's right. WALLACE, J.A.: And the non-hosts also make the contribution by way of money, et cetera, food, or do they? Only the -- for example, if Albert Tait's father was from -- let's say he was from Tenimgyet's House, a Wolf House. Just that House would contribute. They don't contribute in the feast. What they do is they arrange for the funeral, they do all of those things which we -- which any society has to deal with with respect to the burial, plus certain ceremonies, and they are repaid in the feast. Okay. So the guests don't contribute at a funeral feast. When a pole is raised or a headstone, which, as Mr. Rush explained happens on average about -- within a year, then the spouses will also make a contribution. But it's not the major contribution. It's that side that has to contribute. And this was evidence that came out at trial. For example, one House lost two or three chiefs in the course of two years, it was -- it's always said, "Oh, that House has a tremendous burden." And you say well -- immediately when that is said you know something's happened. Well, what's happened is they lost another chief in that House. Because it's a tremendous burden to a House and to that clan if there are a large number of chief's deaths within a short period of time. J.A.: Just on another subject matter before we break. I have been looking at the maps and particularly the fishing sites in 22. Yes. J.A.: And what I wanted to ask you about is what is the state, so far as the admissibility of evidence, HUTCHEON, MR. GRANT HUTCHEON, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 HUTCHEON, MR. GRANT HUTCHEON, MR. GRANT HUTCHEON, 520 Submissions by Mr. Grant what is the state of the notes at the top? MR. GRANT: I appreciate your honour's comments. HUTCHEON, J.A.: Because they are very significant notes. MR. GRANT: As shown on the index, my lord, for reproduction purposes, and I certainly wasn't -- I believed that these notes were excluded. WALLACE, J.A.: They are at the top of the page? MR. GRANT: Not, of course, the legend, but the notes. HUTCHEON, J.A.: The notes were excluded? MR. GRANT: But now that you raise it, I think there were only some paragraphs that were excluded, and I'll come back to you with that. J.A.: You see, the kind of thing that interested me was that I could not in my own mind fix the territory of the House with this many fishing sites. : Right. J.A.: But the notes tell me that the boundary of the House stopped short of the river in these places, which I didn't know about. : That's in evidence, independent of these notes, whether they are in or not. J.A.: Where I found it was on these notes because I had in my own mind a difficulty of fitting in a House's territory which is fairly large with dozens and dozens of fishing sites seemingly very close together, quite close together, but the notes tell me that the boundary of the House stopped short of the river in order to accommodate these many sites. : Yes. Right. In the case of the river fishery, that is independent evidence. Certainly the last paragraph about the last century, that was excluded. And I'll go back to the transcript reference just to confirm -- J.A.: Yes. We'll have to be very careful, then, because -- : It's only this map, and it's shown in the front. Map 23 on the salmon, I think, was also excluded in part. J.A.: I'm looking at the second paragraph where it says : "However, their sites can also be found quite frequently along the stretch of the river where there are fish in sufficient numbers to provide for several House groups. In such cases the territory adjacent to that stretch of the river, which otherwise would have extended to the river, stopped short of the river bank to MR. GRANT HUTCHEON, MR. GRANT HUTCHEON, 521 Submissions by Mr. Grant 1 allow for the fishing stations." 2 3 Now, when I look at that, that's organization, 4 isn't it, of considerable complexity? 5 MR. GRANT: Yes. The easiest route is that I will first check 6 that this -- I believe that part of the note was 7 either given in oral -- was given in oral evidence by 8 Mr. Morrell or was there. It wasn't all excluded. 9 There was a concern about the comments about the turn 10 of the century and the effect of white impact on the 11 fishery at the end. It certainly was given in other 12 evidence, and I will give you the reference to insert 13 here of that. This very point was proven 14 independently in evidence. 15 TAGGART, J.A.: All right. Would it be appropriate to take the 16 break now? 17 MR. GRANT: Certainly, my lord. 18 THE REGISTRAR: Order in court. Court stands adjourned. 19 2 0 MORNING RECESS 21 22 THE REGISTRAR: Order in court. 23 TAGGART, J.A.: Yes, Mr. Grant. 24 MR. GRANT: My lords, I don't know if I should go back to my 25 factum. 26 I would like to actually refer you for a moment in 27 response -- I'm still -- I'm going to come back to 28 the -- when I deal with the issue beyond the villages 29 to your lordship, Mr. Justice Hutcheon's reference, 30 because I want to give you exactly what's said about 31 that point. And I appreciate it was established in 32 evidence. And this afternoon when I deal with the 33 laws I will come back to both Mr. Justice Wallace and 34 Mr. Justice Lambert's point. 35 One of the issues you raised is actually dealt 36 with in Appendix I, and my colleague indicated that 37 maybe I left the wrong impression. I would like to 38 refer you to the appellants' factum, Appendix I 39 briefly. It's in volume 3 of 3. 40 TAGGART, J.A.: This is in relation to? 41 MR. GRANT: This is in relation to the feast. And I did not — 42 your lordship Mr. Justice Taggart had asked me about 43 the feast contributions. It was not my intention to 44 suggest that at one feast $100,000 was contributed, 45 but that cumulatively over a hundred thousand has been 46 contributed in the last several years. 47 If you go to Tab I, you see the opinion of Dr. 522 Submissions by Mr. Grant 1 Daly. And then what follows is a list of financial 2 contributions, and in some cases the value of food and 3 goods distributed made at funeral feasts in a 5 year 4 period, based on Exhibit 702, the notes of Neil 5 Sterritt of the feasts he attended and on feast books. 6 And if you just -- you can see the column right 7 after the name of the deceased person is the cash 8 contribution, and then there is another column that in 9 some cases is empty, but it's total contribution of 10 food and goods. If you go over to page 2 of the 11 appendix, James Wood, and the evidence establishes 12 James Wood was a high chief who held the name 13 Niisgiminuu, at his funeral feast there was a total of 14 $14,600, $11,000 was in cash contributions. Down at 15 line 39, that is not the Stanley Williams who gave 16 evidence, of course, but if you go over to page 3, 17 this is a feast -- two feasts of Ellen Johnson, and 18 evidence was led at trial of these two feasts. At 19 line 26, this is her funeral feast, $23,000, a total 20 of $25,000 contributed. 21 Now, you can see there in November of the same 22 year there was the headstone feast for Ellen Johnson 23 and the total contribution there was $27,000. So in 24 two feasts in less than a year for one chief, the 25 funeral and the headstone, you have a total 26 contribution of over $50,000 in cash. That's in cash 27 and goods at that feast. 28 Another feast of Buddy Williams on page 4. He was 29 the former holder of the name Haluus, a chief and was 30 a plaintiff in this case until his untimely death. He 31 was in his early fifties. And the total contribution 32 to his feast was $39,900. And that's in evidence as 33 well. 34 Martha Brown, who you've seen the evidence of her, 35 at her feast in August 30th of 1987, the holder of the 36 name Kliiyem laxha, was $29,000. 37 And of course you see above that the stone feast 38 for James Wood senior, $11,000. That's the same James 39 Wood as is on page 2. So there is $22,000 in cash 40 given there. 41 WALLACE, J.A.: Just so I've got it straight, the Martha Brown, 42 the $19,548, that would be a contribution by her 43 House? 44 MR. GRANT: No. All of the cash contributed, the cash only 45 contributed at that feast is $19,000. The cash and 46 goods contributed in that feast is $29,000. That 47 would be by her House. She's a Wolf chief, and by the 523 Submissions by Mr. Grant 1 other chiefs of the Wolf clan. 2 WALLACE, J.A.: I see. All right. 3 MR. GRANT: You see, like at the — 4 WALLACE, J.A.: That would all be distributed to the guests at 5 the feast -- 6 MR. GRANT: That's correct. 7 WALLACE, J.A.: -- other than the House, her House and the other 8 Wolf clan Houses. 9 MR. GRANT: That's right. That's right. 10 WALLACE, J.A.: I got it. Thank you. 11 MR. GRANT: Now, just in further answer to your lordship Mr. 12 Justice Taggart's question. I gave the example of Art 13 Mathews' junior working at the sawmill. The evidence 14 is that you have other chiefs who were in the fishing 15 industry, other chiefs who were in different 16 enterprises that they were involved in and they used 17 cash, but this is not to suggest that today, and 18 evidence established that even today goods and 19 resources are taken from the land. 20 You may have a chief who is retired or a chief who 21 is unemployed or a hunter in the House who would 22 provide -- for example, one of the delicacies is the 23 beaver meat is taken to the feast, and someone brings 24 that in from the far north, for example, at the Bowser 25 Lake area up in that far northwest it's prized. It's 26 announced where it comes from and it's distributed to 27 the chiefs as well as the cash. 28 Now, if I can take you over to page -- paragraph 29 333. 30 I would like to just, if you don't mind, take you 31 to the last reference in paragraph 332 to Mary 32 McKenzie. She describes, starting at line 23 of 291, 33 the types of food that's brought into the feast, and 34 she describes the wild game. Maybe I'll just read it 35 because you can see the wide variety there. 36 37 "A Today, we always make soup or stew you might 38 call it, bread is plentiful, and soda crackers, 39 apples and oranges, bananas, are brought in. 40 Berries that are picked from the berry patches 41 of the head chiefs. These are all brought in 42 and with these, with this food, it's -- there 43 is a person there that announces who brought 44 this, how many boxes of apples one chief, one 45 person would bring oranges or bread, how many 46 gallons of berries that the women would bring 47 and these women would tell just where they 524 Submissions by Mr. Grant 1 picked these berries, whose berry picking place 2 they brought, they picked it from. This is 3 announced in the feasting. So that all food is 4 announced that who brought, who brings in and 5 what food and it's brought out from the 6 territory is announced as well too. Like fish 7 would be served too, that person that brings 8 that, the fish would say just where, whose 9 fishing section, where that salmon or fish is 10 from, he would announce it. 11 Q Is moose or wild game used at the feast? 12 A Well, that's what we use to make the stew, deer 13 meat, moose meat, and beef today too, but 14 that's all announced too, if you have moose 15 stew, you have to announce where you shot the 16 moose, yours, or -- 17 THE COURT: I am sorry, I think you have said in 18 addition to wild game and you said 'today we 19 use', something about meat? 20 A Yes, we use moose meat, deer meat and beef. 21 THE COURT: And beef? 22 A Yes. 2 3 THE COURT: Thank you. 24 Q Do you recall feasts which you have attended 25 where beef, like whole cows have been used at 26 the feast? 27 A Yes. When I was quite small ...," 28 29 I believe Mrs. McKenzie was born in 1919. 30 31 "... the people of Gitanmax and Kispiox, they 32 would have herd of cattle, like, and when here 33 is a feasting a chief would kill one cow or 34 probably two, if it's your House, you are the 35 host of that feasting and these are - it's 36 butchered and it's that feasting and these 37 are -- it's butchered and it's all cut up in 38 small portions and they are all distributed to 39 each chief or to all who is there. But it has 40 to go to the chiefs first." 41 42 And Dr. Daly indicated this as well. 43 LAMBERT, J.A.: Would that mean distributed as cuts of beef? 44 MR. GRANT: In the case of the whole cow, it would be 45 distributed as bulk, so that a chief could get a whole 46 quarter or a portion of a cow. 47 LAMBERT, J.A.: There is actually feasting going on at the feast 525 Submissions by Mr. Grant 1 in the sense of eating? 2 MR. GRANT: Yes. 3 LAMBERT, J.A.: And it's all ceremoniously done, but it is in 4 fact eating and entertainment and that kind of thing; 5 am I right? 6 MR. GRANT: That's right. And it's interesting that Brown 7 describes it, and describes it in a similar way to 8 what you see today in both of the eating, the 9 ceremony, the collecting of the money or the hides in 10 the early time and then the distribution and the 11 announcing of the names. 12 The evidence established the feasts typically 13 today. They may go for -- I think Barbeau's feast in 14 1920 he was there, he was asked -- told he could leave 15 at 3 in the morning. Feasts today go 'til 5 -- 16 evidence was that 5, 7 in the morning. They may start 17 at 7 o'clock at night and they go 'til the next 18 morning. And the evidence establishes strict rules of 19 people sitting and not only where you sit but that you 20 stay seated throughout the feast. 21 I go to 333, my lord. The evidence, I submit, on 22 the chiefly management of ecological relations was a 23 function of rules of respect with the chief and elders 24 instilled in the House members toward the animals and 25 fish upon which the people relied. 26 I have given you references there to the first 27 salmon ceremony, and I won't take you to them, but 28 they are there, which exhibits this respect wherein 29 the early spring salmon is caught, sprinkled with 30 eagle down, like on an honoured chiefly visitor, and 31 the flesh is cut into small pieces skewered and 32 distributed to as many people in the village as 33 possible. This happens every spring in the villages. 34 I believe it was Mr. Morrell, a biologist who was 35 staying up there while he was doing his research. 36 When he first moved there he gave evidence that he 37 didn't know what was happening and this person came to 38 the house of the person whose house he was staying at 39 and all of a sudden started distributing this salmon. 40 And then he discovered afterwards that what he 41 actually had observed was a ceremony. He just 42 thought, "Well, that is a nice thing, the person is 43 bringing this person some fresh fish, the first fish 44 that is caught." 45 I can now say that I will skip over what Mr. Rush 46 has done and take you to page 177 of the factum. In 47 terms of reference books, we would be in reference 526 Submissions by Mr. Grant 1 book 9. 2 Paragraphs 380 through to 384, I am not going to 3 read them, but they are really an introduction for 4 your lordships in terms of the analysis of the 5 institution of self-government, and of course, as I 6 have indicated, that combines with the control and 7 management of the resources. 8 I would like to start with a reference to 9 paragraph -- start you at paragraph 385 of the factum. 10 That the Hudson's Bay Company documents from the 1820s 11 demonstrate the Gitksan and Wet'suwet'en have each 12 included, before European contact or influence, the 13 residents of several villages collectively organized 14 as people or nations. And this speaks to the comments 15 of the trial judge that: 16 17 "If it were necessary to find that the Gitksan 18 and Wet'suwet'en, as aboriginal peoples rather 19 than villagers ..." 20 21 And that's at reference 386. I would like to take 22 you to that reference because I want to refer you to 23 more. He states there -- the trial judge stated: 24 25 "I am quite unable to say ..." 26 27 This is in the first reference at Tab 386, about a 28 third of the way through this binder. It's the first 29 page in that tab. 30 31 "I am quite unable to say that there was much in 32 the way of pre-contact social organization 33 among the Gitksan or Wet'suwet'en simply 34 because there is so little reliable evidence. 35 Based upon Re Southern Rhodesia, however, I 36 find that no particular level of sophistication 37 should be required." 38 39 Then he says : 40 41 "Assuming Gitksan and Wet'suwet'en village 42 customs furnished whatever social organization 43 the law requires, I accept the opinion of 44 Professor Ray that the minimal social 45 organization described by trader Brown at 46 Babine Lake in the 1820s could not have been 47 borrowed or developed just since contact. 527 Submissions by Mr. Grant 1 2 And I'll come back to that, the rest of that in a 3 later reference. The next page isn't there. 4 Going to the next tab at page 381, the trial judge 5 said: 6 7 "It is my conclusion that Gitksan and 8 Wet'suwet'en laws and customs are not 9 sufficiently certain to permit a finding that 10 they or their ancestors governed the territory 11 according to aboriginal laws even though some 12 Indians may well have chosen to follow local 13 customs when it was convenient to do so. 14 Doing the best I can with this evidence, 15 and I have tried to take into consideration all 16 that I heard, I conclude that prior to British 17 sovereignty the ancestors of the plaintiffs 18 lived in their villages at strategic locations 19 alongside the Skeena and Bulkley Rivers and 20 they probably organized themselves into clans 21 and houses for social purposes, but they had 22 little need for what we would call laws of 23 general application. While peer pressure in 24 the form of customs may have governed the 25 villages, there was, in my judgment, no 26 difference between the aboriginal sovereignty 27 or jurisdiction in the largely empty lands of 28 the territory on one hand, and occupation or 29 possession of the same empty lands for 30 aboriginal sustenance on the other hand. 31 I also incorporate into this section the 32 conclusions I expressed earlier regarding the 33 relationship between land use and fur trapping, 34 which only started after contact. Before that 35 time there was no reason for the plaintiffs' 36 ancestors, individually or communally, to 37 purport to govern the wilderness beyond the 38 areas surrounding their villages, even though 39 they may have used such areas from time to time 40 for aboriginal purposes." 41 42 Well, with respect, my lords, I say that those 43 comments fly in the face of the evidence and they fly 44 in the face of the evidence of the institutions and 45 authorities that were before the trial judge. 46 Now, I go at paragraph 387 to show you that even 47 within the reasons for judgment there seems to be some 528 Submissions by Mr. Grant 1 inconsistency. The trial judgment accepted, from 2 linguistic evidence, that both the Gitksan and 3 Wet'suwet'en were, and I quote, "distinct peoples" -- 4 I'm at paragraph 387 of the factum -- for centuries or 5 millennia. It leaves unexplained how each people 6 could possibly maintain a common language, itself an 7 institution, in the absence of common institutions. 