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Delgamuukw Trial Transcripts
British Columbia. Supreme Court
In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial.
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26462 Proceedings 1 Vancouver, B.C. 2 May 14, 1990 3 4 (PROCEEDINGS RECONVENED AT 9:00 A.M.) 5 6 THE REGISTRAR: Order in court. Supreme Court of British 7 Columbia, this 14th day of May, 1990. Delgamuukw 8 versus Her Majesty the Queen at bar, my lord. 9 THE COURT: Mr. Rush, it occurred to me over the weekend that 10 none of us mentioned the factor that seems to me to 11 have some relevance to the proceedings that I 12 understand are to take place this morning. And that 13 is that I assume that the -- those who are to speak 14 are plaintiffs. 15 MR. RUSH: Yes. 16 THE COURT: Well, if that's so, then it has occurred to me that 17 what they are to say could well be regarded as 18 argument. 19 MR. RUSH: Yes. 20 THE COURT: And I think that may resolve the difficulty I had 21 with the status with what was to be given to the 22 proceedings this morning. 23 MR. RUSH: Your lordship was of a similar mind to myself, my 24 lord. I was going to submit that the statement that 25 the chiefs will be making to you should be inserted as 26 part of the plaintiffs' argument at the end. And I 27 think that there are two characteristics to it: One, 28 it has the character of argument and, secondly, it has 29 the protocol of completing the plaintiffs' case and 30 completing the plaintiffs' argument. And in this 31 respect, this is the way in which we would ask your 32 lordship to receive the closing statement of the 33 chiefs, and we feel that it may be inserted as part of 34 the written argument of the plaintiffs at its end. 35 THE COURT: All right. Well, that factor that I didn't think of 36 and which I don't think was mentioned -- I hope it 37 wasn't, if it was I overlooked it -- puts the 38 proceedings on a different basis than -- well, it puts 39 it on a basis that I can deal with and which I think 40 your friends can deal with, and I think perhaps we 41 will deal -- we will just proceed from there. 42 MR. RUSH: Thank you, my lord. 43 MR. GOLDIE: My lord, may I make a suggestion? My friend has 44 characterized these statements as argument. I would 45 ask, my lord, that we be given the statements which 46 are about to be read so that we may look at them and 47 consider our position. We do not want to make any 26463 Submissions by Mr. Joseph 1 interruption while the chiefs, who are laymen, are 2 making their statement, such as I might feel free to 3 do so if it was part of my friend's argument. And I 4 would suggest, my lord, that we be given these 5 statements, be given five minutes to read them and 6 that we carry on from there. 7 MR. RUSH: Well, my lord, I don't see any need for five minutes 8 to read them. I don't have any objection to that. I 9 have copies for the court and for my friends. 10 MR. GOLDIE: No. I mean before they commence. 11 THE COURT: I don't need to hear you, Mr. Goldie. If the 12 statements are ready and they are going to be read in, 13 I don't see any reason why they shouldn't be shown. 14 So we'll take five minutes? 15 MR. GOLDIE: That will be ample, my lord. 16 THE REGISTRAR: Order in court. Court stands adjourned. 17 18 (PROCEEDINGS ADJOURNED AT 9:05 A.M.) 19 (PROCEEDINGS RECONVENED AT 9:10 A.M.) 20 21 THE REGISTRAR: Order in court. 22 MR. RUSH: Thank you, my lord. My friends have read the closing 23 statement of the chiefs. I would like to pass a bound 24 copy of this up to your lordship. Copies have been 25 provided to the reporters. 26 My lord, I would just like to introduce Alfred 27 Joseph, whom you know, Gisdaywa, who is here to my 28 left. Earl Muldoe, who is Delgamuukw, successor to 29 the name of Delgamuukw, and Dora Wilson-Kenni, 30 Yagalahl, and Don Ryan, Maas Gaak. 31 And my lord, Mr. Joseph and Mr. Muldoe will speak 32 to you in respect of the statement, and Mrs. 33 Wilson-Kenni and Mr. Ryan will stand by and witness. 34 Thank you, my lord. 35 THE COURT: Thank you. Mr. Joseph. 36 MR. JOSEPH: Thank you, my lord. 37 We, the Gitksan and Wet'suwet'en people, are in 38 the court to state the truth of the ownership and 39 jurisdiction we exercise over our territories. 40 Three years have passed since we made our opening 41 statement to this court. At that time, you did not 42 know who Delgamuukw and Gisdaywa were. Now, this 43 court knows I am Gisdaywa, a Wet'suwet'en chief who 44 has responsibility for the House of Kaiyexwaniits of 45 the Gitdumden. I have explained how my House holds 46 the Biiwenii Ben territory and had the privilege of 47 showing it to you. Long ago my ancestors encountered 26464 Submissions by Mr. Muldoe Submissions by Mr. Joseph 1 the spirit of that land and accepted the 2 responsibility to care for it. In return, the land 3 has fed the House members and those whom the chiefs 4 permitted to harvest its resources. Those who have 5 obeyed the laws of respect and balance have prospered 6 there. 7 MR. MULDOE: My lord, I am Delgamuukw, the third since this 8 trial started. I also have obligations to my House 9 and the territories of my House. You have heard oral 10 histories of the Gitksan and Wet'suwet'en that tell of 11 the many groups that migrated into our territories. 12 Many stayed, contributing to our culture, 13 acknowledging the authority of our chiefs and obeying 14 our laws. 15 Of all these groups, only the Europeans failed to 16 recognize our ownership and jurisdiction. This court 17 now has an opportunity to redress this situation. 18 We, the Hereditary Chiefs, decided against 19 wearing blankets and regalia in this courtroom because 20 we believe that our authority would not be respected 21 by the government lawyers. Under our law, disrespect 22 for people and for their territory requires 23 compensation. 24 We, the Gitksan and Wet'suwet'en, must be 25 compensated for loss of the land's present integrity 26 and for the loss of economic rents. 27 We ask that the court not only acknowledge our 28 ownership and jurisdiction over the land, but to 29 restore it to a form adequate for nature to heal in 30 terms of restoration. We would like to see clearcuts 31 and plantations returned to forests, contaminated 32 rivers and lakes returned to their original pristine 33 state, reservoirs of drowned forests returned to 34 living lakes and life-sustaining flows to diverted 35 rivers. 36 MR. JOSEPH: My lord, we realize that the true financial value 37 of this compensation for restoration would bankrupt 38 both the federal and provincial governments. 39 Compensation must remain an ongoing obligation of the 40 federal and provincial governments "until our hearts 41 are satisfied". 42 However, this compensation should not be viewed 43 by this court as an alternative to the acknowledgement 44 of our ownership and jurisdiction of our land. We do 45 not want financial compensation without the 46 recognition of our authority over our territories. 47 We are asking you to make declarations on the 26465 Submissions by Mr. Muldoe Submissions by Mr. Joseph 1 Gitksan and Wet'suwet'en aboriginal title. We, the 2 Gitksan and Wet'suwet'en people, own our lands. 3 I will identify those areas where the powers of 4 the province and the federal governments need to be 5 restrained in order for us to exercise our 6 responsibilities under aboriginal title. 7 MR. MULDOE: First, we the chiefs must have our authority 8 recognized in order to exercise our responsibility to 9 protect the land for the future, and to conserve 10 resources. We must have the power to manage all human 11 activity that brings change to the land, air or water 12 on all of our territories. 13 Second, to enable each House to provide for its 14 members and all those living in their territory, the 15 chiefs must have control over the local economy by 16 managing natural resource allocations within their 17 territories. This would include licensing, leasing 18 and permitting. As well, royalties and taxation 19 payments from resource use on our territories must be 20 paid to us. 21 It is not our intention to exert any powers over 22 the non-Gitksan and Wet'suwet'en people living in our 23 territories. Fee-simple lands held by third parties 24 as of October, 1984, would be exempt from this 25 resource allocation. 26 We see the pulling back of these central 27 government powers as being the minimum required to 28 restore not only individual self-reliance but also 29 community self-reliance. We have presented you with 30 ample evidence of the effects on our land resulting 31 from government resource management. We have also 32 given evidence of the effect that centralized economic 33 management and government welfare has had on our 34 people. The governments' system does not work. We, 35 the Hereditary Chiefs, believe we can change the 36 situation under our laws and practices through our 37 authority. 38 MR. JOSEPH: My lord, our system of government is as powerful 39 today and will be as powerful tomorrow, as it was one 40 hundred or ten thousand years ago. You have heard 41 both ancient and modern histories tell us of our 42 system -- 43 THE COURT: Sorry. 44 MR. JOSEPH: Tell of how our system has remained relevant 45 throughout the evolving ecological, cultural and 46 economic circumstances in which our people have found 47 themselves. To say we disobey our laws and ignore our 26466 Submissions by Mr. Joseph 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 chiefs' authority because we change a piece of technology, or use our land in a different way, is a desperate argument. This case then is about learning from the past so we can repair the present and pass on a healthier land to our grandchildren. It is not about retrieving frozen rights from a nineteenth century ice-box. Our aboriginal title is found in common law and takes precedence over the Provincial Crown. We do not have to, and will not, surrender our aboriginal title in order to be recognized by the federal government. We are self-governing. However, we see a layering of responsibilities among the Gitksan and the Wet'suwet'en, the federal government, and the Provincial Government being resolved in an ongoing series of negotiations. Given the strong imperative for the Gitksan and the Wet'suwet'en, British Columbia and Canada to have social and economic activities continue within our territories, consensus on the necessary political and administrative framework must be found. We are asking this court to properly apply common law. We want a declaration of recognition and affirmation of our continued ownership and jurisdiction. We will not surrender or diminish our title and rights. We do not request a "right" to use and occupy the land, and we refuse to extend reserve lands. We will decide what our future relationship will be with Canada and British Columbia on this basis. We ask nothing more than what should have occurred prior to confederation, and prior to this province entering confederation. We are here to right the wrongs that have been occurring for over one hundred years. This court has the power to recognize and affirm Gitksan and Wet'suwet'en ownership and jurisdiction. Thank you. THE COURT: Thank you. MR. RUSH: Thank you, my lord. I think that concludes the plaintiffs' argument and in closing. THE COURT: All right. Thank you. I think we will adjourn until -- I think we will adjourn until ten o'clock. MR. RUSH: Thank you. THE REGISTRAR: Order in court. This court stands adjourned until ten o'clock. 26467 Submissions by Mr. Goldie 1 (PROCEEDINGS ADJOURNED AT 9:25 A.M.) 2 (PROCEEDINGS RECONVENED AT 10:00 A.M.) 3 4 THE REGISTRAR: Order in court. 5 THE COURT: Mr. Goldie. 6 MR. GOLDIE: May it please the court, the three-volume written 7 summary will continue to be the basis for our 8 submissions, supplemented from time to time. And I 9 will be in Volume 1 this morning. 10 I have had handed up, my lord, a yellow binder, 11 and I should perhaps explain that. It is to be used 12 as the argument proceeds and it consists of extracts 13 of exhibits and authorities. Not the entire exhibit 14 or case, but sufficient to permit reference in the 15 summary to be followed. The tab numbers, my lord, 16 correspond to the tab numbers in the summary, and if I 17 may give your lordship an example of that: If your 18 lordship would look at the yellow volume, the first 19 tab is a Roman one, and that is referable to Part I of 20 the written summary, which is identified by Roman 21 letters. 22 Then under that there are separate tabs and they 23 have three numbers, a Roman number one, followed by a 24 slash and an Arabic one. Arabic one refers to the 25 sections within the part. The second Arabic number is 26 the paragraph in the summary. 27 Now, I can't promise that that system will work 28 infallibly, but I hope it will be of sufficient use to 29 your lordship to enable you to follow the references 30 in the evidence as the references are made in the 31 summary. The grey binders which are to your 32 lordship's left are the plaintiffs' authorities. We 33 have not -- defendant's authorities I should say. We 34 have not duplicated those which are found in the 35 plaintiffs' authorities. These are authorities -- 36 cases and authorities which are not found there. 37 THE COURT: This yellow book is not for all of your argument, 38 Mr. Goldie, is it? 39 MR. GOLDIE: No. That's just — 4 0 THE COURT: Volume 1? 41 MR. GOLDIE: — Volume 1 — well, not even the whole of Volume 42 1. 43 THE COURT: All right. 44 MR. GOLDIE: On the spine there is an indication of the parts to 45 which the volume refers. 46 I have also handed up, my lord, and I believe the 47 Registrar has placed it in your Volume 1 of the 2646? Submissions by Mr. Goldie 1 summary, a document marked "Introduction". 2 THE COURT: Yes. 3 MR. RUSH: Now, the references in this document are not in the 4 yellow binder. This was prepared very recently and I 5 have attached to it certain of the references or 6 documents to which I wish to make comment as we go 7 along. 8 Following that introduction, I move into the parts 9 of the summary and to which the extracts found in the 10 Volume 1 of the yellow binders relates. 11 Now, my lord, the plaintiffs -- and I'm now 12 referring to the introduction. 13 The plaintiffs seek to establish that historical 14 events, characterized according to a particular view 15 of history, constitute rules of law. In time this 16 historical perspective has ranged from the mid 16th 17 century to 1990. Geographically, the court has been 18 asked to have regard to events in Africa, New Zealand 19 and South America as well as virtually all of North 20 America. Sometimes the description of these events 21 depends on primary sources but in many, many instances 22 the court is asked to accept someone else's judgment 23 of the correct meaning of an historical fact. 24 The plaintiffs say that people of European 25 descent view events and other peoples in an 26 ethnocentric fashion. Mr. Brody, of course, came here 27 to tell us this. But, my lord, ironically, it was Mr. 28 Brody himself who introduced the stereotypes of the 29 frontier and who ignored the safeguards the law 30 affords to those who need protection from 31 stereotyping. 32 The plaintiffs call this re-interpretation of 33 history "The Historical-Purposive Approach to 34 Aboriginal Rights". In their summary it is Section A 35 of Part I, and it is called "The Development of the 36 Fundamental Common Law Principles of Aboriginal 37 Rights" and Mr. Jackson introduced that proposition at 38 transcript 316, page 23705. 39 My lord, in my submission, there is no authority 40 for coupling these two words together as an excuse for 41 or justification for setting aside established law or 42 for invading the realm of the Executive and Parliament 43 or for considering the meaning of documents in other 44 than the sense the people who wrote them intended. 45 "Historical" in the phrase -- in the clause, "The 46 Historical-Purposive Approach to Aboriginal Rights", 47 is derived, in my friend's submission, from the 26469 Submissions by Mr. Goldie 1 statement of Mr. Justice Dickson (as he then was) in 2 Kruger and Manuel, and this was quoted by my friend 3 Mr. Jackson: 4 Claims to aboriginal title are woven with 5 history, legend, politics and moral 6 obligations. 7 8 What followed, in my submission, is, in his 9 lordship's reasons, is even more relevant, and I 10 quote: 11 12 If the claim of any Band in respect of any 13 particular land is to be decided as a 14 justiciable issue and not a political issue, it 15 should be so considered on the facts pertinent 16 to that Band and to that land, and not on any 17 global basis. 18 19 The plaintiffs would have the facts pertinent to 20 Spain's 16th century use of slavery in its gold mines 21 of Central and South America provide some guide to the 22 law applicable here. The plaintiffs say that from 23 this factual background principles of international 24 law developed. In my submission, there is authority 25 of equal weight in international law to the contrary. 26 And I refer here to the report of the Indian 27 Commissioners appointed to inquire into the 28 application of grants of money paid by the British 29 Parliament to the Indians of the old pre-confederation 30 Province of Canada. And an extract from their report 31 is found attached to this section of my submission. 32 But they referred to Vattel, who was a Swiss pub -- a 33 Swiss commentator born in 1714 and died in 1767, who 34 was a writer of repute in international law. And I 35 have set out the particular portion which -- part of 36 which was referred to by the plaintiffs in their 37 submission, but I will read what is taken from the 38 report, which is found from the first page of it. And 39 I quote: 40 41 The wisdom and justice of this course is most 42 strongly commended by Vattel in his Law of 43 Nations, from which the following passage is an 44 extract: 45 46 And then this is from Vattel: 47 26470 Submissions by Mr. Goldie 1 'There is another celebrated question to 2 which the discovery of the new world has 3 principally given rise. It is asked whether a 4 nation may lawfully take possession of some 5 part of a vast country in which there are none 6 but erratic nations, whose scanty population is 7 incapable of occupying the whole? We have 8 already observed, in establishing the 9 obligation to cultivate the earth, that these 10 nations cannot exclusively appropriate to 11 themselves more land than they have occasion 12 for, or more than they are able to settle and 13 cultivate. Their unsettled habitation in those 14 immense regions, cannot be accounted a true and 15 legal possession, and the people of Europe, too 16 closely pent up at home, finding land of which 17 the Savages stood in no particular need, and of 18 which they made no actual and constant use, 19 were lawfully entitled to take possession of it 20 and to settle it with colonies. The earth, as 21 we have already observed, belongs to mankind in 22 general, and was designed to furnish them with 23 subsistence. If each nation had from the 24 beginning resolved to appropriate to itself a 25 vast country, that the people might live only 26 by hunting, fishing and wild fruits, our globe 27 would not be sufficient to maintain a tenth 28 part of its present inhabitants. We do not, 29 therefore, deviate from the views of nature, in 30 confining the Indians within narrower limits. 31 However, we cannot help praising the moderation 32 of the English Puritans, who first settled in 33 New England, who, notwithstanding their being 34 furnished with a charter from their Sovereign, 35 purchased of the Indians the lands of which 36 they intended to take possession. This 37 laudable example was followed by William Penn, 38 and the colony of Quakers that he conducted to 39 Pennsylvania.' 40 41 That was Vattel. The report from which I have 42 just read an extract is quoted from by Chancellor Boyd 43 in Regina v. St. Catherines' Milling and I'll come 44 back to that later on. 45 THE COURT: You mean the report but not this passage? 46 MR. GOLDIE: Not this passage, no. I mean the Chancellor Boyd's 4 7 judgment. 26471 Submissions by Mr. Goldie 1 The report is relied upon by the plaintiffs as a 2 summary of the "principles and process embodied in the 3 Royal Proclamation..." 4 THE COURT: Again, there you mean — "it" means Chancellor 5 Boyd's judgment? 6 MR. GOLDIE: No. I'm talking about the report of the 7 Commissioners -- 8 THE COURT: All right. 9 MR. GOLDIE: -- of 1844 inquiring into the application of monies 10 appropriated by the British Parliament for use in the 11 Old Province of Canada. 12 Now, my lord, continuing at page 5 of my 13 introduction: Mr. Jackson stated at transcript 316, 14 page 23702, that, and I quote, "...the legal history 15 which we will be introducing..." is intended to 16 identify the fundamental principles upon which the 17 Gitksan and Wet'suwet'en rights to ownership and 18 jurisdiction can be recognized under Canadian law. 19 Now, prominent in that history is the New Zealand 20 case of Regina v. Symonds. Less prominent, to a point 21 of virtual invisibility, is the Report from the Select 22 Committee on New Zealand ordered printed by the House 23 of Commons on 29 July, 1844, and that is attached and 24 I am going to refer to it in a minute. 25 It was from this report that Mr. Barclay of the 26 Hudson's Bay Company in his letter to Mr. Douglas, 27 quoted, in 1849, and these were the instructions which 28 Mr. Douglas applied, or took in his administration as 29 agent of the Hudson's Bay Company, dealing with the 30 native peoples in Vancouver Island at that time. 31 Now my friend, Mr. Rush, referred to this report 32 as reflecting a "settlers'" point of view and that 33 this was why Mr. Barclay adopted the words quoted. 34 And in my submission, this is simply not so. Here, I 35 wish merely to point out that when Mr. Jackson speaks 36 of fundamental principles there are more relevant 37 sources than Spain and the United States. The Report 38 is all the more significant in its references to the 39 Treaty of Waitangi which is so often referred to by 40 the plaintiffs and which has shaped the legal history 41 of aboriginal rights in New Zealand ever since. 42 And, my lord, if your lordship would turn to the 43 extracts from the report from the Select Committee 44 itself, and the whole report is not attached here. 45 The whole report is Exhibit 1184, tab 3. 46 THE COURT: Sorry, 1184? 47 MR. GOLDIE: Tab 3. And as I said, the first part of the report 26472 Submissions by Mr. Goldie 1 I wish to draw to your lordship's attention is on the 2 first page, and it's the second paragraph beginning 3 with the words "It appears to Your Committee". 4 THE COURT: Yes. 5 MR. GOLDIE: 6 It appears to Your Committee that the 7 difficulties now experienced in New Zealand are 8 mainly to be attributed to the fact, that in 9 the measures which have been taken for 10 establishing -- 11 12 THE COURT: Sorry, Mr. Goldie. Is this the House of Commons — 13 the Imperial House of Commons or is there a House of 14 Commons in New Zealand? 15 MR. GOLDIE: No. This is the Imperial House of Commons. 16 THE COURT: Thank you. 17 MR. GOLDIE: And the circumstances that have given rise to the 18 report are -- I think will become clearer as we go 19 along. 20 THE COURT: Is it pre-treaty or post-treaty? 21 MR. GOLDIE: Post-treaty. 22 THE COURT: Thank you. 23 MR. GOLDIE: The -- continuing with paragraph 2 on page 1, and I 24 quote: 25 26 It appears to Your Committee that the 27 difficulties now experienced in New Zealand are 28 mainly to be attributed to the fact, that in 29 the measures which have been taken for 30 establishing a British Colony in these islands, 31 those rules as to the mode in which 32 colonization ought to be conducted, which have 33 been drawn from reason and from experience, 34 have not been sufficiently attended to. When 35 it was first proposed to establish New Zealand 36 as a British Colony dependent upon New South 37 Wales, Sir George Gipps, the Governor of the 38 latter, in a very able address, laid down the 39 following principles as those on which he had 40 framed the Bill, which it was his duty to 41 submit to his legislative council for the 42 regulation of the infant colony of New Zealand. 43 44 And your lordship will appreciate that in its 45 earliest colonial history, New Zealand was a 46 dependency of New South Wales. Now, quoting the 47 Governor: 26473 Submissions by Mr. Goldie 1 "The Bill is founded," he said, "upon two or 2 three general principles, which, until I heard 3 them here controverted, I thought were fully 4 admitted, and indeed received as political 5 axioms." 6 7 And now he comes to the words which Mr. Barclay used 8 in December of 1849: 9 10 "The first is, that the uncivilized inhabitants 11 of any country have but a qualified dominion 12 over it, or a right of occupancy only; and 13 that, until they establish amongst themselves a 14 settled form of government, and subjugate the 15 ground to their own uses, by the cultivation of 16 it, they cannot grant to individuals not of 17 their own tribe any portion of it, for the 18 simple reason, that they have not themselves 19 any individual property in it. Secondly, that 20 if a settlement be made in any such country by 21 a civilized power, the right of pre-emption of 22 the soil, or in other words, the right of 23 extinguishing the native title, is exclusively 24 in the government of that power, and cannot be 25 enjoyed by individuals without the consent of 26 their government. The third principle is, that 27 neither individuals, nor bodies of men 28 belonging to any nation, can form colonies, 29 except with the consent, and under the 30 direction and control of their own government; 31 and that from any settlement which they may 32 form without the consent of their government, 33 they may be ousted. This is simply to say, as 34 far as Englishmen are concerned, that colonies 35 cannot be formed without the consent of the 3 6 Crown." 37 38 And then the report continues after that: 39 40 Referring to the speech of Sir George 41 Gipps for the argument in support of these 42 rules, it may be observed, that with reference 43 to New Zealand, they were, to a certain extent, 44 infringed by the irregular settlement of 45 British subjects on the shores of these 46 islands, which began many years ago; but they 47 seem to have been first openly and deliberately 26474 Submissions by Mr. Goldie 1 departed from, when an attempt was made by the 2 New Zealand Company to establish a colony, not 3 only without the sanction, but in direct 4 defiance of the authority of the Crown. 5 6 I am not going to read the details of that. 7 I would like to go down to the end of that 8 paragraph beginning with, oh, about eight lines up 9 from the end of the paragraph, "In order to avert 10 these difficulties". 