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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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567 Submissions by Mr. Wolf 1 2 3 4 THE REGIS1 5 6 7 THE COURT 8 9 10 11 12 13 MR. WOLF: 14 15 THE COURT 16 MR. GRANT 17 18 THE COURT 19 MR. WOLF: 20 21 22 23 24 25 26 27 28 29 THE COURT 30 MR. WOLF: 31 32 33 34 THE COURT 35 MR. WOLF: 36 37 38 39 40 41 THE COURT 42 MR. WOLF: 43 44 45 THE COURT 46 THE COURT 47 MR. WOLF: VANCOUVER, B.C. June 22, 1990 PRAR: Order in court. In the Supreme Court of British Columbia, this 22nd day of June, 1990. Delgamuukw versus Her Majesty the Queen, at bar, my lord. : Before you start, Mr. Wolf, can counsel direct my attention to any evidence, not now but sometime, on the number of Gitksan and Wet'suwet'en there are. I've heard different figures mentioned and somebody told me there was evidence about it, and I'm not sure where that evidence is. I don't have an exact figure, my lord. Perhaps Mr. Grant could help you. : Well, I don't need to know now. : I'll make a note of that that we'll provide you with a reference. : All right, thank you. My lord, I'm continuing with the Federal Defendant site specific analysis of the use and occupancy evidence. As you will recall, yesterday we looked at three Delgamuukw territories, and I'm going to continue today looking at some additional Gitksan territories, and then we will move on to the Wet'suwet'en territories. But before I do that, I have an amended or a more complete index to all the territories in this section, and I'll just hand that up to you. : Thank you. Now, that goes -- That goes at the beginning of part IX of our argument. You should have a partial summary that we handed out yesterday, you can throw away the old index. : Mm-hmm. And you're on page 12? Well, my lord, I'm not going to take you through all of our submissions on all of the territories, so I'm going to ask you to skip ahead to page 18 of our submissions, and I'm going to begin today with one of the Wiigyet territories. It's the Chipmunk Creek territory. : Thank you, yes. This territory, my lord, is located in the northeast section of the claim area. It's this one up here on the Upper Skeena River at the corner of the map here. : Yes. : That's Chipmunk Creek, is it? Yes. Submissions by Mr. Wolf 1 THE COURT 2 3 MR. WOLF: 4 THE COURT 5 MR. WOLF: 6 7 THE COURT 8 MR. WOLF: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 MR. GRANT 25 26 27 28 29 MR. WOLF: 30 31 32 33 34 THE COURT 35 MR. WOLF: 36 THE COURT 37 MR. WOLF: 38 39 40 41 42 43 44 45 46 47 : What's that large lake, I can't see through the overlay. To the right there's Thutade Lake. : Thutade, yes. And then there's another couple of lakes above Thutade. : Thank you. Thutade of course isn't in this particular territory. Other features of the territory are Chipmunk Creek, the Skeena River and Alma Creek. This territory was described in the affidavit of James Morrison, and both Mr. Morrison and his brother, Sam, gave evidence concerning the use of the territory. Our conclusions with respect to the evidence of use and occupation of this territory are as follows: The evidence is that this territory was used or at least visited from 1936 until 1963. The territory appears to have been used regularly during this period for hunting, trapping and the gathering of certain plants. However, the evidence is clear that the territory was not used after 1963. And we say that non-use for a period of 21 years or more constitutes abandonment. : Is that the period my friend fixes the magic time is, 21 years, because yesterday he referred to 40 years, or is there a fixed period of abandonment, I want to be clear on my friend's argument, or does it depend on the territory? Well, we say that approximately 20 years, we say 20 years or more. We say -- my submission with respect to the 40 years was that there was evidence that a lot of the territories haven't been used for 40 years, and we say -- : Since 1951 or thereabouts? Or thereabouts. : Yes, all right. In this particular case, this territory had not been used for at least 20 years prior to the commencement of the action, and we say also that that is sufficient to be abandonment. I'll just refer to page 19 of my submissions now, paragraph 3, and this is the evidence on this territory. James and Sam Morrison testified that they travelled to this territory with their father, Simon Morrison, and others. Simon Morrison was Wiigyet, I believe. James Morrison testified that a group of people travelled in 1936 to that part of the territory 569 Submissions by Mr. Wolf 1 lying west of the Skeena River. And if you -- you may 2 have observed, my lord, that part of the territory is 3 on the west side of the Skeena River and the Chipmunk 4 Creek, part of the territory is on the east side of 5 the Skeena River. The portion on the eastern side is 6 the larger portion of the territory. 7 THE COURT: Chipmunk Creek comes in from the east, does it? 8 MR. WOLF: Yes, it does. 9 THE COURT: Yep. 10 MR. WOLF: On that particular trip in 1936 he testified that he 11 trapped marten, wolverine and beaver, and he 12 identified on Exhibit 378 the camps used by his family 13 when they stayed on the territory. And perhaps I'll 14 just refer your lordship to volume 1 of our references 15 which I handed up yesterday. 16 THE COURT: Yes. 17 MR. WOLF: And I'll refer you to tab 3(C)3. 18 THE COURT: 3(C) — 19 MR. WOLF: 3. And four pages into that tab there's a photocopy 20 of a map that the Plaintiffs used when they were 21 leading the evidence of James Morrison, which is 22 Exhibit 378. Do you see where the word Waiget, 23 W-A-I-G-E-T, is on the north-central part of the map? 2 4 THE COURT: Yes. 25 MR. WOLF: Okay. Just to the north of that is Chipmunk Creek, 26 and it's below Grossman Peak on the map. 2 7 THE COURT: Yes. 28 MR. WOLF: There are a series of triangles along this creek 29 which are said to represent camps along Chipmunk 30 Creek, and this is what Mr. Morrison was referring to 31 when he said that camps on Chipmunk Creek were used by 32 his family when they stayed on that territory. 33 However, he also testified that the main camp was 34 located on the west side of the Skeena River and is 35 labelled "Waiget Camp". And that's considerably below 36 that area we were just looking at. There's a triangle 37 on the Skeena River that's labelled "Waiget Camp". 3 8 THE COURT: Yes. 39 MR. WOLF: Paragraph 4 of my submission: In addition to marten, 40 wolverine and beaver, Mr. Morrison testified that he 41 hunted moose, bear, porcupine, goat and groundhog on 42 different parts of the territory. 