8 We are not here relying solely on the common 9 language, but that's one feature. 10 The inconsistency is even further reinforced when 11 the trial judge says with reference to pre-contact 12 times: 13 14 "The evidence is that both plaintiff groups are 15 peoples with common clans, languages and 16 customs." 17 18 And that's the reference that's given there. 19 Well, my lords, they had to have institutions if 2 0 they had common clans, languages and customs, and what 21 are we talking about when we talk about customs as 22 opposed to laws? And I'll come back to that in how we 23 have to look at the laws of the different system. 24 The Hudson's Bay records are full of evidence that 25 the Babine and the Wet'suwet'en and the Gitksan were 26 peoples or nations, each consisting of peoples based 27 in several villages connected by kinship, language, 28 feasting and trade. 29 And I refer you here to Harmon in 1810 identified 30 the Nate-ote-tains, Babine, as a tribe or nation. And 31 I'll just take you to Tab 390, because it says a 32 little more than is in the factum. And you have 33 Daniel Harmon in the highlighted portion, the marked 34 portion. 35 36 "A number of Indians arrived from the other end 37 of this lake in six canoes and among them were 38 two, the Father and Son, belonging to a Tribe 39 who call themselves Nate-ote-tains ..." 40 And you can see the footnote there. They lived in 41 the region around Lake Babine. 42 43 "... and are the first of that nation ever saw 44 here. But they say they are a numerous Tribe 45 who are scattered over a large tract of Country 46 almost west of this, and that it is not more 47 than eight or ten days march to their first 529 Submissions by Mr. Grant 1 village." 2 3 Then Harmon, if you go to the next tab, he 4 actually travelled to the five Babine villages. And 5 I've taken you to the next tab at page 150, just above 6 where it's marked on the margin he talks about: 7 8 "... I had promised the two that I would in the 9 course of this Winter pay them a visit to see 10 their Country and they now gave us some account 11 of the White People who came up the large River 12 as they had done before when at the Fort last 13 Summer and to convince us that what they had 14 said was true they showed us many articles, 15 which they barter from their Neighbours the 16 Atenas 17 18 The evidence established that Atenas were the 19 Gitksan. So you have these people, the 20 Nate-ote-tains, talking about another group who are 21 the Atenas. They are a different group, distinct 22 group, who purchased them directly from the white 23 people, which were guns, cloth, blankets, axes and 24 cast iron pots. And I'll come back to that, because 25 the evidence is -- he's being told here -- this is 26 significant. He's being told what's being purchased, 27 but it isn't what he's observed at this point in time. 28 29 "... At the five Villages we visited we might 30 have seen two thousand Souls, who are well made 31 and appeared healthy, but they like the 32 Carriers subsist principally on Salmon and 33 other small Fish." 34 35 And that is one indication of the number, in 36 answer to your lordship, Mr. Justice Taggart's 37 question. 38 39 "Their clothing was much the same as that of the 40 Carriers." 41 42 And it goes on. And then they say: 43 44 "... they also let me have a Blanket or Rug 45 which was manufactured by the Atenas, of the 46 wool of the Sheep that are numerous on the 47 Mountains in their Country. They told us that 530 Submissions by Mr. Grant 1 we saw but a small part of the Nate-ote-tains 2 for added they 'we are a numberous Tribe'. 3 They have a dialect peculiar to themselves, yet 4 the most of them speak the tongue spoken by the 5 Carriers." 6 7 That is entirely consistent with the linguistic 8 evidence at this trial of Dr. Kari that the 9 Babine-Wet'suwet'en is a distinctive linguistic group 10 from the Carrier. 11 I point out at paragraph 392 that Harmon, the 12 first white person to really report on -- to be near 13 the Gitksan, twice called the Atenas their neighbours 14 or those of the Gitksan. 15 I am back at my factum, my lords, at paragraph 16 393. I want to say here that the evidence of Harmon, 17 which is of course -- which is undisputed, is the 18 earliest record establishing these two peoples as 19 distinct. There is no conflict on that. The Babines 20 both regarded themselves, and were regarded by Harmon, 21 as a linguistically distinct tribe or nation, having 22 more than one village, occupying a large territory, 23 with another such distinct group, the Gitksan, as 24 neighbours. 25 Now, coming to more familiar ground of Brown. 26 In Brown's account in 1826, the Babines of the Lake 27 had three villages, Tatchy, Nah tell cuz and Nass 28 chick. Paragraph 394 of my factum. Brown called Ack 29 Koo shaw, of Nass chick, "the principal chief of the 30 Indians of the Lake, and ... possessed of the most 31 influence". He also said Casepin was the "most 32 reputable" chief of the Nah tell cuz, but "not the 33 principal chief of his tribe", and that Cabbah, of 34 Nass chick, "belongs to the same tribe as Casepin of 35 which he is the principal chief". Chil clue of Nah 36 tell cuz, according to Brown, was "one of the most 37 decent and respectable men, amongst the whole of the 38 Babine nation." 39 Now, my lords, what I say here is that this 40 account demonstrates that even through the eyes of a 41 fur trader, completely unfamiliar with these people, 42 who didn't understand what the Babine-Wet'suwet'en 43 system was before he came there, there was a system of 44 government and control over the lands. With all due 45 respect, Trader Brown saw more of what was the system 4 6 than was found in the trial judgment here. He 47 recognized this system of chiefs, and I'll come to 531 Submissions by Mr. Grant 1 heads of families. 2 Thus Brown makes it clear that there were chiefs 3 of the same tribe, which he distinguishes from family, 4 the House, in more than one of the Babine villages, 5 that some of the chiefs had influence in more than one 6 village, and that the whole group could be identified 7 as a nation. 8 And I would just like to take you to Tab 396, 9 which is transcribed, just the extract, for your ease 10 of reading. 11 LAMBERT, J.A.: I'm just a little confused about how everyone is 12 using the word "Babine" and "Babines of the Lake". 13 Maybe it ought to have been clear to me by now, but I 14 see your paragraph 396 equates Babines of Simpson's 15 River as the Wet'suwet'en. 16 MR. GRANT: Right. 17 LAMBERT, J.A.: Are there other Babines? 18 MR. GRANT: Yes. 19 LAMBERT, J.A.: Are they neither Gitksan nor Wet'suwet'en but 20 something separate, outside the borders? 21 MR. GRANT: Yes. The Babines of the Lake, Fort Kilmaurs, is on 22 Babine Lake. And it's clear in Brown's report that 23 what he is talking about is -- and here is Babine Lake 24 here on the map, my lords. 25 LAMBERT, J.A.: Yes. 26 MR. GRANT: He is talking about the Babines of the Lake. And 27 then, of course, Simpson's River, which independently 28 in the evidence was established as the Bulkley 29 River -- here is Moricetown. You see the conjunction. 30 What he does is travels, he comes up through up here, 31 and this is the Babine River down to Kisgegas when he 32 starts meeting the Gitksan. So he actually travels up 33 this route. But the Babines of the Lake are these 34 people here at Babine Lake. The Babines of the 35 Simpson's River are these people. The evidence at 36 trial established that the Babines -- 37 Babine-Wet'suwet'en is one linguistic group. In fact, 38 just as with the Kitwancool, who are Gitksan, but they 39 are here outside the claim, there are the Babines of 40 Babine Lake which are linguistically Wet'suwet'en. 41 They are not plaintiffs in this action. So he is 42 talking about this group as Babines of the Lake. 43 Dr. Kari, and I believe it's summarized in our 44 facts, Dr. Kari's evidence was that those were the 45 same linguistic groups, and he calls them 4 6 Babine-Wet'suwet'en. 47 And the fort that Brown is at is on Babine Lake, 532 Submissions by Mr. Grant 1 Fort Kilmaurs. 2 LAMBERT, J.A.: I'm going to try to ask a very elementary 3 question. 4 MR. GRANT: Certainly, my lord. 5 LAMBERT, J.A.: The Wet'suwet'en who are not plaintiffs, is 6 there any basis for thinking that they have renounced 7 any claim whatsoever in relation to the area that's 8 claimed by the Wet'suwet'en who are plaintiffs? 9 MR. GRANT: The Wet'suwet'en — I have your point. I said 10 linguistically they are one group, territorially they 11 are distinctive. This is the area of the Babine -- 12 the Babine of the Lake -- the Wet'suwet'en of Babine 13 Lake. It's outside the claim area. This is the area 14 inside. 15 LAMBERT, J.A.: I should have known this, but we are not dealing 16 with the whole Wet'suwet'en nation in this case, nor 17 the whole land area claimed by the whole Wet'suwet'en 18 nation? 19 MR. GRANT: On the linguistic evidence alone, that is correct. 20 On the linguistic evidence. 21 LAMBERT, J.A.: And is that also true with the Gitksan? 22 MR. GRANT: With the Gitksan, the Kitwancool, it's in the 23 pleadings, are specifically excluded. They 24 specifically excluded themselves. 25 LAMBERT, J.A.: You call them the Kitwancool — 26 MR. GRANT: They are Gitksan. 27 LAMBERT, J.A.: They are Gitksan? 28 MR. GRANT: Yes. But there were Kitwancool chiefs that gave 29 evidence, and they confirmed this boundary which is 30 between other Gitksan and them. 31 LAMBERT, J.A.: Yes. Thank you. 32 MR. GRANT: Okay. 33 LAMBERT, J.A.: Thank you. And that's all set out by Chief 34 Justice McEachern, who indicates who the plaintiffs 35 are and what they are claiming? 3 6 MR. GRANT: Yes. 37 LAMBERT, J.A.: And you are content with how he describes that? 38 MR. GRANT: I think he does that at the beginning, and I'll just 39 quickly review that before I answer. I don't think we 40 are disputing it. 41 LAMBERT, J.A.: Yes. All right. It would help me to have that 42 clearly in my mind. 43 MR. GRANT: In fact I think it clearly sets out those two 44 distinctions. 45 LAMBERT, J.A.: Yes. All right. 46 MR. GRANT: At paragraph 396 he is talking about — Brown is 47 talking about the Babines of Simpson's River, and he 533 Submissions by Mr. Grant 1 says: 2 3 "They reckon twenty chiefs of different 4 gradations, and sixty-seven married men whom 5 they denominate respectable, as being heads of 6 families and possessors of lands. The 7 following are the most noted amongst the 8 chiefs, and those with whom we have had the 9 most dealings." 10 11 And then he goes and starts to list them. And 12 that's the transcription there. 13 Now, he has described that there is at least 750 14 people at Hotset when he visits. Because of their 15 system there may well have been more, because the 16 people would have been out on the land as well. 17 The point of this -- at one point in his judgment 18 the trial judge said that Brown never mentions Houses, 19 and in argument he asked if the term "Houses" was used 20 by anthropologists before this trial, and a whole 21 series of references were referred to him in answer to 22 that question. And it is true that Brown does not use 23 the term "Houses", but when Brown says 20 chiefs of 24 different gradations, and when he says 67 married men 25 as being heads of families and possessors of lands, he 26 is clearly talking about different gradations of 27 chiefs completely consistent with the evidence of the 28 House system. That's why in 395 we refer to it as the 29 Houses. 30 Now, I can go to paragraph 397 of the factum 31 itself. As we have already noted in the context of 32 territorial ownership and succession, Brown's 1826 33 journals records succession of chiefly names and 34 inheritance of land across villages. Now, here you 35 find a Wet'suwet'en chief from Moreicetown died in the 36 Babine Village of Nass chick, this was at the lake. 37 There was a feast, and one Ash shaw -- and it's 38 unclear whether Ash shaw is Babine, that is from the 39 lake, or Wet'suwet'en, and in this part of the factum 40 that's how we are distinguishing that - Brown lists 41 the name twice -- took his place and his lands. The 42 name Ash shaw was in turn taken by a Babine. The 43 feast and accompanying inheritance of names and 44 territories is a clear example of a people organized 45 in a society which included several villages. 46 I have referred you to paragraph 197 there at Tab 47 4 which sets that out, and Mr. Rush took you through 534 Submissions by Mr. Grant 1 that yesterday. It summarizes it. And also those 2 pages are at the Tab 397. 3 Now, my lords, how can that description of the 4 feast be explained other than to demonstrate that the 5 feasting system and the succession of name and the 6 succession of territory was in place? It's the only 7 way it can be explained. It is anything but equivocal 8 in our submission. 9 Now, when Brown wrote from personal experience 10 about the Atnahs, who are the Gitksan, it's apparent 11 from the geography and the evidence, he was clearly 12 speaking about what he called a nation or race 13 distinct from other nations, such as the Babine and 14 Wet'suwet'en, that is the Babines of the Lake and the 15 Babines of Simpson's River respectively, the Nishga. 16 And I should just take you to 398 so you can see where 17 he is referring to this. The second page of the 18 transcription at Tab 398, because you won't recognize 19 the word, on page 10. This is one where he is 20 describing his journey over to the Gitksan country. 21 22 "From Quo em's village ...", 23 24 Where the reference is to page 10, that's from the 25 handwritten version. 26 27 "... to the one below it is a march of two days, 28 and from there to the forks is a march of two 29 days more. There are three other villages of 30 Atnahs below the forks, which are two days 31 march asunder each. From the upper of these 32 villages, there is a track over land leading to 33 a large river where the nation called Ute Sinah 34 ..." 35 36 That's the Nishga. 37 38 "... reside. These people who inhabit the sea 39 coast are called Kispallots ...", 40 41 And that's the Tsimshian. 42 43 "... and their village at the entrance of the 44 river has the same name." 45 46 So he is talking about going up towards Kuldoe on 47 the Skeena and then crossing over to the Nishga 535 Submissions by Mr. Grant 1 country. That's where he is referring to there. As I 2 said, he would have travelled down here and he comes 3 in, and you see the Nii Kyap territory here. Then the 4 Skeena and the Babine meet right about there. Right 5 there actually. Then the Skeena goes up here, Kuldoe, 6 then he's talking about over there to Nishga country. 7 That's one of the trails. Then he is talking about 8 coming down here. There is this junction here, there 9 is -- and then you come down to the Kispiox and Skeena 10 junction and the forks at the Bulkley River and the 11 Skeena. Then he is talking about down the river to 12 the people at the coast. So, in other words, 13 geographically what he is describing makes perfect 14 sense, and he is talking about different nations. 15 Then I point out in 399 he describes eight or more 16 villages of the Gitksan, at least three on the 17 Babine -- and he uses the term "nation" -- at least 18 three on the Babine River, one on the Skeena upstream 19 of its confluence with the Babine, one at the forks of 20 the Skeena and the Bulkley, and three more on the 21 Skeena River downstream of the forks. 22 In the report Brown identified two of the Gitksan 23 villages on the Babine River as places where they 24 assemble to make their feasts. And if you can go to 25 that tab, because I did not get this particular one 26 transcribed. At the very beginning you see: 27 28 "Of the Atnahs in the Babine River ...", 29 30 Page 1 of Exhibit 964-12. Actually page 13. 31 32 "The two principal villages of the Atnahs who 33 inhabit the upper parts of the Babine River are 34 Weep sim and Chil do call - They are 5 miles 35 asunder and lie about 115 miles to the west or 36 perhaps to the northwest of our establishments. 37 There are a number of other villages within a 38 short distance of them where the different 39 bands reside particularly during the salmon 40 season. But the above two places is where they 41 assemble to make their feasts and perform all 42 ceremonies of a general nature." 43 44 So he is talking about the people coming together 45 to make feasts in 1826. This is Exhibit 964-12, my 46 lords. I read the handwritten version at the tab. 47 At Tab 401 he talks about the chiefs that he 536 Submissions by Mr. Grant 1 meets, and it's the same exhibit, and I go to the next 2 page of that exhibit. There are three chiefs, 3 Needchip, which we say is Niigyap; Sojick, which we 4 say is Tsabux; and Quo em, which we say is Gwoimt. 5 6 "The first is the principal, and from what I 7 have seen of him the best. He is no hunter." 8 9 As you can see in paragraph 401, we analyze the 10 names, and his writings of the names coincide with 11 chiefs' names. Niigyap is a plaintiff, Gwoimt is a 12 plaintiff, and Tsabux is a House closely related to 13 Gwoimt. And I refer you to -- I just ask you to 14 cross-reference 401 to paragraphs 199 and 200 in which 15 he makes similar references in describing the 16 territories. Just as a cross-reference. You don't 17 have to go to them. 18 Professor Ray's opinion was of both the Gitksan 19 and Wet'suwet'en that "the villages were linked 20 together by kinship ties, trade, gambling and feasting 21 activities". 22 We submit that the trial judge erred in finding 23 the Gitksan and Wet'suwet'en at contact only had an 24 organized society as "villagers", and not as 25 aboriginal peoples. He failed to appreciate or 26 completely disregarded the evidence from the 27 historical documents and Professor Ray. And I say he 28 found -- the trial judge found that the Brown record 29 was a rich source of historical information which 30 showed peoples or nations or races each consisting of 31 several villages, and each having its own language, 32 feasts, kinship, trading and other relations. 33 And I just want to refer you here to what Mr. 34 Jackson referred you to last week in Worcester and 35 Georgia, and you may make a note of it, it's at A-3 at 36 Tab 61 at page 500, where Chief Justice Marshall in 37 the same decade as Brown says: 38 39 "The very term 'nation' so generally applied to 40 them means a people distinct from others." 41 42 In other words, he was reflecting what in fact the 43 thought was, not only in -- amongst American traders 44 and American colonists, but in North America 45 generally. They were nations, a people distinct from 46 others. And that's what William Brown described them 47 as, using the same language, and described them as a 537 Submissions by Mr. Grant 1 nation. 2 Now, I wish to refer you to the laws and 3 aboriginal government and laws, and I summarize at 404 4 that we have addressed the trial judge's legal 5 conclusion regarding jurisdictional rights. We argued 6 that as a matter of law he improperly characterized 7 the appellants' claims to sovereignty. 