11 THE COURT: Yes. 12 MR. GOLDIE: 13 ...which were soon seen to be likely to arise, 14 a Charter of Incorporation was afterwards 15 granted to the New Zealand Company, with the 16 hope of placing that body in friendly relations 17 with Her Majesty's Government; but this attempt 18 was defeated, partly by the jealousies created 19 between the respective servants of the Crown 20 and of the Company, by the error originally 21 committed by the latter; partly by other causes 22 of difficulty which afterwards arose. These 23 are chiefly to be traced to the means which 24 were adopted for establishing the authority of 25 the Crown in New Zealand. 26 The sovereignty over these islands had, at 27 an earlier period, been formally disclaimed, 28 and their independence had been distinctly 29 recognized, both by the Crown and by 30 Parliament. 31 32 Now that's an important factor in the 33 consideration of the history of New Zealand. 34 35 This course had been pursued because it was 36 considered (and by no means upon light grounds) 37 that it was not advisable to extend British 38 dominion in these distant regions; but in 39 adopting this policy it was overlooked, both by 40 the advisers of the Crown and by Parliament, 41 that it was impossible to check the tide of 42 emigration which set so strongly towards the 43 shores of New Zealand, and that the regular 44 establishment of British power was the only 45 practicable mode of guarding against the evils 46 which could not fail to follow from permitting 47 a large number of Europeans to settle among its 26475 Submissions by Mr. Goldie 1 uncivilized inhabitants, without being subject 2 to any legitimate authority or control. 3 Looking back at what was then done, with the 4 light to be drawn from subsequent experience, 5 there is no room to doubt that it would have 6 been far better if British dominion over these 7 islands had been asserted as early as 1832, or 8 even 1825; but a different policy having been 9 at that time pursued, it was considered, in the 10 year 1839, when Captain Hobson was sent out, 11 that the difficulties which had thus been 12 created could only be got rid of by obtaining 13 from the natives their assent to the extension 14 of the authority of the British Crown over New 15 Zealand. 16 17 Now, just pausing there, Captain Hobson was sent 18 out with instructions to negotiate the consent of the 19 native peoples to the establishment of British 20 sovereignty and the Treaty of Waitangi resulted from 21 that. 22 And then continuing: 23 24 Acting under the instructions he had received, 25 Captain Hobson, therefore, immediately on his 26 arrival in New Zealand, at the beginning of the 27 year 1840, concluded, with a large number of 28 the chiefs of the Northern Island a treaty 29 known by the name of the Treaty of Waitangi, by 30 which, in return for their acknowledge of 31 British sovereignty, they were promised 32 protection, and guaranteed in the possession of 33 all lands held by them individually or 34 collectively. The evidence laid before Your 35 Committee has led them to the conclusion that 36 the step thus taken, though a natural 37 consequence of previous errors of policy, was a 38 wrong one. It would have been much better if 39 no formal treaty whatever had been made, since 40 it is clear that the natives were incapable of 41 comprehending the real force and meaning of 42 such a transaction; and it therefore amounted 43 to little more than a legal fiction, though it 44 has already in practice proved to be a very 45 inconvenient one, and is likely to be still 46 more so hereafter. The sovereignty over the 47 Northern Island might have been at once 26476 Submissions by Mr. Goldie 1 assumed, without this mere nominal treaty, on 2 the ground of prior discovery, and on that of 3 the absolute necessity of establishing the 4 authority of the British Crown for the 5 protection of the natives themselves, when so 6 large a number of British subjects had 7 irregularly settled themselves in these 8 islands, as to make it indispensable to provide 9 some means of maintaining good order amongst 10 them. This was the course actually pursued 11 with respect to the Middle and Southern 12 Islands, to which the Treaty of Waitangi does 13 not even nominally extend; and there is every 14 reason to presume that, owing to the strong 15 desire the natives are admitted to have 16 entertained for the security to be derived from 17 the protection of the British Government, and 18 for the advantages of a safe and well-regulated 19 intercourse with a civilized people, there 20 would have been no greater difficulty in 21 obtaining their acquiescence in the assumption 22 of sovereignty than in gaining their consent to 23 the conclusion of the treaty; while the treaty 24 has been attended with the double disadvantage, 25 first, that its terms are ambiguous, and, in 26 the sense in which they have been understood, 27 highly inconvenient; and next, that it has 28 created a doubt which could not otherwise have 29 existed, and which, though not, in the opinion 30 of Your Committee, well-founded, has been felt 31 and has practically been attended with very 32 injurious results, whether those tribes which 33 were not parties to it are even now subject to 34 the authority of the Crown. 35 Your Committee have observed that the 36 terms of the treaty are ambiguous, and in the 37 sense in which they have been understood, have 38 been highly inconvenient, in this we refer 39 principally to the stipulations it contains 40 with respect to the right of property in land. 41 The information which has been laid before us 42 shows that these stipulations, and the 43 subsequent proceedings of the Governor founded 44 upon them, have firmly established in the minds 45 of the natives notions, which they had then but 46 very recently been taught to entertain, of 47 their having a proprietary title of great value 26477 Submissions by Mr. Goldie 1 to land not actually occupied; and there is 2 every reason to believe that, if a decided 3 course had at that time been adopted, it would 4 not have been difficult to have made the 5 natives understand that, while they were to be 6 secured in the undisturbed enjoyment of the 7 land they actually occupied, and of whatever 8 further quantity they might really want for 9 their own use, all the unoccupied territory of 10 the islands was to vest in the Crown by virtue 11 of the sovereignty that had been assumed. 12 13 Now, my lord, there follows a reference which is 14 one that I draw your lordship's attention to, because 15 it makes reference to law as well as policy, and it 16 begins at the bottom of this page: 17 18 Your Committee have already mentioned, that 19 it is one of the fundamental principles of 20 colonial law and policy, which they believe to 21 have been correctly laid down by Sir G. Gipps, 22 that "the uncivilized inhabitants of any 23 country have but a qualified dominion over it 24 or a right of occupancy only". 25 26 And then he goes on to -- the report goes on to 27 complete the reference to the speech that Sir George 28 Gipps made and which was quoted earlier. And after 29 that quotation the report continues: 30 31 Unfortunately the original instructions given 32 to Captain Hobson, when he was sent out for the 33 purpose of establishing British dominion in New 34 Zealand, were not sufficiently precise upon 35 this most important point; they contained 36 directions as to the manner in which he was to 37 proceed in purchasing land from the natives, 38 and they did not (as Your Committee think that 39 they ought to have done) clearly lay down the 40 rule that sovereignty being established, all 41 unoccupied lands would forthwith vest in the 42 Crown, and that, except in virtue of grants 43 from the Crown, no valid title to land could be 44 established by Europeans. 45 46 And the -- going to the end of the next -- of 47 that paragraph, my lord, reference is made to the 2647? Submissions by Mr. Goldie 1 Treaty of Waitangi, it's two, four, six, eight lines 2 up from the bottom: 3 The treaty of Waitangi (which had previously 4 reached England and been approved), it may 5 therefore fairly be assumed, must, when this 6 charter and the instructions which accompanied 7 it were forwarded to the colony, have been 8 understood as bearing a meaning not 9 inconsistent with the terms in which they are 10 couched. The lands held "collectively", of 11 which the possession was guaranteed to the 12 aboriginal inhabitants of New Zealand, must, 13 therefore, have been regarded as the lands 14 actually occupied by them, and cultivated in 15 common by a tribe, in the manner frequently 16 practised, and the forests as those actually 17 used for cutting timber. 18 This is the interpretation which, 19 consistently with the ancient and acknowledged 20 principles of colonial law as laid down by Sir 21 George Gipps, and consistently also with the 22 terms of the charter of the colony and of the 23 Royal instructions to the Governor, ought to 24 have been put upon the treaty. 25 26 Now, I don't want to proceed any further except 27 to refer to the resolutions that the -- at the 28 third-to-last page. It's Roman 12 in the upper 29 left-hand corner. 30 The first resolution -- does your lordship -- 31 THE COURT: Yes. 32 MR. GOLDIE: 33 1st. - That the conduct of the New Zealand 34 Company, in sending out settlers to New 35 Zealand, not only without the sanction, but in 36 direct defiance of the authority of the Crown, 37 was highly irregular and improper. 38 39 2d. - That the conclusion of the Treaty of 40 Waitangi by Captain Hobson with certain Natives 41 of New Zealand, was a part of a series of 42 injudicious proceedings, which had commenced 43 several years previous to his assumption of the 44 local Government. 45 46 3d. - That the acknowledgement by the local 47 authorities of a right of property on the part 26479 Submissions by Mr. Goldie 1 of the Natives of New Zealand, in all wild 2 lands in those islands, after the sovereignty 3 had been assumed by Her Majesty, was not 4 essential to the true construction of the 5 Treaty of Waitangi, and was an error which has 6 been productive of very injurious consequences. 7 8 And then I skip down to number six: 9 10 6th. - That means ought to be forthwith adopted 11 for establishing the exclusive title of the 12 Crown to all land not actually occupied and 13 enjoyed by Natives, or held under grants from 14 the Crown; such land to be considered as vested 15 in the Crown from purpose of being employed in 16 the manner most conducive to the welfare of the 17 inhabitants, whether Natives or Europeans. 18 19 The Select Committee did not recommend that the 20 Treaty of Waitangi be in any way repudiated for the 21 Honour of the Crown. It was bound to be acknowledged 22 and accepted and in the manner which local 23 jurisdiction had assumed. 24 Now, my lord -- 25 THE COURT: Do I take it this report is dated 1841? 26 MR. GOLDIE: 1844. 27 THE COURT: There is a date at the very bottom, "See papers 28 respecting New Zealand, ordered by the House of 29 Commons" -- oh, that's a reference, is it? 30 MR. GOLDIE: Yes. That is Captain Grey's report. 31 THE COURT: All right. 32 MR. GOLDIE: Your lordship will have seen -- and I'm bringing it 33 to your attention now only because of the references 34 in it to colonial law, that the law to which reference 35 is made is the -- is recognition of a right of 36 occupancy of lands actually occupied. 37 Now, I'm at page 6 of my introduction. 38 I say, my lord, that while the Select Committee's 39 report is an historical example directly linked to 40 British Columbia through the instruction given to 41 Douglas by Barclay with respect to Vancouver Island, 42 and thus closer to the Supreme Court of Canada's 43 direction -- which I have quoted from Kruger and 44 Manuel -- there are more relevant examples and these 45 will be looked at in due course. 46 In my submission, the legal history introduced by 47 the plaintiffs is so remote and arose in the context 26480 Submissions by Mr. Goldie 1 of facts so different that it is of no assistance in 2 determining whether as a matter of law justiciable in 3 a Canadian court, the plaintiffs are entitled to the 4 declarations of ownership and jurisdiction set out in 5 the Prayer for Relief in the Amended Statement of 6 Claim as commented on by Mr. Grant on Saturday, and as 7 further commented on by some of the individual 8 plaintiffs, Mr. Joseph and Mr. Muldoe, this morning. 9 Now, my lord, we are not concerned whether Andrew 10 Jackson was or was not a racist. Now the reference 11 there is to the history of what happened after the 12 Cherokee Nation entered into treaties with the United 13 States and what happened after the judgment in 14 Worcester v. Georgia. In my submission, the legal 15 rights of the plaintiffs do not depend upon the 16 character of politicians or civil servants. 17 Now, the "purposive" aspect of the approach the 18 court is urged to adopt is said to be supported by a 19 statement of the Court of Appeal in Sparrow. And in 20 my submission, the context of that statement is 21 important. 22 My lord, it's not in my material, but the 23 statement to which my friends refer, the extract from 24 Sparrow, is found in their final argument, Volume 3, 25 page 3 of the section that Mr. -- my friend Mr. 26 Jackson introduced and spoke to, and it reads as 27 follows, and I quote: 28 29 To so construe Section 35(1) would be to ignore 30 its language and the principle that the 31 constitution should be interpreted in a liberal 32 and remedial way. We cannot accept that that 33 principle applies less strongly to aboriginal 34 rights than to the rights guaranteed by the 35 Charter, particularly having regard to the 36 history and to the approach to interpreting 37 treaties and statutes relating to Indians 38 required by such cases as Nowegiijick v. the 39 Queen et al. 40 41 Now, my lord, what the court in Sparrow was 42 referring to in that excerpt was a submission -- and I 43 think there was a submission by the province in that 44 case -- that the definition of aboriginal rights was 45 to be achieved by the process of conventions under 46 Section 37 of the Constitution Act, 1982. That's what 47 is referred to with the words "To so construe Section 26481 Submissions by Mr. Goldie 1 35". 2 So it was to the construction of Section 35 3 itself that the court's words were directed and not to 4 the identification of aboriginal rights. These are 5 entirely distinct inquiries. 6 And in my submission, the court's judgment in 7 Sparrow does not justify reading, for instance, an 8 Order-in-Council according to how someone suggests the 9 native peoples would have understand it. 10 Now, my lord, at the end of the day the 11 proposition put forward by the plaintiffs can be 12 reduced to this: And I'm asserting this in terms of 13 how I characterize the plaintiffs' position in its 14 ultimate sense: 15 16 When, in 1858, the British Parliament empowered 17 the Crown to appoint a Governor who was to 18 provide for the peace, order and good 19 government of the new Mainland Colony, there 20 existed law, it is said by the plaintiffs, 21 co-existing with that enacted by Parliament, 22 which conferred ownership and jurisdiction in 23 the terms stated in the Prayer for Relief and 24 which was enforceable in the Queen's courts 25 against the Crown and its grantees. Now this 26 law, so it is said by the plaintiffs, made the 27 Governor's powers, indeed the power of 28 Parliament itself, a dead letter over virtually 29 all of the Province unless exercised with the 30 consent of the Indian tribes then resident in 31 the Colony. 32 Now in these terms, this omnipresent law 33 rendered illegal virtually everything Douglas 34 and his successors did down to 1871 and, say 35 the Plaintiffs, enable them to veto the 36 application -- go so far as to say that it 37 enables them to veto the application of any law 38 of the Province to the lands the Plaintiffs say 3 9 they own. 40 41 My lord, it will be this defendant's submission, 42 no such law exists. 43 It will be this defendant's further submission 44 that a qualified non-proprietary interest of the 45 native peoples in lands actually occupied by them was 46 protected and in a manner which more than met the 47 recognized principles of the colonial law of the day. 26482 Submissions by Mr. Goldie 1 The history of the colony which does have a 2 bearing on the claims made here almost demonstrate, in 3 my submission, that the Indian peoples of British 4 Columbia were fairly treated in the colonial period 5 with the result stated at page 4 of the memorandum of 6 the Attorney General of British Columbia dated August 7 17th, 1875, which is set out in full in Exhibit 1182. 8 MR. RUSH: Who is that speaking, please? 9 MR. GOLDIE: Mr. Walkem. 10 Now, the background of this, my lord, is, of 11 course, the resolution of the serious dispute which 12 had arisen between Canada and British Columbia over 13 the acreage of reserves to be set aside after 1871, 14 and it led to the creation of the Indian Reserve 15 Commission. But Mr. Walkem, in this memorandum which 16 preceded the creation of that commission but which was 17 instrumental in its creation, said this, and I 18 quote -- and he is there referring to the principles 19 that were followed in colonial times: 20 21 Such is but an imperfect sketch of the Colonial 22 Indian policy which was founded in 1858 -- 23 24 Now that date is, of course, the founding of the 25 Mainland Colony. 26 27 -- and determined in 1871. It was based on the 28 broad and experimental principle of treating 29 the Indian as a fellow subject. The principle 30 was, at least, a lofty one and worthy of an 31 enlightened humanity. Like others of its kind, 32 it had its trials; but it also had its rewards, 33 for, through its influence, the Colony was 34 enabled on the day of Confederation to hand 35 over to the trusteeship of the Dominion, a 36 community of 40,000 Indians - loyal, peaceable, 37 contented, and in many cases honest and 38 industrious. This fact is in itself the best 39 commentary that can be offered upon the policy 40 pursued towards the Indians during the 13 years 41 preceding Confederation. 42 43 Now, my lord, obviously that's a self-serving 44 document. Mr. Walkem was saying that the policy 45 followed in the colony was one that was, as he 46 described it, "a lofty one and worthy of an 47 enlightened humanity". It is a fact that unlike the 26483 Submissions by Mr. Goldie 1 situation in the adjacent territories in the United 2 States, the history of the colony is completely free 3 of the kind of warfare that characterized the 4 situation in the Oregon territory and then the 5 Washington territory. 6 Now, I note that in 1861 the Governor of the 7 Mainland Colony -- that is to say, Mr. Douglas -- 8 instructed the Chief Commissioner of Lands and Works, 9 who at the time was Colonel Moody of the Royal 10 Engineers -- to mark out proposed Town sites and 11 Indian reserves throughout the colony so soon as it 12 may be practicable. The extent of the latter to be 13 defined, and I quote, "as they may be severally 14 pointed out by the Natives themselves". That's an 15 extract from Exhibit 1182 16 Now, in my submission, this was a direction to 17 execute a policy, and it is my submission that it was 18 carried out then and thereafter. Mr. O'Reilly at 19 Kispiox in 1891 said that the government wanted them 20 to have all the lands they cultivated. By that time 21 Mr. O'Reilly was an Indian -- was the Indian Reserve 22 Commissioner. And this was the same man who had laid 23 out reserves 20 years before at Babine in 1871. In 24 other words, what was directed to be done was done. 25 The origins of that policy, which in my 26 submission was an advance on the "fundamental 27 principles of colonial law" -- that phrase is from the 28 New Zealand report -- of the day will be traced. It 29 is, in my submission, a policy of which the people of 30 this province can and should be proud. It stands in 31 bright contrast to the historical events from which 32 the plaintiffs draw their analogies. 33 And I am referring there, of course, to the 34 analogies drawn from the history of Spain and its 35 exploitation of the gold mines of the newer world. 36 I'm referring to the analogies which were sought to be 37 drawn from the enforceable removal of the Cherokee 38 Nation after the judgment of Worcester v. Georgia. 39 Now, my lord, I turn to the General Introduction 40 of the Preliminary Matters. 41 THE COURT: Before you do that, Mr. Goldie, on page 8 — back to 42 page 7, you say your characterization of the 43 plaintiffs' argument, second last line on page 7, "it 44 is said by the plaintiffs, co-existing with that 45 enacted by Parliament." That is co-existing with 46 statutory law? 47 MR. GOLDIE: That's my understanding — well, that is my 26484 Submissions by Mr. Goldie 1 understanding, my lord. 2 THE COURT: I'm looking in your analogy to where you would -- or 3 your description where you would put the common law. 4 MR. GOLDIE: I think it falls into the same category. 5 THE COURT: You say it falls under good government, "for peace, 6 order and good government of the new Mainland"? 7 MR. GOLDIE: Those are the words in the statute. 8 THE COURT: Yes. You say that includes common law? 9 MR. GOLDIE: But -- where the common law of England was 10 introduced was by virtue of a Proclamation in 1858, 11 bringing into the colony the law of England as it then 12 stood. Now, that introduced the common law of 13 England. 14 THE COURT: Was the English — was it November 19th, 1858 or 15 '59? I can never remember. 16 MR. GOLDIE: '58, my lord. It was one of the two Proclamations 17 which were sent out from London with instructions to 18 Douglas to proclaim. In other words, he -- they were 19 drafted for him. 2 0 THE COURT: All right. 21 MR. GOLDIE: The other one was the Indemnity Proclamation. 22 THE COURT: The difference between you and your friend really, 23 then -- and this may be overly simplistic -- is 24 whether that common law as modified by local 25 conditions, includes this further part that you use on 26 page 8 to describe the plaintiffs' claim. 27 MR. GOLDIE: That certainly is a major difference. 2 8 THE COURT: Yes, all right. 29 MR. GOLDIE: But as I understand the plaintiffs' argument, it is 30 not -- their claim to ownership and jurisdiction is 31 not something which evolved in the past decades, it is 32 something which existed at the time of the -- that the 33 colony was erected. 34 THE COURT: I'm trying -- this may be an unnecessary and 35 unproductive effort, but I'm trying to see if I can 36 put your characterization of the plaintiffs' argument 37 into -- into terms which would make it in conformance 38 with their submission, as I understand it. And I'm 39 wondering if the top line of page 8 you would say 40 after -- after "enacted by Parliament" bracket, 41 "including the English Law Act"? 42 MR. GOLDIE: Including the introduction of English law. 4 3 THE COURT: Yes. 44 MR. GOLDIE: Yes, I would agree with that. 45 The Act of 1858, itself, created the colony and 46 authorized the Crown to make provision for peace, 47 order and good government. And in my submission, that 26485 Submissions by Mr. Goldie 1 was a grant by Parliament of all of the legislative 2 authority needed for the rule within the colony. The 3 Crown then appointed Douglas with extraordinary powers 4 of legislation, and one of the first exercise -- 5 amongst the first exercise of that jurisdiction was 6 the Proclamation of the Introduction of English Law. 7 Now, it is part of the law of the colonies that a 8 settled colony -- I should put it this way: that in a 9 settled colony, English law follows the settlers, 10 whereas in a conquered or ceded colony, the law which 11 is existing there at the time continues until altered, 12 and there are a number of examples of that, my lord. 13 THE COURT: What it really comes down to in part then -- or it 14 might -- this is very preliminary -- as to whether the 15 principles upon which the plaintiffs rely can be said 16 to be part of the common law or not. 17 MR. GOLDIE: That is one of the things which I am going to 18 examine. 19 THE COURT: Yes. 20 MR. GOLDIE: I am going to examine the claims to ownership and 21 jurisdiction in terms of the law as I will submit 22 existed at the time, namely 1858. 23 THE COURT: We all run the risk of the Alice-in-Wonderland 24 concept or warning that perhaps the common law is 25 whatever anybody says it is. Question, who is to be 26 the master? 27 MR. GOLDIE: Well, from this side of the bench, my lord, I can't 28 say that. It lies within your lordship's province to 29 say that. But the -- it is -- it will be, in my 30 submission, crystal clear that the common law did not 31 recognize any title which emanated from any source 32 other than the Crown. That will be a basic 33 proposition. 34 THE COURT: All right. 35 MR. GOLDIE: Now, if your lordship would turn to the page headed 36 "Part I, Section I, General Introduction, Preliminary 37 Matters". And I note there that the province -- and 38 I'm sure I speak for all counsel -- welcomes the 39 conclusion of the evidentiary part of the trial, and 40 the approaching resolution of legal questions of 41 provincial and national importance. 42 Now, in submissions with respect to the 43 resolution of those questions, counsel for the 44 province will at times be critical of positions taken 45 by witnesses and conclusions drawn in argument. That 46 is part of -- indeed, it is a virtue of the 47 adversarial system which the plaintiffs invoked when 26486 Submissions by Mr. Goldie 1 they commenced this litigation, and in that respect, 2 it is no different than any other lawsuit. 3 Your lordship has pointed out that there are 4 certain aspects of this lawsuit which mark it off from 5 other civil proceedings. But nevertheless, the issues 6 to be resolved are legal issues and they are to be 7 resolved in accordance with the rules of the court and 8 the law of the land. 9 Now, my lord, obviously, my criticisms and 10 criticisms of my colleagues are not intended to 11 reflect upon the sincerity of the plaintiffs who have 12 sought the assistance of this court. 13 Now, I note that in June of 1988, your lordship 14 said, and I quote: 15 16 We are here not to conduct a royal commission, 17 we are here to determine what the legal rights 18 were of the parties at the date of issuance of 19 the writ. 20 21 If I may pause and say the yellow binders are now 22 applicable to this, and your lordship will find 23 that -- the page from that transcript is under tab 24 1/1-4 of Volume 1. 25 Now, in assisting in this task, counsel for the 26 province have been conscious of the continuing force 27 of the following observation made by Mr. J.A.J. 28 McKenna in his long letter to Sir Richard McBride of 29 July 29th, 1912. Your lordship has had — that's 30 the -- that's the inception of the McKenna-McBride 31 agreement which led to the Royal Commission on Indian 32 Affairs. And Mr. McKenna said, and I quote: 33 34 The easy nonchalance with which loose 35 generalizations have been taken for ascertained 36 facts is the main source of the 37 misunderstandings that have marked the course 38 of Indian Affairs in British Columbia. 