43 James Morrison testified that his family used the 44 territory every year. Mr. Morrison was unsure when he 45 had last trapped on the territory, but he agreed that 46 he had not trapped there for at least 20 years. On 47 the next day of his cross-examination, when asked when 370 Submissions by Mr. Wolf 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 he was last on the adjacent Wii Minosik territory, he stated that his brother and father were there in 1952 and he was there before 1952. It appears likely that this was the last time that James Morrison was in this Upper Skeena area except for helicopter flights in the 1980's. MR. GRANT: Does my friend have a reference for that last proposition? MR. WOLF: No. That's our submission on the evidence. Paragraph 6 of my submission: Sam Morrison testified that he had gone out to the Chipmunk Creek territory very often, and he believed the last time he was there was in 1963. He stated that he was on the territory in 1963 and he recalled that fur prices dropped "about maybe 1959 I think...'54, 1960 or something". And he also gave evidence about trapping along Chipmunk Creek. James Morrison also gave evidence of fishing on the lakes on the territory and in Chipmunk Creek itself. Just to go back to our conclusions on this territory, my lord, we say that this territory appears to have been used for a number of years for hunting, trapping, probably fishing and some gathering of plants, but there's no evidence that it was used after the early 1960's. And we say that it's been abandoned since that time. The next territory that I would like to take you to is at page 25 of our submission. You don't have a section for Chipmunk Creek in your outline headed "Conclusion" like you do for the others, do you? Well, I thought so, my lord. I'll just double-check that. On page 18 -- Do you have page 18? THE COURT: Yes. MR. WOLF: At the bottom. THE COURT: I see. Sorry, the conclusion comes before the -- MR. WOLF: Yes. Our general format is to introduce -- THE COURT: And then do the support work. All right. MR. WOLF: Yes. THE COURT: Page 25. MR. WOLF: Yes. And the territory that I would like to refer you to here is the Luus territory, the Xsi Lax Uu Andoo'o territory. Now, this territory is located in the north-central part of the claim area along the Nass River, and it's a small territory. THE COURT MR. WOLF: 371 Submissions by Mr. Wolf 1 THE COURT 2 MR. WOLF: 3 THE COURT 4 MR. WOLF: 5 6 7 8 9 10 11 12 13 14 15 16 17 MR. GRANT 18 19 20 MR. WOLF: 21 22 23 THE COURT 24 MR. WOLF: 25 26 27 28 THE COURT 29 MR. WOLF: 30 31 32 33 THE COURT 34 35 MR. GRANT 36 37 38 39 MR. WOLF: 40 41 42 43 THE COURT 44 45 46 MR. WOLF: 47 THE COURT : Yes. I see it here. Yes. It's this one here. : Yes. This territory was described in the affidavit of Walter Blackwater. However, there is no evidence presented that this territory was used. There's no evidence from Mr. Blackwater's cross-examination, there's no evidence from any other source that this territory was used, and we say that the Plaintiffs have not established that they have ever used the territory or that they have any rights to it. And this conclusion is repeated with respect to a number of territories. There are a number of territories with which there is absolutely no evidence that that particular area was specifically used. The next territory I would like to take you to -- : In that respect, is my friend also referring to the affidavit itself of Mr. Blackwater as well as the cross-examination to make that statement? Well, if we could turn to Mr. Blackwater's affidavit. I don't recall at the moment. That affidavit is at 4(B) -- pardon me. : Well, 4(B) looks like Mr. Muldoe's affidavit. Yes. It's the wrong document at that tab, my lord. I will have to -- I may have made a mistake with respect to the proper affidavit on this territory, my lord. I will have to double-check on that. : Yes, all right. The affidavit -- it appears that it was Peter Muldoe who gave evidence with respect to this territory, but I don't think that that's right. I'll check that, my lord, and go back to that. : Do you have -- you haven't included here the full affidavit -- yes, it is. : Yes. It's Section E of 605, and it's right there. And paragraph 32 I think should be noted in light of my friend's conclusions, which indicates that Mr. Muldoe and Abel Tait both travelled on that territory. Well, that's the general form of their affidavit, my lord, is that they say that the territory was travelled upon, but we don't say that that constitutes evidence that they used it. : Yeah. But I should change the affidavit of Walter Blackwater, I should change that to say "Peter Muldoe", should I? It appears that that's right. : I'll do that. If you find in your research that 372 Submissions by Mr. Wolf 1 there's another affidavit of Mr. Blackwater's that 2 makes your text correct, perhaps you can let me know. 3 MR. WOLF: I will, my lord. The next territory I would like to 4 refer you to is at page 33 of our submissions. This 5 is territory 7(A), the Wii Elaast-Giist territory. 6 This territory is located 35 miles north of the 7 village of Kispiox on the east bank of the Skeena 8 River five miles south of the site of the village of 9 New Kuldo. 10 THE COURT: That's a tiny little property, isn't it? 11 MR. WOLF: Yes, that's right. 12 THE COURT: Yes. 13 MR. WOLF: It's just on the east bank of the Skeena River there. 14 This territory was described in the affidavit of Peter 15 Muldoe. 16 There are only -- this is our conclusion with 17 respect to the territory. There are only two 18 instances of use of the territory before the court, 19 and we say that the evidence is insufficient to 20 establish that the Plaintiffs continuously used this 21 area. In addition, it is likely that the evidence of 22 use of this territory occurred in the 1950's or 23 earlier, and therefore, it's probable that the 24 territory has not been used by the Plaintiffs for at 25 least 30 years. 26 Peter Muldoe testified that he travelled through 27 this territory with Luus to reach a place called Andax 28 Aaws, where he hunted goat. He stated that he 29 travelled up the creek called Giist on this territory 30 to reach Andax Aaws, which is located in the adjacent 31 Luus territory. The location of Andax Aaws is 32 indicated on Exhibit 486. And perhaps if your 33 lordship will turn to tab 7(A)3 of our references 34 binder, I will have better luck in -- better luck with 35 the references. That's tab 7(A)3. And if you turn 36 two or three pages into the tab, the last page of the 37 tab — 38 THE COURT: Well, the bottom of the first page he talks about — 39 oh, he may be talking about a different property 40 there. 41 MR. WOLF: No, this is his testimony. I was just going to refer 42 you to the map at the back of the tab. 43 THE COURT: Oh, yeah, right. 44 MR. WOLF: Which is Exhibit 486, the map that the Plaintiffs 45 used to lead Peter Muldoe's evidence. And you can see 46 at the right-hand corner of the Wii Elaast territory 47 there's a feature, Andax Aaws. 373 Submissions by Mr. Wolf 1 THE COURT: Yes. 2 MR. WOLF: And that's located just outside the Wii Elaast 3 territory; it appears to be on the Luus territory. 