8 Now, going to 405, I wish to say we address the 9 trial judge's findings on the factual basis for the 10 appellants' right to self-government. The trial 11 judge, while acknowledging that the appellants' 12 ancestors governed themselves in their villages, 13 characterized the governance in the most limited 14 terms. For example, he says at page 384: 15 16 "I am prepared to assume for the purposes of 17 this part of my judgment that, in the legal and 18 jurisdictional vacuum which existed prior to 19 British sovereignty, the organization of these 20 people was the only form of ownership and 21 jurisdiction which existed in the areas of the 22 villages. I would not make the same finding in 23 respect to the rest of the territory, even to 24 the areas over which I believe the ancestors of 25 the Plaintiffs roamed for sustenance purposes." 26 27 The trial judge's characterization of the 28 pre-existing aboriginal regime as existing in a "legal 29 and jurisdictional vacuum" and his statements 30 elsewhere in his judgment that the appellants' 31 ancestors did not govern their territory "according to 32 aboriginal laws even though some Indians may well have 33 chosen to follow local customs when it was convenient 34 to do so", reflect a misconception, a fundamental 35 misconception about the nature of aboriginal 36 governments and laws. 37 And I submit, my lords, that the trial judge's 38 error is captured in the following passage from the 39 "Report of the Aboriginal Justice Inquiry of 40 Manitoba". And I would like to take you to that, and 41 I ask you to note that that inquiry, not the entire 42 report, but chapters 2 and 3, which deal with 43 aboriginal laws, is at Tab A-29 -- or sorry, Volume 44 A-29, Tab 68. But for the moment if you can go to Tab 45 407. 46 WALLACE, J.A.: Give me that reference again. Volume A-29. 47 MR. GRANT: Tab 68. Chapters 2 and 3 of the justice inquiry 538 Submissions by Mr. Grant 1 report there. And those are the chapters that deal 2 with how do you look at aboriginal laws and aboriginal 3 systems. 4 And I would like to take you to the reference at 5 Tab 407, which is an extract from those chapters. 6 TAGGART, J.A.: The tab number again. A-29, Tab — 7 MR. GRANT: 68. If you go to the second page in after the title 8 page at Tab 407. This isn't all of what's there, 9 although I have put the footnotes in, parts of 2 and 10 3. 11 The Royal Commission, of course, of the Associate 12 Chief Justice Hamilton, Associate Chief Justice 13 Sinclair, as you recall, this report came down 14 subsequent, I believe, to the judgment in the case 15 under appeal, but the commission had to deal with 16 aboriginal concepts of law, and this is what this 17 Royal Commission stated at page 22 of the tab, Tab 18 407: 19 20 "There were and are aboriginal laws. There were 21 and continue to be aboriginal governments with 22 lawmaking powers and with provisions to enforce 23 those laws. There were and are aboriginal 24 constitutions that are Supreme 'law of laws' 25 for some aboriginal peoples and their nations." 26 27 He then refers to the Marshall principles. He 28 says -- and this is key, my lords. I submit this is a 29 key finding -- a key proposition. 30 31 "No society can exist without law. Laws grow 32 from the customs, traditions and rules of a 33 society of people. They exist to inform people 34 what that particular society considers to be 35 acceptable and unacceptable." 36 37 Then he goes on to the trouble we've had in North 38 America. 39 40 "Many non-aboriginal writers in the past have 41 regarded aboriginal societies through the 42 stereotypes and cultural biases they held at 43 that particular time, or that they accepted as 44 'true' from the time of the original account. 45 These histories, for the most part, still 46 comprise most of the history courses taught in 47 Canadian schools, from elementary school to 539 Submissions by Mr. Grant 1 university. One such writer was Diamond 2 Jenness," 3 4 And he's an anthropologist that's been referred to 5 and relied on at both sides of this case. 6 7 "Whose books were and still are referred to 8 widely in many schools and universities as 9 authoritative accounts of aboriginal 10 societies." 11 12 And just the first part at the top, 23. This is 13 Jenness. 14 15 "In the absence of chiefs and of any legislative 16 or executive body within the tribes and bands, 17 law and order depended solely on the strength 18 of public opinion. There were no written laws, 19 of course; merely rules and injunctions handed 2 0 down by word of mouth from an immemorial 21 antiquity, and more temporary taboos operative 22 during the lifetime of an individual. 23 Persuason and physical force were the only 24 methods of arbitrating disputes, social 25 outlawry or physical violence the only means of 26 punishing infractions of the moral code or 27 offences against the welfare of the band or 28 tribe ... 29 Fear of the blood-feud was a powerful 30 restraint on murder, and social disapproval, 31 more keenly felt in small communities than in 32 large, checked the commission of many lesser 33 crimes." 34 35 Going after Jenness to what the commission says. 36 37 "Such attitudes about aboriginal people and the 38 stereotypes they promote continue to persist, 39 regardless of how much one might hope they 40 would be out of favour or distasteful in 41 today's society. But they seem embedded firmly 42 in Western culture. They spring from 43 centuries-old theories, philosophies and 44 policies that form a worldview through which 45 Western man has perceived and interpreted other 46 cultures." 47 540 Submissions by Mr. Grant 1 He then refers to a more recent author in the next 2 page, which is quoted as well in the factum. This is 3 Jennings, "The Invasion of America". 4 5 "The Europeans pronouncements that the Indians 6 had no government were contradicted by their 7 practice of dealing with Indian chiefs through 8 the protocol of diplomacy with sovereign 9 states." 10 11 And I aside here that Mr. Jackson took you through 12 that in a summary form last week. 13 14 "The bulk of evidence about Indian communities 15 implies structures of political association 16 irreconcilable with assumptions of anarchy. 17 From anthropology comes the root conception of 18 'kinship state', a community of families and 19 clans in which some of the order and functions 20 of society are performed by the kin groups 21 individually while others are assigned to 22 offices and counsellors chosen cooperatively. 23 In this structure, as European observers 24 were quick to notice, there was no law in the 25 European sense, and no specialized apparatus of 26 law enforcement. Binding decisions were made 27 by legitimate officers, however, and before the 28 intervention of Europeans eroded the chiefs' 29 authority there were forceful sanctions for 30 both occasional decisions and enduring customs. 31 In an community where every man bore arms no 32 need existed for a corps of specialized 33 police;" 34 35 And he refers then to the 17th century obervers, 36 and he comes to Adriaen Van der Donck, a lawyer in 37 colonial North America. 38 39 "... wonderingly noticed 'how uncommon' crimes 40 were among the Hudson River Indians. 'With 41 us', he continued, 'a watchful police is 42 supported, and crimes are more frequent than 43 among them.' Not recognizing the sanctioning 44 functions performed by means that he had 45 himself described, he was baffled to understand 46 how there could be so little crime 'where there 47 is no regard paid to the administration of 541 Submissions by Mr. Grant 1 justice.' A lawyer himself, Van der Donck 2 could recognize the due process only when it 3 appeared in the forms to which he had been 4 trained. That fault was shared by other 5 Europeans contemporary with himself and in 6 following generations." 7 8 The commission goes on to say: 9 10 "Regardless of whether the laws of aboriginal 11 societies conformed to the preconceptions of 12 Europeans, there were laws and a system of 13 sanctions that allowed aboriginal people to 14 function in a coherent and orderly fashion. 15 Aboriginal people could be hardly be 16 characterized, as Jenness implied, as living in 17 anarchy or having a system of 'social 18 outlawry'." 19 20 And then going back he refers to Jennings: 21 22 "Indian tribes were internally more peaceful 23 than European nations partly because of the 24 kin-oriented sanctions pervading Indian 25 villages, as distinct from the greater 26 impersonality of European social relationships, 27 and partly because Indian custom defined and 28 punished fewer crimes than European law ..." 29 30 Then I will not read, although he gives examples 31 in the next paragraph of the contrast between the two. 32 Then he says: 33 34 "This does not imply ..", 35 36 And this is not sort of a romanticized view of the 37 world, which unfortunately it appears in someplaces in 38 the judgment the trial judge thought we were arguing 39 for. And it says: 40 41 "This does not imply that Aboriginal societies 42 were free of crime or criminal activity. There 43 were laws against certain types of behaviour 44 and, inevitably, as with all laws, they would 45 be broken." 46 47 Mr. Rush referred you in the fourteen examples to, 542 Submissions by Mr. Grant 1 I believe, two examples where the law was actually 2 broken of access. 3 4 "However, the types of behaviours that were 5 considered objectionable or aberrant might have 6 been different from those identified by 7 European societies. The manner in which 8 Aboriginal people imposed sanctions was 9 different too. This was to be expected, after 10 all, since they sprang from a whole different 11 world which had evolved entirely different 12 societies from those in Europe. 13 Social control rested in kinship. Among 14 native cultures the means of control was in 15 close contact of their members. The sanctions 16 of ridicule, avoidance and shame were effective 17 means to check those deviants who fell into 18 behavioural lapses. Internal, unofficial 19 communication was the process. 20 These types of sanctions suited most 21 misbehaviours within a small, tightly knit 22 group of people who often were family members. 23 However, some crimes required more serious 24 sanctions than mere scolding or ridicule. As 25 in European societies, some crimes required the 26 complete removal of the criminal from society. 27 In most aboriginal societies this meant 28 banishment. In such close, family-oriented 29 societies, where survival depended upon 30 communal cooperation, such sanctions were 31 considered a humane alternative to death, no 32 matter how traumatic they may have been to the 33 offender." 34 35 And then he refers to the -- the quote at the 36 bottom is to Trigger, who studied the Huron history, 37 and going over to page 26, after referring again to 38 Trigger, I emphasize this, because I say the evidence 39 establishes this in this case. 40 41 "Instead of bloody and disruptive feuds within 42 the society, aboriginal people settled upon a 43 system of atonement and reparation by the 44 offender to the victim. The payment would be 45 borne by all members of the offender's clan or 46 family and it would be shared by all members of 47 the victim's clan or family. Only if such 543 Submissions by Mr. Grant 1 payment were refused did the clan have the 2 right to resort to violence or arms." 3 4 And skipping a paragraph. 5 6 "By making criminal activity a collective 7 responsibility of a tribe, village or a clan, 8 Aboriginal people were able to impose law and 9 order without resorting to capital punishment 10 or other harsh forms of sanctions. The 11 philosophy in Aboriginal society was for all 12 parties to acknowledge the crime, allow for 13 some process of atonement, and install a system 14 of reparation or compensation in order to 15 restore harmony to the community. 16 But even more to the point, Europeans and 17 Aboriginal people viewed the same crime of 18 murder in different ways. The two groups 19 perceived the other's system of justice as 20 inconsistent, incoherent and incomprehensible." 21 22 And then he quotes. And I would ask you just to 23 highlight. I'm not going to take the time to take you 24 through the Jennings' example of murder, because we'll 25 come to it in terms of the evidence in this case, that 26 is the killing. And then at the bottom after page 27 27 after referring to Jennings' description from the 28 invasion of America he says: 29 30 "The underlying philosophy in Aboriginal 31 societies in dealing with crime was the 32 resolution of disputes, the healing of wounds 33 and the restoration of social harmony." 34 35 And, my lords, I must say that is the evidence 36 that was established, I say, overwhelmingly in this 37 case that that was how the Gitksan and Wet'suwet'en 38 dealt with matters. 39 40 "It might mean an expression of regret for the 41 injury done by the offender or by members of 42 the offender's clan. It might mean the 43 presentation of gifts or payment of some kind. 44 It might even mean the forfeiture of the 45 offender's life. But the matter was considered 46 finished once the offence was recognized and 47 dealt with by both the offender and the 1 2 3 4 5 6 7 544 Submissions by Mr. Grant offended. Atonement and the restoration of harmony were the goals - not punishment." And if you go to page 51 of that extract, he talks about a historical overview, and he talks about the inability to understand aboriginal laws. At page 51, the first full paragraph: 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 "We appreciate that it is difficult to define It's in the same tab, my lords. There is another brown sheet. I don't have the brown sheet. HUTCHEON, J.A.: I have it. Yes. Thank you. MR. GRANT: Page 51. "We appreciate that it is difficult to define aboriginal or customary or traditional law. In its broadest application, customary law includes three different subjects: specific rules that prescribe proper behaviour in a community; observable regularities in everyday human behaviour; and definable approaches to instances of dispute. However, it is difficult to be precise about what constitutes a law or a legal system in an aboriginal world that does not employ such fixed concepts. A few illustrations should demonstrate, however, how a legal system operated in pre-contact aboriginal Manitoba and why such cultural bases must be a part of our thinking in today's Manitoba." And I just take you to the next page, 52, where he refers to our friend Daniel Harmon who was travelling through Manitoba in the early 19th century as well. And Harmon said: "These traditional methods of social control served the same purpose as our modern criminal justice system." That's the Royal Commission saying that. "Fur trader Daniel Harmon discovered when he visited southern Manitoba in the early 19th century that: 545 Submissions by Mr. Grant 1 'It is a common thing among all of the Natives, 2 for an offender to offer property in 3 satisfaction for an injury, and when this is 4 accepted by the injured party, contention 5 between them entirely ceases. Even murder is, 6 sometimes, in this way atoned for; but not 7 commonly. In ordinary cases, nothing but the 8 death of the murderer, or of some of his near 9 relatives, will satisfy the desire for 10 revenge.'" 11 12 What I am saying there, my lords, is that when I 13 review with you the evidence of what has happened -- 14 what happened before the trial judge here, you will 15 see similar components. It's a very difficult task. 16 It's one reason I do want to come back at the 17 conclusion of this to your lordship Mr. Justice 18 Wallace's question, "Well, is that not just a practice 19 and not a law?" Because it's a question here of going 20 back to some of those points raised last week with Mr. 21 Jackson about the nature of the right. 22 I'll take you to paragraph 408 of the factum. 23 The view of the trial judge, that aboriginal societies 24 existed in a "legal and jurisdictional vacuum", should 25 be contrasted with that expressed by Llewelyn and 26 Hoebel, who in one of the classics of modern 27 jurisprudence and anthropology, the Cheyenne Way, 28 demonstrated the sophistication of Cheyenne law and 29 legal process. Writing some twenty years later Hoebel 30 summarized their findings. 31 32 "As an operating system, Cheyenne law is 33 remarkable for the degree of juristic skill 34 that is manifested in it. By juristic skill we 35 mean the creation and utilization of legal 36 forms and processes that efficiently and 37 effectively solve the problems posed to the law 38 and in such a way that the basic values and 39 purposes of the society are realized and not 40 frustrated by rigid legalism. Juristic skill 41 implies the ability to define relations between 42 persons, to allocate authority, and to clear up 43 conflicts of interest (trouble cases) in ways 44 that effectively reduce internal social 45 tensions and promote individual well-being and 46 the maintenance of the group as a group. We 47 have commented on this outstanding quality of 546 Submissions by Mr. Grant 1 the Cheyenne ..." 2 3 And he is talking here about pre-contact Cheyenne. 4 5 "... it is not merely that we find neat juristic 6 work. It is that the generality of the 7 Cheyennes, not alone the 'lawyers' or the 8 'great lawyers' among them ... worked out their 9 nice cases with an intuitive juristic precision 10 which among us marks a judge as good; that the 11 generality among them produced indeed a large 12 percentage of work on a level of which our 13 rarer and greater jurists could be proud." 14 15 It is submitted that, contrary to the findings of 16 the trial judge, the evidence that I will review with 17 you below demonstrates that the Gitksan and 18 Wet'suwet'en maintained a pre-existing legal system 19 which, as with the Cheyennes, "defined relations 20 between persons, allocated authority and cleared up 21 conflicts of interests in ways that effectively 22 reduced internal social tensions and promoted 23 individual well-being and the maintenance of the 24 group". 25 The trial judge wrote: 26 27 "I do not accept the ancestors 'on the ground' 28 behaved as they did because of 'institutions'. 29 Rather I find they more likely acted as they 30 did because of survival instincts which varied 31 from village to village." 32 33 What do these terms mean, my lords? The 34 definitions of "institution" are: 35 36 "The giving of form or order to a thing; orderly 37 arrangement; regulation. 38 An established law, custom, usage, practice, 39 organization, or other element in the political 40 or social life of a people." 41 42 An "instinct", by contrast, is: 43 44 "An inate propensity in organized beings (esp. 45 in the lower animals), varying with the 46 species, and manifesting itself in acts which 47 appear to be rational, but are performed 547 Submissions by Mr. Grant 1 without conscious adaptation of means to ends." 2 3 When the trial judge, without citing any evidence, 4 referred to supposed variations and practice between 5 villages, he was pointing to culture, not to instinct. 