39 40 And that was in 1912. 41 Some of the evidence led by the plaintiffs in 42 this case have consisted of complaints about the 43 administration of the -- 44 THE COURT: Sorry, Mr. Goldie, can I stop you there. 45 I take it that there is -- there is no reference 46 there to the yellow book? 47 MR. GOLDIE: No. 26487 Submissions by Mr. Goldie 1 THE COURT: 2 3 MR. GOLDIE 4 5 THE COURT: 6 MR. GOLDIE 7 THE COURT: 8 MR. GOLDIE 9 10 THE COURT: 11 MR. GOLDIE 12 13 14 15 THE COURT: 16 17 MR. GOLDIE 18 THE COURT: 19 MR. GOLDIE 20 21 22 THE COURT: 23 MR. GOLDIE 24 25 26 27 28 1 29 30 31 32 33 34 35 36 1 37 38 39 40 41 42 43 44 THE COURT: 45 46 47 MR. GOLDIE You have the exhibit number and you have the section -- Section VIII is what? : That identifies the -- where the exhibit is -- where the whole exhibit is found. Section VIII of what? : It's — that's Section VIII of Exhibit 1203-8. I see. All right. : Those are the counterclaim documents which consist of -- I think it was something like 11 or 12 volumes. Yes. : And the -- those are arranged according to parts. But your lordship will find the extract of that letter under -- in the yellow book under tab 1/1-5, and it is page 21 of Mr. McKenna's letter. If I see a quotation like that in your outline, does that mean I can find it in the yellow book? : Yes. Yes, all right. : And even if there is not a quotation, if your lordship sees a reference to an exhibit, there will be -- and in some cases I'm going to be -- Yes, all right. : -- spending a little time on them. But in turning back to my summary: Some of the evidence led by the plaintiffs in this case has consisted of complaints about the administration of the laws of Canada and British Columbia. If not wholly irrelevant, such -- and when I say "irrelevant", my lord, I mean simply this: that if legal rights existed in 1858, at the time the colony was founded, which has the effect -- or had the effect that my friends contend for, then the evidence with respect to blowing up the fisheries at Hagwilget and others of comparable nature are irrelevant. But I say if not wholly irrelevant, such evidence demonstrates that the plaintiffs and their ancestors, in the face of such laws, neither exercised jurisdiction over persons nor possessed right of ownership of land or resources. I say that as of July 20, 1871, British Columbia ceased to have the legislative competence to enact laws relating to Indians as Indians or to lands reserved for Indians. I'm sorry again, Mr. Goldie. I'm not -- there is something wrong with what you are saying in relation to what I have here. You see I have got on page 2 -- : Yes. 264? Submissions by Mr. Goldie 1 THE COURT: -- paragraph 6 starts -- I see we have a problem. I 2 jump from paragraph 6 to paragraph 22. 3 MR. GOLDIE: That is a problem. 4 THE COURT: All right. I think there is one page perhaps out of 5 place. Just a moment. No, I'm missing two pages. 6 Yes, sorry? 7 MR. GOLDIE: I'm handing up to your lordship the pages one -- 8 page 2, 3, 4 -- 9 THE COURT: I've got three and four and five. My page numbering 10 is all right, my paragraph numbering is -- 11 MR. GOLDIE: Well, I better give your lordship — 12 THE COURT: I think when I get to page 6 -- no, when I get to 13 page 4 I am on paragraph 9. Page 3 has paragraph 22. 14 MR. GOLDIE: Well, it looks as if there has been a -- pages from 15 another section have been placed -- erroneously 16 placed. There are pages two, three, four, five to 17 ten. If -- and that takes us to the end of Section I. 18 THE COURT: Yes, all right. I'm with you now. 19 MR. GOLDIE: I have read paragraph 6 before. 20 THE COURT: Yes, I followed you to the end of the page. 21 MR. GOLDIE: Yes. And then over the page the sentence is 22 concluded with the words, "over persons nor possessed 23 right of ownership of land or resource." 24 And then paragraph 7 begins with these words: "As 25 of July 20"? 2 6 THE COURT: Yes. 27 MR. GOLDIE: 1871, British Columbia ceased to have the 28 legislative competence to enact laws relating to 29 Indians as Indians or to lands reserved for the 30 Indians. The legal obligations and powers which the 31 Crown in right of the Colony had assumed towards the 32 Indian peoples passed to Canada by virtue of the Terms 33 of Union and Head 24 of Section 91 of the 34 Constitution Act, 1867. To the native peoples as 35 residents of the province the Executive and 36 Legislature of the Province continue to have the 37 responsibilities they have to all residents of British 38 Columbia but it is in the Parliament of Canada that 39 their political aspirations, as Indian peoples, must 40 be sought. 41 And I note that Canada has provided the machinery 42 for this in the shape of the Comprehensive Land Claims 43 process which was referred to by my friends in the 44 course of the trial. 45 And I say the purpose of this lawsuit is not to 46 debate the wisdom of the measures Canada adopted in 47 the discharge of its obligations, responsibilities and 26489 Submissions by Mr. Goldie 1 powers under Head 24. We are here to ascertain what 2 legal rights, if any, existed immediately prior to 3 July 20, 1871, through which the plaintiffs can claim 4 an interest as against the province, and whether any 5 of these rights survived the transfer of 6 responsibility and power to Canada. 7 In explaining the amendment to the Statement of 8 Claim set out in paragraph 72A, counsel for the 9 plaintiffs said at transcript 312 -- and my lord, that 10 transcript is under tab 1/1-8. Counsel for the 11 plaintiffs said the only authority which can act or 12 extinguish the plaintiffs' title is the Federal Crown. 13 And I say one is left with the obvious question: 14 Why, if this is acknowledged to be the exclusive power 15 of Parliament, was this action brought in this court 16 against the province? 17 The legal content of Head 24 evolved over the 18 years as the courts dealt with this subject matter, 19 but one thing was clear from the outset: Canada, and 20 Canada alone, spoke for and to the native peoples. 21 This was apparent to Governor Musgrave in 1870 in 22 his despatch of February 20th to Lord Granville. The 23 last page -- I set that out, my lord. The relevant 24 pages are found under tab 1/1-10, but the part to 25 which I wish to draw your lordship's attention at this 26 time is in paragraph 9: 27 28 In Lord Granville's Despatch No. 84 of 14th 2 9 August which was communicated to your 30 Excellency, [that is to say the Governor 31 General of Canada] he mentioned the condition 32 of the Indian Tribes as among some questions 33 upon which the Constitution of British Columbia 34 will oblige the Governor to enter personally. 35 I have purposely omitted any reference to this 36 subject in the terms proposed to the 37 Legislative Council. 38 39 That is to say, the Terms of Union. 40 41 Any arrangements which may be regarded as 42 proper by Her Majesty's Government can I think 43 best be settled by the Secretary of State, or 44 by me under his direction, with the Government 45 of Canada. 46 47 That, in my submission, properly reflects the 26490 Submissions by Mr. Goldie 1 constitutional arrangement. But then he goes on to 2 say, and I quote: 3 4 But 'Indians and Lands reserved for Indians' 5 form the twenty fourth of the classes of 6 subjects named in the 91st Section of the Union 7 which are expressly reserved to the Legislative 8 authority of the Parliament of the Dominion. 9 10 Now, in my submission, it is perfectly clear that 11 Musgrave was saying in the sentence beginning with the 12 word "but", that whatever arrangements were 13 contemplated must be in light of the exclusive 14 authority which is granted to the central government. 15 Now I note that a half century later, Canada's 16 conception of its exclusive constitutional obligations 17 remained unaltered and I set out the history of the 18 Dominion's -- the Dominion taking exception to 19 legislation which was passed by British Columbia to 20 facilitate the adoption of the Royal Commission. And 21 I quote from Section 3, which is found under the same 22 tab as Musgrave's despatch. I should say that where 23 there are a number of references in one paragraph they 24 are all under the same tab in the yellow binder 25 separated by a blue separator sheet. 26 And Section 3 of that act, of the Provincial 27 Legislature provided that: 28 29 ...the Lieutenant-Governor-in-Council may, for 30 the purpose of adjusting, readjusting or 31 confirming the reductions, cutoffs and 32 additions in respect of Indian reserves 33 proposed in the said Report of the Commission, 34 carry on such further negotiations and enter 35 into such further agreements, whether with the 36 Dominion Government or with the Indians,... 37 38 And I emphasize that last phrase. 39 And then I note that the inclusion of the phrase 40 "or with the Indians" was objected to by the Dominion 41 Government and the prospect of a disallowance loomed 42 over any suggestion that British Columbia could 43 negotiate directly with the Indians. And the Deputy 44 Minister of Justice wrote to his counterpart in 45 British Columbia, and he -- not his counterpart but 46 the Attorney General, and drew his attention in a nice 47 sort of way to it. 26491 Submissions by Mr. Goldie 1 But I say it was only upon an understanding of the 2 clause in question that removed any suggestion of 3 direct negotiations that the Minister of Justice 4 directed to the Dominion cabinet that the Act be left 5 to such operation as it may have subject to the 6 constitutional incompetence of the Provincial 7 Legislature to authorize direct negotiations. 8 And that, my lord, is found under tab 1/1-10, and 9 the report of the Minister -- and it's the second to 10 last page under that -- it's page 18 of the selection 11 under the tab but it's the second page from the end in 12 that tab, and this is the report of the Minister of 13 Justice which was adopted by Order-in-Council, 14 approved on the 10th of April, 1920. And it reads, 15 beginning with the second complete paragraph on the 16 page, he described the British Columbia Act and the 17 Minister of Justice says: "Upon" -- and I quote: 18 19 Upon this the undersigned observes that Indians 20 and Indian reserves are committed by Section 91 21 of the British North America Act to the 22 exclusive legislative authority of the 23 Dominion, and that if there be occasion for 24 negotiations between the local authorities and 25 the Indians with respect to reserves, these 26 should be carried on through the Government of 27 Canada, as representing the Indians, and not 28 with the Indians directly, and that insofar as 29 it be the intent of this section to authorize 30 direct negotiations upon the subject between 31 the Lieutenant Governor and the Indians the 32 provincial Legislature is in the opinion of the 33 undersigned incompetent to sanction such 34 proceedings. The undersigned apprehends 35 however that it should not be presumed and 36 probably was not the intention that the 37 negotiations in question should be carried on 38 with the Indians otherwise than through the 39 government of the Dominion with which their 40 affairs are constitutionally charged. 41 42 Now, my lord, returning to my summary at page 7. 43 I make reference to the Star Chrome case which was 44 a case dealing with Quebec lands and not the subject 45 matter of any treaty, but allotted by statute in 46 respect of which a surrender was taken and, in the 47 result, the judicial committee applied the reasoning 26492 Submissions by Mr. Goldie 1 in St. Catherines' Milling to resolve a contest 2 between the grantee of the province and the grantee of 3 the Dominion, to whom the surrender was made. 4 And I simply note Mr. Justice Duff's comment 5 about the exclusive authority of the Parliament of 6 Canada. 7 And in paragraph 13 I say that the plaintiffs 8 stated in their opening that they seek relief which 9 the province and the federal governments can be 10 compelled to respect and with which they will be able 11 to negotiate a relationship with Canada. And I say if 12 such be their aim the constitutional arrangements of 13 Canada cannot be ignored. 14 Paragraph 14, I note that the openings of the 15 province's case in May of 1987 -- not the province's 16 case, but the opening in May of 1987 was in response 17 to comments made on the province's case by the 18 plaintiffs, but -- and the opening, July of 1989, 19 referred to the constitutional setting of this case. 20 Prior to July 20th, 1871, the policy that prevailed in 21 what was then the Colony of British Columbia was 22 stated by Governor Musgrave to be that of treating the 23 Indians as British subjects under the same protection, 24 entitled to the same privileges and incurring the same 25 liabilities as the white population. And the excerpt 26 from that document, my lord, is found under tab 27 1/1-15. It's Governor Musgrave's letter of February 28 15th, 1870 to the Reverend John B. Good. 29 Returning to my summary. Particular matters 30 affecting the native peoples, such as Indian reserves, 31 were "affairs of administration". 32 The policy pursued by the Government of Canada 33 after 1871 differed in many respects from that of the 34 Colonial Government. That has since undergone many 35 changes, some of which responded to judicial 36 interpretation of Head 24. In particular, judicial 37 explication of that Head determined beyond doubt 38 that treaty-making powers rested with the Dominion 39 notwithstanding that the benefit derived by the 40 removal of aboriginal title might enure to the benefit 41 of the province. Canada has exercised that power 42 selectively since 1867. West of the Rockies there are 43 no treaties of surrender in either what is now the 44 Yukon Territory or British Columbia nor are there such 45 treaties in Newfoundland or the Maritime Provinces or 46 in large parts of the Province of Quebec. This was 47 clearly a matter of policy determined by Canada and 26493 Submissions by Mr. Goldie 1 1 2 3 4 5 6 7 8 9 10 11 12 13 THE COURT: 14 15 16 17 18 19 20 21 MR. GOLDIE 22 23 THE COURT: 24 MR. GOLDIE 25 THE COURT: 26 27 MR. GOLDIE 28 THE COURT: 29 MR. GOLDIE 30 THE COURT: 31 MR. GOLDIE 32 33 THE COURT: 34 MR. GOLDIE 35 36 THE COURT: 37 MR. RUSH: 38 ] 39 40 41 42 ] 43 MR. GOLDIE 44 45 46 THE COURT: 47 MR. GOLDIE Canada alone. Now, in denying Canada's claim that it was entitled to recoup the costs it had incurred in freeing lands in Ontario of the burden of Indian title, the Judicial Committee in Canada v. Ontario rejected the argument that Canada was acting in the province's interest and as its trustee. The extract from that, my lord, is found under tab 1/1-16. And your lordship has now heard a considerable amount about that so I won't pursue the matter. And that really brings me to the end of the substance of the first section. Mr. Goldie, this is an imposition, but you have a larger staff than I do. Would it be possible to have a table of concordance between your yellow book and your argument so that when I am at a certain page in your argument, I can look to see where I will find the reference -- or wait a minute, perhaps I missed something you told me. Perhaps I can get it from the page number. : You get it from the paragraph number, my lord. For instance, going back to -- All right. So I'm on page 9. : Yes. So there is a reference in paragraph 16, so if I go to 1/1-16 I'll find it? : Yes. Oh, that's fine. : That's how the extracts are tabbed. Yes, by paragraph number. : By paragraph numbers -- well, firstly by the part which is a Roman, there being ten parts. Yes. : Then by the section within each part and then finally by the paragraph number. All right. My lord, I wonder if I can impose upon my friend as a matter of clarification, if he wouldn't mind, to express if it is the province's position that the pre-1870 policy of the colony was expressed in -- fully or completely as my friend says in Governor Musgrave's letter of 1870? : No, no, my lord. He is writing a letter and I say that that -- he is stating a policy. But I will deal with what the policy was in considerable detail. All right. : And the policy was stated by Governor Douglas long 26494 Submissions by Mr. Goldie 1 before 1870. 2 THE COURT: All right. Now, I take it then that I can remove 3 from my book the former pages three to ten, I think it 4 is. 5 MR. GOLDIE: I suspect -- well, perhaps if your lordship did 6 that and I could have a look at them I might know what 7 their proper home is. 8 THE COURT: Yes, I would be glad to give them back to you. All 9 right. Shall we take the morning adjournment? 10 MR. GOLDIE: That is satisfactory, my lord. 11 THE REGISTRAR: Order in court. Court stands adjourned for the 12 morning recess. 13 14 (PROCEEDINGS ADJOURNED AT 11:15 A.M.) 15 16 I hereby certify the foregoing to 17 be a true and accurate transcript 18 of the proceedings transcribed to 19 the best of my skill and ability. 20 21 22 23 24 25 Toni Kerekes, O.R. 2 6 UNITED REPORTING SERVICE LTD. 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 26495 Submissions by Mr. Goldie 1 (PROCEEDINGS RESUMED AT 11:30 a.m.) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Goldie. 5 MR. GOLDIE: My lord, I had completed the first part of — first 6 section of Part I and I was going to deal very briefly 7 with the summary of the defendant Province's position. 8 The plaintiffs seek declarations of ownership and 9 jurisdiction. The ownership in its ordinary sense 10 means the most extensive right allowed by law of 11 dealing with property. In conventional terms, it 12 means the fee simple in land - the highest proprietary 13 interest in land under the Crown. I am of course 14 aware of the qualifications the plaintiffs put on the 15 claim in fee simple. They say we don't claim a fee 16 simple because that's an interest in land which stems 17 from the Crown. They say their interest is 18 independent of that. But nevertheless, they claim an 19 interest which in its scope is comparable to an 20 interest in fee simple. 21 The jurisdiction is a word which in its ordinary 22 sense refers to the exercise of judicial or 23 legislative powers. In her dissenting judgment in Re 24 Ownership of the Bed of the Strait of Georgia, Madam 25 Justice Wilson noted that while jurisdiction may flow 26 from ownership the mere exercise of jurisdiction for 27 limited purposes does not necessarily amount to a 28 claim of ownership. And her ladyship, the extract 29 from her judgment, is found in the yellow binder. I 30 say that in the pleadings, which is -- which are 31 collected under tab Roman II, 1/1 and in the evidence 32 led by the plaintiffs in the case at bar it appears 33 that they claim as against the province both ownership 34 and exclusive jurisdiction. Now, I want to 35 acknowledge that we have not yet fully analysed the 36 submission made by Mr. Grant on Saturday with respect 37 to the remedies sought. What is clear, however, is 38 that basically the underlying relief is still 39 comprehended in the prayer for relief and I should add 40 that we have of course not had an opportunity of 41 analysing the effect of the submission made this 42 morning on Mr. Grant's claim. There seem to be 43 certain inconsistencies but we will sort those out by 44 the time we come to make our final submissions on the 45 question of remedy. What I do say at this point is 46 that while exclusive jurisdiction is probably not the 47 appropriate way of describing the interest that Mr. 26496 Submissions by Mr. Goldie 1 Grant described on Saturday morning, the declarations 2 in their wording, even those as suggested by him, 3 still carry with them very, very substantial claims to 4 jurisdiction. Now, I say whatever assertions you 5 take, whether the prayer for relief as set out in the 6 amended Statement of Claim, the prayers for relief as 7 modified by Mr. Grant, they do not -- they are 8 inconsistent with the concept of aboriginal or Native 9 title which was judicially defined in St. Catherine's 10 Milling as a personal and usufructuary right, 11 dependent upon the good will of the Sovereign. I 12 note, my lord, that not much attention has been paid 13 in the case so far to the word usufructuary and I can 14 understand that from my friend's point of view because 15 usufructuary is the right to use something belonging 16 to somebody else, and the essential thrust of their 17 case is that the province owns virtually nothing 18 because it no longer has the right of pre-emption. 19 But, my lord, that title, aboriginal title, is defined 20 in St. Catherine's Milling, is not what is claimed by 21 the Plaintiffs at bar. If the claim to ownership and 22 jurisdiction fails then the action must be dismissed. 23 Now, I note that in the text of the summary I may 24 refer to aboriginal interests as a general statement 25 rather than one that particularizes the distinction 26 between aboriginal title as defined in the St. 27 Catherine's Milling case and the claims that are made 28 here and I note the same kind of distinction in 29 paragraph 20. 30 Paragraph 21, I say the lay and expert evidence 31 led in the case at bar will be examined and it will be 32 submitted that the Plaintiffs have failed to make out 33 the allegations of fact which they say constitute 34 ownership and jurisdiction. In this respect, the 35 significance of shifting and ephemeral house 36 boundaries, the disappearance of houses and the 37 unresolved territorial conflicts with the Plaintiffs' 38 neighbours will be examined and having regard to all 39 of the evidence it will be submitted that the claim 40 made to the Federal Government in 1977 and the 41 multiple variations that have been produced in this 42 trial demonstrate the exaggerated nature of and the 43 fundamental uncertainties underlying the territorial 44 claims. It will be submitted that these claims have 45 their roots in beaver traplines created in 46 proto-historic and historic times in response to a 47 desire for the trade goods of the white man. 26497 Submissions by Mr. Goldie 1 Now, in the event -- and I pause here to say that 2 this was drafted at a time when we were not sure of 3 what the Plaintiffs' position would be, and I said, in 4 the event the Court determines that the Plaintiffs' 5 pleadings raise a claim to aboriginal title, the legal 6 and factual reasons for concluding that such an 7 interest was never acknowledged as existing in the 8 Colony of British Columbia prior to July 20, 1871 nor 9 since then even in Dominion lands lying west of the 10 Rocky Mountains in British Columbia and in the Yukon 11 territory will be canvassed. In the course of this 12 the errors in the judgment of Mr. Justice Hall in the 13 Calder case will be considered and the court will be 14 invited to conclude, on the basis of material not 15 before the Supreme Court of Canada in Calder, that if 16 aboriginal title ever existed in the Mainland of 17 British Columbia it was extinguished by July 20, 1871, 18 save in respect of course of reserves. 19 Now, at the present time, it will be the 20 Province's submission that the plaintiffs must be 21 taken to have abandoned any claim of the kind that was 22 canvassed in the Calder case. 23 THE COURT: You mean abandoned by the course of trial. 24 MR. GOLDIE: Yes. The position taken has been, so far as I can 25 ascertain it, that the only claim made by the 26 Plaintiffs is ownership and jurisdiction of the kind 27 described by Mr. Grant on Saturday. That's the only 28 claim that I understand they make. 2 9 THE COURT: Well, I haven't in my mind at the moment absorbed 30 all of the Plaintiffs' argument but I have a clear 31 recollection that at one stage in the trial Mr. Rush 32 said that without resiling in any way from his first 33 position that he was seeking as an alternative what 34 were then described as -- what were then described by 35 me as Calder type claims. 36 MR. GOLDIE: Well, I have been waiting for those to surface, my 37 lord, but they -- we have -- I took it to be the last 38 word on Saturday as to the claims that are made, and I 39 cannot fit the Calder type claims into those. Maybe 40 that when I reread them I will come to a different 41 conclusion but at the time the basis of the 42 Plaintiffs' claim is exclusive possession as against 43 the Province. 44 THE COURT: Well, I will have to review the Plaintiffs' argument 45 as well and no doubt I will hear from them further in 46 reply. I haven't been matching the arguments as they 47 progressed specifically with various different 2649? Submissions by Mr. Goldie 1 categories or kinds of claims, but I have been 2 proceeding since that statement by Mr. Rush that there 3 was being advanced an alternative claim. 4 MR. GOLDIE: Well, I have -- I can assure your lordship that my 5 colleagues and I listened to Mr. Grant with great 6 interest. We have yet to examine the transcript but 7 we took that to be the last word and we took it to be 8 that the last word is still based upon exclusive 9 possession as against the Province. 10 THE COURT: All right. 11 MR. GOLDIE: And then, my lord, I make reference to the events 12 which occurred following July 20, 1871, and to the 13 counterclaim. I say: In order to obtain some 14 finality in these matters, the Province seeks a 15 declaration that Canada discharged British Columbia 16 from all responsibility for aboriginal title that the 17 same exists and in so doing bound the Plaintiffs in 18 this action. 19 My lord, that concludes sections 1 and 2, and Mr. 20 Plant will now deal with Part II section 1, Part II 21 section 2, and Part II section 3 and 4, all of Part 22 II. 2 3 THE COURT: Thank you. 24 MR. RUSH: My lord, before Mr. Plant commences, I wonder if I 25 could have some clarification from him or my learned 26 friend Mr. Goldie with regard to the replacement 27 sections I have been handed and I expect that your 28 lordship has been handed as well replacement sections 29 for 1, 2 and 4 of Part II, and are we to expect that 30 there will be, for the most part, replacement sections 31 for each of the parts of the Defendant's sections, so 32 that we can have some idea of whether or not we should 33 rely upon the summary as a guide or should we wait to 34 see what the argument will be as we have been provided 35 the replacement pieces? 36 MR. GOLDIE: Well, I think we are following in my friend's 37 footsteps. The argument that we make here is the 38 final argument but there will be replacements and 39 addenda in order to meet the difference between the 40 situation we found ourselves when this summary was 41 prepared and after we have heard my friend's argument. 42 MR. RUSH: Well, do I — 43 MR. GOLDIE: And that is a process which is going on right now. 44 MR. RUSH: May I understand from that then that we can expect 45 that there will be, for the most part, replacements? 