4 This feature, Andax Aaws, lies near the head of 5 Larkworthy Creek at the southern end of the Luus 6 territory and outside of the Wii Elaast territory. 7 We say in paragraph 4 of my submission that the 8 Plaintiffs' submissions at pages 65 to 66 of their 9 argument misconstrues Peter Muldoe's evidence on this 10 point. We say that Mr. Muldoe cannot hunt goat in 11 this territory on his way to Andax Aaws. 12 In paragraph 5 of my submission I say that the 13 Plaintiffs also misconstrue Mr. Muldoe's evidence in 14 the first full paragraph of page 66 of their argument 15 where they stated "Mr. Muldoe was hunting and trapping 16 on the territory with Steve Morrison". Mr. Muldoe 17 actually stated that he was trapping with Steve 18 Morrison on Wiigyet's territory and that Morrison's 19 sisters, Alice and Jane, were trapping at Giist at the 20 same time. Mr. Muldoe also testified that there was a 21 cabin and smokehouse on the territory across from a 22 place called Milkst on the Skeena River. And that 23 particular feature is not labelled on Exhibit 486, 24 that sketch map. Oh, I'm sorry, there is a -- it's 25 not labelled as such, but there's a triangle at the 26 very edge of that sketch map that I've referred your 27 lordship to earlier. It's in the northwest part of 28 the territory along the heavy black line indicating 29 the western boundary of the territory along the Skeena 30 River. There's a portion -- indication of a triangle 31 at that point, and I believe that that's the reference 32 to Milkst. However, Mr. Muldoe stated that the cabin 33 and smokehouse at that place are no longer standing. 34 Mr. Muldoe did, however, testify that he used this 35 territory. He stated that he trapped beaver on the 36 territory and that he gave the furs to Alice and Jane 37 Williams. 38 We say that the fact that the cabin on this 39 territory no longer exists supports the inference that 40 the trapping which occurred on this territory occurred 41 some years ago. There is no -- the Plaintiffs have 42 not presented the evidence -- in their evidence they 43 don't set the time frame in which Mr. Muldoe was on 44 this territory. 45 Just to recapitulate my conclusion, I say that 46 this scanty evidence about the territory at some point 47 in the distant past, in the last 30 or 40 years, 28874 Submissions by Mr. Wolf 1 2 3 MR. GRANT 4 5 6 7 8 9 THE COURT 10 MR. WOLF: 11 12 13 14 15 THE COURT 16 MR. WOLF: 17 18 19 THE COURT 20 MR. WOLF: 21 THE COURT 22 MR. WOLF: 23 THE COURT 24 MR. WOLF: 25 26 27 28 THE COURT 29 MR. WOLF: 30 THE COURT 31 MR. WOLF: 32 33 34 35 36 37 38 THE COURT 39 MR. WOLF: 40 41 42 43 44 45 46 47 perhaps, it's not sufficient to establish that the Plaintiffs continuously used the area. : My lord, I just ask that when you're considering that, that you have -- if my friend's finished this territory, that you make reference to the original of 486 and of these maps, because I think these copies are very difficult to see the references, which are clear on the underlay. : Yes, yes. I'm having some trouble too. My lord, I was just informed with respect to that Luus territory that I was dealing with previously at page 25 of my submission, and there is -- it's 4(B) of my references, and that's the number of the territory. It is in fact Walter Blackwater's affidavit. : Oh, all right. But we put the wrong front page on that particular reference, and I'll provide you with an alternate document. : So I should put -- You can rip out the Peter Muldoe. : And leave it as Walter Blackwater. Yes, it is Walter Blackwater. : All right, thank you. Walter Blackwater gave evidence about the territories in that area in the Upper Skeena and Upper Nass River and Mr. Muldoe didn't, and that was why I was a little bit nonplussed about the cover page. : Counsel are never nonplussed. Never taken by surprise. : They just appear to be. The next territory that I would like to refer you to, my lord, is paragraph -- pardon me -- page 43 of my submissions. This is territory 9(C), the Geel territory at Barker Creek. And this is another territory located on the Upper Skeena River. It's this territory up here in the north-central edge of the claim area on the east side of the Skeena River. : Yes. This territory was described in Walter Blackwater's affidavit, but the only solid evidence of use of the territory was provided by Martha Brown. Our conclusion with respect to this territory is that there is no evidence before the court that it was used by the Plaintiffs after 1920, and one of two possible conclusions result from that: Either the Plaintiffs have not established that they continuously used the territory, or they have abandoned the area. 375 Submissions by Mr. Wolf 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. THE MR. THE WOLF: COURT GRANT COURT MR. GRANT THE COURT We say that both of these conclusions have the same effect, that is that the Plaintiffs have not proved that they have any aboriginal rights to that territory. Although Walter Blackwater described the territory in his affidavit, which states that he travelled on the territory, no evidence was presented in either his cross-examination or re-examination regarding the uses made of this territory. However -- I'm at page 44 of my submission, my lord -- Martha Brown testified that she travelled to this territory with her family for about eight years when she was between the ages of 12 and 19. She stated that when they were on the territory they dried caribou, groundhog and beaver meat and hunted goats. Mrs. Brown was born in 1901, according to the Kliiyem Lax Haa genealogy, and therefore it appears that she was last on this territory about 1920. That is when she was 19 years old. And there is no evidence that this territory has been used for over 60 years. Mrs. Brown, Martha Brown, was Kliiyem Lax Haa before she died. The next territory I would like to refer you to is the Antgulilbix territory. This is at page 46 of my submission. This is the territory 10(B), Antgulilbix-Andamhl territory. : Mr. Wolf, you told me yesterday, and I regret that now it's not clear, how this is organized, but my recollection is that this is the order in which the Plaintiffs dealt with these properties. Yes. : All right. Sorry, is there another order to this? Were they organized in terms of clans, Mr. Grant, or they're not alphabetical. : No. They're not alphabetical. : How do we jump from Geel in the north to Antgulilbix in the central part? : As I remember, I don't have our summary of argument, but as I recall at the time we were organizing them, we did them in three groupings. Wet'suwet'en is at the end, the western territories just before that, the northern territories. Internally, within the northern territories, as I recall, we did them by -- roughly by order of the Plaintiffs, but I can't recall, because they were done by different counsel, different parts of them. : Yes, all right. Thank you. 376 Submissions by Mr. Wolf 1 MR. GRANT 2 3 THE COURT 4 MR. GRANT 5 6 7 THE COURT 8 MR. GRANT 9 THE COURT 10 11 MR. GRANT 12 THE COURT 13 MR. GRANT 14 15 THE COURT 16 MR. WOLF: 17 THE COURT 18 MR. WOLF: 19 20 21 22 23 24 25 THE COURT 26 MR. WOLF: 27 28 THE COURT 29 MR. WOLF: 30 31 32 THE COURT 33 MR. WOLF: 34 35 THE COURT 36 MR. WOLF: 37 38 39 40 41 42 43 44 45 46 47 There was a certain level of arbitrariness to it, my lord, in proceeding through the affidavits. All right, thank you. But each witness will be grouped, so I think Pete Muldoe's -- Walter Blackwater's, for example, the ones that he testified to, would all be dealt with. Yes. Mr. Benson had an affidavit -- Yes. With many properties at the beginning of the submissions, did he not? Yes. All right. So they would all be grouped together by the affidavits. All right, thank you. Now, you were on 10(B). 