6 And maybe, my lords, he was thinking back to what he 7 had said about belief and not facts. An inate 8 propensity would presumably be expressed no matter 9 what village one lived in. 10 The simple fact is that people did not build 11 villages, make tools, clothes and weapons, compose 12 songs and dances, design crests, raise poles, practice 13 feastings, engage in trade or war, make peace, or own 14 and inherit titles of lands, on the basis of instinct. 15 Rather, the means for creating, maintaining and 16 transmitting all these features of economic, 17 political, social, cultural and legal life are 18 institutions. On the evidence, the Gitksan and 19 Wet'suwet'en have well established institutions for 20 doing all of these things. 21 I would like to take you -- 22 TAGGART, J.A.: You would like to take me to lunch? 23 MR. GRANT: Depends who is buying, My Lord. 24 TAGGART, J.A.: 2 o'clock. 25 THE REGISTRAR: Order in Court. 26 27 NOON RECESS 28 29 I HEREBY CERTIFY THE FOREGOING TO 30 BE A TRUE AND ACCURATE TRANSCRIPT 31 OF THE PROCEEDINGS TRANSCRIBED TO 32 THE BEST OF MY SKILL AND ABILITY. 33 34 35 3 6 LORI OXLEY 37 OFFICIAL REPORTER 38 UNITED REPORTING SERVICE LTD. 39 40 41 42 43 44 45 46 47 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 47 548 Submissions by Mr. Grant (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS) THE REGISTRAR: Order in Court. TAGGART, J.A.: Yes, Mr. Grant. MR. GRANT: Thank you, my lord. Before proceeding, I would like to just - over the lunch hour I had a chance to look at the trial judge's reasons and at page 204 regarding the question of Mr. Justice Lambert regarding the Babine Lake people and the Wet'suwet'en, he states, after referring to them and to Dr. Ray, that: "There is no reason to believe the neighbouring Indians of the territory had any lesser degree of social organization at the same time." So, he dealt with the groups effectively at the same level of social organization and found that both the Babine and the Wet'suwet'en - that doesn't take away from the fact that they had a distinctive territory which I showed you before the break. LAMBERT, J.A.: To the extent that rights means rights under a system of organization that are recognized by other people, the evidence of the neighbours may be more powerful evidence of rights than the evidence of the people themselves. MR. GRANT: It certainly goes to that very issue of the recognition of the rights by the neighbours. LAMBERT, J.A.: So, it is important I would suppose to know who the neighbours are, and what testimony relates to the recognition of those rights. It becomes more complicated when I now come to realize rather belatedly that the Wet'suwet'en who are making these claims have as neighbours other Wet'suwet'en who are people who would be recognized in those rights and the same for the Gitksan. MR. GRANT: Yes. In the case of the Gitksan, Solomon Marsden whose evidence you referred to, and Glen Williams, were both Gitksan chiefs of Kitwancool. Neither of them were their house groups or neither of them were part of the claim, and they confirmed the boundary and the reputation of the boundary as shown on the map. In the case of the Babine Wet'suwet'en, the Babine people, to my recollection there were - well, I should wait and check, because there certainly were witnesses who presently reside at Babine, and 549 Submissions by Mr. Grant 1 they were witnesses on the territory around Bear 2 Lake. These witnesses, some of them to my 3 recollection, were actually Gitksan by their 4 genealogy, but they lived at Babine. This is, of 5 course, in contemporary times. 6 LAMBERT, J.A.: By at Babine, you mean at Babine Lake? 7 MR. GRANT: At Babine Lake, yes, yes. 8 I would like to take your lordships now to return to 9 the factum, and I would say, my lords, that in 10 dealing with reputation and territory, we'll come 11 back to that point in terms of what you said as 12 significance of that evidence. 13 LAMBERT, J.A.: Yes. 14 MR. GRANT: And I refer here to paragraph 414 of the factum 15 which I have cited to you, and before going to the 16 Hudson's Bay documents, I would like to move you 17 into one part of the Appendix, and this is with 18 respect to an oral history, and this oral history on 19 the evidence even found by the trial judge and 20 accepted by him is an oral history dating to 3500 21 years ago in the area of Temlaham, and at tab 414 of 22 your reference Book 9, is a record of the Madik 23 adawk, and I refer to it. This is an extract from 24 appendix (C), and the validity or oral history will 25 be dealt with in another part of our argument, but 26 it is a summary of the Madiik adaawk, and I would 27 just like to refer you to that. It was just put 28 into your reference books at the noon hour. 29 LAMBERT, J. A.: Tab 414? 30 MR. GRANT: Yes, 414, my lord. 31 LAMBERT, J. A.: Thank you. 32 MR. GRANT: And this is an extract from our factum appendix. 33 At paragraph thirteen, I refer to the Temlaham. 34 Just so you are aware of where we are talking of, we 35 are talking just in this area here just downstream 36 of Hazelton, right in the central area and the 37 evidence established that - you see a small area 38 there, the territory that is square, and there is a 39 mountain in behind here. That is the mountain known 40 as Stekyawden that you will see in the adaawk, or 41 the history, and the events that occur are on both 42 sides of the Skeena River there; the village being 43 on the north side and the events that happened on 44 the south, and the oral history describes that: 45 46 "Temlaham once more was a place of peace and 47 plenty; of wholesome work to provide for the 550 Submissions by Mr. Grant 1 needs of the people; of ample time for 2 recreation and social contacts. The years were 3 filled with activities. In the springtime came 4 the work of preparing the traps with which they 5 caught salmon." 6 7 Now, why this is bolded is to indicate to you 8 aspects of the social organization dated 3500 years 9 ago. 10 11 "Throughout the summer the silvery horde passed 12 up the river and the people took their toll, 13 curing the fish and storing it against the 14 winter's need." 15 16 And the description goes on, and other aspects 17 are shown. If you go four paragraphs down on page 18 five: 19 20 "Under the bright warmth of the September sun 21 the maidens learned the dances; the dance of 22 greeting; the dance of welcome; the dance of 23 the chief. As some practised the graceful 24 postures others perfected themselves in the 25 songs and the chants." 26 27 And then if you go further down, two paragraphs 28 further: 29 30 "Many years passed. Temlaham was a prosperous 31 town. Ranging for many miles along the banks 32 of the Skeena River, the town had been many 33 streets running parallel to the river. The 34 place of honour was the river. Here dwelt the 35 chiefs. Here in a place called An-Gud-Oon--the 36 steep place on the river bank where a man is 37 pulled up with the right hand of a friend-dwelt 38 Neas Hiwas, titular ruler of the city. Close 39 by his house lived his five brothers, also 40 chiefs, whose ranks were only less than his 41 own. Their houses faced south across the 42 river." 43 44 The narrative goes on then to describe what 45 happened as a result of the girls at the lake across 46 the river playing with these fish bones, and then 47 they describe on page six, and I'll come back to it 551 Submissions by Mr. Grant 1 for dating, the destruction and the actual landslide 2 which was dated independently at 3500 years BP, but 3 for the purpose of my argument here, I'll take you 4 to page seven in which it is set out, after that 5 happened: 6 7 "In due course Neas Hiwas called a 8 council. Many things had to be done. New 9 chiefs had to be raised up in the place of 10 those who had been slain. New laws governing 11 the proper training of children had to be made. 12 In that council Neas Hiwas recalled to their 13 memory the fit of the goat crown. That was a 14 symbol of a tragedy similar to the vengeance of 15 Medek. 'From this day,' he announced, 'I take 16 as my head-dress the head of Medek, the grizzly 17 bear. It is the law that when men die in a 18 disaster those who follow after them have the 19 right to take to themselves the name of the 20 destroyer. From this day on I take the name of 21 Medek. It shall be the crest of my totem'." 22 23 And, of course, Mr. Rush showed you the other 24 day the Madiik crest and a number of the totems. 25 Now, the significance of this is that in this 26 narrative recorded in 1936 over several months by 27 Will Robinson, Walter Wright narrated it to him, and 28 it is the whole story of the Madiik and the wars of 29 Madiik - this is just one small portion of it - that 30 you see certain elements of the social organization 31 of the Gitksan, and this is the one adaawk, the oral 32 history that was dated. 33 If you go to the Hudson's Bay documents, I 34 refer you to paragraph 416, where we quote in the 35 factum itself, where we have quoted the trial judge, 36 and he says: 37 38 "I accept the opinion of Professor Ray that the 39 minimum social organization described by trader 40 Brown at Babine lake in the 1820's could not 41 have been borrowed or developed just since 42 contact." 43 44 While the trial judge was correct in 45 recognizing that the appellants' social organization 46 could not have arisen suddenly at contact, he 47 nevertheless erred in three respects: Firstly, in 552 Submissions by Mr. Grant 1 Professor Ray's opinion, Brown was describing an 2 elaborate social organization, not a "minimal" one. 3 And just a note at page 202 of the reasons, the 4 trial judge found that it was a rudimentary system. 5 Second, in Professor Ray's opinion, that elaborate 6 social organization, including land ownership, could 7 not have arisen in the 40 years before contact, but 8 must have existed earlier; and thirdly, as the trial 9 judge elsewhere acknowledges, Brown's observations 10 were not confined to Babine Lake, but included 11 direct contact with both the Gitksan and 12 Wet'suwet'en in their territories. And that is at 13 pages 141 and 142. 14 Now, Professor Ray's evidence was not, as the 15 trial judge says, that Brown described a "minimal 16 social organization" - and I referred to some of 17 what Professor Ray stated, and I refer you to tab 18 418 to take as an example, because this where 19 Professor Ray both on direct, cross-examination and 20 re-examination is very clear what he is describing. 21 At the first entry at tab 418, my lords: 22 23 "The problem -- the way the question was put, I 24 consider the question too narrow. The problem 25 is that it's well-known that the coastal fur 26 trade, until well into the early part of the 27 19th century, was predominantly oriented to the 28 sea-otter. That coastal inland furs become 29 important only at the tail end of the maritime 30 fur trade, and given that fact, it seems to me 31 that I would argue that the coastal fur trade 32 had a small impact on this area prior to 1800, 33 and I doubt very much sufficient time had 34 lapsed for the whole elaborate social-political 35 territorial feasting system that we've seen in 36 place, to have been put in place in such a 37 short period of time. And in fact, even if we 38 allow the alternate point of view and say, 39 well, since the maritime fur trade began, I 40 would still submit that even 40 years is 41 probably premature or is not long enough, given 42 what we are talking about. We are not just 43 talking about little cultural details; the 44 adoption of a pot or a gun or a knife. We are 45 talking about fundamental social-political 46 organization.". 47 553 Submissions by Mr. Grant 1 And I refer you to his cross-examination by Mr. 2 Willms in the next reference, and I just ask that 3 you note. I will not take you to each of those 4 three references. 5 We have already explained as I submit back in 6 the factum at paragraph 419 that the Gitksan and 7 Wet'suwet'en were not merely villagers or peoples or 8 nations, but evidence of the operation of 9 institutions, including language, kinship, social 10 and political rank and authority, inheritance of 11 titles and land, funeral customs, feasting, and 12 trade. It is significant that every one of these 13 institutions involved persons from more than one 14 village, so that the trial judge's reference to 15 "survival instincts which varied from village to 16 village" can be seen to be doubly mistaken. 17 Nor was this the only evidence from the Bay 18 records of institutionalized political authority. 19 Professor Ray characterized gift exchange with the 20 chiefs as a means of establishing or cementing 21 trading relationships between Indian groups and 22 between the Indians and the Hudson's Bay Company. 23 Clearly chiefs had an institutionalized authority 24 which was recognized both by other Indians and by 25 the Bay traders. 26 From the examination of Dr. Ray, we have set 27 out what his evidence is. He says, and I just will 28 take you to the second paragraph in the factum 29 itself at page 190. 30 31 "What is interesting about this [Gitksan 32 and Wet'suwet'en] area is it is clear from 33 Brown's account that there are exchange 34 ceremonies going on here as you would expect. 35 He even describes one in the Gitksan territory - 36 not between the company and him but between 37 other natives. But he also does send presents. 38 --But the term trading captain and lieutenants 39 does not appear in this literature." 40 41 And you have already heard that reference and 42 seen that he has chiefs and the objective is to get 43 them on his side. And he testified that the 44 economic authority of the chiefs as reflected in the 45 fact that chiefs or "nobles" were the ultimate 46 recipients of most of the furs taken from their 47 lands. 554 Submissions by Mr. Grant 1 Taking you over to paragraph 422 Brown gives a 2 detailed account of a nax nox dance performance by 3 the Gitksan chief Quo Em. And if I can just take 4 you to that tab, my lords, at 422, and take you to 5 Brown's own words which I have taken the liberty of 6 transcribing to make it easier, halfway down the 7 first page of the transcription. Now, Quo em as you 8 may recall is Quo Em, one of the plaintiffs in this 9 action today. He describes when he comes to the 10 village of Quo Im starts: 11 12 "Found Quo Em nearly in his birthday suit. He 13 made a long harangue to us of his poverty etc. 14 however sometime after he went out and called 15 his young men into another lodge where I 16 understood he was going to dance - after an 17 hour had been expended in dressing himself and 18 the rest of the party he made his appearance 19 dressed up with a number of trinkets, and in 20 particular with a very fine plaid or blanket 21 made out of the mountain sheep's wool - the 22 colours of it were good and the figures similar 23 to those on some of the Chin nock hats with a 24 fringe of about 8 inches drop of fine wool very 25 neatly plaited. His head was covered with a 26 most enormous load of hair with different 27 colours - and his lower parts with a very 28 fantastic - it is unreadable in the 29 transcription - and pair of leggings. He was 30 accompanied by several others one of whom had a 31 plaid nearly the same as his own in size and 32 colour, but was made of cotton instead of wool. 33 Another had a sort of blue grey coat with a brace 34 of pistols stuck in his belt. But none of the 35 party danced except Quo Em himself - in the 36 course of his evolutions he produced a false 37 face and a head of a monstrous appearance which 38 he managed so dextrously by bending his neck 39 and hiding his head with his plaid and 40 (unreadable) of hair and placing this false 41 head in its stead that a person unacquainted 42 with a thing of the kind would be apt to 43 conclude that it really was his own head. When 44 thus equipped he frequently placed himself in a 45 threatening position before me to try I suppose 46 what effect it would have. The dance being 47 over one of his followers presented me with 555 Submissions by Mr. Grant 1 sixteen prime martens, in return for which I 2 gave him a small moose skin." 3 4 He goes on to describe what he gave him. 5 And then going to page three of the 6 transcription, he says: 7 8 "I made a trial to trade salmon to serve me to 9 the next village below, but was unable without 10 paying ten times the price of them, and even 11 then they would demand more. These people are 12 so accustomed to the irregular trade of the 13 Indians from the coast that it is hardly 14 possible to deal with them. This being the 15 case and finding that no furs worth mentioning 16 are to be produced amongst them I have made up 17 my mind to return from here in the morning." 18 19 That description of that nax nox performance 20 which is a special ceremony of the chiefs performed 21 at pole raising feasts and at headstone feasts today 22 is parallel to the description the chiefs gave today 23 of very similar performances, different type of 24 performance, but in any event each chief has his own 25 nax nox. 26 Now, if I go to paragraph 424, and I would like 27 to take you to this, and this is in the context of 28 what Jenness says and is quoted in the Royal 29 Commission Report of what I referred you to this 30 morning. Dr. Ray says: " referred to the feast 31 as an institution for peace-making", and he said: 32 33 "These people, like anyone else, had their 34 internal conflicts and they had their problems. 35 It's clear from these accounts that we have given 36 here that murders took place from time to time, 37 and given the nature of the society, it's 38 common of societies organized in this fashion, 39 blood feuding or blood revenge was one of the 40 options for dealing with that. The alternative 41 option was ...to hold a feast to resolve the 42 differences peacefully. And we have seen that 43 happen here. There was a system ...in place to 44 resolve conflict, to avoid the system careening 45 out of control... The chiefs of greatest 46 respect were the peacemakers... So it's clear 47 that all these upsets would occur, as you would 556 Submissions by Mr. Grant 1 except in any human society, they also valued 2 peaceful relationships rather than warfare 3 within and amongst themselves. So it could be 4 upset ...if you allowed these blood feuds to go 5 on, but in the cases that we have seen they 6 didn't. So the answer to your question is it 7 certainly was not a system without internal 8 conflict, but it was also a system that had a 9 way of resolving that internal conflict." 10 11 And if you go to the next page in the factum, 12 Brown himself talks about a great feast: 13 14 "...and besides the Babine Tribe, all the 15 principal Indians who inhabit the country 16 between there and the seacoast to be assembled 17 on purpose to make a general Peace, at which 18 they particularly wish us to be present. Those 19 Indians who are in the habit of trading with 20 them will be there also, we will have an 21 opportunity of ascertaining what will be the 22 best method of putting a stop to their 23 traffic." 