46 MR. GOLDIE: Not for the most part, not at all. My friend will 47 find that there is more of our written summary that 26499 Submissions by Mr. Plant 1 2 3 THE COURT: 4 5 6 MR. GOLDIE 7 MR. PLANT: 8 9 10 11 THE COURT: 12 MR. PLANT: 13 14 15 16 17 18 THE COURT: 19 MR. PLANT: 20 21 22 23 24 25 THE COURT: 26 MR. PLANT: 27 28 THE COURT: 29 MR. PLANT: 30 THE COURT: 31 32 MR. PLANT: 33 THE COURT: 34 MR. PLANT: 35 THE COURT: 36 37 38 39 40 41 42 MR. PLANT: 43 44 45 46 47 survives than his summary survived in his final -- its final appearance. Well, I am not sure what Mr. Rush is referring to in replacement parts to the moment. Have they been substituted in my copy? : My friend Mr. Plant will explain that, my lord. My lord, if I may, your lordship should now have in that part of the binder of the summary that is before you replacement sections for 1, 2 and 4, and they have been inserted and I have given -- In Part II. Yes, and I have given my friends copies of the revisions. The revisions in these three sections are fairly minor but that is to say the difference between what your lordship now has and what was in the summary as delivered the end of March in this part is fairly minor. Yes, all right. There is one particular item that I drew to my friend's attention in the note which I just mentioned that there was an appendix to Part II section 2, and I don't want that appendix to be removed and if things went according to plan your lordship should still have the appendix. Yes, I do. That appendix survives into the revised version of Part II section 2. The list of the chiefs or houses. That's right. All right. And I suppose then an amended diskette might be forthcoming? Excuse me? An amended diskette will be forthcoming? There will be, yes. Can you crowd a little less onto each diskette? My computer keeps telling me that, in the brief sampling of them, that every time I want to change directories, that the disk is full, yet I haven't added to it. Only the second one has most of the argument crowded onto one argument and it's meeting some opposition from my computer. I will convey your lordship's concerns to those who know more about it than I do. My lord, I will be speaking to the further introductory matters covered in Part II of the summary, the first of which in Section 1 is entitled History of Proceedings. There are really three 26500 Submissions by Mr. Plant 1 aspects to this section of the argument: The first is 2 a brief summary of the history of the action; the 3 second refers to various amendments which have been 4 made to the Statement of Claim; and the third, which 5 would be under the heading of Part C, refers to other 6 proceedings, that is proceedings other than amendments 7 to the Statement of Claim and in the other proceedings 8 which are part of the larger history of this action, 9 and I have only two points to make arising out of the 10 statements in this summary. But before I do that, 11 it's been brought to my attention that I omitted one 12 proceeding that should be added as a subparagraph (f) 13 on the 13th page or the last page of this section. 14 THE COURT: Yes. 15 MR. PLANT: And the proceeding which has been omitted can be 16 described this way: In separate proceedings the 17 Attorney-General of British Columbia sought an 18 injunction restraining the Plaintiffs and others from 19 blockading highways and forest service roads in the 20 claim area. The injunction application was adjourned 21 generally after the Defendants in that action agreed 22 to remove the blockades and not to erect further 23 blockades. The action, my lord, is A.G.B.C. v. Don 24 Ryan and others, the action number is C895538, British 25 Columbia Supreme Court, Vancouver Registry. Now, 26 that's just by way of completing a survey of other 27 proceedings which are part of the larger history of 28 this action. And if I may, the two points that I wish 29 to spend a moment on are first the reference made to 30 paragraph -- in paragraph 7(a) on page 3 of the 31 summary and that is a reference to the Order of Mr. 32 Justice Taylor as he then was of April 25, 1985, and 33 if I could just pause there for a minute to say that 34 here, for example, to follow the yellow binder series, 35 since this is Part II section 1 paragraph 7(a), there 36 should be a tab in the yellow binder that contains the 37 order of Mr. Justice Taylor. Now, this was a 38 situation where the Plaintiffs amend the Statement of 39 Claim seeking to claim damages in respect of actions 40 of third parties exercising rights as grantees, 41 licensees and lessees of the Province within the claim 42 area. That claim was denied by Mr. Justice Taylor and 43 the claim for damages in the action was thereupon 44 limited to the damage allegedly caused by the Province 45 and its servants, agents or contractors. And the 46 Statement of Claim was in due course amended as I 47 recall to incorporate those words. The importance of 26501 Submissions by Mr. Plant 1 this application was that the issue of whether the 2 Plaintiffs' case was properly constituted as a 3 representative action within the meaning of Rule 5(11) 4 of the Rules of Court was raised. In fact, we opposed 5 their application to amend on the grounds that the 6 amendment in the terms sought would not come within 7 the terms of Rule 5(11). The Plaintiffs made 8 submissions to the court concerning the correct 9 characterization of their claim for the purpose of 10 fitting within the rules, and I am going to return to 11 that submission later. 12 The second item which I do wish to spend a moment 13 on is paragraph 7(b) also on page 3 of the summary, my 14 lord. And also as I recall -- no, this would be 1986, 15 the Plaintiffs sought to amend to claim an injunction 16 against the Province. That amendment was refused by 17 the Court of Appeal on the 5th of December of 1986 on 18 the basis that an injunction against the Provincial 19 Crown could not be made having regard to Section 11(2) 2 0 of the Crown Proceeding Act. And I do want to take 21 your lordship to the Reasons for Judgment of the Court 22 of Appeal and you should find them in the yellow 23 binder at tab II/l-7(b), they are in my binder in any 24 rate. 25 THE COURT: Looks like them. 26 MR. PLANT: Now, the passages I want to refer your lordship to 27 begin on page 3 of the judgment where Mr. Justice 28 Hutcheon, speaking for the Court, said as follows: 29 30 "I turn then to the amendments allowed..." 31 32 That is to say allowed by the Chambers Judge: 33 34 "...to the prayer for relief by these 35 paragraphs: 36 9. An interlocutory and permanent injunction 37 prohibiting the Defendant Province from 38 interfering with the aboriginal rights and 39 title, ownership and jurisdiction of the 40 Plaintiffs." 41 42 And I won't read the rest of them. Carrying on with 43 the text of Mr. Justice Hutcheon's judgment: 44 45 "The action of the plaintiffs is based upon the 46 Crown Proceeding Act. By that statute, the old 47 remedy of petition of right pursuant to the 26502 Submissions by Mr. Plant 1 grant of the fiat was replaced by the statutory 2 right to sue the Provincial Crown. However, 3 section 11(2) contains this provision:" 4 5 And I will leave that for your lordship to read. As 6 your lordship is undoubtedly aware it provides that 7 the Court cannot grant an injunction against the 8 Crown. Then carrying on at the bottom of the page: 9 10 "Prima facie a claim for an injunction against 11 the Provincial Crown cannot stand in the face 12 of section 11(2). The judge in chambers was 13 pursuaded to allow the amendments by a decision 14 in the Alberta Court of Queen's Bench in 15 Ominayak. With respect, I consider that case, 16 which dealt with a statutory provision in the 17 same language as s. 11(2), to be wrongly 18 decided. Mr. Justice Forsyth relied upon the 19 decisions of the Supreme Court of Canada in the 20 B.C. Power case and the Law Society of B.C. 21 case." 22 23 I pause to remind your lordship that those are 24 cases which are relied on by the Plaintiffs in their 25 final argument. Then carrying on: 26 27 "Neither decision involved the question of an 28 action against the Crown in its own right or 29 the question of a statutory prohibition that he 30 we find in s. 11(2). I do not consider them 31 relevant to the question on this appeal." 32 33 Skipping a paragraph: 34 35 "Mr. Grant said that no application has been 36 made for an interim injunction but that the 37 plaintiffs are fearful that the necessity for 38 that relief may soon arise. He cited the 39 example of the changes being made by Provincial 40 officials to the trapline system. Mr. Goldie 41 concedes in his factum that the Crown 42 Proceedings Actdoes not bar the remedy of 43 restraining orders against servants of the 44 Crown. That and other relief may be available 45 to the plaintiffs in other proceedings. I need 46 not decide on this appeal the availability of 47 an interim declaration such as that granted in 26503 Submissions by Mr. Plant 1 Peters v. The Queen in a proceeding under the 2 Judicial Review Procedure Act. 3 As to the permanent injunction and apart from 4 the prohibition in s. 11(2) I agree with what 5 Professor Sharpe said in his book on 6 'Injunctions and Specific Performance'..." 7 8 And there is a quote from page 173 of that book. His 9 lordship continues or concludes on this point by 10 saying: 11 12 "For these reasons I would allow the appeal..." 13 14 That is to say, the Province's appeal from the 15 chambers judge's order: 16 17 "...and strike out the amendments made by 18 Paragraphs 9, 10 and 11." 19 20 Now, the point I want to make is summarized on -- 21 in paragraph 9 on page 8 of the summary of argument, 22 going back to that, my lord. I there start with an 23 observation relating to all of the amendments made by 24 the Plaintiffs and I say that the granting of leave to 25 make such amendments, irrespective of whether the 26 Plaintiffs' applications were opposed or consented to, 27 does not constitute a finding that the Statement of 28 Claim discloses any cause of action. However, the 29 ruling of the Court of Appeal of December 5, 1986 30 resolved at least one matter: by applying the Crown 31 Proceeding Act to limit the Plaintiffs' claim for 32 relief the Court made clear that, contrary to the 33 allegation in paragraph 73 of the Statement of Claim 34 (and formerly in paragraph 2 of the prayer for 35 relief), which I will come to in a moment, the laws of 36 British Columbia do confer jurisdiction over the 37 Plaintiffs and the claim area. 38 I want to pause for a minute here because this 39 argument, and in some of the other arguments that I am 40 going to be making today, are responsive to the 41 pleadings, and as Mr. Goldie has said a few minutes 42 ago, they are not -- we are not yet in a position to 43 say that they respond completely to the Plaintiffs' 44 argument as it was articulated on Saturday. But what 45 I say arises out of this judgment of the Court of 46 Appeal is that, at the very least, the Court of Appeal 47 has disposed of the specific question whether the 26504 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT THE MR. COURT PLANT THE MR. THE MR. THE MR. COURT PLANT COURT PLANT COURT PLANT Plaintiffs have some kind of constitutional immunity from provincial laws with respect to proceedings against the Crown, and that will become relevant and I will make the point again when I submit -- make submissions with respect to the effect of the Crown Procedure Act on the Plaintiffs' action. And I say that it's open to your lordship to read in the judgment of the Court of Appeal that the Court of Appeal has disposed here of the larger question whether provincial laws are capable of applying incidentally and their incidental effects to the Plaintiffs and to the claim area by deciding that they do. Well, are you basing that on the decision of the Court of Appeal that no injunction lies against the Crown? Yes, by virtue of the decision of the Court of Appeal that these Plaintiffs, if they want to sue this Crown, have to comply with a procedure laid down in the provincial statute. Does it go that far or does it merely say thou shalt not obtain an injunction against the Crown? Well, in my submission and the reading of the reasons, it's clear that the Court finds that prohibition not only -- finds the prohibition in the common law and the modification of it in the statute. And it is the application of the statute to say to the Plaintiffs you can't get declaration, you can't get an injunction against the Crown, that I am relying on here. In this context, my lord, I do want to open the door as it were on the jurisdiction claim just a little bit wider, and I have got some more material here, the first is an extract from the transcript from volume 337 which was the 7th of May, 1990, and I should have one for the registrar and one for the reporter and one for your lordship. Where do I insert it? I beg your pardon? Where do I insert it? I would suggest that you insert it at the end of tab II/l-7b after the judgment of the Court of Appeal in the yellow book. Yes. And I have got some more material to put in the same place. What I have just handed up to your lordship is an extract from the Statement of Claim by which this action was commenced on the 23rd of October, 1984. 6 THE COURT 7 MR. PLANT 8 THE COURT 9 MR. PLANT 26505 Submissions by Mr. Plant 1 Lastly as part of this addition of series, I don't 2 appear to have enough copies of it, but I am handing 3 up copies of pages 8284 to 8286 from volume 134 of the 4 transcript, and these were -- this relates to the 5 cross-examination of Mr. Sterritt by Mr. Goldie. Do you know the volume number? 134. Thank you. Now, if I could refer first to the extract from 10 volume 337, and that's the submissions of Mr. Jackson 11 on the 7th of May. Starting at line 15: 12 13 "THE COURT: Well, I'm sorry, I thought you said 14 a moment ago you're not seeking to strike 15 down laws of general application. Now I 16 think you're saying that you are. 17 MR. JACKSON: My lord, the Plaintiffs are not 18 specifying the particular areas of 19 jurisdiction which they -- over which they 20 exercise and govern themselves. They have 21 articulated a number of particular heads of 22 jurisdiction upon which we have asked this 23 court to make deculatory rulings. 2 4 THE COURT: Then the note I made a moment ago, 25 Plaintiffs do not seek an order striking 26 down the general laws of the province, now 27 you tell me now that is not an accurate 28 note of your -- 29 MR. JACKSON: I was referring, my lord, to your 30 reference to land, education and health. 31 THE COURT: Public health, yes. What about 32 traffic? 33 MR. JACKSON: In relation to lands outside of 34 reserves, I don't think the Plaintiffs have 35 ever voiced an objection to the traffic 36 laws of the province, my lord. 37 THE COURT: So the province can continue to 38 regulate the use of the highways and can 39 continue to impose roadside suspensions and 40 all those other things that go with the 41 regulation of traffic? 42 MR. JACKSON: I don't believe the plaintiffs 43 have suggested that that would be any 44 different, my lord." 45 46 Now, if your lordship will see, turning over the 47 page to the extract from the original Statement of 26506 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT THE COURT MR. PLANT THE COURT Claim, I draw your lordship's attention to paragraph 2 of the prayer for relief which is at the bottom of the page, and that prayer for relief was in these terms: the Plaintiffs claim a declaration that the defendants -- I pause there for a moment. At that point there was only one defendant, Province, "that the defendants do not have jurisdiction over the territory of the Plaintiffs". I read that then and I read it now, although it's not part of the Statement of Claim today, as saying that the Province of British Columbia has no jurisdiction within the territory which is the subject of this action. And my reading of that, my lord, is supported by the answers which Mr. Sterritt gave under cross-examination by Mr. Goldie in volume 134 of the transcript. I am not going to read all of the extracts but the germane passages begin line at 23 of the first page of the extract and carry on throughout the next page and the following page and lead to the answer given on line 18 of page 8286 which is the third page of the extract where Mr. Sterritt said: "A The Gitksan and Wet'suwet'en have aboriginal title and jurisdiction over their territory. The -- neither Canada nor the province have sovereignty within that territory until such time as these matters have been dealt with properly, either in court or in negotiation." And I should pause to say there, my lord, that that evidence was given after the Statement of Claim, the prayer for relief in particular, had assumed the form which it assumes or has today. Now, those are the submissions which I intended to make in relation to section 1 Part II. : Well, what are you seeking to advance here, Mr. Plant, that the Plaintiffs on the pleadings are claiming immunity from the general laws of British Columbia or not? : As I read the pleadings, my lord, they are. : But this paragraph -- you say this paragraph 2 has been deleted. : Paragraph 2 has been replaced by the prayers for relief which are in Part II of the prayers for relief and paragraph 73 of the Statement of Claim as it still -- as it is now concluded -- : 73. 26507 Submissions by Mr. Plant 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. PLANT: Yes, 73. THE COURT: Yes. MR. PLANT: Leaving out the middle part of it, it reads: The laws of the Province of British Columbia do not confer any jurisdiction over the territory and resources thereon and therein claimed by the Plaintiffs. THE COURT: I am sorry, I thought I had the up-to-date Statement of Claim. MR. RUSH: I think the whole of the paragraph should be read, my lord. MR. PLANT: I will be happy to read it all. The part that I am interested in is the part that I have read. THE COURT: What's the date of the final Statement of Claim? MR. RUSH: It is February 9, 1990, my lord. MR. PLANT: Yes. THE COURT: I was looking at paragraph 73 and it didn't seem to read what Mr. -- paragraph 73 says: "The laws of the Province of British Columbia are subject to the reservation of aboriginal title, ownership and jurisdiction by the Gitksan Chiefs and the Wet'suwet'en Chiefs and do not confer any jurisdiction over the Territory and resources thereon and therein claimed by the Plaintiffs." MR. PLANT THE COURT MR. PLANT THE COURT Is that what you read? Yes. Then I mislistened to you, Mr. Plant. Well, I didn't read all of that. And I don't think that the -- what I left out takes away from the submission that there are two aspects of the paragraph or two aspects of the allegation: one is the allegation that the laws are subject to the reservation of the Plaintiffs' rights; and the second is that they do not confer any jurisdiction over the territory and resources thereon. That is how they, the provincial laws, are subject to the reservation of aboriginal title. They are subject in the sense that the provincial law does not confer any jurisdiction over the territory and resources thereon. So what you are asking me to have in mind is that on the pleadings at least the Plaintiffs are claiming immunity from the laws of British Columbia? 2650? Submissions by Mr. Plant 1 MR. PLANT 2 THE COURT 3 MR. PLANT Exactly, my lord. Yes,, all right. I have more to say about the pleadings in Part II 4 section 2 of the summary which is the section that I 5 am going to turn to now. 6 My lord, I submitted that it is trite law but 7 fundamental law that the duty of the court is to 8 decide cases in accordance with the pleadings. And 9 particular emphasis ought to be placed on an analysis 10 of the Statement of Claim in this case for a number of 11 reasons. The claim as pleaded is novel. Second, the 12 absence of authority prescribing the constituent 13 elements of the cause of action for ownership and 14 jurisdiction means that the Plaintiffs have been 15 afforded considerable latitude to define the case on 16 their own terms. And I say that the place where the 17 facts and issues are defined in the ordinary case is 18 in the pleadings; and this is all the more reason why 19 this should be so where the legal framework for 20 adjudicating the claim as presented is unsettled. And 21 I there set out and in the succeeding passages set out 22 some reference from the case law and other authorities 23 on the importance of pleadings, and I would draw your 24 lordship's attention in particular to the judgment of 25 Lord Radcliffe in the Esso Petroleum case which is 26 referred to in paragraph 5, and one of the reasons is 27 that I have to correct the page reference there, and I 28 have referred to page 240 as being the place where 29 your lordship will find the extract of the judgment of 30 Lord Radcliffe and it's actually 241. Your lordship 31 should find the complete text of that judgment in the 32 grey binders of authorities which are organized more 33 or less alphabetically so that the Esso Petroleum case 34 would be at tab (e) for Esso - 1. 35 And I am going to move ahead now if I may to 36 paragraph 7 where there is a lengthy quotation from an 37 article cited in Bullen & Leake, and I am going to 38 direct your lordship's attention in particular to the 39 passages beginning about ten lines down with the 4 0 words: 41 42 "The court itself is as much..." 43 44 Do you have that, my lord? 45 46 "The court itself is as much bound by the 47 pleadings of the parties as they are 26509 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT themselves. It is no part of the duty or function of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realms of speculation..." And I won't bother reading the rest of it. I think much of it is -- would in ordinary litigation be taken for granted and it's my submission that it deserves to be taken for granted in this case. I want to move to the next proposition which is part of this submission, and that is to analyse the pleadings so as to draw to your lordship's attention the proposition that there is no claim for aboriginal title in the pleadings, and your lordship has a copy of the February 6, 1990 Amended Statement of Claim, that would be helpful to have before you. There is another copy of it in the yellow book at tab 2 -- Roman numeral II/2-8, and the first proposition is to identify -- the first task is to identify the essence of the claim and this can be done fairly quickly. Your lordship knows that from paragraphs 1 to paragraph 55 the plaintiffs are identified. Then we have the first substantive assertions of rights, and those are in 56 and 56(a) where there is an assertion that they, the Plaintiffs, own and exercise jurisdiction over a defined area. And this is a claim of present ownership and jurisdiction but it includes a claim of past ownership and jurisdiction, and that claim is developed in paragraph 57 by a -- by a list of the facts which comprise, although not exhaustively, apparently the constituent elements of the assertion of ownership and jurisdiction, and the claimed ownership and jurisdiction is further elaborated on up to paragraph 63, and then from paragraph 64 to 71, and I am now referring to subparagraph (d) on page 5 of my submission. : You say (d) covers paragraphs what? : 64 to 71, and that's where the plaintiffs draw on the additional sources of their rights, that is the Royal Proclamation Section 91(24) and 109 of the 26510 Submissions by Mr. Plant 1 Constitution Act 1867 and so on. And then just for 2 reference, subparagraph (e) has three parts: The 3 first part is a reference to paragraph 73 of the 4 Statement of Claim, that's the assertion that the laws 5 of British Columbia are subject to their rights, I 6 read that to you a moment ago; the admission of 7 underlying title is in 72(a); and then the abandonment 8 or the decision to make no claim in respect of lands 9 held by third parties in fee simple as of October 23, 10 1984 is in paragraph 79; and lastly, there is the 11 damage claim and the facts in support of that are in 12 paragraphs 75 to 77. 13 Now, I say that the core of the claim is the 14 assertion of ownership and jurisdiction which is 15 contained in 56 to 63, and your lordship will find no 16 mention of the phrase aboriginal -- 17 THE COURT: Oh, yes, I have it, thank you. 18 MR. PLANT: I am now in paragraph 9 of my submission. Your 19 lordship will find no mention of the phrase 20 "aboriginal title" in any of paragraphs 1 to 71, and 21 in particular the phrase "aboriginal title" does not 22 appear in those crucial paragraphs 56 to 63 which are 23 the heart of the claim to ownership and jurisdiction. 24 Your lordship will see in paragraph 72 the phrase 25 "aboriginal title" and that phrase -- I am going to 26 come back to this in just a second, it reappears in 27 72(a), 73, 74, and 74(a), and then it disappears again 28 for the balance of the body of the Statement of Claim. 29 That should be the -- I should have qualified it 30 because "aboriginal title" is referred to in the 31 prayer for relief. 32 Now, in each of paragraph 72 to 74(a), that phrase 33 "aboriginal title" appears in conjunction with a claim 34 to ownership and jurisdiction as if aboriginal title 35 was something different than ownership and 36 jurisdiction, and I say that the only way you can read 37 those paragraphs is that aboriginal title must be 38 something different from ownership and jurisdiction, 39 otherwise the phrase in the context is redundant. If 40 it were as simple as saying that aboriginal title 41 equaled ownership and jurisdiction, which is certainly 42 something that could be argued up to paragraph 72, 43 then why in paragraph 72 does an exercise in drafting 44 include aboriginal title, and that's really the 45 question. 