10(B). 10(B), yes. Sorry, my lord, there isn't more continuity to the way that these submissions are presented. Mr. Grant is right, that the first group of territories in both their submission and our submissions are the northern Gitksan territories, and then we get to the western Gitksan territories, and then the Wet'suwet'en territories. Yes, all right. And I've tried not to take you through everyone, because I think that that would be a bit much. Yes. Although we do wish that you read our submissions on these various other territories that we're not giving oral submissions about. Not a bit much, that would be a much much. Yes. Back to the Antgulilbix territory. Have you located that, my lord? Yes. This is the one directly west of the village of Kispiox. And the major features of the territory include the Kispiox range of mountains and Upper Date Creek, and this territory was described by Mary Johnson in her testimony at the beginning of the trial, and Jessie Sterritt also appears to have testified about the area. Our conclusions with respect to the evidence on this territory is that it's clear that there was once a village called Wilt Gallii Bax located on the mountain of Andamhl, and this was abandoned long before Mary Johnson was born. There is minimal 377 Submissions by Mr. Wolf 1 evidence of hunting, trapping and berry picking and 2 fishing on the territory, and we say that that 3 evidence is insufficient to establish that the 4 Plaintiffs have any aboriginal rights to the 5 territory. Furthermore, there is no evidence before 6 the court that the territory has been used for any of 7 these purposes within recent decades. 8 Mrs. Johnson testified that the adaawk of her 9 house stated that in ancient times there was a village 10 on the mountain behind Glen Vowell. The village is 11 identified by the name of Wilt Gallii Bax. When she 12 was younger, Mrs. Johnson was taken by her grandmother 13 to the place on the mountain where the village is said 14 to have stood. It is evident that this village was 15 abandoned long before Mary Johnson's lifetime. 16 Mrs. Johnson also identified a fishing site at 17 Gwin Disygenn. There also used to be a smokehouse at 18 this site. And this site is depicted evidently on 19 Exhibit 358-22, and it's at the -- it's on the Skeena 20 River in the vicinity of Glen Vowell. It may or may 21 not be located on the Sik-e-dakh Indian Reserve No. 2, 22 from the maps we can't identify where it is. 23 Mrs. Johnson testified that her 24 great-great-grandmother used cedar bark from this 25 territory and that her aunt trapped at Date Creek. 26 Mrs. Johnson also testified that she used to pick 27 blueberries behind the "vegetable farm" near the creek 28 called Wilt Gallii Bax. And this creek is depicted on 29 Exhibit 17-9-A. That map indicates that the creek 30 flows through the Sik-e-dakh Reserve before it enters 31 the Skeena River. It is unclear whether Mrs. Johnson 32 was picking berries on the reserve, on private land, 33 or on Crown land. 34 Mrs. Johnson also testified that her father took 35 her brother, Stanley Wilson, onto the territory when 36 he was young and showed him where to set traps. Mrs. 37 Johnson's statements that her brother trapped on the 38 mountain and hunted groundhogs on the top of the 39 mountain must have been based on hearsay, because it 40 appears that Mary Johnson did not accompany her 41 brother on these trips. The same submission applies 42 with respect to Mary Johnson's statement that Fred 43 White went to the territory before Stanley did, and 44 without that inadmissible evidence -- or pardon me -- 45 without that hearsay evidence, my lord, there is very 46 little evidence, there's none, actually, of hunting 47 and trapping on the territory, but we say that that Submissions by Mr. Wolf 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. MR. THE MR. THE MR. COURT WOLF: GRANT COURT GRANT COURT GRANT THE COURT MR. GRANT MR. WOLF: THE MR. COURT WOLF: evidence, as led through Mary Johnson, is almost surely hearsay and is not admissible. Is her brother still alive? Yes. Fred White is deceased, my lord. Is her brother Fred White? No. Stanley Wilson is still alive, he's hospitalized, but Fred White is deceased. All right. I must say, my lord, on this point that my friends raised yesterday on the hearsay, we take great exception to this, and we will have to deal with it in reply to the hearsay issue, because in the context of what my friends are arguing we say we must prove use and ancient use, and too bad you can't use it, because you can't use the reputation of use. I don't think he's saying you can't use reputation of use, I think he's saying you can't use out-of-court statements to prove a particular fact. But what I understood him to say is that we could, through reputation, say "My grandmother told me this land belonged to so and so", but Millirrpum it is "but we couldn't say that my grandmother told me that she trapped on that territory". And that's the first part of their proposition. The second part is we must establish that to establish title. So I just want -- I take it my friends have made their submission on the hearsay, and we'll deal with it in reply. I believe you understand our submissions with respect to hearsay, my lord. We say that these out-of-court statements made to the witnesses, which they repeat in court, are generally hearsay and inadmissible. However, there are circumstances which you set out in your ruling on hearsay where the Plaintiffs could establish a reputation of use perhaps, but generally speaking, the evidence is not presented in that form. It's in the form "My husband told me he trapped there". Yes. The next territory that I would like to direct your attention to is at page 50 of my submission. It's the Wii Minosik territory at Fort Creek, and we're jumping back and forth to the Upper Skeena here. It's this large territory here which lies below the Wii Gaak territory at Chipmunk Creek which we reviewed earlier, and it also has portions on both the east and west side of the Skeena River. 379 Submissions by Mr. Wolf 1 THE COURT: Yes. 2 MR. WOLF: This territory was described in the affidavit of 3 James Morrison, and both James Morrison and Solomon 4 Jack appear to have given evidence about the use of 5 the territory. 