24 25 And he is referring there to the question of 26 the trade from the coast to the interior, and he 27 goes on in that report to describe whether they 28 should be there themselves or whether they should 29 send gifts, whether there is a risk to them going or 30 not. That is to the traders. Clearly here Brown 31 himself in 1823 shortly after his arrival recognized 32 that there were methods for the different aboriginal 33 nations to make peace between themselves, and, of 34 course, this was important and significant in the 35 context of the trade that he was trying to sort of 36 bite into the trade from the coast. 37 In the Fort Kilmaurs Post Journal in October 38 and November 1825 - I'm in the factum still - there 39 is an account of a Wet'suwet'en feast to which the 40 Babine and the Gitksan were also invited. And I 41 would like to, your lordships, take you to that. 42 And it is at tab 426, the second page in. 43 This is Friday, the 21st of October 1825, and Brown 44 writes, and its words are highlighted in the margin: 45 46 "In the evening Houchititukic & two indians 47 from Simpson River arrived from below. The two 557 Submissions by Mr. Grant 1 latters have not ". 2 3 Sorry, I read this all once and it was fine. 4 5 " spoken to. They went immediately to 6 Casspin's Tent whom they are come to invite to 7 Quiltno's Feast, while I hope will not take 8 place immediately as Casspin and several 9 Indians of this place will be foregoing which 10 will be very injurious to the Fall hunts, if I 11 cannot prevail upon them to remain." 12 13 Then, at the bottom he refers to: 14 15 "Casspin has not as yet decided whether he will 16 go to the feast or not. I have not seen him 17 since the day before yesterday." 18 19 Going to the next page, on Sunday, the 23rd: 20 21 "I had a long talk with Casspin to prevent him 22 from going to Guiltno's feast, but he seemed 23 determined to go. I have done all my 24 endeavours to prevent him as we will lose his 25 fall hunt & that of several other Indians who 26 will follow him." 27 28 That is on the Sunday. 29 On Tuesday, the 25th in the afternoon, the next 30 page over, my lords, it is - I'm following where it 31 is bolded and dark in the margin: 32 33 "In the afternoon, Casspin, Squee, Atclys, 34 Nistecfrap, Clahmah & Chinzrollah left for 35 Quiltno's feast. Casspin says he will be 36 absent twenty days. The five Indians who are 37 gone with Casspin are no great hunters. I 38 believe the best have remained from whom I 39 expect a good Fall hunt." 40 41 And then on the next page, Friday, the 11th, and 42 this isn't all sequential; it is just the relevant 43 pages: 44 45 "In the afternoon, Casspin" 46 47 And he lists the others - 558 Submissions by Mr. Grant 1 " arrived from Simpsons River. It seems that 2 everything went along well at the feast. The 3 different tribes who met there departed good 4 friends. The Indians of Simpsons River must 5 have had a good lot of furs as the Indians 6 below and the few that were from this 7 place have obtained a tolerable quantity of 8 Beaver and other furs. Casspin says that 9 between him and the Indians below they have 250 10 Beaver besides other furs." 11 12 The significance of that report of Brown is 13 that when a feasting occurred - and you'll see this 14 reflected even in the turn of the century with the 15 early missionaries complaining that when a feast 16 occurred nothing else happened. That was the 17 priority, and that demonstrates the significance of 18 the feast. 19 I refer you to the use of feasts and for what 20 is called peace settlements or some of the witnesses 21 called it in Gitksan, feasts. 22 The importance of feasting as a means of 23 keeping peace and settling disputes involving 24 the Gitksan, Wet'suwet'en, and Babine, is 25 apparent in a further account from the Babine 26 Post Journal for 1825 concerning the resolution 27 of a threatened conflict." 28 29 And I would like to take you to that. Again 30 here I have transcribed it at tab 427, this is from 31 Brown's Journal of 1825. On Tuesday, August 30, 32 1825, Brown writes: 33 34 "I am extremely sorry to learn that as 35 Ackooshaw and party entering Niigyap'a lodge on 36 their arrival at the Atnah village - Bugale 37 made a false step, and his gun being cocked it 38 went off when the contents went through the 39 shoulder and arm of Beyeigh - and afterwards 40 the body of Atteccheick, who supposing they 41 were attacking by the Atnah's fired his piece on 42 them and fell down dead, exclaiming he was 43 sorry he had not seen his wife - this 44 accident caused a great bustle in the camp but 45 fortunately nothing further. The deceased was 46 burnt and his bones brought back to his 47 relatives - both the dead and the wounded were 559 Submissions by Mr. Grant 1 Casepin's nephews, who, on hearing the news, 2 was so enraged that he immediately armed 3 himself - met the party and attempted to kill 4 Ackooshaw - but was prevented from those who 5 accompanied him - since which time several 6 presents have been made - but the whole are 7 still in the state of commotion, and mutual 8 dread of each other - which prevents them from 9 killing the few salmon which comes up the river 10 so that I much doubt there will be scarcity." 11 12 Now, I just want to say in the journal appended 13 - I didn't transcribe it all - the dispute is 14 continued to be discussed, and Brown who becomes 15 sick offers to send his assistant, Mr. Ross, to see 16 if he can settle the dispute. Ross returns and his 17 report is set out at the next page. Ross is not 18 needed to settle the dispute. 19 By Mr. Ross's report: 20 21 "It appears that Ackooshaw's Band made a 22 feast lately, and gave considerable Presents to 23 the Principal of Casepin's People, which has in 24 some measure restored tranquillity amongst 25 them, and they are now applying themselves to 26 the working of the Salmon." 27 28 The settlement was as a result of the feast between 29 the parties. 30 Going back to my factum, at paragraph 428, my 31 lords. 32 It is impossible to read the Hudson's Bay 33 records without being aware of the central place 34 feasting occupied in these Indian societies. 35 Enormous effort and resources were expended in 36 putting on and attending feasts. 37 The Brown records alone demonstrate that 38 they had many purposes, including succession - 39 to which Mr. Rush referred - exchange - to which I 40 referred earlier - and peace-making. They drew 41 people from many villages, and even several Indian 42 nations. Other activities frequently gave way when 43 a feast was to be held. 44 And this is something that Brown himself felt 45 frustration about but could do nothing about, and 46 yet the trial judge wrote in the face of this: 47 560 Submissions by Mr. Grant 1 "Brown's reports in the 1820's... hardly 2 mention the feast, particularly as a 3 legislative body." 4 5 The first part of this statement, in the light 6 of scores of reference to the feast in the Bay 7 records is simply wrong. As for the second part, if 8 His Lordship meant that bills were not debated or 9 voted upon, then indeed the feast was not a 10 "legislative body." 11 The appellants made this clear in their opening 12 where we said the feast is not a legislative body. 13 But it is obvious from the preceding references, and 14 those which follow that the feast had a central 15 place in the political, social, economic and legal 16 life of the Gitksan and Wet'suwet'en. 17 Now, I would like to turn to the Institutions 18 of Self-Government within the Gitksan and 19 Wet'suwet'en systems. 20 The appellants submit that the Gitksan and 21 Wet'suwet'en have maintained institutions of 22 self-government, including institutions for 23 resolving disputes within their communities and with 24 other societies. 25 I then refer back to what I have already 26 referred you to in terms of the early documentary 27 records. 28 At paragraph 433 I refer you to the evidence 29 demonstrated that the exercise of jurisdiction in 30 relation to the determination of membership of the 31 House through succession and adoption; maintenance 32 of the House system through amalgamation and 33 division of Houses; regulation of family relations, 34 marriage and divorce; education of House members; 35 harvesting, management and conservation of House 36 territories and resolution of disputes; and the 37 conduct of political and trading relations with 38 other nations and with non-aboriginal governments. 39 Now, my lords, if you look at tab - well, if I 40 take you to page 195, you may want to note in your 41 factum, just for ease of cross-reference, that those 42 subheadings there I have numbered - probably not 43 numbered in your copies - membership is one, 44 maintenance of the House system is two; regulation 45 of family relations is three, and education of House 46 members is four, and the tab under 433 is broken out 47 by those four tabs. 561 Submissions by Mr. Grant 1 And I would just very briefly like to refer 2 you 3 LAMBERT, J. A.: Where is that? 4 MR. GRANT: Sorry, page 195 of the factum. That way you can 5 see the references are subdivided under the tab, but 6 they were not subdivided in the factum by numbers. 7 Now, I would like to refer you to the first 8 page of tab one. This is the opinion report of Miss 9 Harris, Exhibit 854, and I only refer you to that 10 for the question raised by Mr. Justice Hutcheon. 11 This is where she discusses the House population 12 today and historically, and she talks about 13 pre-contact house of less than 25 people would 14 probably have been in danger of extinction. This is 15 well accepted by many others in the field including 16 Cove, Steward, Pfeiffer, and Service. 17 If you go to the third sheet, I would just like 18 to refer to the membership laws through the evidence 19 of Mary McKenzie. At page 377, under sub tab one, 20 after the third brown sheet at page 377. 21 She is asked at line 26: 22 23 "Q What is the importance to the Gitksan of 24 adoption and rules of adoption? 25 A The adoptions is when, as I said before, 26 that a House of a Chief, and is only one 27 chief, and maybe there is - they have 28 brothers but no sisters, so they - the 2 9 House wouldn't be there anymore when the 30 Chief dies, so they have to adopt a lady 31 or girl from another House, sometimes very 32 close to the Chief's House. You see, 33 there is the wil'nat'ahl, I think. So the 34 adoption was taken from there, so the 35 chiefs and the people have to look into 36 these matters, that no House just falls 37 apart with no chiefs there left there 38 anymore. We want that House to be alive 39 all the time the Gitksan people are alive. 40 So this is how we take these adoptions very 41 seriously. And it has to be done in a way 42 that both Houses would agree and they both 43 see why the adoption had to take place, is 44 bringing up the House of a chief. 45 Q Is it always the case that the adoption 46 must be agreed to by the chiefs of the 47 House adopting the person and the chiefs 562 Submissions by Mr. Grant 1 of the House where the person comes from, 2 A It has to be, yes." 3 4 And she them goes on in the marginalized marked 5 portions to describe the adoption and confirms that 6 the adoption has to take place and be confirmed and 7 ratified in the Feast Hall. 8 Now, I would like to take you to - that is one 9 of several examples of the membership being dealt 10 with through the feast. I would like to take you to 11 sub tab 2 in the authorities, the very last 12 reference - I'm sorry the second from the last 13 reference which is the report of Heather Harris and 14 I'm taking you to page 84 of that report. 15 TAGGART, J.A.: Second reference; is it? 16 MR. GRANT: The second last reference, my lord, in tab 2, at 17 page 84 of Heather Harris' report. It is about four 18 pages back from the end of that. Page 84. 19 TAGGART, J.A.: Right. 20 MR. GRANT: This is - Miss Harris' and this whole section, 21 this whole reference you may want to note talks 22 about amalgamation and division, and the effect of 23 disease. At page 84 she talks about amalgamated 24 houses: 25 26 "Amalgamated Houses are usually closely related 27 Houses at least one of which has suffered a 28 severe reduction. Sometimes both Houses were 29 low in numbers. When a small remnant of a 30 House joins a larger relative there are then 31 enough people to protect the property and 32 maintain the traditions of the smaller House. 33 When such an amalgamation took place while the 34 Gitksan still lived in the big houses, the move 35 was clear because it was physical." 36 37 Of course, they are talking the capital "H" is 38 the social unit, and the small "h" is the building. 39 40 " the move was clear because it was physical. 41 The surviving remnant of the dying House moved 42 into their relatives' dwelling and were 43 assigned part of that house. In more recent 44 times the amalgamation of houses usually occurs 45 with the people born into one House using the 46 names of the other House joining the two 47 houses. It will be remembered which names, 563 Submissions by Mr. Grant 1 crests, songs, etc. belonged to which House, 2 leaving open the possibility of future 3 separation, but the people become one family." 4 5 She then gives an example of the: 6 7 " Lax Seel Houses, Delgamuukw and Axgigii'ii, 8 had only men and one childless woman left and 9 their existence was threatened." 10 11 And she is referring there to Lottie Muldoe who was 12 adopted into Axgigii'ii's House, and she proved to 13 be prolific but the men of the related House were 14 dying off so her adopted brother, Albert Tait, took 15 the chief's name of the dying House. And that is 16 all reflected in the genealogy in Exhibit 853 of 17 Delgamuukw. 18 19 "Today, that woman's children and her 20 daughter's children use the names, territories 21 and other properties of both Houses. It is 22 remembered which names belong to which House 23 and theoretically the Houses could regain 24 separate existence if their population grew 25 sufficiently." 26 27 And then she talks about the effect and impact of 28 disease in the early part of the century on the 29 amalgamation of houses. 30 Here I am only referring to this as to how the house 31 system is maintained. The Gitksan and Wet'suwet'en 32 systems are one that are alive in the sense that 33 they can find the references that they can find a 34 method to maintain the house system. 35 In the regulation of family relations, I have 36 referred you to a number of those already or they 37 have been alluded to by Mr. Rush. I would just 38 refer you to the reference to Mary Johnson which is 39 the third after the second brown sheet in after tab 40 3 at page 757 and 758. 41 Here she is talking about her own divorce feast. At 42 line 32: 43 44 "Q I would like to refer you to another 45 Feast, or type of Feast, and that's the 46 Divorce Feast which you referred to 47 earlier when you were talking about your 564 Submissions by Mr. Grant 1 names? 2 A Yeah. 3 Q And you yourself held a Divorce Feast in 4 1977. 5 A Yes. 6 Q Can you tell the court why you held the 7 Divorce Feast? 8 A Yeah. The reason is when things happened 9 like that and those people that done you wrong 10 put all the filth on you, and they put shame on 11 the family crest, and that's the - when you go 12 around, you won't be able to lift your head up, 13 you are so ashamed of what happened, that's why 14 the Divorce Feast is, they call - they call 15 this kind of Feast is bitxw, that's divorce, to 16 be divorced is bitxw." 17 18 And she goes on to describe the feast and who 19 came and the reference to Kiskaast as to her own 20 clan, that is Fire weed. 21 And I just want to point out to you, my lords, 22 that she also describes here that her own 23 grandmother, Hakst, was divorced, and that just for 24 your reference is transcript twelve, page 760. 25 Hakst was born in 1891. So this is a divorce that 26 occurred at the early part of the century she 27 referred to. 28 If I could just take you to the next reference, 29 which is to Dr. Daly at page 195. This is at the 30 very end of tab 3. I'm sorry, my lords. I have 31 just given you the wrong reference. I intended to 32 take you to Joan Ryan's reference in the tab 3. 33 TAGGART, J.A.: I don't think there is one. There isn't one 34 listed. 35 MR. GRANT: There is one listed, my lord. I had it noted, but 36 that's okay. I'll leave that for now. I'll insert 37 that afterwards. 38 WALLACE, J.A.: Tab four. 39 MR. GRANT: I'm sorry, yes. That is where it is listed is in 40 tab four. That is the reference I wish to take you 41 to. This is a question on education of members, and 42 it is actually two pages from the end of this tab. 43 You remember Joan Ryan is the holder of the chief's 44 name, Hananuxw, and she is talking here about her 45 work outside of the community and in the NITEP 46 program. Page 5001 at the very bottom, line 42, she 47 is asked: 565 Submissions by Mr. Grant 1 "Q Can you explain to the court how you see 2 your continuing work with the NITEP 3 program, and the work in fact you've 4 outlined for the court over the years, how 5 do you see that related to your role, your 6 authority as Hanamuxw?" 7 8 And she here explained the authority of the 9 chief and obligations: 10 11 "A One of the requirements of a chief is that 12 you are expected to take care of your 13 people and to improve their lot in life, 14 whatever that may take." 15 16 And she describes what she has done, and down 17 at line 15, she says: 18 19 "I feel that in doing this work I'm also 20 fulfilling one of the historical 21 precedents started by my grandparents that 22 whenever we try to solve problems, and I'm 23 going to have to take you back to the time 24 when the four houses of Gisk'aast - 25 fireweed - were established in Gitsegukla. 26 The four houses of the Gisk'aast are, Xsgogimlax 27 ha, Gwis gyen, Hanamuxw and Wiigyet. 28 THE COURT: Pardon? What was the last one, 29 please? 3 0 MR. JACKSON: Wiigyet. 31 THE COURT: Wiigyet. Thank you. 32 A I'm going to have to change one of those. 33 I'm sorry. I got confused. I was thinking ahead 34 of myself. Guxsan is the other one, not 35 Wiigyet. 36 THE COURT: That's Guxsan as we call it, 37 G-U-X-S-A-N? 38 A M'hm. 3 9 MR. JACKSON: Yes, my lord. 40 A When those four houses met a long 41 time ago when they were conducting 42 their businesses of directing the 43 activities of the people it was 4 4 always Hanamuxw who had to make the 45 announcements for the people, who had 46 to take the messages to the 47 neighbouring tribes. And based on 566 Submissions by Mr. Grant 1 that role of being the spokesperson 2 for Gisk'aast at my village I looked 3 upon my involvement with NITEP as 4 fulfilling that responsibility of 5 being the spokesperson not just for the 6 Gitksan people, but for the Indian people 7 of British Columbia, because when we 8 conducted meetings with B. C. NITEP we 9 found that many of the Indian people in 10 British Columbia had similar needs." 11 12 And this particular reference - and there are 13 others - focus in broader but it focuses on the 14 element of education both internally and externally 15 and the obligations of the people in terms of the 16 chiefs. 