46 That leads then to the appearance of two distinct 47 claims in the Statement of Claim, the claim to 26511 Submissions by Mr. Plant 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 ownership and jurisdiction, and a claim to aboriginal title, and the claim to damages was characterized by my friend Mr. Grant I believe on Saturday as a subsidiary claim, and that -- I think that's a correct characterization. But if your lordship reads paragraphs 72 through to 74(a), I say that you will find no facts alleged in support of the claim of aboriginal title which is described or referred to there. The facts that are alleged in paragraphs 56 to 63 are alleged in support of the claim to ownership and jurisdiction, not aboriginal title, and I say both on the pleadings and as will be developed in argument by my colleague, Mr. Goldie, there are two quite different ideas. Paragraph 14 on page 7 of my summary -- THE COURT: Well, Mr. Plant, at one point, and it was late during our time in Smithers, I think in the last week but perhaps in the second last week, I asked Mr. Rush the nature of the aboriginal title he was seeking. He said -- I am sorry, I asked him the nature of the ownership he was seeking and he described it in terms of aboriginal title, that is a common law route arising from possession. Now shouldn't I take that as being the Plaintiffs' position? MR. PLANT: Well, first of all, just as a matter of clarification, is your lordship referring to a statement made by Mr. Rush in Smithers in 1987? THE COURT: No, no, not that long ago. Quite a while ago, but it was last month. MR. PLANT: Oh, well, I am not aware of that statement. That would of course have been a statement in argument? THE COURT: I asked him whether he was relying on some form of English, I don't know if I used the word archaic English law or something of that kind, and he defined what it was that he was seeking by way of ownership and he said it was an ownership by way of aboriginal title. MR. PLANT: Well, I don't want to be disingenious about the argument that I am making. I understand the Plaintiffs to be saying that aboriginal title properly construed in the context of the factual matrix of the evidence that they put forward before your lordship means or can be called ownership and jurisdiction. That is a matter of argument. And it will be developed later in our submissions that the two ideas of aboriginal title on the one hand and ownership and 26512 Submissions by Mr. Plant 1 jurisdiction on the other are as a matter of law quite 2 different, and so what I am seeking to do here, my 3 lord, is to begin to lay the groundwork for the later 4 submission by concentrating for the moment on the 5 pleadings, and your lordship at the end of the day is 6 going to have to look at the pleadings and say in 7 response to my friend's submission, you know, is that 8 a claim that is founded in law, and it may be that 9 what I am talking about now will be further developed 10 in the course of the submission on whether or not it 11 is part of the law, but for the time being what I am 12 trying to identify for your lordship is the extent to 13 which aboriginal title is not claimed in the 14 pleadings. 15 THE COURT: Yes. 16 MR. PLANT: I don't think I will take your lordship through the 17 paragraphs, in my submission, pages 8 and 9 until we 18 get to page -- or paragraph 18 where I draw your 19 lordship's attention to the reasons for judgment which 20 were produced in February of 1988 when the issue of 21 whether there was a Calder type claim here or not was 22 raised and at that time your lordship said in the 23 second of the two paragraphs which I have quoted: 24 25 "In my view it is highly doubtful if the 26 plaintiff has sufficiently pleaded Calder type 27 or other alternative claims to aboriginal 28 rights additional to the claim to ownership and 29 jurisdiction. Such claims are pleaded, if at 30 all, obliquely such as in paragraph 74, 74(a) 31 and in Prayers to Relief 6 and 9." 32 33 And it's my submission, my lord, that nothing has 34 changed since February 18, 1988. The claim as plead 35 is not a claim to aboriginal title in the Calder 36 sense. 37 Now, if I could just jump ahead to paragraph 20. 38 There is in paragraph 16 for the prayer for relief a 39 general prayer which seeks "such further and other 40 relief to this court may seem just". The plaintiffs 41 have not argued that your lordship should go to that 42 paragraph and ask for a declaration of rights akin to 43 aboriginal title in some sense other than that in 44 which it has been put forward by them. But what 45 follows in the written submission is an answer to that 46 possible argument which concentrates on the importance 47 of confining parties to their pleadings, a point that 26513 Submissions by Mr. Plant 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 has already been made. So that I can move ahead in my submission without derogating from the force or effect of the written word up to paragraph 27 under the heading Pleadings and the Identity of the Plaintiffs, and I say in the Statement of Claim -- MR. RUSH: My lord -- excuse me, Mr. Plant. I would be assisted if my friend could explain to me in paragraph 19 where he says that Plaintiffs' counsel has suggested that aboriginal title and then in his argument he said in the Calder sense and then he completed that first, and if my friend could simply assist me in telling me what he means by aboriginal title in the Calder sense. MR. PLANT: Well, first of all let me say that the first sentence in paragraph 19 was written a long time ago and probably should be taken out of my argument but, as to what aboriginal title in the Calder sense means, without wanting to avoid the question, I think that Mr. Goldie is going to be speaking at length about what aboriginal title is or isn't or can or can't be, and that's when my friend will get the answer to his question. THE COURT: Well, I am not sure that paragraph 19 should be taken out. It seems to me that the opening sentence of paragraph 19, he reflects what Mr. Rush said some years ago, that there was haesitantae and reluctantly an alternative claim in the event that ownership wasn't made out. I can't for the moment turn up the reference to that. It was a statement that was made in Vancouver in 1988 I should think but I am not positive about that, or maybe 1989, but I think 1988, and I referred to it a moment ago. MR. PLANT: Your lordship referred to that earlier this morning and I haven't been able to get my hands on that statement by Mr. Rush, and as to what. It was by Mr. Rush? THE COURT: Yes, it was. MR. PLANT: So what its terms were and what it -- THE COURT: Because I remember so well that he stressed that he did he not want to be taken to be weakening in any way his fundamental position that it was ownership he was seeking but that -- and it seemed to me that he was resiling from the firm position he took in Smithers and I think -- and on a second occasion that there was no alternative position being advanced. MR. PLANT: Well, I know the point has been visited on several occasions. I recall that in the argument that led to the reasons for judgment of the 18th of February, 26514 Submissions by Mr. Plant 1 1988, Mr. Grant advanced an argument, as I can recall 2 it, that read the claim of aboriginal title into the 3 prayer for relief that refers to Section 35 of the 4 Constitution Act. 5 THE COURT: All right. 6 MR. PLANT: But I can't recall the statement made by Mr. Rush to 7 the effect that your lordship recalls. 8 THE COURT: Well, I think you should know, Mr. Plant, that my 9 present recollection is, and I won't say this in 10 terrorem, but my present sense of all this is that at 11 least the course of the trial suggests that there is 12 an outstanding alternative claim but it may not be 13 pleaded. I think this statement was made prior to 14 what I said in February of 1988 and for that reason I 15 think it might be useful for you to have that in mind 16 and for your friend to consider whether he wants to 17 find those references before I do and perhaps rely on 18 them in the event that possibly he doesn't want me to 19 rely on them. 20 MR. PLANT: Yes. I may look for those references myself, my 21 lord. 22 THE COURT: All right, thank you. Should we adjourn for lunch, 23 Mr. Plant? 24 MR. PLANT: I was going to refer to -- or start the submission 25 in part (b) and that's going to take a few minutes, my 26 lord. 27 THE COURT: Let's look forward to hearing from you at two 28 o'clock. Thank you. 29 THE REGISTRAR: Order in court. Court stands adjourned. 30 31 (PROCEEDINGS ADJOURNED AT 12:30 p.m.) 32 33 I hereby certify the foregoing to 34 be a true and accurate transcript 35 of the proceedings transcribed to 36 the best of my skill and ability. 37 38 39 40 41 42 Tannis DeFoe, 43 Official Reporter, 44 UNITED REPORTING SERVICE LTD. 45 46 47 26515 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 (PROCEEDINGS RECOMMENCED AFTER LUNCHEON RECESS) THE REGISTRAR THE COURT MR. PLANT Order in court. Mr. Plant. My lord, if I might begin on page 13 of part II, section 2, paragraph 29 -- actually paragraph 28. The Writ of Summons by which the action was commenced named 48 plaintiffs. By the time the trial commenced in May of '87 there were 52 named plaintiffs allegedly representing some 68 named houses. I pause just to remind your lordship that the situation of a named plaintiff representing -- alleged to be representing more than one house, was a situation that occurred as a result of amendments made after the action was commenced. 29 of the houses named in the action when the trial -- when it came to trial in May of '87, or their chiefs had not been plaintiffs when the action was commenced. Some of them, and I have listed names of examples there who were not named when the action started, became plaintiffs as a result of an intervening amendment and were later dropped. I say that there have been some 51 changes to the style of cause, and of course many of those I haven't added up the number, but many are the result of chiefs who passed away and their position has been assumed by others. And in this context, my lord, I ask you to look at the appendix to this section, which identifies changes to the style of cause, and it's really for your reference as much as anything else. The way it works is that each of the columns with the numbers in it represents an appearance or a non-appearance in the Statements of Claim identified at the top of the column. To give an example, Delgamuukw, then Albert Tait in the upper -- the very beginning of the very first page, insofar as he is alleged to have represented the House of Delgamuukw, was named in that capacity in the first Statement of Claim, and was named in paragraph 1. That's what the "1" means there, of that Statement of Claim. And you will see that the "1" appears in the columns all the way along to the right until SC9, a column headed SC9, which is the ninth Statement of Claim. There Mr. Tait, as Delgamuukw, drops out of the Statement of Claim, but if you go down three numbers, the one there refers to the fact that Mr. Tait's place was taken by 26516 Submissions by Mr. Plant 1 the late Ken Muldoe as Delgamuukw. So that there has 2 been continuous representation of Delgamuukw by two 3 individuals. 4 But if you turn over the page, my lord, to the 5 next page about three quarters of the way down, Larry 6 Wright is identified as a plaintiff holding the name 7 Haak Asxw, H-A-A-K A-S-X-W. And you will see 8 following this along that Haak Asxw, the House of Haak 9 Asxw did not appear until the Statement of Claim 10 filed -- that's September the 10th, 1986 where Larry 11 Wright appears as Haak Asxw in paragraph 16. In the 12 succeeding amendment, the amendment of October 27th 13 Larry Wright is then named as a representative of the 14 house of an additional house. The House of Mool 'Xan, 15 M-O-O-L 'X-A-N. And you see that for the next three 16 versions of the amendment of the Statement of Claim 17 the house named Mool 'Xan appears in the Statement of 18 Claim, and it's later dropped. And it does not appear 19 in the Statement of Claim today. So Mool 'Xan is a 20 house that has -- as far as the pleadings are 21 concerned, come and gone. And I will be coming back 22 to the evidence on the existence of houses and their 23 appearance and reappearance in a later part of the 2 4 argument. 25 If I could turn to paragraph 31 of my submission, 26 my lord. It's on page 13. 2 7 THE COURT: Yes. 28 MR. PLANT: According to my count in the Statement of Claim of 29 February 8th, 1990, there are 51 named plaintiffs. 30 Each is identified as the hereditary chief of a house. 31 Each is said to bring the action on his own behalf, 32 and on behalf of the members of the house of which he 33 or she is a chief. The hosts, although identified by 34 name in the pleadings, are not themselves plaintiffs. 35 And what follows continues to be an analysis of 36 the issue of identification within the context of the 37 pleadings, and some of this is quite obvious. There 38 are two groups of plaintiffs, the Gitksan and the 39 Wet'suwet'en, and as to the Gitksan, they, by 40 definition, do not comprise the totality of the 41 Gitksan hereditary chiefs, because there is a 42 sub-category of chiefs, namely, the Kitwancool chiefs, 43 who are expressly excluded. 44 Then I want to draw your lordship's attention to 45 an inconsistency between the pleadings and the 46 evidence, which the point can be made in the context 47 of paragraph 50 of the Statement of Claim. And 26517 Submissions by Mr. Plant 1 perhaps at this point I could ask your lordship to get 2 out a copy of the Statement of Claim, because there 3 will be one or two other points that I want to make 4 here. And paragraph 50 is on page 10 of the most 5 recent Statement of Claim. And there it is alleged 6 that the plaintiffs in the paragraphs numbered therein 7 are the hereditary chiefs of the Gitksan, and are 8 descendants and/or successors of the hereditary 9 chiefs, except the Kitwancool chiefs. I say the use 10 of the definite article, the word "they" implies that 11 the named plaintiffs comprise all of the hereditary 12 chiefs of the Gitksan, except the Kitwancool, and the 13 same conclusion follows for the Wet'suwet'en, with the 14 exception that there is no category of chiefs alleged 15 to be excluded from the category of Wet'suwet'en 16 chiefs, and the implication is that there are no other 17 hereditary chiefs; that the evidence is obviously to 18 the contrary. There are many other hereditary chiefs, 19 and both the Gitksan and Wet'suwet'en, and they are 20 called wing chiefs, sometimes called sub-chiefs, 21 sometimes they -- there is an uncertainty or an issue 22 as to whether there are two head chiefs of a house who 23 may have different responsibilities, but are equally 24 senior. And as I recall Axtii Hiikw and Tenimgyet is 25 an example of that. 26 The point is, my lord, that they are all 27 hereditary chiefs, all those other individuals, and so 28 there is a contradiction between the evidence and the 29 pleading. 30 Now, the allegation of representation has a 31 further problem arising out of paragraphs 52 and 54, 32 where in those paragraphs there is an allegation first 33 in respect of the Gitksan chiefs that they, the named 34 plaintiffs, together represent all of the Gitksan 35 people, and in paragraph 54 of the same allegation is 36 made in respect of the Wet'suwet'en chiefs. And again 37 I should be careful here, because in paragraph 52 the 38 Kitwancool are excluded for the purpose of the claimed 39 territory. 40 So the Statement of Claim doesn't define this term 41 Gitksan people, and doesn't define the term 42 Wet'suwet'en people, and there is no express 43 allegation that the class of persons who might be 44 described as Gitksan or Wet'suwet'en is synonymous 45 with the membership of the named houses. The 46 Statement of Claim also doesn't expressly tell us 47 whether it's possible to be Gitksan or Wet'suwet'en 2651? Submissions by Mr. Plant 1 without being a member of a house. 2 Then there is the claim in paragraphs 52 and 54 3 that -- let's deal with 52. The Gitksan chiefs 4 together represent all of the Gitksan people, and that 5 word "together" in my submission fails to clarify 6 whether the representation consist of the aggregate of 7 separate house representations, that is the jigsaw 8 puzzle is it were, or is rather a global 9 representation, that is to say a representation on 10 behalf of all of the Gitksan people collectively. 11 And the point here really, my lord, is that the 12 pleading is ambiguous. 13 Now, the result, though, of the analysis to this 14 point, in my submission, is that each named Gitksan 15 plaintiff appears in the following capacities. 16 Firstly, on his or her own behalf. 17 Secondly, on behalf of the members of the house of 18 which he or she is hereditary chief. 19 Thirdly, in some cases, on behalf of the members 20 of named houses of which he or she is not alleged to 21 be the hereditary chief, Delgamuukw as an example of 22 this. 23 Fourthly, together with all other Gitksan chiefs, 24 as representative of all of the Gitksan people except 25 for the people in the houses of the Kitwancool chiefs. 26 And then I say that paragraph 54 has the same 27 consequence for the Wet'suwet'en. 28 Now, the problem is to try and figure out who is 29 claiming the rights that are at issue in the action. 30 And I say that the Statement of Claim isn't very 31 helpful in this regard either, and I am going to use 32 the Gitksan path of the claim, as it were, for this 33 purpose, although the same applies for the 34 Wet'suwet'en. 35 Paragraph 56, the allegation is that the Gitksan 36 chiefs, their ancestors and/or predecessors have owned 37 and exercised jurisdiction over the lands claimed in 38 Exhibit 646-9A. 39 And then when you get to paragraph 57, which is a 40 paragraph that enumerates the various incidents or 41 aspects of the ownership and jurisdiction claim, the 42 languages used there is the plaintiffs. It's the 43 plaintiffs who have governed the territory and 44 expressed their ownership of the territory and so on. 45 That language continues in paragraph 58. The 46 plaintiffs continue to own and exercise jurisdiction 47 over the territory to the present time. 26519 Submissions by Mr. Plant 1 Then in paragraph 59 there is a shift. And the 2 allegation there is that: 3 4 "The right to own and exercise jurisdiction over 5 the territory of the Gitksan chiefs ... was at 6 all material times a right enjoyed by the 7 Gitksan chiefs and the members of their 8 houses." 9 10 Moving ahead to paragraph 62, we return again to 11 the language. 12 13 "the plaintiffs ..." 14 15 And I am here abstracting from what I say are the 16 core allegations of ownership and jurisdiction. And 17 in answer to the question who owns and exercise 18 jurisdiction, the pleadings, I say, suggest three 19 candidates. The Gitksan chiefs, the plaintiffs, and 20 the third candidate is the Gitksan chiefs and the 21 members of their houses. And I say that the three are 22 not, at least not necessarily synonymous. In 23 particular the Gitksan chiefs referred to in paragraph 24 56, if your lordship turns back, you will see the 25 allegation or the central parts of paragraph 56. The 26 Gitksan chiefs referred to in paragraph 56 do not 27 include house members. Because if they did, the 28 addition of the words "and the members of their 29 houses" in paragraph 59 would be unnecessary. Since 30 the word "plaintiffs", when it appears in paragraphs 31 57, 58 and 62, since that word in that context must 32 mean the named plaintiffs, because otherwise, going 33 back to paragraph 50, the allegation in paragraph 50 34 that the plaintiffs are the hereditary chiefs of the 35 Gitksan would mean that all house members are 36 hereditary chiefs, which is not contended on the 37 evidence or in argument, then it appears to be only 38 the named plaintiffs and not the members of their 39 houses who hold the rights, who are alleged to hold 40 the rights claimed in paragraphs 57, 58, 62, and the 41 remaining paragraphs where the word "plaintiffs" 42 appears. 43 THE COURT: Doesn't the fact that the chiefs are plaintiffs 44 reduce the uncertainty from three to two, if one 45 accepts that all the named chiefs are plaintiffs? 46 MR. PLANT: Yes, it does, my lord. If Gitksan chiefs means 47 named plaintiffs defined as Gitksan chiefs, yes. 26520 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT : The only one that is left out is the members of the houses. : Yes, my lord. Now, in paragraph 41 I say since the term "plaintiff" refers in its context to both Gitksan and Wet'suwet'en chiefs, it is plain that the pleader considers that some rights are held by the Gitksan chiefs collectively, and some are held by the plaintiffs collectively. And the pleadings do not identify materially different types of rights said to vest in the three different right-holders, or the two different right-holders, if that observation of your lordship is correct. So what we have is a situation where it is extremely difficult to figure out who is claiming what. And it will be seen later, my lord, that the evidence is not going to assist your lordship on this point to any great extent. But for present purposes the result which I wish to draw to your lordship's attention is this. If the interpretation of the significance of the reference to house members in paragraph -- and that should be 59, my lord, because I have been doing this in terms of a Gitksan analysis, although the analysis would be the same for the Wet'suwet'en. If the interpretation in 59 is correct, then the result is that the rights held by the Gitksan chiefs are different from those held by house members. The evidence of differing classes of at least among the Gitksan, chiefs, commoners and referring to pre-contact or early days, the apparent -- the evidence of apparent slavery, reinforces this analysis. As pleaded and proven, I say the claim runs afoul of the requirement in Rule 5 (11) that the persons by whom and for whom -- or whose benefit a representative proceeding is brought must have the "same interest". That's the requirement taken from the rules. My lord, just parting from the text for a moment. The issue of whether and in what respect the claims of the plaintiffs are claims advanced by a collective entity or to two collective entities or 51 collective entities was raised in argument by my learned friends on Friday and Saturday of last week. On Friday you heard Ms. Pinder argue, as I recall it, that the fishery right was a right held communally by the Gitksan, in the case of the Gitksan, and then by the Wet'suwet'en. There are two communal rights. The fishery right was not a right that was desegregated 26521 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT into houses. Then on Saturday, as I heard, and Mr. Grant argued for distinction or a difference of treatment of the ownership claim and the jurisdiction claim, so far as the declarations saw it, because we are concerned because the ownership claim was a claim -- a collection of claims. Again taking your lordship to the houses. But the jurisdiction of the plaintiffs is said to be interlocked or interwoven in such a way that the jurisdictional claim is a claim in the aggregate or the collective. And as I recall it, it would be two jurisdictional claims, one by the Gitksan and one by the Wet'suwet'en. My first point in responding to those submissions is that neither of those arguments is supported by the pleadings, because the pleadings do not differentiate among types of rights. The pleadings don't say that certain rights are held by -- in the Gitksan, collectively, other rights held by the Gitksan through their houses. But if the position -- if the position taken by Ms. Pinder and by Mr. Grant are correct, then what that leads to, in my submission, is a situation where each individual Gitksan or Wet'suwet'en person has a variety of different rights and interests according to whether he or she is a chief, whether or not the house of which he or she is a member has territory, whether there is a fishing site, in what respect there is a claim to jurisdiction, and then there is a further complication of at least in respect of the ownership claim and the rights that Gitksan and Wet'suwet'en individuals have through their mother's -- through their father's side as opposed to through their mother's side. So it seems that for some purposes in the action, again drawing from what was submitted on Friday and Saturday, the class is the class of persons who are bringing the action is all of the plaintiffs or is two groups of plaintiffs, or in some cases it is the various groups of houses. The point I want to draw to your lordship's attention here is it was not always thus. And this brings me back to the submission made before Mr. Justice Taylor in April of 1985. And I am not going to refer at length to this, my lord, but I have a copy of it, for your lordship and for my friends. : Where do you suggest it belongs? : This could go tab Roman II stroke 2-18 after the 26522 Submissions by Mr. Plant 1 Statement of Claim. Does your lordship -- I'm sorry, 2 it's 17. It would be right there where your lordship 3 is. After the Statement of Claim, which should be the 4 contents of -- I'm sorry, 2-8. 5 THE COURT: 8. Yes. Right. Yes. What Statement of Claim is 6 that? I can't read the stamp. 7 MR. PLANT: Now this was the argument advanced by the 8 plaintiffs. 9 MR. RUSH: That was the last one, my lord, February 6th, 1990. 10 THE COURT: All right. Thank you. 11 MR. PLANT: I was going to refer to that. Your lordship didn't 12 have a copy involving the trial record. 13 The point of interest here, my lord, is that this 14 is the argument advanced by the plaintiffs in order to 15 meet the province's contention that the claim to 16 damages at least ran afoul of Rule 5(11) for the 17 reasons considered in the General Motors and Naken 18 case, N-A-K-E-N. And the citation of that case 19 appears on the bottom of page 1 of this submission. I 20 am interested in -- Is that Mr. Justice Estey's judgment? Yes. And is this the argument that was before Mr. Justice 21 THE COURT 22 MR. PLANT 2 3 THE COURT 24 Taylor 9 2 5 MR. PLANT 2 6 THE COURT 2 7 MR. PLANT 2 8 THE COURT 2 9 MR. PLANT Yes, my lord. You remember the date? April, 1985. Thank you. The page 2 has the key paragraph, although there are 30 other paragraphs in this submission. And it's the 31 paragraph that has the sideline, near the bottom 32 reads: 33 34 "In our case, on the other hand, there are, in 35 effect, 47 class action and 4 claims. Each 36 hereditary chief brings a claim on behalf of 37 the members of his house for a declaration as 38 to the entitlement of damages with respect to 39 the specific territory of each house." 40 41 So what was advanced there was the proposition 42 that there were 47 class actions which assume, 43 correspond with a number of plaintiffs, named 44 plaintiffs that there then were. And that in respect 45 of each of these class actions, the members of the 46 house had a similar interest or the same interest for 47 the purpose of Rule 5(11). And that submission was 26523 Submissions by Mr. Plant 1 accepted. I say that now that your lordship has had 2 the benefit of the evidence on the issue of the claims 3 to ownership and jurisdiction, that the picture now is 4 quite different from that advanced in this submission, 5 although the structure of the pleadings is unchanged, 6 and what we have now really can only be characterized 7 as a variety of types of class actions. 8 I want to make this further point, my lord. And 9 that is that -- just to turn to the evidence for a 10 moment, the difficulty of finding in the evidence 11 support for the requirement of same interests, even if 12 you take the claim of ownership, which is said to be 13 advanced on a house by house basis, because clearly 14 there are individuals other than house members who 15 within the Gitksan and Wet'suwet'en system have rights 16 or privileges of use of territory. But let me draw 17 this contrast between the evidence on the one hand of 18 Dan Michell, who at -- and I am afraid I am not 19 referring to my -- this is not in my submission, but 20 the reference is volume 61 of the transcript, pages 21 3772 to 3, where Mr. Michell expressly disavowed any 22 claim to any territory of any other house other than 23 the House of Namox, in which he is one of the chiefs. 