6 Our conclusions with respect to the evidence on 7 this territory is that there is some evidence of 8 hunting and trapping on this territory, but we say the 9 evidence is insufficient to establish that the area 10 was continuously used for these purposes. 11 Furthermore, there is no evidence that the territory 12 has been used for trapping since 1940 and hunting 13 since 1952. And we say that given the remoteness of 14 this area, it is reasonable to infer that the 15 Plaintiffs have abandoned it. 16 Moving on to the evidence with respect to the 17 territory, James Morrison testified that he hunted 18 goat on those parts of the territory lying east of the 19 Skeena River which are marked on Exhibit 378 with the 20 word "goat". The map indicates two such areas, one 21 north of Fort Creek and the other below that creek. 22 The Plaintiffs stated in their submissions at the 23 bottom of page 97 that Mr. Morrison "went to the camp 24 which is indicated by a triangle marker with Jack 25 Wright". However, we say that it appears that Mr. 26 Morrison was referring to the Wii Gaak cabin which 27 appears on Exhibit 378 on the west side of the Skeena 28 River below Cutfoot Creek and not the triangle marked 29 "Wii Minosik Camp" near the confluence of the Mosque 30 and Skeena Rivers. When Mr. Morrison was hunting goat 31 he was with his father, Simon Morrison, his brother 32 Sam, and Peter Angus. Mr. Morrison did not state -- 33 pardon me -- Mr. Morrison did, however, state on the 34 next day of his testimony that he camped at that "Wii 35 Minosik's Camp". 36 Mr. Morrison does not state when he was hunting 37 goats on the territory. However, he did testify that, 38 other than a 1983 helicopter trip, the last time he 39 was on this territory was before 1952. 40 Solomon Jack testified that he had trapped on the 41 east side of the Skeena River above the Sustut River 42 with his grandfather on the territory that belonged to 43 Wii Minosik in the area of the Moose River. The Moose 44 River he named may have been referring to the Mosque 45 River. This trapping appears to have taken place 46 before 1940, because he says that the last time that 47 he trapped with his grandfather was about that time. 28880 Submissions by Mr. Wolf 1 So just to sum up, there is no evidence that this 2 territory was used for trapping after 1940 and hunting 3 after 1952, and we say that that constitutes 4 abandonment. In one case it hasn't been used for 30 5 years, in the other for 40 years or more. 6 I would like to refer you to another Wii Minosik 7 territory at page 53 of my submissions. It's 8 territory 11(D), the Blackwater Lake or Dam Tuutsxwhl 9 Ax Lake territory of Wii Minosik, and that's at the 10 north-central portion of the Gitksan claim area. 11 THE COURT: That's the big round one? 12 MR. WOLF: Yes, oval-shaped one, yes. 13 THE COURT: Yeah, oval-shaped one. 14 MR. WOLF: The major features of the territory include the Nass 15 River, Damdochax Lake and Creek, and Slowaldo Creek. 16 As I said, this territory is described by Walter 17 Blackwater in his affidavit. 18 Our conclusions with respect to the evidence on 19 this territory is that although it's located in a 20 relatively remote area, there is substantial evidence 21 of use for hunting and trapping purposes up until the 22 mid 1960's. Upon the death of Jimmy Blackwater, who 23 was Walter Blackwater's father, these activities seem 24 to have ceased, and it has only been in the mid 1980's 25 that there is evidence of renewed activity on the 26 territory. But although there was a cession of 27 native -- cessation of native activity on this 28 territory for almost 20 years, we say that this time 29 falls on the less-than-20-years side of the 30 abandonment proposition which we presented; that is it 31 has been used for 18 years. So they appear to have 32 gotten in under the wire with respect to this 33 territory. However, the Plaintiffs have not 34 established which parts of this territory were 35 actually used by the Plaintiffs, and it is not 36 reasonable to infer that all of the territory was 37 continuously used by them. Therefore, we say that 38 except for the immediate area of Jimmy Blackwater's 39 cabin site, there is insufficient evidence to prove 40 that the Plaintiffs have any aboriginal rights to this 41 large area. And this -- we're confronted with this 42 territory with that situation, that there's only very 43 general evidence that the Plaintiffs, in this case 44 Jimmy Blackwater's family, used this territory for 45 hunting and trapping, but we don't know where on this 46 huge territory that actually occurred, and we say that 47 there has to be some evidence of that before the court 51 Submissions by Mr. Wolf 1 can say that the Plaintiffs have an aboriginal right 2 to a particular area. 3 Just to deal with the evidence on this territory, 4 Walter Blackwater testified that he was actually 5 brought up on this territory. He stated that he lived 6 on the territory with his parents until he moved to 7 Kispiox in 1956. He testified that even after he 8 moved to Kispiox he returned to the territory. He 9 also gave evidence that he trapped on the territory 10 with his father, Jimmy Blackwater, until Jimmy 11 Blackwater died in 1966. Between 1948 and 1966 he 12 stated that he trapped with his father in the area of 13 Blackwater Lake and with other persons on the 14 territory. So there is some evidence of where they 15 trapped, and that is in the vicinity of Blackwater 16 Lake. 17 Jimmy Blackwater's house was located near 18 Damdochax and Xsan Six Moohl Creeks. Walter 19 Blackwater testified that his brother David and Robert 20 Stevens have recently trapped on the territory. The 21 source of this information is likely to be hearsay, 22 because there's no evidence that Walter was on the 23 territory with either David or Robert. 24 Victor Giraud, a retired federal fishery officer, 25 testified that when he was trapping along the Yukon 26 telegraph trail, in the vicinity of Kuldo before the 27 outbreak of the Second World War, he recalled seeing 28 Jimmy Blackwater and his family travelling along the 29 telegraph trail several times. This evidence is 30 consistent with Mr. Blackwater's evidence that his 31 family was living in the Damdochax area. 32 The next territory I would like to refer you to, 33 my lord, is at page 61 of my submissions. It's 34 territory 13(A), the Tsabux-Tsim Gwi Dagantwit 35 territory. And this is a small territory located 36 approximately 25 miles northwest of Kisgegas on the 37 north end of the Atna range of mountains. You see 38 that, my lord, it's this territory here. 39 THE COURT: Yes. An inverted triangle? 40 MR. WOLF: Yes. 41 THE COURT: Yes. 42 MR. WOLF: A major feature of this area is Shedin Peak, and this 43 territory was described in the affidavit of James 44 Morrison. 