17 I just want to say here, my lord, that with 18 respect to this whole concept that - and as Mr. 19 Justice Hutcheon raised the other day with Mr. 20 Rush, at page 372, - the trial judge found that the 21 appellant had developed tribal customs and practices 22 and chiefs marriage an things like that. But what 23 unfortunately he failed to appreciate or disregarded 24 in that evidence is that the chiefs and the clans 25 and the marriage had everything to do with the 26 relationship to the territory. You couldn't have a 27 feast unless they were relating to the territory. 28 The tens of thousands of dollars I referred you to 29 this morning is not symbolic; it is very real, and 30 that these were not primitive people who were 31 focused solely on their villages. They were 32 civilization to make international relations that is 33 with other aboriginal nations and who dealt with 34 trade and who dealt with peace settlements, who had 35 a whole system albeit completely different from ours 36 but as effective as ours. 37 Now, I refer on paragraph 436 of the factum to 38 the evidence that Mr. Rush referred you to yesterday 39 and Friday about the well-articulated concepts of 40 trespass and a range of sanctions to ensure respect 41 for proprietary rights, but the imposition of the 42 sanctions did not take place within the legal matrix 43 familiar to the common law. 44 And we then refer to 437 to an analogy of our 45 system, both the focus and the process of the 46 Gitksan and Wet'suwet'en justice system, in 47 common with many other aboriginal systems, is 567 Submissions by Mr. Grant 1 different. The purpose of invoking sanctions 2 is not the punishment of the offender but the 3 restoration of peace and harmony within the 4 community. In a kinship society collective 5 rights and responsibilities are primary and 6 offences against the law and their resolution 7 involves the kinship groups of both offender and 8 victim. Since restoration of harmony is the 9 goal, there is emphasis on compensation and 10 restitution rather than the isolation of the 11 offender through imprisonment. 12 And I then refer you and quote the reference to 13 the Aboriginal Justice Inquiry in Manitoba to which 14 I have already taken you. 15 Returning now to the Gitksan and 16 Wet'suwet'en laws of trespass, evidence given at 17 trial relating to the imposition of sanctions showed 18 that this took place in the context of rules and a 19 process designed to ensure ongoing peaceful 20 relationships between the kinship group of the 21 trespasser and the House against whom the trespass 22 had been committed. The feast hall and not a court 23 room plays the central role in the process of 24 dispute settlement. 25 And I refer you there - and I'm not going to 26 take your to Dr. Mills' references, Dr. Mills 27 describing the situation of the Wet'suwet'en. I 28 would like to take you instead to paragraph 442. 29 Feasting to compensate for a death resulting from 30 trespass is a potent example of the exercise of 31 jurisdiction among the Gitksan and Wet'suwet'en. 32 The House had the authority to kill a trespasser, a 33 right arising from ownership and governed according 34 to law. 35 There was evidence in the case that in free 36 contact times of course in the last century it was 37 not so uncommon in our own legal system that the 38 death penalty was imposed on a repeated trespasser 39 who trespassed three times after being warned. 40 However, subsequently the House had to 41 publicly explain the trespass in a feast and pay 42 compensation in order for the homicide to be 43 sanctioned by the whole community. 44 And I would like to take you to the Walter 45 Blackwater reference at paragraph 442: 46 47 "What I want to make clear" 568 Submissions by Mr. Grant 1 This is at line six of page 49: 2 3 "THE WITNESS: What I want to make clear is 4 that it passes the ninth cabin ". 5 6 He is talking about the territories, and then 7 he says at line 14: 8 9 "What happened is one of the relatives 10 were sent to go hunting on that area, and 11 one of the Stikine people murdered this 12 person. They went and confronted the 13 Stikine people why did they kill him. I 14 gave him the permission to go hunting on 15 my territory. And when they were 16 confronted, they made a compensation, 17 which is known as Xsiisxw. That's why the 18 boundary is out like this, because of 19 the -- it didn't belong to us to begin 20 with, but because of the murder 21 it was a payment from the Stikine 22 people. Do you know what I am talking 23 about? 24 Q Yes. Thank you very much." 25 And we're talking here about at the top there, 26 this is the Kweese territory - and we'll talking 27 about that - you see that jutting out there sort of 28 overlapping there. That is the area that he is 29 discussing was compensation with the Stikine. 30 If you go to the next paragraph, I would like 31 to refer you to what Solomon Marsden described as 32 Xsiisxw. This is at the first reference. He was 33 asked: 34 35 "Q Do you know of a law where land can be 36 transferred which is referred to as 37 Xsiisxw, and if so, can you explain it? 38 A Xsiisxw is when something is given, when a 39 - when land is given to the person or when 40 - when life is given to the person. These 41 are the - they don't want anything that 42 will wear out right away, like material 43 things. They don't want this for 44 compensation... they are going to give 45 because they want to use this for - for a 46 lifetime. A lifetime thing has to be 47 given. 569 Submissions by Mr. Grant 1 And then further after: 2 3 "Q What is Xsiisxw given for? 4 A This is when a person's life is taken, and 5 it's a serious matter to have to give 6 compensation to the family. And a life 7 has been taken here, and that is what they 8 have to look at. This is why they have to 9 give a life-time thing, like the land, 10 another person they would give because the 11 life of a person has been taken." 12 13 And he goes on and describes how long a person 14 will be taken, the land will be given for. 15 And then at line 16, of page 5958 he says: 16 17 "Q And where - how would he announce the 18 return of the land if that chief who 19 received it was going to give it back? 20 A The chiefs always announce their plans in 21 the Feast House, and they will also 22 announce it too when they are giving this 23 land back. 24 Q Is there a special - at what type of feast 25 would they announce the return of the 26 land? 27 A It is very serious when a life is gone, 28 and this is one of the biggest feasts we 29 have, is when they're having a feast for - 30 when they're having a Funeral Feast. It 31 is one of the serious feasts, and this is 32 where they usually announce when the 33 Xsiisxw will be returned. 34 Q Have you seen - first of all, do you know 35 of an example of a Xsiisxw when land was 36 given to the house of a victim of a 37 killing or a death? 38 A I've seen this happen once about 30 years 39 ago when Ernest Hyzims - one of Ernest 40 Hyzims' children accidentally shot Walter 41 Wesley, and this child, the boy that shot 42 Walter Wesley, was from the House of 43 Simadiiks. What David Wells did - he was 44 the one that held the name Sakum Higookw. 45 They were in the same house as Simadiiks, and he 46 held the name Sakum Higookw. And what he 47 did is he gave a part of a territory to - 570 Submissions by Mr. Grant 1 - is he had papers out, and he even sent 2 those papers to Ottawa." 3 4 Now, this is described as well as by all of 5 Ryan in her evidence in Stanley Williams. In 1958 6 there was an accident death and what he is talking 7 about here is Eagle Territory, in this area here and 8 in the small map you see - it is not marked on this 9 map because it was too small. One small mountain 10 peak was given by Eagles to Walter Wesley's house, a 11 fraud house and that map - it is not in your map 12 atlas, my lords. It is in one of the sketch maps 13 that was in evidence, but that shows the very small 14 mountain that was given in compensation and a number 15 of witnesses described that. 16 The significance there is that the death was 17 accidental. It was not an intentional killing, but 18 within the Gitksan law, there is no accident, and 19 you'll see that as we look at one or two other 20 examples briefly. 21 I take to Emma Michell within the same 22 reference, and I think what I should do is just 23 summarize for you or ask your lordships, first of 24 all, to refer to Dr. Daly's report in the same 25 evidence, at page 239, and I would just ask if you 26 would make a note to make reference to this because 27 he summarizes the Xsiisxw settlement in the, from 28 pages 239 to 244. I just ask if you'll make a note 29 of it. I won't take you through it. 30 In Emma Michell's case which is at the next 31 reference, she describes another killing, Sa'on. 32 This occurred when her mother was a young 33 person. Her mother was born in 1870 and Emma was 34 born in 1908, and she talks about this death, and 35 then the compensation at pages 20 and 21. I have 36 included the genealogy there for reference to her 37 mother's life. 38 Taking you to the last reference, Stanley 39 Williams now. This evidence was given on April 13, 40 1988, and only a few weeks before that there was 41 another compensation feast. It was a motor vehicle 42 accident, and he was asked: 43 44 "Q Did you attend Joshua Campbell's funeral 45 feast that occurred a few weeks ago? 46 A I was there. 47 Q Was there a cleansing that occurred at 571 Submissions by Mr. Grant 1 that feast? 2 A Oh, it - this is a different feast that 3 was - that occurred at that - at Joshua 4 Campbell's feast. It's different from what 5 I was talking about. This feast that 6 happened at Josha Campbell's is known as a 7 xsisxw. 8 Q And that was a compensation for death? 9 A What happened was it was an accident. It 10 wasn't planned. It was an accident. What 11 happened was this young man hit this girl, 12 young girl with a car. He didn't do 13 it on purpose. He didn't see this girl on 14 the way and this is why he went forward 15 with his car. This young man could never 16 forget what had happened. He suffered all 17 through these years of what had happened, 18 and he took the life of a young girl by 19 accident, so what they did at this 20 feast " 21 22 The accident occurred some years ago. 23 24 " was his mother and his family put 25 almost $2,000 together and they gave it to 26 the mother of the young girl, and this is 27 what you call a xsiisxw. The - after this 28 happens, this accident should never be 29 mentioned and the parents of the child 30 would feel that it was an accident. 31 Q So, the type of feast that you held 42 32 years ago, those kinds of feasts are held 33 today as well?" 34 35 I would like to say something there about it 36 never been mentioned. You saw that in the 37 Aboriginal Royal Commission Report that that is one 38 of the aspects. Matters are settled and that is the 39 end, and this became very apparent early in the 40 trial, a point made by the former provincial lawyers 41 in their argument. All of Ryan was questioned about 42 a killing in the 1880's which I'll refer you to of 43 Kitwancool Jim. She said there was a feast and it 44 settled, and she said, "I'm not going to talk about 45 it." And she just refused. And she was asked on 46 cross-examination, "So, you don't talk about it any 47 more?" And she said no, and she wouldn't talk about 572 Submissions by Mr. Grant 1 it when questioned. The matter had been settled 2 between those houses. It was wrong under her system 3 for her to speak about it. Now, it was not pressed, 4 and it was not a conflict between the evidentiary 5 rules in court in that case. But what was dealt 6 with clearly on her side was that the rules were 7 that she would not speak of it. 8 I just refer you to - and I won't go to them - 9 I'll just summarize that. In the next two 10 paragraphs you have examples of a settlement of the 11 Nutsenei in paragraph 445. This occurred down at 12 that Goosley territory in the southeast, and the 13 mark that Brown gave, she gave evidence in her 14 commission of a settlement feast relating to that 15 northern territory, and those two examples were of 16 settlements given which resulted in the case of the 17 Nutsenei confirmation of this territory down at the 18 south outside of the area marked by the trial judge 19 as Wet'suwet'en, and that is the territory of Namox 20 that is right here in the southeast area. And then 21 the Skikm Lax Ha area is up at the far north, and 22 that was a settlement feast that she describes 23 before the white men came with the Tsetseut. 24 Moving into the area of the post-contact 25 documents . 26 TAGGART, J.A.: All right. I think we can take a break for 27 about five minutes. 28 MR. GRANT: Thank you, My Lord. 29 THE REGISTRAR: Order in court. Court is adjourned for a 30 brief recess. 31 32 AFTERNOON RECESS 33 34 TAGGART, J.A.: Yes, Mr. Grant. 35 MR. GRANT: Thank you, my lord. 36 I would just like to refer you to one example from 37 447 because it ties into the authority with respect 38 to the territory, and this is the evidence of James 39 Morrison at the very end of the last three pages of 40 tab 447. And I just ask you to note it with 41 reference to paragraph 299 of tab four of our 42 argument. That is where Mr. Rush showed you David 43 Gunanoot wearing his regalia and the blanket with 44 the crest on it. This description by Mr. Morrison 45 is of how at the feast Nii Kyap, David Gunanoot 46 showed his blanket and his crest and tied that to 47 the Tuudaadi Lake area. I just ask you to note and 573 Submissions by Mr. Grant 1 cross reference that. 2 TAGGART, J.A.: Could I have that cross-reference, please. 3 MR. GRANT: Tab four, paragraph 299. That is the photograph 4 of Mr. Gunanoot and the regalia. 5 I would like to now, in terms of the 6 jurisdictional argument, refer you to the last 7 portion of this relating to the post-contact 8 evidence, which we submit demonstrate that even 9 after contact the Gitksan and Wet'suwet'en asserted, 10 and attempted to maintain, institutionalized 11 political authority over their territories and 12 themselves. Now, the trial judge, in addressing the 13 appellants' evidence that their pre-contact systems 14 of jurisdiction continued to operate after British 15 sovereignty, said: 16 17 "Mr. Loring's report ". 18 19 Mr. Loring was the Indian agent from 1890 to 1920 in 20 the area, the first Indian agent bought up there. 21 22 " starting in about 1890, hardly mention the 23 feast, particularly as a legislative body. In 24 fact, one of Loring's principal functions 25 seemed to have been the settlement of disputes, 26 and the evidence strongly suggests that it was 27 he who "governed" the territory. I do not 28 suggest the Indians have not always 29 participated in feasting practices, and I 30 accept that it has played, and still plays, a 31 crucial role in the social organization of 32 these people. I am not persuaded that the 33 feast has ever operated as a legislative 34 institution in the regulation of land." 35 36 The evidence, far from supporting those 37 conclusions, established that the Gitksan and 38 Wet'suwet'en, both within the communities and in 39 relationships with the colonial authorities, 40 continued to operate their own system of 41 jurisdiction, despite the imposition of federal and 42 provincial laws. 43 I would ask you to highlight what was said by 44 this northern-Ontario prosecutor, Mr. Ross, in the 45 paper he has published in the Canadian Native Law 46 Reporter, his point of view from a prosecutor 47 dealing with accused Indians in Northern Ontario. 57 Submiss 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 HUTCHEON, MR. GRANT HUTCHEON, MR. GRANT HUTCHEON, MR. GRANT HUTCHEON, MR. GRANT ions by Mr. Grant He makes this point which Mr. Loring and I say with respect the trial judge might well have pondered: "In our ignorance we have failed to admit the possibility that there might be rules other than ours to which they regularly display allegiance, an allegiance all the more striking because it is exercised in defiance of our insistent pressures to the contrary." And there is no doubt that in the period of time after 1888 in any event, there was strong pressures to the contrary and prohibitions and other restrictions on the Gitksan and the Wet'suwet'en. J.A.: Mr. Grant, could I just take you back to 449 where you are quoting the trial judge. : Yes, my lord. J.A.: That is twice the trial judge has used that word "legislative", and he used it in relation to Mr. Brown's journals, and is he not there using it in a very special way? And I think Mr. Rush referred us the other day to something from Mr. Brown's journal. I think it is at paragraph 397 where Mr. Brown talks about the death of Jack Knight or Jack King and the person that was passing through was hoping to get the, to become chief, etc. : Right. J.A.: At that time, Mr. Rush told us that the settlement of the succession was not done at the feast. It was done before the feast, and it was acknowledged at the feast. : Right. J.A.: Isn't that what the trial judge - I don't know whether it is - isn't that what he is talking about? The legislative function didn't take part there? I don't know whether you call it legislative. That is what he seems to have in mind. : Well, I think it is the problem that the Royal Commission had and that Ross is referring to the trouble and that we tried to warn the judge in the opening is, it is very hard to make these kind of analogies. It is not - it is like Guerin and the Supreme Court of Canada, using this language of legislative may connote those. But, having said that, my lord, in response to your question what Mr. Rush was referring to is that when Ackooshaw went to see if he could take the name, or the new person 57 Submiss 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 HUTCHEON, MR. GRANT HUTCHEON, MR. GRANT HUTCHEON, MR. GRANT HUTCHEON, MR. GRANT ions by Mr. Grant could take the name, it was not determined obviously from what, at least from what he told Brown. All we know is what Brown understood, that he was going to be the taker of the name. He was going down there. J.A.: He was hoping, you mean? : Yes, he was hopeful that he would get the name in Brown's language. Clearly, assuming from that, that this person, that is what he told Brown, the decision as to the successor was not determined. In the evidence, it established that succession, that the successor may be determined in advance of a person's death. This happens on occasion and it is in evidence. It may be decided after the person dies by the other chiefs within the house. That is shown in evidence. J.A.: By the other chiefs; not in the feast, it says . : In the House. What they do is they have, as Mr. Rush I believe explained, at the time of the death there will be two separate feasts. J.A.: Yes? Funeral feast. : I'm sorry. Yes, there is the funeral feast and the headstone feast a year later, but before the funeral feast, two days before is what is called a smoke feast. At that smoke feast, they usually will announce the successor. Okay. It is announced by the House because, first of all, the successor is firstly the House business. But there is evidence