24 Contrast that with the situation which pertains with 25 respect to Johnny David, and the Wet'suwet'en house of 26 Smogelgem, and this was described in argument by my 27 friend Mr. Grant, volume 326 of the transcript, pages 28 24858 and 59. 29 And what Mr. Grant argued before your lordship was 30 that there is a clear competition within the 31 Wet'suwet'en system between the House of Smogelgem and 32 Johnny David, who comes from a different house 33 altogether, over who will have the right to the north 34 Bulkley territory of Smogelgem after Johnny David 35 passes away. 36 Mr. Grant made the submission that this contest 37 was testimony to the vitality of the Wet'suwet'en 38 system, that there could be this kind of dispute 39 within the Wet'suwet'en system. Well, that may be so, 40 but the point for present purposes is that it cannot 41 be said that the -- there is only a house of Smogelgem 42 that has an interest in or claims an interest in this 43 north Bulkley territory. There is Johnny David and 44 his sons, and those to whom he wishes to pass on the 45 right, which would be outside the general principle of 46 matrilineal descent, and would follow some other 47 principle 26524 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 THE COURT 10 11 MR. PLANT 12 13 THE COURT 14 MR. PLANT 15 16 17 18 19 20 21 22 23 THE COURT 24 25 MR. PLANT 26 THE COURT 27 MR. PLANT 28 29 30 31 32 33 THE COURT 34 35 MR. PLANT 36 37 38 39 THE COURT 40 41 MR. PLANT 42 THE COURT 43 MR. PLANT 44 45 46 47 I say when your lordship has evidence of this kind of competition, the problem it raises is the problem of whether or not the claim falls within Rule 5(11) or doesn't. And in my submission if the claim is the desegregated claim of ownership on behalf of houses, then it is virtually impossible on the evidence to reconcile the action with the requirements of the rule. What about if you looked at it the other way, a collective action? If the action is at the level of the nation or the people? Yes. If the action were -- an action on behalf of the Gitksan in respect of all of the claimed rights, then that difficulty, taken at the level of allegation would not arise. Then your lordship has to deal with the problem whether that's the claim as pleaded. It's certainly not the claim as argued. But if your lordship were to say there is a Gitksan people, then I agree that the Rule 5(11) problem I am talking about doesn't arise. But it would be a collective claim advanced by 47 chiefs? Yes, or 51 or whatever the number. Have different interests -- I mean, you have said 47. I say 51. I don't see how you could say that there was a collective claim on the part of the Gitksan, Wet'suwet'en. I think at the highest you could take it, there would have to be considered to be two claims, because there is clearly no -- well, not clearly, but -- Some of the Gitksan members have different interests than others? Yes. Dealing with my example, and it is apparent that Dan Michell, dealing with the Wet'suwet'en, claims no interest in respect of any territory other than territory of his house. Yes. He has a different interest on the members of all of the houses except Namox? Yes. All right. There is one more point I want to make about the plaintiffs' pleadings, my lord, and it's not -- again not in my submission, written submission. And it comes back again to the characterization of the claim as being either a collective one or a collection of 26525 Submissions by Mr. Plant 1 separate claims. And taking what I understand to be 2 the plaintiffs' position that at least with respect to 3 the jurisdiction claim, the jurisdiction claim is 4 being advanced by the Gitksan collectively and the 5 Wet'suwet'en collectively, then I want to draw to your 6 lordship's attention the fact that the Gitksan 7 plaintiffs who are in the action must therefore have 8 jurisdictional rights in respect of the territory of 9 the Kitwancool, or alternatively, the Kitwancool 10 plaintiffs who are expressly excluded from the action 11 would, on the assumption that the laws are the same as 12 was, as I recall the evidence of Solomon Marsden, the 13 Kitwancool chiefs would equally have jurisdictional 14 rights in respect of the territory claimed by the 15 Gitksan in this action. 16 The same applies with respect to the Wet'suwet'en, 17 given Mr. Grant's statement, and I am afraid I don't 18 have the transcript reference at the moment, but the 19 Babine are Wet'suwet'en. And I will come back to that 20 issue, and I will give you Mr. -- you the reference to 21 Mr. Grant's submission on that point. 22 But having made that observation, what I really 23 want to do right now is to take your lordship to the 24 pleadings, because I say that that contention can't 25 survive, or rather is inconsistent with the pleadings. 26 And here I want to direct your lordship to 27 paragraph 61 of the Statement of Claim, and the 28 particulars which were delivered of it. And paragraph 29 61 is the pleading that the plaintiffs and their 30 ancestors and/or predecessors exercised jurisdiction 31 over the territory as against other aboriginal 32 peoples. Now, there were particulars delivered of 33 this, and my copy of the trial record -- I have got 34 them at tab 4B, but that doesn't make sense. 35 The particulars identified the aboriginal peoples 36 against whom the plaintiffs are alleged to have 37 exercised jurisdiction, and in paragraph KK the UU An 38 Wea'teen, U-U space A-N space W-E-A 'T-E-E-N, are 39 identified. Those are the Babine. And then in 40 paragraph MM it is said: 41 42 "Gitksan who are not members of the 43 Kitwancool houses." 44 45 And in my submission if your lordship reads that, 46 that has to be Gitksan who are members of the 47 Kitwancool houses, otherwise the particular makes no 26526 Submissions by Mr. Plant 1 sense. 2 So what you have is an allegation by the 3 plaintiffs that they have exercised jurisdiction 4 against the Kitwancool on the one hand and the Babine 5 on the other. And I say that it is difficult, if not 6 impossible, to reconcile that with the argument that 7 jurisdiction is somehow at this -- the jurisdiction of 8 the people is a national concept, and the case of the 9 Gitksan must include the Kitwancool. 10 My lord, the next submission is at -- is Part II, 11 section 2, page 20. 12 Now, this is headed "pleadings and the province's 13 case". This is a new part of the argument. I'll just 14 read the first paragraph. 15 In volume 7 Part IX of the plaintiffs' summary of 16 argument, at pages 80 to 85 the plaintiffs advance an 17 argument with respect to the pleadings of the 18 province. That argument misreads the province's 19 Statement of Defence. For convenience, the 20 plaintiffs' argument is reproduced verbatim below 21 (using a computer diskette of this section of the 22 plaintiffs' summary), with comments inserted to 23 respond to the plaintiffs' submissions where 24 appropriate. The emphasis is that of the plaintiffs. 25 So what your lordship has on pages 20 to 28 is an 26 extract from the plaintiffs' argument into which I 27 have inserted some comments, and those comments are 28 identified as responses. And an example appears on 2 9 page 21 about two thirds of the way down the page. 30 I just wanted to say that volume 7, Part IX of the 31 plaintiffs' summary of argument reappeared at pages 91 32 to 97 of volume A through their final argument in the 33 same form. I am not going to address your lordship 34 with respect to this. I think the responses speak for 35 themselves. I would like to turn then to the next 36 section, section 3. 37 My lord, the principle thrust of this submission 38 in this section is to ask your lordship to revisit and 39 reconsider the rulings which were made in 1987 with 40 respect to the admissibility of oral history. 41 I start at paragraph 6 by saying that the problem 42 that arises here, arise because a claim of aboriginal 43 rights necessarily requires that the court investigate 44 events that occurred long before the memory of living 45 man, and in many instances the history of such events 46 is known orally, if at all. 47 This fact led Mr. Justice Steel, the trial judge 26527 Submissions by Mr. Plant 1 in the Bear Island case, to rule as follows: 2 3 "Indian oral history is admissible in aboriginal 4 land claim cases where their history was never 5 recorded in writing." 6 7 Now, I won't refer now to the rest of what Mr. 8 Justice Steel said in that context, but he does speak 9 about the importance -- even though he admits the 10 evidence and finds that oral history is admissible, he 11 does have observations with respect to weight, which I 12 say are applicable here. 13 My principle concern here, though, is with the 14 question of admissibility, and I don't accept what Mr. 15 Justice Steel said in Bear Island. 16 Your lordship ruled to similar effect, however, 17 albeit with recognition of the different types of 18 evidence which might be described as oral history, and 19 the reasons for judgment which you delivered in this 20 regard are in the authorities binder, volume 2, and 21 its case D2. And I don't think it will be necessary 22 for me to take your lordship to that report, because 23 the important parts are excerpted in my submission. I 24 say firstly that your lordship invited reconsideration 25 of the ruling which you made. 26 Page 334 of the report in the B.C. Law Reports you 27 stated: 28 29 "The questionable evidence will be received 30 subject to a later determination of 31 admissibility." 32 33 And then you also said: 34 35 "It seems to me that there are at least two 36 reasons why I should not finally decide this 37 question at this time." 38 39 "First, I was particularly struck by the 40 comments of both Mr. Jackson and Mr. Goldie 41 about extensive anthropological and other 42 expert testimony which counsel proposed to 43 adduce. There may be independent corroboration 44 or confirmation of the details which the 45 witnesses wish to relate in their evidence 46 which may tilt scales away from anecdote 47 towards history. I am also heartened by Mr. 2652? Submissions by Mr. Plant 1 Jackson's assurance that there is not a large 2 volume of this kind of evidence." 3 "Secondly, there is a practical consideration I 4 mentioned in my previous reasons. I refer to 5 the fact that in most cases it will be 6 necessary to hear the evidence in order to 7 determine whether it is a general historical 8 fact or a particular or anecdotal fact. As I 9 said earlier, it may be necessary to decide 10 these questions somewhat arbitrarily, doing the 11 best I can, but there is no reason, having 12 regard to the position taken by counsel for the 13 Attorney General, to pronounce finally on this 14 question at this time." 15 16 My lord, you have now heard the evidence, both lay 17 evidence and expert evidence, necessary to pronounce 18 finally on this question, and I -- but before turning 19 to that question, I want to identify the context in 20 which it arises, because there is, and we will be 21 coming back to it again and again, a fundamental 22 distinction to which reference should be made here. 23 And that is the distinction between the claim of 24 ownership and jurisdiction, the claim of present 25 ownership and present jurisdiction based on present 26 day facts. That's the claim pleaded. And I say there 27 is a radical difference between that claim and the 28 traditional claim of aboriginal title which seeks 29 recognition of an ancient tenure as burden on the 30 Crown's title. I say there is no room for oral 31 history in determining whether the plaintiffs exercise 32 present day ownership and jurisdiction at the expense 33 of the Crown and those who hold under the Crown. 34 The question of whether the plaintiffs exercise 35 present day ownership and jurisdiction is really a 36 question that has to be determined on present day 37 facts. 38 My lord, you have referred, and we have all 39 referred on a number of occasions in this trial to the 40 two great principles of necessity and trustworthiness, 41 which come to bear on any consideration of the 42 admissibility of hearsay evidence. The reasons which 43 I am going to elaborate on, my submission is that 44 although the oral history of the plaintiffs has 45 contained in what have been described by them as their 46 adaawk and kungax, may meet the test of necessity, and 47 in certain circumstances they undoubtedly do, it is so 26529 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. THE COURT PLANT COURT PLANT COURT MR. PLANT THE MR. THE MR. COURT PLANT COURT PLANT MR. RUSH: lacking in the essential element of trustworthiness as to be inadmissible. Alternatively, if the requirement of necessity alone is sufficient to allow the admissibility of the oral history, I say that such evidence ought to be accorded no weight whatsoever. Now, this submission applies, my lord, with respect to the evidence of all events said to have occurred prior to the lifetime of living witnesses, and which is sought to be admitted for the truth of its contents by virtue of its status as an adaawk or kungax. It's really only that evidence which gives rise to the necessity problem. Now -- and a further qualification on my submission, my lord. : You wouldn't extend that submission to declarations of ownership made by deceased persons, would you? : I am going to not be dealing with the question of reputation evidence in that context, my lord, as to declarations of ownership. : Are you intending it to be included in the submissions you are now making? : To the extent that the adaawk is offered as evidence of territorial ownership, yes. : But not to my deceased grandmother told me "x". You are not including that in this submission, are you, or are you? : No. I think not. Because in large measure those statements were not tendered as adaawk type statements. : No. That's right. : Mr. Mackenzie will be dealing with that in the context of the evidence about boundaries. : All right. : And another qualification on this submission, my lord, that I am making is this: To the extent that such evidence, that is the adaawk and kungax evidence is tendered not as history, but as evidence explaining the plaintiffs' understanding of their social or cultural practises today, it may be admissible. And I revise that, my lord. It is admissible. In the same way -- Excuse me, my lord. Just in terms of your present query, it may be helpful if my friend would state what he means by adaawk and kungax for the purposes of this argument, and the distinction about the question that 26530 Submissions by Mr. Plant 1 would pertain to reputation. 2 MR. PLANT: Well, my lord, I think it's clear from the argument 3 that I am going to be making what I mean by adaawk or 4 kungax. 5 I was in the context of saying that the -- to the 6 extent that adaawk or kungax evidence is tendered as 7 evidence explaining the plaintiffs' understanding of 8 their social or cultural practises today, it's 9 admissible, but even here it's admissible because it's 10 evidence of motive, intent or belief. It's not 11 evidence of the truth of the facts of the -- 12 particularly it's not evidence of the truth of the 13 historical facts which -- in respect of which it has 14 been tendered. 15 Evidence of events to which there may be living 16 witnesses must be proven conventionally, and in this 17 respect the province relies upon your lordship's 18 ruling on this subject in the reasons for judgment of 19 June 4, 1987. And that subject is dealt with at page 20 343 of the report in the B.C. Law Reports. It matters 21 not in my submission whether the witness in question 22 has recently deceased. The evidence of witnesses such 23 as Stanley Williams, Martha Brown and David Gunanoot, 24 who have died since the action has commenced, assumes 25 no different character, even though they are no longer 26 alive. 27 And I make the point in paragraph 17 that 28 reputation as to boundaries will be a subject that we 29 will be returning to. 30 So I turn now to the issue of the inadmissibility 31 of oral history, and I have some general statements 32 here, my lord. I say that if an aboriginal interest 33 is to be established as a matter of legal right as 34 opposed to a moral or a political claim, it must be 35 established on the basis of facts proven in accordance 36 with the rules of evidence according to which courts 37 operate. And I say this is implied by the much cited 38 statement of Mr. Justice Dickson as he then was in 39 Kruger and Manuel versus The Queen. The paragraph is 40 set out there, and its been read many times, but I 41 would draw your lordship's attention to the 42 distinction which Mr. Justice Dickson draws between a 43 justiciable issue and the political issue, and I say 44 that there are good policy reasons for the approach. 45 I say questions of aboriginal interests must be 46 decided on the basis of evidence adduced in accordance 47 with established rules. There cannot be one law for 26531 Submissions by Mr. Plant 1 the proof of aboriginal rights and another for the 2 proof of other rights. If the result is the claims of 3 aboriginal rights are difficult to establish at law, 4 then in my respectful submission that is no more than 5 a reflection of the marginal justiciability of such 6 claims. 7 Now, in your lordship's ruling of June 4th, the 8 passage which appears at page 340 of the B.C. Law 9 Report, the key part of your lordship's reasoning is 10 the passage which I set out -- set out in paragraph 20 11 of my submission, where your lordship said this: 12 13 "There is little doubt that the oral history of 14 a people based upon successive declaration of 15 deceased persons may be given in evidence, as a 16 matter of admissibility, for it could not 17 otherwise be proven: Relying on Simon versus 18 The Queen. When there is no written history, 19 such evidence obviously satisfies the test of 20 necessity. In my view admissibility does not 21 depend upon the particular historical events 22 being a part of an adaawk although such could 23 lend weight to the evidence because of its 24 enhanced trustworthiness resulting from what 25 has been called the sifting process. But 26 inclusion in an adaawk is not an open door to 27 the admissibility of anything said to be 28 historical. Historical facts sought to be 29 adduced must be truly historical and not 30 anecdotal." 31 32 The first point I wish to make concerning this 33 ruling, my lord, is that the Simon case, I say, is 34 distinguishable. 35 Now, Simon was a case where the accused was 36 charged with illegal possession of a shotgun and a 37 rifle contrary to the Nova Scotia legislation, and he 38 argued in his defence that he had a treaty right. He 39 argued that the 1752 treaty granted him immunity from 40 prosecution. The Crown argued that Simon had not 41 shown that he was direct descendant of a member of the 42 original Micmac Indian Band covered by the treaty. 43 And this argument was rejected by the Supreme Court of 44 Canada. Chief Justice Dickson -- pausing there for a 45 moment, because I have a note that it may be that this 46 passage comes from page 407 of his lordship's 47 judgment. But the holding by his lordship for the 26532 Submissions by Mr. Plant 1 court was that the appellant has established a 2 sufficient connection with the Indian band, who were 3 signatories to the Treaty of 1752. His lordship then 4 describes the circumstances of the treaty, and said 5 that the appellants admitted at trial that he was a 6 registered Indian under the Indian Act, and was an 7 adult member of the particular band living in the same 8 area as the original Micmac Indian tribe who were 9 party to the treaty. His lordship goes on to say: 10 11 "This evidence alone, in my view, is sufficient 12 to prove the appellant's connection to the 13 tribe originally covered by the treaty. True, 14 this evidence is not conclusive proof that the 15 appellant is a direct descendant of the Micmac 16 Indians covered by the Treaty of 1752. It 17 must, however, be sufficient, for otherwise no 18 Micmac Indian would be able to establish 19 descendancy. The Micmacs did not keep written 20 records. Micmac traditions are largely oral in 21 nature. To impose an impossible burden of 22 proof would, in effect, render nugatory any 23 right to hunt that present day Shubenacadie 24 Micmac Indian would otherwise be entitled to 25 invoke based on this Treaty. 26 The appellant, Simon, as members of the 27 Shubenacadie Indian Brook Band of Micmac 28 Indians, residing in Eastern Nova Scotia, the 29 area covered by the Treaty of 1752, can 30 therefore raise the Treaty in his defence." 31 32 My lord, I respectfully submit that the 33 considerations which apply to a case where an accused 34 raises a treaty right in his defence do not apply to a 35 case where ownership and jurisdiction over some 22,000 36 square miles of British Columbia are in issue. 37 Simon is clearly authority for the proposition 38 that entitlement to treaty rights as defence to a 39 criminal prosecution may be established merely by 40 proof of membership in an Indian Act band which 41 occupies the same area as that occupied by the tribe 42 party to the original treaty. In effect, membership 43 of the band operates as a presumption sufficient for 44 purposes of the criminal law, particularly where the 45 issue is ancestry. 46 Where, however, as in this case, as in the case at 47 bar, there is no treaty, no reliance on the Indian Act 26533 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT THE COURT MR. PLANT THE COURT MR. PLANT and the question whether the ancestors of the present claimants occupied the claim area is very much contested, and I say the different considerations apply. And I say it is not a question of imposing an impossible burden of proof. Rather, it is a question of ensuring that the evidence offered in support of the assertion of title satisfies both as requirements of reliability, necessity and trustworthiness. My first point, then, my lord, is that the Simon case is distinguishable. My second point is that necessity by itself is not sufficient. And this refers to the proposition that oral history may be given in evidence as a matter of admissibility, for it could not otherwise be proven. I say that that proposition implies that necessity alone is a sufficient ground for the admissibility of evidence. My lord, conventionally, hearsay which cannot otherwise be proven, cannot be proven at all. And I say that there is no reason in principle or policy to depart from this principle in the case at bar. Thus in my submission in order to be admitted, oral history must satisfy the requirements of proof as part of the law of evidence. And I say the oral history offered as evidence in this case fails to meet those requirements. : Well, I am having a little trouble just knowing what you're saying there, Mr. Plant. What oral history offered in evidence are you talking about now in this area? : The examples include the adaawk of the grizzly bear said to have destroyed the village of Temlaxam. And that adaawk is being offered as proof of the truth of the destruction of Temlaxam by a giant grizzly bear. That's the oral history I have in mind. The adaawk which were the subject matter of Ms. Marsden's expert report collected by Marius Barbeau and William Beynon and others. : Her report doesn't rely entirely. I haven't looked at it for awhile or studied it carefully. You say that her whole report is based upon that fact? : Well, in my submission her report is almost entirely a project of internal reconstruction of the adaawks. : Yes. But you are not limiting it to the adaawk about the grizzly bear. : I am saying that's an example. I mean, that's the example that I refer you, because it's -- if it's not the example your lordship heard first, it's one of the 26534 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. THE MR. THE COURT PLANT COURT PLANT COURT PLANT COURT MR. PLANT first. An example your lordship heard first, I think, is the adaawk told by Mary MacKenzie of the Warrior. That's another example of the adaawk that I say. You are really saying that I should rule inadmissible the content of the adaawk. To the extent that they are offered as historical fact, yes. All right. Thank you. My lord, I am about to begin a new section. I wonder -- I am happy to carry on. I was going to split the afternoon in half. Oh, yes. I do have to adjourn in about five minutes time. We will go for another five minutes, if you don't mind. : I am happy to. The next proposition I wish to address, then, is the issue of whether there is the sifting process which is said to satisfy the requirement of trustworthiness, and it is this sifting process that is said to be the special or distinguishing aspect of both the adaawk and the kungax, and the sifting is said to take place in the feasts where the adaawk are told. And in my respectful submission, my lord, oral history is a political act. If support for this proposition is needed, it may be found in the plaintiffs' opening where Ken Muldoe said: "My power is carried in my house's histories ... it is recreated at the feast when the histories are told ..." There is a direct connection between Delgamuukw's power and the histories of his house. Alfred Joseph added more when he said: "The histories of my house are always being added to. My presence in this court room today He meant May 11th, 1987 or May 12th. "Will add to my House's power, as it adds to the power of the other Gitksan and Wet'suwet'en chiefs who will appear here or who will witness the proceedings ... through the witnessing of all the history, century after century, we have exercised our jurisdiction." 