45 This territory appears, from the evidence, to have 46 a limited purpose, that is mountain goat hunting. Mr. 47 Morrison gave evidence of one occasion when he hunted Submissions by Mr. Wolf 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 THE COURT 22 MR. WOLF: 23 24 25 26 THE COURT 27 MR. WOLF: 28 THE COURT 29 MR. WOLF: 30 31 THE COURT 32 MR. WOLF: 33 34 35 36 37 38 39 40 41 42 43 THE COURT 44 45 46 MR. WOLF: 47 THE COURT mountain goat there. And we say that, although obviously a small area can support only a limited amount of hunting, evidence of one hunting trip does not establish an aboriginal right to hunt mountain goats on this territory. The only evidence with respect to the territory was Mr. Morrison's testimony that he hunted goat on the territory at the place marked "goat" just below where the word "Tsabux" is marked on Exhibit 379. Exhibit 379 is another of these sketch maps that was used to illustrate Mr. Morrison's evidence. And this hunting trip took place in either 1956 or 1957. And that's all the evidence there is about the use of this specific territory. The next territory I would like to take you to is at page 65 of my submissions. It's another Tsabux territory, in this case it's the Red Creek territory. This territory is located in the northeast part of the claim area on the northeast border of the claim area above Bear Lake, north of Bear Lake. : Yes. Major features of the area include the Bear and Sustut Rivers and Birdflat and Red Creeks. This territory was described in the affidavit of Abel Sampson. : Well, Bear Lake's not in that territory, is it? No, it's not. : Just south of there. But the Bear River is on the southern border of that territory. : Yes, all right. Our conclusions with respect to the evidence on this territory is that the only site specific evidence before the court concerning the use of the territory is Abel Sampson's evidence that he trapped and hunted on the territory for three years in the 1940's with his father. This evidence does not establish that this territory was continuously used by the Plaintiffs. Furthermore, there is evidence that the area around Bear Lake was effectively abandoned in approximately 1950, when many of the residents of Bear Lake permanently moved away from their village. : Whose traplines are these on this territory? There seems to be a trapline that includes most of the north part of the territory. Yes. : Will I get that from looking at the other analysis Submissions by Mr. Wolf 1 that — 2 MR. WOLF: Yes. 3 THE COURT: They're included in that other analysis? 4 MR. WOLF: That's correct. I haven't — I don't know who the 5 current registered holder of that trapline is, but 6 it's one of our submissions that just because someone 7 is registered on the trapline doesn't mean that 8 they've used it. 9 THE COURT: How would I move conveniently from your analysis to 10 the other analysis? I would go to -- 11 MR. WOLF: It should be in the same order of territories, my 12 lord. 13 THE COURT: That would be Miss Koenigsberg's chart. She has 14 them in alphabetical order. 15 MR. WOLF: On the index at page 5, my lord -- 16 THE COURT: Yes. 17 MR. WOLF: You will see a reference to -- 18 THE COURT: Tsabux? 19 MR. WOLF: To Tsabux. This is the third of the territories. 2 0 THE COURT: So that should be somewhere — 21 MR. WOLF: Page 35 it appears. 22 THE COURT: Page 35, yes. 23 MR. WOLF: The pages are at the bottom of the page. 2 4 THE COURT: Yes. 25 MR. WOLF: It doesn't appear to have the registered trapline 26 holder on that particular page, but there is a list -- 27 I don't think I can advise you at this moment, my 28 lord, which -- who's the holder of that registered 29 trapline. That particular piece of information may 30 not be in our extinguishment materials. 31 THE COURT: I think someone has given me a list, is it the 32 Province's material? 33 MS. KOENIGSBERG: I don't know if the Province — I don't 34 recall, my lord, if I can just interject here, if the 35 Province did a list of the registered trapline holders 36 among the Plaintiffs, they may very well have, but it 37 will only show up on our list if in fact in that 38 territory there is a trapline registered to a 39 non-plaintiff. 4 0 THE COURT: Yes. 41 MS. KOENIGSBERG: The inference then is that it's a Plaintiff, 42 it is a Plaintiff. 43 THE COURT: A Plaintiff, probably this one? 44 MS. KOENIGSBERG: And probably that one, and we can certainly 45 confirm that. 46 THE COURT: Yes, all right, thank you. Sorry, Mr. Wolf. 47 MR. WOLF: Miss Koenigsberg just reminded me, my lord, that 28884 Submissions by Mr. Wolf 1 there is evidence that even though some registered 2 traplines are held by Plaintiffs, they're not used by 3 them. 4 THE COURT: Oh, yeah, yep. So that use, if there was, would 5 show up on your analysis. 6 MR. WOLF: Yes. The use that was put into evidence. 7 THE COURT: Yes. 8 MR. WOLF: Unfortunately, the way that the Plaintiffs have 9 presented their evidence, in many cases the evidence 10 of use only came out in cross-examination of the 11 territorial affidavit. The affidavits themselves did 12 not refer to the use, and so that information was only 13 elicited on cross-examination. 14 MR. GRANT: Well, that was objection -- partly because of a 15 ruling on an objection on that. One of the things I 16 have, if my friend -- he says that if there's evidence 17 of use of the registered trapline in the material, my 18 question is if the evidence of use through the 19 trapline documents returned by Plaintiffs, I take it 20 my friend has not included that in this, that there is 21 evidence there of returns, trapline returns, I take it 22 that's not included in here, because I haven't seen my 23 friend make any reference to it yet; is that right? 24 MR. WOLF: In some of the trapline files that the Province has 25 tendered as an exhibit, it's Exhibit 995-41A, there 26 are some fur returns that are part of those trapline 27 files, and that's some of the best evidence that the 28 Plaintiffs could have led if they had access to that 29 kind of material of use, because that gives specific 30 years, specific places where trapping was done. 31 However, my understanding is that those files that are 32 in evidence do not contain many of those returns, but 33 where I know or I'm aware of the specific trapline 34 return or fur return, I have made reference to that in 35 my submissions. 36 THE COURT: All right. 37 MR. WOLF: The evidence about this territory at Red Creek, as I 38 said before, came through Abel Sampson, who testified 39 that he went to this territory for three years with 40 his father when he was between the ages of 13 and 15. 