that if a House cannot settle on it, if there is a dispute there, they will bring in the other chiefs. Then they will decide, and in fact this happened only within the last ten years, they will decide, and all of them will go to the feast, and say, "This is the person who is going to take the name and be the successor to the territories and the crest, etc. So, the witnesses were asked the question, and I will search the transcript for it, but the question of, "Well, what happens" - I think it was Mr. Joseph - "if the successor is chosen but if no feast is held or if no one came to a feast?" He said, "That is not possible because that is ratified in the feast - and I use that language carefully in the sense that I don't want to make a transposition except to assist. J.A.: I thought Mr. Rush uses "acknowledge"? : It is acknowledged or ratified, it must be ratified in the feast. If there is no feast, then 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 HUTCHEON, MR. GRANT: HUTCHEON, MR. GRANT: MR. GRANT: 576 Submissions by Mr. Grant that person is not acknowledged or ratified within the social organization, within the society. J.A.: But I think going back to the trial judge, I think that is what he meant. He was concentrating on the feast, and he said there was no legislative function, and from what you told me, that seems to be so. Yes, I think that the reference to Brown is possibly to the same. He uses the same language. J.A.: He uses the same language as Brown. Yes, in fact at the beginning of that quote, he talks about Brown's report in the 1820's and Mr. Loring's reports. So, I would have to go back. It may actually be the same reference, the first part of this reference is Brown's reports, 1820. MACFARLANE, J.A.: It is the same page, page 374 of the judgment, both references. One is Brown's Reports and one is the Loring's reports. Yes, it is the same reference. He joins them and we have dealt with them separately. My lord, I have summarized different situations of the feast and I have gone over them in the last section. I have skipped them, but, for example, the evidence, some of which is referred to here and I haven't taken you to it, is that if there is a dispute over territory, where is it settled? It is settled in the feast. That is where both sides raised the issue, and there was a dispute over a fishing site, and I think in that case, it was Haaluus, Buddy Williams, his house raised a feast and they announced in the Feast Hall, this is our fishing site. There was a question of - and again, it is in the references in the last section I have just passed over, my lord, of Ryan describing that there was a fishing site given as a compensation that will be returned in the feast. Within the system, the authority to confirm or pass rights with respect to the land resolved disputes occurs within the feast. I take the language of legislation as a legislative institution is that he may have been expecting some form of parliamentary decision-making which makes sense in the context of what your lordship has said, that is, they decide who the successor is. But, maybe it can be compared in that decision if we are forced to do these comparisons, to something like Royal assents. Parliament can do 577 Submissions by Mr. Grant 1 what it pleases, but if Royal assent isn't signed, 2 we know there isn't a law, and that that is needed, 3 and that that ratification is needed. In the case 4 of the dispute resolution, it may be that it is 5 analogous to the forum we are standing in here, a 6 court forum; both chiefs speak up, other chiefs 7 describe and react to it. The settlements, the 8 compensation, all must occur in feasts; divorce, all 9 of these things have to occur within a feast, 10 adoption or they are not confirmed or they are not 11 accepted, and that is, in that sense that is why the 12 feast operates. It is a combination of many of the 13 kinds of forums that we have here. But it certainly 14 is not a legislature in which the chiefs sit around 15 and discuss in a debating forum what decision they 16 should make. In fact, maybe it is much closer to 17 the reality of the committee system of our 18 Parliament where a lot of the lobbying and 19 organizing occurs behind. By the time the Bill 20 comes to the House, it is known whether it will pass 21 or fail. 22 But I take that language, it is operated as a 23 legislative institution, as a much more formalized 24 sense that he is expecting to see which isn't there 25 to be had. 26 Now, I would like to take you to the first 27 situation in the 1870's. This is the fire of 28 Kitsegukla to which Mr. Rush made mention, and it is 29 paragraph 453. I make reference to that, and in 30 1872 there was an unattended camp fire. I think I 31 should just refer to this because it is referred to 32 in all the documents, but it is summarized 33 accurately here. It was set by the white miners or 34 their down river Indian companions, and they stopped 35 at Kitsegukla, and the fire destroyed the village. 36 The Gitksan chiefs closed the Skeena to navigation. 37 They petitioned the provincial government for 38 compensation. Trutch was the Lieutenant Governor, 39 and he arranged a meeting at Metlakatla of Gitksan 40 chiefs. Dr. Galois's opinion was that he said this 41 meeting was compatible with the Gitksan procedure 42 for ratifying settlements, and Mr. Brody's opinion 43 was, reading all the documents, that the meeting 44 fulfilled the requirements within Gitksan culture 45 for acknowledgement of the offence, compensation for 46 the offence and the securing of an accord lasting 47 into the future through the institutions that the 578 Submissions by Mr. Grant 1 Gitksan believe in, that is to say, feast type 2 events. 3 Here, in accordance with Gitksan law, was a 4 clear settlement of a dispute witnessed, accompanied 5 by demonstrations of power or nax nox, payments and 6 agreement that in future there would back alliance 7 instead of discord. 8 I just refer you to the last two pages in the 9 first - I'm sorry, it is the second reference under 10 453 is the Brody's evidence. After that statement 11 that is quoted there at page 15333, my lords - this 12 is the last page of the Brody - he states at line 13 11: 14 15 "The division of the people into their 16 phratries, the whites on one side, the 17 Kitsegukla on the other. The sharing of power 18 symbols. The whites fire their gun, their 19 power. The Gitksan sing their songs in which 20 is their power. The payment of money by the 21 hosts, who are the whites, after all they 22 invited the people to come. The hosts make a 23 payment to the guests. The ordinary people are 24 there, that is to say, not the chiefs who are 25 specifically identified. They constitute, it 26 seems, as sort of witnesses here, but everybody 27 is paid compensation money, witnessing money, 28 and this is all done with entertainments and 29 affirmations of future mutual support, as it 30 were, affirmation of the terms of the peace 31 that is now brought into play." 32 33 And I have referred you to the - Mr. Rush has 34 already referred you to the polite regalia, the 35 aprons and the headpiece that survived that fire in 36 the photograph there. I'm in the last volume of 37 this tab, my lords, which is reference book ten. 38 And ? 39 HUTCHEON, J.A.: The fire was in 1872? 40 MR. GRANT: The fire was in 1872. 41 I would like to take you to a few of the 42 documents which are referred to at tab 454 in 43 reference book 10, the next book, and at the fourth 44 page in, the third page in we have the petition of 45 Kitsegukla, and they describe the fire, and then 46 they say at the next page: 47 579 Submissions by Mr. Grant 1 "This was neglected by those camped there 2 and the consequence was the total destruction 3 of our village, eleven (11) houses and 13 poles, 4 also 10 canoes. The poles are of great value 5 to us - our loss is very heavy, and thousands 6 of dollars worth of property and years of time 7 having been expended in the building of the 8 houses and the erection of the poles, all of 9 which was entirely destroyed in one hour by the 10 fire." 11 12 And then you turn the page over and you see the 13 signature of a number of chiefs. I just refer you 14 down, the third one down is Mark Cook-Shen, that 15 would be Guxsan, and four from the bottom is 16 Es-covcumlahav. These are plaintiffs in this 17 action, and other chiefs within the Houses. 18 If you go to the next document, there is an 19 extract of a letter from Matthew Teak, and this is 20 interesting, because in the analysis of Mr. Brody 21 you see how he comes to this. Hankin, you see 22 Hankin, he was the storekeeper in Hazelton, and he 23 said he couldn't get his supplies up because they 24 blocked the river. This is entitled: "An Extract 25 of a Letter from Matthew Teak to Mr. Grahame" dated 26 in July 1872, and about the 5th line up where I have 27 marked it in dark, you see: 28 29 "Hankin, after taking an inventory of the 30 property the Indians had lost, held out certain 31 promises which the government would fulfil, 32 which satisfied them, and they allowed them to 33 take his goods pending the arrival of a 34 magistrate to settle 'the matter permanently'." 35 36 So, in other words, Hankin made offers to them 37 on that basis he had his goods taken. Returned. 38 There was a report, the Trutch report which is the 39 second brown sheet into the inquiry, and I would 40 just like to take you to the fourth page in on that 41 report, and this is what one of the chiefs is saying 42 part way down where I have marked it: 43 44 "From my personal knowledge, I cannot give 45 a correct account of the loss of our village, 46 but that our village has stood for generations, 47 a very great number of years, and was the 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 47 580 Submissions by Mr. Grant honour of our forefathers. We therefore take much to heart our loss, not only as a heritage from our forefathers, but the labour and rebuilding expense of calling together many tribes. I cannot say how many hundreds." Now, going two more pages over, these are the statements of the chiefs, half way down the page: "I wish to speak, my brother chiefs have spoken the truth, God gave our forefathers a village and land as God gave you houses and land. The white man has come in our midst and has chosen foolish Indians to work for them and we put the blame accordingly on the white men for the burning of our village." HUTCHEON, MR. GRANT HUTCHEON, MR. GRANT HUTCHEON, MR. GRANT And this continues on in this report. J.A.: I'm sorry. I'm not with you at all. What tab are we under? : I'm at tab 454, the second entry, that would be the second - the first brown sheet, Exhibit 1035-137 at the top, the Trutch report. This is a copy that was an Exhibit and is not very legible. I then quoted to you, my lord, from the third page in, a statement of one of the chiefs. J.A.: I see, yes. : Okay. At the bottom and top of the next page, and then I went to the 7th page quoting from another chief, "I wish to speak ," and I have just given you a few extracts of what they have said. J.A.: I have it now. : Now, if you go to the next reference, the next brown sheet in that same page is the description of this event in the Beynon records, the Barbeau/Beynon records where they did describe this fire by Mark Wiget, and he talks about it and it is interesting what he says. On page five of that reference which is the second page in, this is at the end of it. This is how the Indian perception, the Gitksan perception was: "And Stax danced while all the people of Gitsegukla sang..., and then after this, the officers on the boat said they were going to show the people the way they had of burning places down. So they took their weapons and 581 Submissions by Mr. Grant 1 fired into the shore into a hill and the fire 2 came out from the direction of which they shot. 3 They was all that we saw for this day. 4 The next day the officers came and 5 distributed money amongst us. The foremost 6 chief got $90, some got $80. Four got $90, and 7 some $70 and $60. This was to assist the 8 people to purchase nails and tools." 9 10 So, in fact compensation was paid, and it was a 11 reflection, and in the Trutch Report - I'm not 12 overstating it - Trutch's view was, "Well, you 13 can't stop people from going up the river but since 14 we have had no trouble with you before and since you 15 have had this disaster, we'll help you out." That 16 was the government's perception of what was going 17 on. The Gitksan's perception was this is a 18 settlement, this is a settlement feast, and they 19 accepted that, and that is what Mr. Brody is 20 referring to. 21 I refer to the 1874 incident at page 455. I 22 just would like to refer you back to an incident in 23 1877 that comes within the issue of jurisdiction. 24 That is referred to at paragraph 344 at page 165 of 25 the factum, paragraph 344. 26 TAGGART, J.A.: Paragraph 344? 27 MR. GRANT: Paragraph 344, page 165, in which the Attorney 28 General of the province explicitly in 1877, this is 29 six years after confederation, recognized the 30 existence of Indian territories and trespass laws in 31 the Skeena River district, and instructed a justice 32 of the peace to apply it. 33 34 "Until the Dominion and Provincial 35 Governments have settled the Indian land 36 question it would be ". 37 38 And this is what he said 39 40 " it would be well to uphold the Indian law 41 in the Skeena River district, which regulates 42 the tribal rights of Indians to certain hunting 43 grounds." 44 45 This is the Attorney General of the province in 46 1877 confirming recognition of Indian law at that 4 7 time. 582 Submissions by Mr. Grant 1 The following paragraphs refer to the incident 2 of Youmans' death, and in that case I refer you that 3 in May of 1884 Billy Owens, a Gitanmaax Indian 4 drowned in the Skeena and Youmans' failure on his 5 arrival in Hazelton to report the death, or to offer 6 compensation for it, led to his death at the hands 7 of Youmans' father, and that is referred to in the 8 newspaper reports at the time which are exhibited, 9 and I refer you to tab 456, and just refer you part 10 way down where I bolded it. They're talking in the 11 report from Port Essington on June 16th of 1884 that 12 about Mr. Youmans' ventures, and part way down they 13 say: 14 15 "From this village Mr. Youmans walked home 16 alone, which he reached on the 4th of June. 17 Mr. Youmans did not at once relate the story of 18 Billy Owens' death by drowning, fearing they 19 would take immediate revenge . 20 21 Here is what I emphasize: 22 23 " for he well knew the old Indian law that 24 when accident or death in the pursuit of any 25 enterprise occurred, he who originated it 26 should make compensation with money or its 27 equivalent to the friends of the injured or 28 forfeit his life. 29 Two days after Mr. Youmans' arrival at the 30 Forks an Indian brought the news of the death 31 by drowning near Kit-se-lash. It rapidly 32 spread. The Indians grew excited. Soon the 33 father of the drowned man decided to take the 34 life of Mr. Youmans to be avenged of his son's 35 death." 36 37 And the next reference is on the same, in the 38 same - another paper, but a different report. 39 4 0 "The murder was committed out of revenge 41 for the death of the Indian's son ." 42 43 This is the next page over, my lords. 44 45 " who was drowned in the dangerous canyon of 46 Kitselass while working in the freight canoe of 47 Youmans, who was therefore by Indian law 583 Submissions by Mr. Grant 1 responsible for the young man's death. Poor 2 Youmans had already had his life attempted on 3 the trip up the river about a week ago, but 4 temporarily escaped death. However he was a 5 doomed man, for, disregarding warnings to do 6 otherwise the unhappy trader entered the Forks 7 on Wednesday last without taking precautions 8 for pacifying the relations. He also 9 imprudently concealed the death for two days, 10 which only increased the bad feeling of the 11 people on the subject." 12 13 And this led to Youmans' death. 14 And in the next reference at tab 457 - and I'll 15 take you back to the factum - is Geddum-cal-doe 16 (Gyetmgaldo), head chief at Gitanmaax, wrote the 17 provincial secretary and he said: 18 19 "We wish to lay before you our law in 20 regard to accidents and death that occur in the 21 company with others. It is expected that the 22 survivors shall immediately, or as soon as 23 possible, make known to the friends of the 24 injured or deceased, what has taken place. If 25 this is not done, it is taken as evidence that 26 there has been foul play. 27 The general custom among the Indians is 28 that if anyone calls another to hunt with him 29 to go canoeing, and death occurs, the survivor 30 always makes a present corresponding with his 31 ability, to show his sympathy and goodwill to 32 the friends of the deceased, and to show there 33 was no ill-feeling in the matter." 34 35 Dr. Galois saw in these events: 36 37 "An example of the attempts by the Gitksan to 38 exercise their own customary laws in ...a 39 particular action by a member of the white 40 community, which contravened that law." 41 42 Mr. Brody commented as an anthropologist: 43 44 "Gitksan law required acknowledgment and 45 compensation, and here it's being asked for, 46 and I think probably the thing that's most 47 interesting to me in this passage is reference 584 Submissions by Mr. Grant 1 to Hankin having done it regularly, having been 2 in the habit in the area to follow the Gitksan 3 law of compensation." 4 5 That is in the documents of Hankin, whenever 6 there was anyone injured while employed by Hankin or 7 in any way, he always immediately arranged for 8 compensation. Youmans basically was of a different 9 view of it and just had refused. 10 Now - and I just cross over that to what I 11 described about the incident Mr. Marsden referred to 12 that in 1958, the death of Wesley was immediately 13 compensated under Gitksan law. 14 Now, here we come to the "Skeena Uprising" of 15 1888 in paragraph 460. This really arose out of a 16 dispute between a feast between "Kitwancool Jim" and 17 "Neatsqua", over whether Kamalmuk's son, or Neatsqua 18 himself ought to succeed to the name Hanamuk. 19 Kamalmuk, who blamed Neatsqua for using his powers 20 as a halyt to cause the deaths of one or more of 21 Kamalmuk's sons, shot and killed Neatsqua. 22 And he goes on. What happened quite simply - 23 and the documents referred to in paragraph 460 which 24 I won't take you to, but it is all documented. This 25 is quite simply what happened. A young child of 26 Kamalmuk died. Kamalmuk - and apparently his wife 27 was of the view that this was as a result of shame 28 and power by Neatsqua. Kamalmuk came across 29 Neatsqua on a trail and he killed him, didn't kill 30 him immediately. The older man Neatsqua survived 31 and told them what happened. What happened then is 32 that Neatsqua was from Kitsegukla. Those people 33 came up to Kitwancool where Kamalmuk was, and they 34 came preparing for either killing, revenge killing 35 Kamalmuk or settlement. Kamalmuk - and it is 36 described very vividly - comes out in a grizzly bear 37 skin on all fours in a position of submission and 38 offers to compensate. The compensation occurs. The 39 matter is settled from the Indian perspective, but 40 the provincial government sent a party of special 41 constables, accompanied by Indian Agent Todd, to 42 arrest Kamulmuk. One of the constables shot and 43 killed Kamalmuk. It was debatable whether he 44 thought he was fleeing. Anyway, Kamulmuk stopped 45 and he was shot and killed. This is what provoked 46 the anger and threats of the Gitksan, particularly 47 at Kitwancool. 