26535 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT THE COURT MR. PLANT I say that oral history therefore is not history as the layman understands it. It is no mere record of past events. Rather, it is the taking of a position, quite literally a Statement of Claim. There is no sifting process. The chief who speaks simply dares others to disagree. Disagreement is not a process that has to do with the making of truth. It is rather a process that has to do with struggle for power. It has little to do with the events of the past, and much to do with how things -- and particularly status within the community are to be ordered for the future. Now, since delivering the Reasons for Judgment of July 27th, 1987, your lordship has had the benefit of further lay evidence and expert evidence concerning the oral history of the plaintiffs. And in their final argument, my lord, delivered on April 7th, I am referring here to transcript 314, page 2353A, they say this : "Adaawk are the historical record of the Gitksan. They record actual historical events." And they go on to say that the kungax of the Wet'suwet'en similarly record significant historical events. And I say that the evidence which your lordship has heard is undermined the plaintiffs' position with respect to the reliability as historical fact of such evidence. One example of evidence, which your lordship has heard since July of '87, is the evidence of Mr. Brody. Mr. Brody, one of the plaintiffs' experts, has suggested that the plaintiffs have a different conception of truth. Their conception of truth is different from the Euro-Canadian, that's Mr. Brody's term, conception. And here I am going to ask your lordship to refer to page 22 of his report. And that should be in the yellow book at 2-3-33. Yes. Your lordship have that? Yes. This is from Exhibit 991, Mr. Brody's report. And Mr. Brody says: "A person who says 'I know' is implying that he has firsthand experience of something. A 26536 Submissions by Mr. Plant 1 scientist who says 'I know' is implying that 2 something has been tested and proved to be 3 true. A Gitksan and Wet'suwet'en chief who 4 says 'I know' means that she or he is referring 5 to something that has been witnessed and 6 validated repeatedly at the feast. One 7 Wet'suwet'en chief ends his statements at 8 feasts with the words ...", 9 10 And I won't pronounce them. They are words that 11 mean "that is how it is". He is saying that his 12 statements are -- been fully verified in the 13 Wet'suwet'en intellectual tradition. This analogy 14 should not be overstated. There are fundamental 15 differences between the two epistemologies. That is 16 to say the epistemology of Euro-Canadian society and 17 the epistemology of Gitksan Wet'suwet'en. And another 18 sentence down the -- into this paragraph. 19 20 "Both sides feel passionately that their society 21 understands the nature of knowledge. Both 22 sides rightly insist that their kind of truth 23 is integral to their form of ownership and 24 management to their system of authority." 25 26 I won't bother reading the rest, but I commend 27 that to your lordship's attention. 28 Coming back to paragraph 33. Mr. Brody's 29 argument, for that is what it is, is that the idea of 30 truth which is integral to the Gitksan and 31 Wet'suwet'en form of ownership and management is not 32 truth as Euro-Canadians know it. He says "there are 33 fundamental differences between the two 34 epistemologies". 35 Thus, if your lordship is to give Mr. Brody's 36 opinions any weight, then unless the Court is prepared 37 to see truth in Gitksan and Wet'suwet'en terms, then 38 it is bound to reject much of the plaintiffs' 39 evidence. I say the plaintiffs seek ownership as 40 defined by the Canadian legal system, but urge the 41 court to found its judgment on evidence which is 42 unacceptable to that system. 43 I don't want to push my luck here, my lord. 44 THE COURT: I think I am going to have to adjourn now. I'll be 45 back as quickly as I can. 46 THE REGISTRAR: Order in court. Court stands adjourned. 47 26537 Proceedings 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 (PROCEEDINGS ADJOURNED AT 3:05 P.M.) I HEREBY CERTIFY THE FOREGOING TO BE A TRUE AND ACCURATE TRANSCRIPT OF THE PROCEEDINGS HEREIN TO THE BEST OF MY SKILL AND ABILITY. LORI OXLEY OFFICIAL REPORTER UNITED REPORTING SERVICE LTD. 2653? Submissions by Mr. Plant 8 MR. PLANT 9 THE COURT 10 MR. PLANT 1 (PROCEEDINGS RECONVENED AT 3:25 P.M.) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Plant, as long as we are going to be sitting 5 until 4:30, we will take the afternoon adjournment at 6 3:15 in the future. I overlooked that today when I 7 made an appointment for three o'clock. Thank you. Thank you, my lord. I was in paragraph 34. Yes. And the views of Mr. Brody -- I should say, while I 11 was about to begin paragraph 34, I have a comment 12 that's not in the written text. I say that the views 13 of Mr. Brody with respect to the reliability of the 14 adaawk and kungax can be summarized into two 15 propositions: One, they are true because the Gitksan 16 and Wet'suwet'en say they are; two -- which may be, in 17 the alternative, its truth -- the adaawk and kungax 18 are true to the Gitksan and Wet'suwet'en, but because 19 they are radically different epistemologies, they are 20 admittedly not true to Euro-Canadian's. And I say 21 that neither of those statements is particularly 22 helpful to the plaintiffs. 23 THE COURT: Is that true, Mr. Plant? Couldn't it just be not 24 necessarily true according to Euro-Canadian thought or 25 views? They could be -- they could both be. 26 MR. PLANT: Oh, I quite agree they could be. I'm here 27 summarizing Mr. Brody's views. 2 8 THE COURT: Yes, all right. 29 MR. PLANT: And I say that neither of those views, as I've 30 stated them, assists the plaintiffs, particularly when 31 the burden lies on them to establish that the oral 32 tradition is admissible not because it is Gitksan and 33 Wet'suwet'en truth and not because it is an 34 anthropological source of research or study, but 35 rather as evidence. 36 Now returning to paragraph 34. The verification 37 theory, which is said to justify the claim that the 38 adaawk/kungax are true, is, in my submission, 39 profoundly implausible. The verification theory is 40 the theory that people sitting in the feast hall have 41 the opportunity to correct errors and this is the 42 testing or the sifting process. 43 Now, if Mr. Brody is correct and the Gitksan and 44 Wet'suwet'en do not recognize the distinction between 45 observed events and hearsay, and that's -- I imply 46 that from the passage which I read to your lordship 47 from page 22 of his report -- then clearly there is no 26539 Submissions by Mr. Plant 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 THE COURT 36 37 MR. PLANT 38 THE COURT 39 MR. PLANT 40 THE COURT 41 42 MR. PLANT 43 THE COURT 44 MR. PLANT 45 46 THE COURT 47 MR. PLANT way of knowing whether the first account of an event said to be the subject of an adaawk, is based on actual experience or hearsay. And the most that can ever be verified is the conformity between various tellings: thus the "truth" of the second telling lies only in its resemblance to the first telling, which may itself bear no resemblance to the actual events. Since the lapse of time between the repetition of official tellings is likely to be the length of the preceding chief's, chieftainship, repetitions may occur only a few times in the life of each hearer, if at all, thus the opportunities for the verification are few and far between. There are some examples here from the evidence, my lord. The first is Mary McKenzie's statement that she last told the adaawk of Gyolugyet at a feast in 1963. And I've given the transcript reference there. But I should say that in another part of her evidence, it appears to be the situation that the two previous instances on which she heard the adaawk told occurred in 1949 and 1935. And the reference there is to Volume 4 of the transcript, page 238, lines 25 to 44. Now, the second observation there, my lord, is -- should not be a quote, referring now to what I say of Martha Brown. Martha Brown said that Edward Sexsmith (her predecessor in title) never told the adaawk at a feast. And I've given the transcript reference there. Fred Wale, when asked if he had heard the adaawk in the feast said, "We don't like to tell it outside of the house, but it is told within the house." And Vernon Smith, the head chief of the Eagle clan in Kitwanga has never heard his adaawk told at a feast. In fact, he doesn't know it. The community of verifiers -- Excuse me, Mr. Plant. Did you say that the second item about Martha Brown should not be a quotation? Correct, my lord. Delete the quotation marks. Thank you. It's a summary of evidence. And is this reference to Mary McKenzie at page 238 include both the 1949 and the 1935 tellings? Yes, my lord. Thank you. That is a construction which I place on the evidence that she gives at that page. Yes. I think I will, my lord, take you, if I might, to 26540 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. THE MR. THE MR. THE MR. COURT PLANT COURT PLANT COURT PLANT COURT PLANT COURT PLANT THE COURT MR. PLANT the reference to the Edward Sexsmith evidence, and that would be in II/3-34. And when your lordship gets there, it's the second item. Under 34? Thirty-four, yes, my lord. Yes, I have it. from Exhibit 68B? I've got -- which one are Yes, thank you. You have that as page 11 No, I'm afraid I don't, you referring me to? The Martha Brown extract. Yes, I think I have it. And just for reference, my lord, in the lower right-hand side of that page there is a number, and the "p. 2" indicates that this is the second page in the collection of extracts at this tab. : Yes. : And it's at line seven where Mr. Grant in chief asked Mrs. Brown: Q Did Edward Sexsmith ever tell the ada'ox at a feast? A No. I just wanted to give your lordship the reference there, because it was -- what appears in our argument is really an attempt to summarize the evidence. : Yes. Thank you. : And if I could refer now back to paragraph 35 in my argument, still dealing with the issue of verification, I say that the community of "verifiers" is extremely small, because only chiefs are entitled to stand up at a feast and disagree with what has been said. And the reference to Exhibit 446D there, my lord, is a reference to the evidence of Stanley Williams. And I have an additional reference, and that is to the evidence of Dr. Daly who said in Exhibit 884-1 at page 80, "Oral histories are for the ears of the chiefs." Significantly, my lord, the listeners, those who listen to the adaawk and the kungax in the feast hall, have no responsibility for possessing the knowledge necessary to verify effectively. Because as Mr. Brody says on page 19 of his report, individuals -- that meaning individual chiefs -- are only "separately responsible for their part of the culture's history and for knowledge of their particular territories". The individuals in question would be the chiefs and 26541 Submissions by Mr. Plant 1 those in training to become chiefs. 2 Now, I say in such circumstances, it can hardly be 3 maintained that the adaawk or the kungax are matters 4 of reputation within the community as a whole. There 5 is a very select group of individuals who know the 6 adaawk and the kungax and with -- and that knowledge 7 is at a high level, generally. The knowledge that you 8 have to know with any detail is really only the 9 knowledge of your own adaawk, and that constrains the 10 ability to verify, according to the theory of the 11 plaintiffs'. 12 Furthermore, the suggestion which Mr. Brody makes 13 that the adaawk and the kungax are -- and these are 14 his words "inductive and value free" is, I say, 15 absurd. Because oral history is both a charter for 16 the exercise of power and an exercise of power itself. 17 All parts of the adaawk and the kungax, including the 18 text itself as well as the circumstances of its 19 telling, and those are inseparably interrelated, 20 because as an oral text, the adaawk and the kungax 21 only exist in their telling. And I say that all parts 22 of the adaawk and the kungax are parts of a political 23 act, namely the assertion of and the acquiescence in 24 claims to power, whether this be seats in the feast 25 hall, traplines, fishing sites, the right to claim 26 larger payments at the next feast, or whatever. And I 27 say that no part of political rhetoric is value free. 28 Now, to some extent, my lord, I have focused on 29 the adaawk. The kungax, in my submission, are 30 markedly different from the adaawk, and this 31 distinction is ignored by Mr. Brody. The difference, 32 I say, with respect, is also obscured by Dr. Mills' 33 discussion at Exhibit 906, that's to say, her expert 34 report at pages 61 and 62. And I'm not going to refer 35 to that, but I commend it to your lordship because of 36 the way in which Dr. Mills attempts to connect the 37 adaawk and the kungax without coming to grips, in my 38 submission, with the evidence given by the lay 39 witnesses who translated kungax as crest. That is to 40 say, not as history. And there is evidence of other 41 witnesses who equated the Gitksan word "nax nox" with 42 kungax, not adaawk. And I do want to take your 43 lordship to some of these references which would be at 44 II/3-37, the reference to the evidence of Alfred 45 Joseph, and that would be the transcript extract which 46 is in page 4 of the tab. Does your lordship have 47 that? 26542 Submissions by Mr. Plant 1 THE COURT: Yes. 2 MR. PLANT: And this is during the course of Mr. Joseph's 3 examination in chief by Mr. Rush. And starting at 4 line 33, Mr. Rush asks this question: 5 6 Q All right. Now, you've made mention of 7 the term Kungax, and you've heard in this 8 court case mention of the Gitksan word 9 adaawk. Are there differences between 10 the Wet'suwet'en Kungax and the Gitksan 11 adaawk? 12 A Yes, there is a difference. 13 Q Can you tell his lordship what that is? 14 A The -- the Gitksan Kungax relates to 15 migrations within the territory. 16 17 Skipping down a few lines: 18 19 Q By that do you mean the Gitksan adaawk? 20 A Yes. 21 THE COURT: All right. Thank you. 22 THE WITNESS: And our Kungax is more — more 23 around the -- it's not migrations; it's 24 just -- it tells about happening in 25 the -- within the territory, how clans 26 and crests were created, and how people 27 defended their territory and their 28 people. 29 30 Now, turning ahead a few pages -- the next 31 extract, page 6, is another extract from the evidence 32 of Alfred Joseph. Turning ahead to page 7, and this 33 would be an extract from the evidence of Mrs. 34 Wilson-Kenni. Beginning at line 35: 35 36 A In -- it was in the old hall. 37 38 Do you have that, my lord, down near the bottom of the 39 page? 4 0 THE COURT: Yes. 41 MR. PLANT: 42 43 A It was in the old hall that was right in 44 the middle of Hagwilget. 45 Q Okay. Now, you described that as a 4 6 Kungax and that's a Wet'suwet'en word, 47 right? 26543 Submissions by Mr. Plant 1 A Kungax, yes. 2 Q Yes. Had you seen Nox Nox performed at 3 Gitksan feasts? 4 A Yes. 5 Q Is the -- okay. Is there a difference or 6 can you -- between the Kungax and the Nox 7 Nox? 8 A That's the Kungax. The Nox Nox is the 9 Kungax. Kungax. You are starting to 10 make me pronounce it like you now. It's 11 Kungax. 12 13 That's -- and then the reference over the page: 14 15 Q Kungax? 16 A Kungax. 17 Q And so they are the same? 18 A Yes. 19 20 So the kungax are to be equated with the nax nox 21 which is the performance of the crest in the feast 22 hall, not the adaawk. 23 The -- the last reference on page 10 is from the 24 examination for discovery of Sylvestor William which 25 was read in. Beginning at line 8: 26 27 Q Mr. William, does Hag Wil Negh have a 28 Kungax; if you can, if you have got it 29 then go ahead, Mr. Holland. 30 31 That's a reference to the interpreter. 32 33 A Yes. 34 Q And without telling it to me, do you 35 know, do you know it? 36 A It is a song, I do not know. 37 Q Is that all that he said? 38 THE WITNESS: (NODS HEAD) 3 9 MR. PLANT: 40 Q Mr. William, are you able to describe for 41 me what is a Kungax? 42 THE INTERPRETER: 43 A It is a ceremonial performance in a 44 feast. 45 Q Is there a story of where the name Hag 46 Wil Negh — 47 26544 Submissions by Mr. Plant 1 That's a Wet'suwet'en chief's name, my lord. 2 3 Q -- came from? 4 A That I don't know. 5 Q Do you know territories of Hag Wil Negh? 6 A No, I have just trapped and hunted across 7 here; I never venture too far. 8 9 That -- "across from here" would be across from 10 Smithers where the Examination for Discovery took 11 place. 12 And the last reference in the tab -- 13 MR. GRANT: Just, I think my friend is mistaken. I think that 14 one took place in Moricetown, Mr. William's discovery. 15 In fact, I'm certain of that. 16 MR. PLANT: That may be. I just have a vision in my head, the 17 vision of the basement of the Hudson Bay Hotel, but I 18 may be wrong. 19 The last reference in that tab is to the 2 0 examination. 21 THE COURT: Is there any reason why he would know the kungax of 22 Hag wil negh? 23 MR. PLANT: He was Hag wil negh. 24 THE COURT: Oh, I'm sorry. You have got Hag wil negh in your 25 chart twice: William, Sylvester once and Ron Mitchell. 26 MR. GRANT: Mr. William passed away and Mr. Mitchell took the 27 name, that's why there is a change. 28 MR. PLANT: Yes, that's right. 2 9 THE COURT: I see. So he was Hag wil negh when he gave that 30 evidence? 31 MR. PLANT 32 THE COURT 33 MR. PLANT Yes, correct. All right, thank you. Yes. 34 Paragraph 38 of my submission, my lord, there is 35 an illustrative example of the use of adaawk as a 36 political tool (as opposed to an historical record) is 37 found in the report of Mr. Hugh Brody which is Exhibit 38 991. And the chapter which I have mentioned there, 39 chapter 4, is really -- has to be read in full to get 40 the flavour of what's going on here. But this is a 41 chapter in Mr. Brody's report in which he describes a 42 series of events which took place at Bear Lake that 43 arose out of the attempt to resolve the overlap 44 between the Gitksan-Wet'suwet'en claim and the 45 Carrier-Sekani claim. And I should observe that there 46 were objections taken on numerous occasions to this 47 part of Mr. Brody's evidence, but subject to those 26545 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT THE COURT MR. PLANT objections, I don't think that they touch on the point that I want to make here, and that is this, down to paragraph 39: Mr. Brody sees in the struggle to resolve overlapping claims signs of the vitality of two cultures; cultures which, in his words, are "fiercely alive". The more significant question, in my submission, is whether the native institutions work. Here is an instance of the interaction of two cultures where alleged problems of cross-cultural translation and misconceptions do not exist. That is to say, there isn't the difficulty of Euro -- of, again using Mr. Brody's terms, of an interaction between a Euro- Canadian Frontier mentality and the Gitksan- Wet ' suwet ' en . And as a result, the misconceptions that Mr. Brody says taint all such relations are obviously not present, and at the same time, there is what appears to be an equality of bargaining power. Yet, what you see in this account here, is that the institutions of jurisdiction and authority, in particular the institutions of dispute settlement, fail. And what happens here is that the two groups of people meet at Bear Lake and they meet for several days at the old Bear Lake Village. And if I could just refer for a moment to the extract in the next tab in the yellow binder, my lord, page 42 of the chapter 4. That should be in tab II/3-38. All right. Does your lordship have that? Yes. In this tabulation it's page 6. I'11 just read a little bit from the first full paragraph: On July 15th, 1985, Gitksan met with Carrier and Sekani elders and representatives at the centre of the overlap: the old Bear Lake village. Helicopter flights to high points resulted in detailed naming of landmarks, and helped define the differences between the various elders' territorial claims. Miluulak — And that's the House, as I understand it, the Gitksan House that claims that territory. Miluulak history was told by both sides, and 26546 Submissions by Mr. Plant 1 divergences as well as rival opinions as to 2 whether or not these histories pertained to the 3 same Miluulak were made clear. 4 5 I have to stop there because that's the point, my 6 lord. The point is that the parties cannot even agree 7 on the content of the adaawk, and there appears to be 8 no other mechanism for compromise or adjustment of 9 this problem at the level of jurisdiction. 10 Now, I -- turning now to page 19 of my summary. I 11 think that's all I want to ask you to read in that 12 extract for now, although I do say that the whole 13 chapter bears on the point. 14 What happens to resolve this problem is that the 15 Gitksan chief, Wii Gaak, who, as I recall at the time 16 at least, was Neil Sterritt Sr., puts a jacket on 17 William Charlie, one of the Carrier-Sekani chiefs, and 18 says -- and as I recall the jacket has the crest of 19 Wii Gaak on it. And he says, "I give you this jacket, 2 0 William, to keep you warm and you can hunt here in my 21 territory." But there is no -- well, in the Gitksan 22 terms, among other things, there is no eagle down 23 going on here. There is no settlement of the dispute. 24 What there really is, is a temporary truce, which I 25 say amounts to no more than an act of grace on the 26 part of the Gitksan chief, Wii Gaak. 27 And in paragraph 40 I draw your lordship's 28 attention to the fact that the impetus for this 29 meeting at Bear Lake which took place, of course, 30 after the action had been commenced, was not the 31 desire of Gitksan chiefs to hunt, trap or fish or 32 exercise any rights in the disputed area -- to 33 exercise what might be called practical sovereignty -- 34 but, rather, was the pending land claim litigation. 35 Thus, it is clear that the adaawk are intended to be 36 called in aid of politics and yet are singularly 37 ineffective in that regard. 38 My lord, since the community of informed listeners 39 is small -- that is to say, no individual is required 40 to know more than his own history and the chiefs are 41 often unaware of their history. And I give there 42 examples from the evidence of Vernon Smith and Sarah 43 Layton. And I do think I should ask your lordship to 44 turn to Table 2216, and that will be a few tabs along 45 in the yellow book. That would be tab II/3-41, pages 4 6 four and five. 4 7 THE COURT: Yes. 26547 Submissions by Mr. Plant 1 MR. PLANT 2 3 4 5 6 7 8 9 10 11 12 13 14 15 THE COURT 16 MR. PLANT 17 18 THE COURT 19 MR. PLANT 20 THE COURT 21 MR. GRANT 22 23 24 25 26 27 28 29 30 31 32 33 34 MR. PLANT 35 36 37 38 39 40 MR. GRANT 41 42 43 44 THE COURT 45 46 47 Just to draw your lordship's attention to this exhibit which purports to describe familiarity with House histories for population, firstly, 16 years of age and older. And then when you turn over the page, you find that it's a chart dealing with the degree of familiarity for those who are 15 years of age and less. And you find that on the first page, by far and away the greatest category is the -- those who claim to be not at all familiar with their House histories. That number, 426, on the right-hand column corresponds to that category. And there is also an additional reference, my lord, that I would ask your lordship to make a note of on the summary here. What is this table from? The Gitksan Carrier Tribal Council census which is Exhibit 901-4. And for what year is it? I'll give that date to you later, my lord. Yes. My lord, I have a concern about this. Is my friend suggesting that this document which was put to, I believe, Dr. Daly by Ms. Koenigsberg in cross, and he had not seen it, and it was marked as an exhibit for that purpose, is my friend suggesting that he is now adopting this for the truth of the contents therein? Because I think that is the only time it would be referred to and I think it was put in as a document that Dr. Daly did not have an opportunity to review and consider in his analysis. And that was the intent of that document, not for the truth of the contents therein, because I don't believe any other witness was examined on the document. Well, my lord, I haven't seen the point in the transcript where this was put into evidence for awhile. But it certainly appears to me, for the purposes of my argument, to be a document created by the plaintiffs which contains admissions against interest, and to that extent, is admissible. It was a statistical survey, my lord. I think my objection is clear for your lordship that I do take the position that it is not put in for the truth of the contents stated therein. But it's a plaintiffs' document. It comes from your files, it comes from the tribal council which, on your case at least, is an emanation of the chiefs or the plaintiffs. 2654? Submissions by Mr. Plant 1 MR. GRANT 2 3 THE COURT 4 MR. GRANT 5 6 7 8 THE COURT 9 10 11 MR. GRANT 12 MR. PLANT 13 14 15 16 17 18 19 20 THE COURT 21 MR. PLANT 22 23 24 25 26 THE COURT 27 28 MR. PLANT 29 30 THE COURT 31 MR. PLANT 32 33 THE COURT 34 MR. PLANT 35 36 37 38 39 40 41 42 43 44 45 46 47 : Well, I wouldn't say it's an emanation of -- oh, you mean the tribal council? : Yes. : Yes, it came out of the tribal council files, it was a specific research project that was done, and in terms of its accuracy or veracity it was never testified to in any regard in that way. : All right. Well, I will have to look at that, at what happened when it went in. I've got your two positions and I'll have to sort that out. : Thank you, my lord. : My lord, Exhibit 901-3 is the census document itself, and it appears to be described -- called "Phase 1 Results". And from the introduction it says, "The census results are intended for use by Band Councils, and my tribal council information was gathered by the land claims research team in late 1979 and early 1980." So that's the closest that I can get to a date for that information. : All right. Thank you. : There is in the context of this submission, an additional reference that I give your lordship, and that is to the evidence of Dr. Daly at transcript 194, page 12660 at line 35 where he says, "Specific songs and histories are known by very few". : What's the reference again? It's not in the text, is it? : Transcript 194 — that's Volume 194 of the transcript, page 12660. : 12660? : 660, yes, at line 35. And that's not in the material, my lord. : Yes, all right. : And I say, therefore, that the opportunity for correction within such a system is small. And I say that it is, in any event, an exaggeration to describe as a "system" of knowledge "shared out" that which is, in substance, an ad hoc collection of narratives (and which, in the case of the Wet'suwet'en, is admitted to be incomplete). And the reference there to the report of Dr. Mills is the last page in that tab in the yellow book, and it's the first full sentence on the page: "The kungax do not recount the origin of every house and crest and title." Turning over the page, my lord, I say that moreover, much of what is important appears to be kept secret. And your lordship may recall the evidence of 26549 Submissions by Mr. Plant 1 Art Mathews when he said that some parts of the adaawk 2 may be told at feasts but the -- well, perhaps I 3 better take your lordship to it. It's just the next 4 item in the book. That would be II/3-42. And 5 starting at line 40, Mr. Grant: 6 7 Q I'll come back to that area in a few 8 minutes. When the adaawk is taught in 9 detail who is usually present? 