41 It appears that these visits occurred about 1948. Mr. 42 Sampson moved to Hazelton when he was 15 years old and 43 has not returned to the territory since that time. He 44 stated that his father, Arthur Sampson, was the last 45 person to use the Red Creek territory in the late 46 1950's. And we say that this evidence is probably 47 based on hearsay and therefore is inadmissible, 55 Submissions by Mr. Wolf 1 because it's obvious that Abel Sampson did not go with 2 his father on these trips in the 1950's. 3 When Abel Sampson was on the territory as a young 4 man, he and his father hunted groundhogs, goats and 5 caribou in the summer, but they were there all year 6 round. As well he testified that his family had 7 fished along the Bear River. These fishing sites are 8 not well identified in Mr. Sampson's evidence, but it 9 should be noted that there are a number of small 10 Indian reserves along the Bear River. 11 One of the reasons offered by Mr. Sampson in 12 answer to the question "Why did you leave Bear Lake?" 13 was: 14 15 "The only reason how we can stay up there is 16 from trapping. The trapping got so poor that 17 they had a store up there, and pretty soon you 18 can't afford to get the airplane in to pay for 19 stuff and we had to move into town." 20 21 The next territory I would like to refer to is at 22 the next page, page 67, territory 14(A). Nii 23 Kyap-Babine River territory. This territory is 24 located immediately south of Kisgegas. It's this 25 territory here, my lord. 2 6 THE COURT: Yes. 27 MR. WOLF: The territory at the Babine River was described in 28 the affidavit of Joshua McLean. 29 Our conclusions with respect to the evidence on 30 this territory is that there is evidence that Mr. 31 McLean trapped on the territory regularly, although 32 his trapping activities appear to have declined 33 recently. However, we say that the Plaintiffs have 34 not established which parts of this territory were 35 actually used, and without that evidence it's 36 impossible for the court to infer the places that have 37 been trapped or used continuously. And therefore, we 38 say that the Plaintiffs have not established that they 39 have any aboriginal rights to trap on this territory. 40 The evidence with respect to the territory, Mr. 41 McLean testified that he had trapped all his life 42 beginning at the age of seven and that he continues to 43 trap to the present day. Mr. McLean was born in 1930. 44 He stated that he trapped with Henry Wright, Thomas 45 Wright and his father, William McLean, on this 46 territory. There is evidence that recently either Mr. 47 McLean's trapping activities are tailing off or his 56 Submissions by Mr. Wolf 1 success rate is declining. He had testified that he 2 told Rae Mclntyre during a recent season he only 3 caught three marten, five squirrels and a beaver. The 4 note of this interview is Exhibit 1231, tab 50. Mr. 5 McLean sold these furs for a total of $108.00. And we 6 say that that's evidence that Mr. McLean does not 7 appear to be doing much trapping, although the primary 8 problem with the evidence on this territory is that 9 it's so non-specific. He says that he's trapped 10 regularly there, but we don't know where, and we say 11 it's unreasonable to infer that he's used the entire 12 territory for those purposes. 13 The next territory I would like to take you to is 14 at page 72 of our submissions. It's the Bowser Lake 15 territory of Skiik'mlaxha. 16 THE COURT: What page? 17 MR. WOLF: 72. This is the large territory located in the very 18 northwest corner of the Gitksan area. Major features 19 of the area include Bowser Lake, Bell-Irving River, 20 Skawill Creek and Taft Creek. And the territory was 21 described in the affidavit of Gerald Gunanoot. Gerald 22 Gunanoot, David Gunanoot and Jessie Sterritt gave 23 evidence about the area. 24 And we say in our conclusion that, although there 25 is a large body of evidence regarding hunting and 26 trapping on the territory, the Plaintiffs have not 27 established that this territory was continuously used 28 for these purposes since approximately 1950. And we 29 say that the most reasonable inference from the 30 evidence is that the territory was abandoned at that 31 time, at approximately that time, although I believe 32 that there is some evidence of recent trips to the 33 territory, that is in the 1980's. 34 The evidence with respect to this territory is 35 that the Gitksan have not been in the Bowser Lake area 36 for all that long. Jessie Sterritt, who is 37 Wii'goob'l, testified that the territory was obtained 38 from the Stikine as a peace settlement when Daniel 39 Skawill was still alive. Daniel Skawill died in 1945. 40 Mrs. Sterritt also claimed that she was the most 41 knowledgeable member of her house about this 42 territory. Wii'goob'l appears to be related to 43 Skiik'mlaxha, I think, as she was talking about the 44 territory or the house that includes the house 45 claiming this territory when she made that statement. 46 Gerald Gunanoot, in his testimony, basically confirmed 47 what Mrs. Sterritt stated. He said that the territory 57 Submissions by Mr. Wolf 1 was obtained as a peace settlement from the Stikine in 2 the "very early nineteen hundreds, eighteen hundreds 3 or maybe late seventeens". 4 David Gunanoot testified that he trapped in the 5 Bowser Lake area soon after -- pardon me -- after 6 moving to the town of Stewart in 1923. The areas he 7 trapped included the Bell-Irving River and Spruce, 8 Taft, Little Skawill and Hodder Creeks. In 1931 Mr. 9 Gunanoot took over the William Scott registered 10 trapline in the Gilbert Lake area north of Daniel 11 Skawill's trapline. After that time he hunted in that 12 area. And as I recall from the evidence, my lord, the 13 lower part of this territory was within a registered 14 trapline held by Daniel Skawill, and at the northern 15 end of the territory was an area that Mr. Gunanoot 16 took over, and it appears that he may have taken it 17 over from a white man, a man by the name of William 18 Scott. 19 Gerald Gunanoot testified that he was born "on the 20 trapline" in this area in 1943, and he said that he 21 lived on the territory until he was six or seven years 22 old. 23 Although there is no clear evidence that Gerald 24 Gunanoot was using the territory in the 1950's, 60's 25 or 70's, he stated that he has worked the Bowser Lake 26 territory as much as possible because it is a big 27 area. He stated that he had flown in supplies on 28 separate occasions to Gilbert and Bowser Lakes. He 29 made trips to the area in 1986 and 1987, but he does 30 not appear to have trapped on these trips. 31 Gerald Gunanoot testified that Daniel Skawill had 32 two cabins on the territory, one at Awiijii Lake and 33 one at Bowser Lake. Gerald and David Gunanoot had 34 used these cabins. 35 Jessie Sterritt testified that she went on one 36 trip to the territory with Daniel Skawill when she was 37 16 years old. She also testified that prior to 1986 38 when Johnny Wilson went on the territory, no one from 39 "our house" was using the property. When Mrs. 40 Sterritt was at the territory when she was 16 years 41 old she picked berries at Awiijii Lake. 42 Mrs. Sterritt gave evidence about individuals who 43 hunted and trapped on this territory at one time, 44 including Nagun, Simon Gunanoot, Peter Morrison, 45 Martha Brown, Tommy Danes and Phillip Morrison. 