585 Submissions by Mr. Grant 1 If I could take you to tab 462, the last page 2 which is a report of October 18, 1888, to the 3 council, executive counsel, and starting at page 11, 4 the printed page at the bottom: 5 6 "The Executive, while regretting the 7 action of the Constable in shooting the Indian, 8 have to point out that the circumstances which 9 led to the sending to the Skeena River of the 10 five Constables, as well as the circumstances 11 which gave rise to His Honour's request for the 12 services of "C" Battery, are such as to show 13 that the control of these Indians had passed 14 beyond the power of the Provincial Government. 15 Indeed it cannot be asserted that they have been, 16 at any time, amenable to law and order." 17 18 And they, then - I take you to the next tab 463 19 where the provincial Attorney General writes in his 20 instructions - this is the second page -this is the 21 Attorney General to Roycraft, in July 16, 1888, and 22 I hope it is shown on the bolding about a quarter of 2 3 the way down. 24 25 "You will use your discretion whether or not to 26 investigate by Magistrate's proceedings other 27 homicides which have occurred among the 28 Indians." 29 30 This is the Attorney General speaking in 1888. 31 32 "My view is that they are best let alone 33 in a country in which hitherto only the tribal 34 laws of the Indians have prevailed. I need not 35 point out how just & expedient it will be to 36 use every effort to conciliate the Indians and 37 win their confidence." 38 39 Now, basically I submit, my lord, at paragraph 40 464 that Roycraft's instructions from the provincial 41 Attorney-General are an official acknowledgement 42 similar to what happened eleven years earlier that 43 Gitksan law had been operating for at least 17 years 44 after British Columbia joined Confederation. This 45 is exactly what the Indians themselves were 46 asserting, too, and the recently appointed 47 stipendiary magistrate - I'm sorry, I'm at paragraph 586 Submissions by Mr. Grant 1 465 of my factum at page 205. And gold commissioner, 2 Napoleon Fitztubbs, wrote to the Attorney General 3 from Hazelton in July 1888: 4 5 "On my way up I was practically stopped by 6 the Indians of the Kit-wan-gar village who 7 forbade the crew of my canoe to proceed until 8 they had been heard. I was then addressed by 9 several of the elder men, who complained 10 that the whites had interfered with the 11 operation of their own laws and had taken the 12 life of one of their own race, that life being, 13 by the payment of a stipulated sum, no longer 14 forfeit - I replied that the law of the whites 15 was supreme and would have to be obeyed to the 16 extinction of their own. On suggesting that 17 their chief alone should discuss such matters 18 with me, one of his people went for him but he 19 refused to speak with me." 20 21 Now, there is then reference in 466 and 467 to 22 the threats made that the villages would be burned, 23 and the fishing places would be destroyed if they 24 did not obey the Queen's law, and this is in 1888 25 from Roycraft, and in 1900 by Loring, and then in 26 468 we refer to Loring, who we will come back to, 27 that threatening to burn the Wet'suwet'en out who 28 boasted to his superiors in January 1900 about 29 "keeping the Indians in proper subjection," and 30 whose opinion was that "safety and handling them 31 depends on the respect and fear one is able to 32 inspire." 33 Now, this is the person that I submit that the 34 trial judge erred when he referred to his reports as 35 being much more on the ground than government 36 reports. His reports were nothing more than 37 government reports, as you can see when we look at 38 them, they are a repetition. They make, in advance 39 a photocopier they are remarkable in how exact he is 40 year by year in his reports which I submit have 41 some, there is some reason to doubt their accuracy. 42 I now come to the banning of the feast in April 43 1885, the District Superintendent issued a circular, 44 and I would just like to take you to that at tab 45 469, if I may. When you see what the circular is 46 from the Superintendent of Indian Affairs, it says: 47 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 47 587 Submissions by Mr. Grant "That any person who engages directly or indirectly in celebrating the Indian Festival, known as 'Potlach', or in the Indian Dance, known as the 'Tamanawas', is guilty of misdemeanour ." When you look at that circular . HUTCHEON, J.A.: This is 468? MR. GRANT: 469, My Lord. I'm sorry. HUTCHEON, J.A.: All right. MR. GRANT: There is no doubt that this would have encompassed the Gitksan and the Wet'suwet'en feasts, and if there is any question, the section which is set out at paragraph 470 of the factum of prohibition which covers any Indian festival, dance or other ceremony of which the giving away or paying or giving back money, goods or articles of any sort forms a part, or is a feature is prohibitive, and that certainly would encompass these feasts. Now, there is evidence that they tried to prohibit the "Potlatch", at the feasting of the Gitksan and Wet'suwet'en, and I refer to that at 471 with Mr. Poekock, and he said, this is what he confirms writing to Fitztubbs. When Fitztubbs demanded compliance: "They replied, that the law was as weak as a baby, and in several speeches defied you, and the government, one man also threatened your life." Fitztubbs himself reported to the Attorney General. This was of his meeting in November 1888, and in January 1889, and he refers to Lalt of Kitwanga, and he reported on - and Fitztubbs recognizes the feast as the basis of their social system: "Lalt said 'that he had already issued invitations to different people to attend his Yook ' ". That is the Gitksan term for a large feast. "' and that he could not now withdraw them, he had no desire to violate the law but even if he were afterwards punished he must proceed 588 Submissions by Mr. Grant 1 with it. I told the chiefs that under any 2 circumstances, the government held them 3 responsible for the good order of the people. 4 At Kitsayookla the chiefs said they felt 5 sure some deception was intended, that they had 6 rights, particularly in the land and fisheries, 7 and they feared being entrapped into their 8 surrender. It was arranged that the law 9 against Yook should sleep for the winter or 10 until the Government warned them of its 11 intended enforcement. 12 I went to Kispyooks. A young Indian stood 13 up and in very dramatic language said he had no 14 wish that his chief should give countenance & 15 aid to the Government, they were a people of 16 themselves, had their own laws and would 17 acknowledge none other; six more followed in 18 the same strain..." 19 20 I refer you, just if you want to know the 21 exhibit is there, but reference, I would ask you to 22 refer to pages 9, 10 and 11 of that exhibit at the 23 reference at tab 472. I won't take you to that now. 24 TAGGART, J.A.: Nine, 10 and 11? 25 MR. GRANT: Yes, pages 9, 10, and 11 of the exhibit at tab 26 472. 27 TAGGART, J.A.: Yes. 28 MR. GRANT: I refer back to the trial judge's judgment, and at 29 tab 473, I also refer you to his comments about 30 Loring, and I would like to take you to that at tab 31 473. It is at page 315 where the trial judge 32 stated, he refers to Loring, and he said: 33 34 "His many reports present a useful account 35 of the Indians of the territory during his 36 service there, which continued until about 37 1920. In many cases, his reports present a far 38 more realistic picture of what was happening on 39 the ground than the careful language of 40 government reports and diplomatic exchanges." 41 42 In fact, I submit that Loring's reports are 43 government reports, and that they are the reports of 44 a government agent who had a very concerted interest 45 in ensuring that he was doing his job well, and 46 therefore he does frequently mention the feast. He 47 repeatedly, but falsely, as I say in paragraph 474 589 Submissions by Mr. Grant 1 claimed to have eliminated it. His reports are 2 reluctant testimony to the persistence and 3 importance of the feast. 4 If I could take you to paragraph 477. 5 It is impossible to be sure from Loring's 6 reports whether he ever personally attended a 7 Gitksan or Wet'suwet'en feast. He did not speak 8 Gitksan or Wet'suwet'en, and he lost his wife's 9 services as a translator in 1910. 10 It is true he frequently reported that he 11 settled disputes among the Gitksan and Wet'suwet'en, 12 but if his constant references to recurring disputes 13 are to be believed, his "settlements" had little 14 staying power. The disputes, like the feast, kept 15 coming back, in spite of Loring's attempts to 16 declare the one settled and the other dead. 17 Most importantly, even as Loring repeatedly 18 (and erroneously) claimed that the feast either had, 19 or was about to, disappear, he also reported on its 20 continuation. In spite of the usual announcement 21 that "the custom is now only lingering to soon meet 22 its end", he showed sufficient understanding of its 23 purpose to write in July 1897: 24 25 "As the young men and the women failed to 26 have an interest in feasting and acting in 27 support of it, the proceeds of hunting and 28 trapping amongst the old keep it up. The 29 origin of the potlatch is only attributable 30 to the desire of being lavish in becoming a man 31 of consequence attending the ceremony in 32 adopting a departed's place and name." 33 34 Now, there is an implication or certainly an 35 argument made at one point by the Federal 36 respondent, an implication that the trial judge may 37 have adopted it, that the feast was basically 38 completely changed over the period of time that 39 Loring was there. This is exactly what Brown saw, 40 and it is exactly what we see in the evidence today. 41 On January 31, 1898, Loring recorded a number of 42 pole-raising feasts at Kitsegukla: 43 44 "In evidence as to the problem of the 45 feasts and their termination, I here must 46 state that during this winter at old 47 Kitsegukla, where are more heathens in 590 Submissions by Mr. Grant 1 proportion to its population, than in other 2 villages of the Skeena, and the stragglers of 3 them assisting that party could scarcely muster 4 force enough to raise a few poles, scantily 5 half of dimension than those of former years." 6 7 These are the poles and include the poles that 8 you saw photographs of that were re-raised in 1945. 9 In 1893, he had mistakenly called the custom of 10 erecting totem poles "a thing of the past". 11 In December 1904 he declared the potlatch is put down 12 for good and all. In July 1906, he defended himself 13 against a report that potlatching was interfering 14 with attendance at the Kispiox Indian day school. 15 But what he described was a performance of a chief's 16 "nax nox', like the one performed by Gwoimt in 17 Brown's presence in the 1820's. 18 And he says: 19 20 "As to the heathen potlatch and dancing, 21 it was merely a memory feast attended by the 22 old heathens of Kuldoe, Kisgegas and 23 Kitwankool. There is no dancing practised 24 amongst the Indians of this district in any 25 shape, unless the crow-like hopping about of an 26 old Indian, in ancient costume, can so be 27 termed. If more than one engaged therein, it 2 8 can be likened to a pantomime. 29 The Indians attending a feast - and I do 30 not think that there will be another for want 31 of patronage - are the old Indians that spend 32 all the year on the hunting ground, and, so 33 far, it remains their sole diversion for about 34 two weeks during the long winter." 35 36 With respect, my lord, this was the kind of 37 report that was put to the trial judge that he says 38 is not an official government report, is much more 39 on the ground. In fact, I submit this is a 40 description similar to Brown's in the sense he is 41 talking about the same point, but the real 42 telling-tale is from the ethnographer, Barbeau, and 43 the feast he attended in Hagwilgate in 1920. He 44 refers back to the 1904 report of Loring and he 45 says: 46 47 "Agent Loring's report from Hazelton 591 Submissions by Mr. Grant 1 (March 4, 1904) to the effect that 'no dancing 2 of religious, ceremonial or social character is 3 being practised' is far from convincing, 4 however, and may be due to the Agent's attitude 5 and pretended ignorance of the facts." 6 7 And Barbeau's notes - and this is the one 8 reference I would like to take you to, to the 9 Barbeau notes of his feast at tab 484. You see on 10 the first page he is talking there about going to, 11 part way down, going to the - when he is confronted 12 by Indian people on the train, going to the 13 "Potlatch", "Beware of prison; behave well," and 14 there is reference to Father Morice, and similarly 15 on pages two and three he meets Father Godfrey, who 16 at the top of page three says - Father Godfrey is 17 asked about whether or not if he is going to the 18 "Potlatch"? With a question mark, and then he says, 19 "Forbidden bylaw; be careful; police, court, 20 prison." The Indian people that are there according 21 to Barbeau giggle, and he says: 22 23 "I tell them I had heard it was postponed til 2 4 Monday." 25 26 This is Father Godfrey. 27 28 "Laughs, 'Because I am leaving on Sunday night, 29 and I am opposed to it.' And they " 30 31 That is the Wet'suwet'en people. 32 33 " don't mind Godfrey, no authority. I ask 34 Father 'really opposed to potlatch?'" 35 36 He says: 37 38 "Yes: The law and they squander their 39 possessions." 40 41 And then he asked: 42 43 "Do you do it because you are an agent of fed. 44 gov't? No.' Would they not squander 45 possessions just the same?" 46 47 Sorry. This is the question by Father Godfrey. 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 47 592 Submissions by Mr. Grant "Suppose so, yes. Why then oppose their fun? Then he confessed to me that if I had a chance to attend to it, not to miss the sight; it is great. And he seemed to regret not to be able to attend to more." WALLACE, MR. GRANT WALLACE, MR. GRANT WALLACE, MR. GRANT WALLACE, MR. GRANT J.A. I'm having problems seeing the relevance of the government prohibiting the "Potlatch". How do you use that? What do you draw from that? : Well, the argument - and the trial judge is finding that the system substantially has changed. There is no exercise of authority or no exercise of jurisdiction. Let us put this hypothetical. If the government had not prohibited the "Potlatch", then there would have been no effort of suppression and none of those backers would have played on. This central institution which is Fitztubbs in 1888, witnesses in 1988, defined a central institution of their system. J.A.: I can see the relevance of establishing that this central institution flourished and existed as an Aboriginal practice of law at the time of contact. : Yes. J.A.: But what is the relevance of their having prohibited it? : The relevance of the prohibition J.A.: Having established the first point? If you haven't established the first, then there is nothing to prohibit, but if you have established it, why all the stress about prohibition? : Because one of the factors that the trial judge found was the question about whether or not this institution or this society existed. It was a primitive society, and the system did exist. It existed in - not - it existed in spite of government prohibition. Of course, my lord, the point here in this action is not, and in this Appeal, is not the question of compensation for what the government did and should or should not have done. That is not the issue. It is that the institution of the feast, as Ross says in his comments, survived and flourished in the face of overt adversity. The other point that I'm making here - and remember the judge relies on Loring for two points. As I said, he talks about him at the feast hardly survived, and then Loring is the government. I 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 47 593 Submissions by Mr. Grant mean, he says Loring settles the disputes. What we have done here is just taken Loring's reports of the feast. The feast is dying, the feast is dying, the feast is dying. At the end of thirty years of Loring writing that, we have Barbeau recording four major feasts at Hagelton going on right under his nose. Clearly Loring's reports are not to be accepted on that point. WALLACE, J.A.: I see. This is directed to demonstrating that Loring's reports should not have been accepted. MR. GRANT: On this point. On the point that the judge used them for. I mean, of course there are things in Loring's reports that are acceptable, but when he keeps saying, "The feast is dead," even Barbeau, fifteen years later, says, "This is not feasible. They're going on and they are flourishing." J.A.: I see. J.A.: We have reached . J.A.: Before we go on, should we pay attention to what is on the screen now? Apparently it says that, in relation to map 22 . Yes. J.A.: the editorial comment was not admitted as evidence? Right. I wanted to - actually the Registrar had pulled that just for me. I was going to look at those pages. I have not - and I certainly will provide you with the answer to that fully, because I appreciate the seriousness, and as I say there is other evidence that answers exactly the point you have, and I would like to provide clarification of that. There certainly were discussions. LAMBERT, J.A.: You had thought this afternoon you might reach the conclusion which I take it is the point at which you link this evidence to the right being asserted? MR. GRANT: Yes. LAMBERT, J.A.: Yes. We'll get to that tomorrow morning. MR. GRANT: Can I do that in the morning? LAMBERT, J.A.: Yes, of course. THE REGISTRAR: Order in Court. Court is adjourned until tomorrow morning at 10:00. PROCEEDINGS ADJOURNED at 4:00 p.m. WALLACE, TAGGART, HUTCHEON, MR. GRANT: HUTCHEON, MR. GRANT: 594 Submissions by Mr. Grant 1 2 I hereby certify the foregoing to be a 3 true and accurate transcript of the 4 proceedings herein to the best of my 5 skill and ability. 6 7 8 Dianne Cummins 9 Official Reporter 10 UNITED REPORTING SERVICE LTD. 11 12 13 14 15 16 'ñ†y-j *-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k->
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
Vancouver : University of British Columbia Library
Vancouver : United Reporting Service Ltd.
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Original Format: University of British Columbia. Library. Law Library.
[British Columbia Court of Appeal 1992-05-12]
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