10 A This is where we get serious. Just the 11 family hears -- a Simoogit tells an 12 adaawk in its -- it's like I described, 13 all these material things, and nobody is 14 allowed to hear this, because wisdom 15 leaking out about our sisatxw 16 [S-I-S-A-T-X-W], how we do it and how we 17 realize things, hunting signs, all other 18 things they say belongs to that house 19 itself. But actually the actual adaawk 20 itself publicly is told in feast halls, 21 but not the secret parts of it. That 22 belongs to the house itself. 23 24 And I -- as I recall, it was Mr. Mathews' evidence 25 that to tell the full adaawk took something like three 26 or four months. That would be the adaawk including 27 all of the many secret parts. 28 And the next is an extract in the evidence of 29 Jessie Sterritt which is a couple of pages further on 30 in the tab. It's page 4 of the material at the tab, 31 and this is the evidence of Mrs. Sterritt who gave 32 evidence on commission. She was examined in chief by 33 Mr. Rush and in answer to a question said: 34 35 A It was the responsibility of the elders 36 of the House to pass on the knowledge of 37 the history of the House and anything 38 that may enhance the lives of the young 39 people of the House, and it was usually 40 not related to another House, it was 41 something that was kept right in the 42 House, the methods that they used. 43 44 And while I say in paragraph 42 that it is 45 uncertain whether the adaawk is history or "a guide 46 for life", what I really mean is that there are a 47 number of different descriptions of what the adaawk 26550 Submissions by Mr. Plant 1 is. Some have said that the adaawk is history, 2 others -- and my recollection is that it was Mrs. 3 McKenzie said that the adaawk is information you need 4 to know. 5 Correction of "errors", to the extent that it 6 occurs at all, occurs only when a subsequent feast is 7 held for the purpose. And this was -- there was 8 testimony concerning this by Joan Ryan and by Art 9 Mathews, both of whom gave evidence, as did Stanley 10 Williams, concerning a feast that Stanley Williams 11 hosted as a result of what was said to be an error 12 made in a feast that had been hosted by Buddy 13 Williams, Stanley Williams' son. And that -- if it is 14 not the only instance -- specific instance of a 15 correction, it certainly is one of the very few in the 16 records before your lordship. And I mean to contrast 17 specific instance with the statements expressed in 18 general terms, that this is how they do things. 19 Art Mathews had -- when I say by Art, he had not 20 heard an error corrected for four years. It was, as I 21 recall, Stanley Williams and the Buddy Williams 22 correction that he referred to in his evidence, and 23 Mr. Mathews was unable to recall any other examples of 24 such correction ever having occurred. 25 And my lord, I say that the evidence is clear 26 that critical discourse is not a feature, at least of 27 Gitksan society. When a dispute is settled it is a 28 violation of Gitksan "law" to raise the matter again. 29 Thus, the idea of free historical inquiry is 30 apparently not present within the Gitksan communities. 31 And the reference there is to the evidence of Olive 32 Ryan which would be in the II/3-44, and I ask your 33 lordship to look at it. Starting at line 29, and this 34 is in cross-examination: 35 36 Q I suggest to you that in your lifetime, 37 there was a disagreement about who should 38 sit in the seat at the Feast Hall that 39 Gwis Gyen -- 40 41 That is to say, the name held by Stanley Williams. 42 43 Q -- now sits in? 44 A Well, I can't answer you. 45 Q Why can't you answer me? 46 A Well, that's happened before long time 47 and we not supposed to bring it up. They 26551 Submissions by Mr. Plant 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 already settled it. Q That's a part of Gitksan law, isn't it? A Yes. Q When you settle a dispute, you are not supposed to talk about it anymore; right? A Yes. And turning over the page to the next extract, this is from the evidence of Stanley Williams, and I'm in the yellow book again, my lord. This is Mr. Williams giving evidence about the fact that it's a violation of Gitksan law even to tell the adaawk of another house without permission. And at line ten, this was in examination by Mr. Grant: A It is not our law to tell the adaawk of any -- any -- from any house. Like I could not tell anybody's adaawk and they would not tell my adaawk, and this is our law, the Gitksan people's law. I can't use their adaawk and they can't use mine. And what happens, this evidence was -- may well have been given in the context of Mr. Williams giving adaawk evidence of other Houses where he took pains to say that he had the permission of the chiefs to give that kind of evidence. My lord, on page 21 of my submission, where I say that there are circumstances where the trustworthiness of oral histories can be tested by comparing the oral histories to written records of the same event. And the reference made in the following paragraphs is to a story related by Johnny David, which he said the chiefs themselves told to him. It concerns a Fishery officer who seized a fishing fence in the Babine area. And I think that this may be -- well, it's important that I identify that this story was not advanced by Mr. David as part of his kungax, it was really a retelling of events that occurred when Johnny David was a young man, and thus it falls outside the umbrella of the protection for oral tradition which the plaintiffs have advanced. It's a different kind of problem, my lord. I would say that generally speaking, this is pure hearsay and therefore inadmissible. THE COURT: Well isn't it hearsay on both sides? MR. PLANT: Yes, probably. But what you have at any rate, is 26552 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT THE COURT MR. PLANT THE COURT MR. PLANT you have Mr. David's recollection of events that took place a long time ago, and there are documents in evidence concerning the same events, and if Mr. David's evidence is admissible at all, then your lordship is going to have to compare Mr. David's recollection of the events to the recollection contained in the reports of the Fishery's officers and so on. I suppose the Fishery's officer's report would only be admissible if it was in a business record, would it. And my submission has already been admitted for that purpose. All right. But I want to say that this example here falls outside the umbrella, really, of the submission that I am making. All right. Thank you. Jumping ahead then to paragraphs 49 and 50, I think it continues -- I say it continues to be significant, even though it's outside the context of this particular problem, that the differences between the versions of these stories makes some sense when you see that Mr. David's recollection -- and I'm at the bottom of the page -- in 1980 -- in the 1980's, is that this was a land claims matter in which the natives asserted their claim to the land. And then your lordship will not find that proposition supported by the documentary record of the event. The comparison serves as an example of the proposition restated by Drs. Bishop and Ray, which I will be coming back to, that -- particularly in the context if your lordship should decide that oral history is admissible. "The validity of oral tradition and historical 'truth' must be carefully cross-checked against other categories of data." Now, paragraph 52, I set out another series of examples, and the -- these examples relate to the oral record, as it were, of the Kitsegukla fire of 1872. Once again, this example falls outside the umbrella of the adaawk, because on my reading of these accounts from the Barbeau-Beynon files, they are not tendered as part -- they weren't created as part of the adaawk of the various Houses that these individuals came from. So what you have there is an oral account by individuals recorded in the 1920s of events that took place in the 1870's. And what you have again is a 26553 Submissions by Mr. Plant 1 problem of competing and conflicting accounts of what 2 took place, and the difficulty of reconciling the 3 accounts as to particular details, especially when the 4 versions of -- that are recorded here by Dan Guxsan 5 and Mark Wiget are compared with the existing 6 historical record concerning the same events. 7 Now I am going to move ahead to paragraph 57. 8 Mr. Grant has just asked me a question which I am 9 unable to answer, but there is one thing that it 10 brings to my mind. There are some errors in the 11 exhibit numbers in the -- on pages 23 and 24, 12 paragraph 48, my lord. 13 THE COURT: Yes. 14 MR. PLANT: The last reference there which is — ends dash 12 15 should be dash 13. And similarly, the first line of 16 paragraph 49, that should also be dash 13 not dash 12. 17 Over the page to paragraph 51, the reference to 18 the Bishop and Ray proposition, I've transposed the 19 numbers. That should be Exhibit 902-6, and it's at 20 page 122. That page is included in the material in 21 the yellow binder, but the full exhibit is 902-6. 22 Now, paragraph 57, my lord, I want to come back to 23 the evidence of the lay witnesses who, in this 24 courtroom, told adaawk or related their kungax, and I 25 say there is no issue of credibility here, my lord. 26 It's unnecessary to dispute the plaintiffs' belief 27 in their oral histories, that belief perhaps best 28 stated by Mary McKenzie when she said, "In Gitksan law 29 all adaawks are true". And I say, with respect, but 30 rights to land cannot, and do not, flow from beliefs. 31 I adopt by way of argument, the following 32 extracts from an article by M.I. Finley entitled 33 "Myth, Memory and History" in a publication entitled 34 History in Theory, and you'll find the complete 35 article, my lord, in the binder of articles which I 36 won't take you to, but in the grey books. It's the 37 one with the yellow label. 38 THE COURT: I don't have -- oh yes, I have one over there. Yes, 39 all right. 4 0 MR. PLANT: And it's at tab 4. 41 And I'm going to read from the extracts in the 42 argument starting in the quotation about seven or 43 eight lines down with the sentence that begins, "Now 44 there is the tradition". 4 5 THE COURT: Yes. 4 6 MR. PLANT: 47 Now there is the tradition which shapes a large 26554 Submissions by Mr. Plant 1 part of our lives, perpetuating customs, habits 2 of behaviour, rites, ethical norms and beliefs. 3 There is nothing mysterious about tradition in 4 this sense; it is transmitted from one 5 generation to the next, partly by the ordinary 6 process of living in society, without any 7 conscious effort on anyone's part, partly by 8 men whose function it is to do so: priests, 9 school masters, parents, judges, party leaders, 10 censors, neighbours. There is also nothing 11 reliable about this sort of tradition; that is 12 to say, its explanations and narrations are, as 13 anyone can judge by a minimum of observation, 14 rarely quite accurate, and sometimes altogether 15 false. Reliability is, of course, irrelevant; 16 so long as the tradition is accepted, it 17 works, and it must work if the society is not 18 to fall apart. 19 20 But "tradition" detached from living practices 21 and institutions - a tradition about a war two 22 hundred years back, for example - is not the 23 same thing at all; only a semantic confusion 24 seems to place it in the same category. 25 Wherever tradition can be studied among living 26 people, the evidence is not only that it does 27 not exist apart from a connection with a 28 practice or belief, but also that other kinds 29 of memory, irrelevant memories, so to speak, 30 are short-lived, going back to the third 31 generation, to the grandfather's generation, 32 and, with the rarest of exceptions, no further. 33 This is true even of genealogies, unless they 34 are recorded in writing; it may be taken as a 35 rule that orally transmitted genealogies, 36 unless some very powerful interest intervenes 37 (such as charismatic kingship), are usually 38 fictitious beyond the fourth generation, and 39 often even beyond the third... 40 41 ...Group memory, after all, is no more than the 42 transmittal to many people of the memory of one 43 man or a few men -- 44 45 That should probably be one woman or man or a few 46 people. 47 26555 Submissions by Mr. Plant 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 -- repeated many times over; and the act of transmittal, or communication and therefore of preservation of the memory, is not spontaneous and unconscious but deliberate, intended to serve a purpose known to the man who performs it. . . Oral tradition, therefore, is not a tool the historian can count on "in the nature of things". He must always ask Cui bono? That is, who gains? And I -- MR. GRANT: My lord, I didn't want to interject my friend when he was in the middle of this, but I take it this is not a treatise that has been put into evidence, firstly. And I take it also that these propositions, although extensive cross-examination was made of Dr. Daly and Ms. Marsden and other witnesses about the concept of oral tradition, that none of the propositions from this particular treatise was put to them. Am I correct in both those assumptions? MR. PLANT: I don't think this is an exhibit, my lord. My friend misheard me. I said that I am adopting this by way of argument and I'm commending it to you on that basis, my lord, not as something that is a text that is in evidence or that was put to a witness. THE COURT: Yes. MR. PLANT: And from the top of page 29, the — about four, five lines down, the objective -- that is to say, the objective associated with the relation or telling of oral tradition: ...was an immediate and practical one, whether it was fully conscious or not, and that was the enhancement of prestige or the warranty of power or the justification of an institution. And then Professor Finley goes on to say that there are several conclusions that follow from the observations made. The third of these is this, that: ...individual elements of the tradition were conflated, modified, and sometime -- That should be "sometimes" -- invented. Family rivalries, conflicts 26556 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT THE COURT MR. PLANT between communities and regions, changes in power relationships, new values and beliefs - all these historical developments shaped tradition. They had a relatively free hand with what was happening currently, but often they could not afford to ignore traditions they themselves had inherited. Where a vital interest was affected, it was imperative that corrections be made. Even in a world which makes considerable use of writing, this process is not too difficult. And then he gives an example. It says that when -- at the bottom of that paragraph: When tradition is entirely oral, conflation and falsification are childishly simple to bring about. They cannot, indeed, be prevented. What is conflation? I beg your pardon? What is conflation? I think it's the merging of two or more possibly reconcilable and possibly irreconcilable ideas. My lord, turning over the page, I have an observation here that is not in the written text. Plaintiffs argued that transcript 314, page 23533 of the evidence -- this was their argument: The evidence respecting the adaawk and the kungax of the Wet'suwet'en and the Gitksan chiefs were effectively unchallenged in cross-examination. What they said is not merely their belief, what they said was, "This is true." And that's the end of the quote. Well, my submission, my lord, is there are reasons why hearsay evidence is generally admissible. One of these reasons is the difficulty of testing a proposition which, in substance, if not in form, reads, "I was told this by someone else." When such a statement is, by definition, derived from successive repetitions through generations, the cross-examiner has virtually no means of testing the truth of the proposition. His only recourse is to 26557 Submissions by Mr. Plant 1 investigate the circumstances of the telling. And I 2 say that if the truth of a statement is inherently not 3 susceptible to cross-examination -- and that is 4 manifestly the case with the adaawk and the oral 5 history of the Wet'suwet'en -- then such a statement 6 ought to be ruled inadmissible. 7 And I say, with respect, that the test of 8 admissibility is not whether oral tradition counts as 9 evidence among the community of scholars who practice 10 history today. The test is whether it amounts to 11 evidence at law. The oral history offered in this 12 case, the adaawk and the kungax, do not meet the twin 13 requirements of necessity and trustworthiness. It 14 cannot be admissible. 15 THE COURT: Is there room for such evidence, in your submission, 16 when it's used by others such as Ms. Albright, or is 17 she notionally deemed to have excluded it, if I find 18 that I should exclude it? Or put it another way, can 19 I exclude it from your argument but still use it to 20 the extent -- still rely upon it to the extent that 21 she relied upon it? 22 MR. PLANT: If the oral tradition is inadmissible, then that 23 part of the body of evidence which was before your 24 lordship which is the oral tradition itself, is 25 excluded. So that then takes you to the question of 2 6 what do you do with the experts who relied on it? And 27 I say that any opinion expressed on the basis of 28 inadmissible evidence is itself inadmissible. That 29 won't rule out the evidence of people such as Ms. 30 Albright altogether because, of course, Ms. Albright 31 did actual field work and is -- she is entitled to 32 report on the results of that field work. So that the 33 overall effect -- or it's -- the overall effect of Ms. 34 Albright's opinion is going to be a matter of weight. 35 But I say that you can't go to Ms. Albright's 36 report and find any independent validity for the oral 37 tradition. I mean there is the exercise of 38 corroboration which is what Ms. Albright was seeking 39 to do, what the Gottesfeld and Dr. Mathewes attempted 40 to do. And I'm going to be dealing with that in the 41 next part of my submission, under the heading of 42 weight -- "Considerations going to weight". But I say 43 that if you find that the oral history is inadmissible 44 for the reasons that I've argued, then that 45 consequence carries on right through into the expert 46 opinion reports. 47 THE COURT: All right. Thank you. 2655? Submissions by Mr. Plant 1 MR. PLANT: And I might say, my lord, in this context, that 2 while it's not referred to in the submissions, the 3 recent Supreme Court of Canada judgment in the 4 Lavallee case, and by recent I mean the same day as 5 the Horseman judgment, may have a bearing on this, 6 particularly, the judgment of Mr. Justice Sopinka. 7 I'll get my hands on that and speak further on that. 8 THE COURT: Yes. 9 MR. PLANT: The next heading, however, is the heading 10 "Considerations going to weight". And I state the 11 obvious, that a basic principle is that the court 12 should always be given the best evidence. 13 Thus, even if oral history of events alleged to 14 have occurred prior to first contact is to be ruled 15 inadmissible, even for the period after contact when 16 documentary evidence does exist, the oral record must 17 be heavily discounted in favour of the written record, 18 where that written record exists. 19 If oral histories are admissible as prima facie 20 proof of the truth of their contents then there are a 21 number of points which I say must be considered when 22 assessing the weight to be accorded to them. I submit 23 that little or no weight can be accorded to oral 24 histories of events allegedly taking place more than a 25 hundred years prior to the relating of the event. 26 Even then, the oral histories should only be prima 27 facie proof when corroborated by other admissible 2 8 evidence. 29 Now, the first proposition is that an oral history 30 may be accorded no weight even if Your Lordship finds 31 that the informant or the witness honestly believed in 32 its veracity. And that much is made clear by Dr. 33 Catherine McLellan in an article that is entitled 34 Indian Stories About The First Whites In Northwestern 35 America, and is Exhibit 902-7, and the relevant 36 extract is in the yellow book, but the quote here is 37 sufficient for my purposes: 38 39 We are all familiar with attempts to generalize 40 about categories of oral literature. Bascom, 41 for example, has suggested that two major kinds 42 of prose narrative are myths, which focus on 43 the activities of non-human beings in an 44 earlier or other world, and legends, which tell 45 of recent human exploits in a world like that 46 of today. Both kinds of narrative are thought 47 to be true, unlike the third category: 26559 Submissions by Mr. Plant 1 folktales, which are pure fiction deliberately 2 devised for entertainment. 3 4 Dr. McLellan goes on to say: 5 6 Different narrators may classify the same story 7 in different ways...While their decisions 8 certainly involve more than temporal 9 considerations, the point for us is that the 10 ethnohistorian must not expect the Indians to 11 handle time in the same way that historians do. 12 13 None of the Indians, however, should ever face 14 the dilemma of the western historiographer in 15 deciding what is fact and what is fiction in 16 their oral literature. In theory, at least, no 17 deliberately fictitious stories are ever told. 18 19 Now, Dr. Daly has said in his evidence that there 20 are myths and legends in Gitksan and Wet'suwet'en oral 21 tradition. 22 Two points I say arise from Dr. McLellan's 23 observations. The first, is that when reviewing an 24 oral history "You shouldn't impose the western 25 historiographer's perspective on the teller of the 26 story... however the western historiographer's 27 perspective is important for western civilization's 28 attempts to date the history". And that's a quote 29 from Dr. Daly's evidence. 30 Second, the fact that the events recounted in an 31 oral history are inherently implausible or incredible 32 does not necessarily detract from the informant's 33 belief that the events set out in the oral history are 34 true. To this extent, at least, the fact that an 35 informant or a witness at trial believed the oral 36 history to be true is irrelevant for the purpose of 37 assessing the oral history's weight as evidence. This 38 is because oral histories generally are not factual 39 narratives, nor are they intended to be factual 40 narratives. They are myths and legends as we 41 understand myths and legends. 42 Now, in paragraph 66 I refer to the discipline 43 known as ethnohistory, and say that whether 44 ethnohistorians are anthropologists or historians is 45 really irrelevant. I don't think your lordship will 46 get any assistance from Exhibit 1051-2 on that 47 proposition. But I say that since the test for 26560 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT THE COURT MR. PLANT veracity of ethnohistory in a court of law must be at least as rigorous as the test for its veracity in the academic disciplines concerned with it, whatever you call that discipline. : What is 1051-2? : It is the report -- or paper by Julie Cruikshank which is a critical bibliography concerning oral tradition. I think I will be making some reference to that. : Oh yes. All right. : So really, paragraph 66 is argument. I don't point to any authority here for it. Paragraph 67, we have Drs. Bishop and Ray, who say that: Even when employed carefully, memory ethnography can only provide totally accurate information for relatively short time spans, usually one hundred years at the very most. That's where the 100 year time limit that I've urged upon your lordship comes from. Now, there is a fairly extensive quote here from Dr. Trigger, Bruce Trigger, and this is from Exhibit 888. I'll just read the first couple of sentences and the last sentence: The use of oral traditions to understand historical events requires a detailed understanding of their derivation and a critical comparison of alternative versions of the same story. While oral traditions may provide a valuable record of former beliefs and values, caution is needed in interpreting that sort of information historically. And carrying on down to the bottom of the page: In general, some kind of independent verification is required before such traditions can be accepted as accurate historical accounts. My lord, I say that the extracts from the plaintiffs' evidence cited in the two preceding paragraphs should not be taken to represent a universal academic acceptance that oral histories are entitled to any weight, as history, at all. In fact, 26561 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. MR. PLANT GRANT THE MR. THE MR. COURT GRANT COURT GRANT the debate in the anthropological and historical disciplines as to the value of oral history continues. And here I will not ask your lordship -- I won't take your lordship to it now, but this is where the reference to Dr. Cruikshank's bibliography comes into play. And I say even those scholars who accept the value of oral histories agree that the recounting of events of more than 100 years ago is extremely problematic and independent verification is required before the contents of an oral history can be accepted as objective "truth", again, as history. This is because, as Dr. Daly admitted: ...where oral histories refer to the distant past, they must be handled with a good degree of reserve, for experience shows that the historical and mythical merge inextricably beyond a certain point... And I should pause here. This is really a question posed in cross-examination. The question was put this way: ...oral traditions frequently reflect contemporary social and political conditions as much as they do historical reality. Dr. Daly's answer was, "Some do." My lord, I am in your hands as to the hour. : Oh, all right. All right, we will adjourn. I think it's the appointed time, and you would like to start at 9:30 in the morning? : Yes, my lord. : My lord, if you would make reference to that, my friend had -- it is in his material, my friend paraphrased it, but there is an explanatory answer of Dr. Daly on page 1260 of that tab and it's not -- I differ with my friend. I don't think it is as he summarized it. Where is it again? Tab — Where he said "Some do"? Yes. It's -- he says, "Some oral traditions do," and then the answer goes on to explain it. It's one answer on his -- at my friend's tab II/3-69, and I think that my friend hasn't fairly summarized it. 26562 Submissions by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT THE COURT It's in this tab? Yes. All right. Thank you. All right, 9:30 tomorrow, please. THE REGISTRAR: Order in court. Court stands adjourned until 9:30 tomorrow morning. (PROCEEDINGS ADJOURNED AT 4:30 P.M.) I hereby certify the foregoing to be a true and accurate transcript of the proceedings transcribed to the best of my skill and ability. Toni Kerekes, Official Reporter, UNITED REPORTING SERVICE LTD.
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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[Proceedings of the Supreme Court of British Columbia 1990-05-14]
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