46 However, all of this evidence, plus her evidence 47 regarding Johnny Wilson's activities, appears to be Submissions by Mr. Wolf 1 based on inadmissible hearsay. 2 MR. GRANT: My lord, Johnny Wilson of course is Skiik'mlaxha, 3 which my friend doesn't point out, but I wonder what 4 my friend means in his conclusions, because he keeps 5 using the term "continuously used". I thought I 6 understood it in an earlier reference, where he 7 said -- he described a territory that hadn't been used 8 since the 1950's or 60's, I can't recall, and then he 9 got on to explain that's what it implied in his oral 10 submission, that's what he meant by "continuously 11 used". Now, here he uses the same term on page 73, 12 "has not been continuously used for these purposes 13 since approximately 1950", but what he does is he goes 14 on and explains the evidence, and he did allude to 15 this even in his conclusion that there is evidence 16 that the territory was used and then it was not used 17 and then it was used. Now, is my friend saying is 18 there a specific period of time of non-use then that 19 constitutes abandonment, even if there's a re-use? 20 I'm just unclear about that, because I thought what he 21 meant when something was not used after 1950 and 1960, 22 and he said 20 years, that's what he meant by 23 non-continuous use, but he uses that term in much -- 24 many different contexts, and I would like him to 25 explain it in this context of their submission. 26 MR. WOLF: Well, as I understand my friend, he is right. We say 27 that continuous abandonment is really one way of 28 looking at continuous use, and that if the Plaintiffs 29 have not used a territory for 30 years during a 30 particular period we say that it's been abandoned, and 31 it doesn't matter that that happened after 1950. If 32 it occurred from 1940 to the 1970's, as in the case of 33 the Delgamuukw territory of Kwinageese Lake, that does 34 constitute abandonment, because the territory was not 35 continuously used for at least a generation. We also 36 say that evidence of recent use, that is since the 37 whole land claims research process has started, can be 38 inferred that that recent use has something to do with 39 the litigation, that the Plaintiffs are trying to 40 establish or re-establish their presence on the 41 territory to show in fact they haven't abandoned it, 42 but in fact they had. 43 MR. GRANT: Well, in this territory my friend, in paragraph 6, 44 he does allude to the fact there's evidence, although 45 as he says no clear evidence, of use in 1950, 60's or 46 70's. This is why I'm confused on this. Why does he 47 say non-continuous use on this territory? Submissions by Mr. Wolf 1 MR. WOLF: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 THE COURT 19 MR. WOLF: 20 21 THE COURT 22 MR. WOLF: 23 24 25 26 27 28 29 THE COURT 30 MR. GRANT 31 32 33 34 THE COURT 35 36 37 38 39 MR. GRANT 40 41 THE COURT 42 43 44 45 46 47 Because I say in that paragraph that there is no clear evidence that he was using the territory during those years. He stated that he had worked the Bowser Lake territory because it was a big area, but he provides no time frame for when that work was done. Obviously he was on the territory up to the time he was seven years old, there's evidence that he was on the territory in '86 and '87, there's evidence that he flew into the territory, but we don't know when that was. He doesn't say that he was trapping on or hunting in that area during that period, we said that the inference that the court can draw from that, that in fact they weren't using this during that time, but again, this goes back to the problem with the evidence in this case and the difficulty of using cross-examinations. This evidence was all given on cross-examination of Gerald Gunanoot. You say that you just haven't got enough evidence. In many cases there's obviously -- I've referred to some territories where there's absolutely no evidence. After 364 days there's no evidence? Well, we tried to elicit this kind of evidence on cross-examination, and we did get some information, but the information is not a complete record of the Plaintiffs, because they have cast this as a claim for ownership, have not given us that specific evidence which we say they must have to establish aboriginal right. All right. I'm sure your lordship's aware that my clarification of what he means by "use" is a cession to that fundamental difference that we have to prove use to prove the title, and that's clearly in issue. No, oh, no. There's many dimensions to these problems. What Mr. Wolf is really doing at this time, he's saying, I suppose, that even if the Plaintiff had established the juristic commencement of aboriginal right, it hasn't continued, that's -- I'm just trying to clarify what he's meaning in this aspect of the submission, my lord. Because there's been so much loose and general talk about aboriginal rights, that one starts with most discussions about aboriginal rights with the assumption that they arose -- except for Mr. Goldie's new argument, I think, that they arose in some -- backwards in time immemorial, and it continued through constant use to the present time. I think that's the 590 Submissions by Mr. Wolf 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 common concept of aboriginal right. This is, apart from Baker Lake and Bear Lake, is the first real effort, it seems to me, to deal with aboriginal rights in some specific way. Your friend, Mr. Grant, says that the aboriginal rights are divisible, diminishable, extinguishable, abandonable. And these are all concepts that have to be applied -- or considered, rather, and I take it that what we're really now saying, I think, as I understand Mr. Wolf, is that even if all those other conditions are met, what's happened here in this century has -- has operated to undo those aboriginal rights, if they ever existed. Is that it, Mr. Wolf? MR. WOLF: Yes, that's our submission, my lord. THE COURT: Yes, all right. Well, let's pursue that as far as you wish. MR. WOLF: I might just make one other point, my lord, and that is that it is our submission generally that there is evidence of abandonment since 1950 or the 40's with respect to a lot of territories. There is general evidence of that, and I introduced that yesterday. Some of this -- some of our submissions have to be viewed in that light as well. THE COURT: Yes. MR. WOLF: Would it be convenient to take the morning adj ournment? THE COURT: Yes, all right. Thank you. THE REGISTRAR: Order in court. Court stands adjourned for morning recess. (MORNING RECESS TAKEN AT 11:15) I hereby certify the foregoing to be a true and accurate transcript of the proceedings herein transcribed to the best of my skill and ability Graham D. Parker Official Reporter United Reporting Service Ltd. 591 Submissions by Mr. Wolf 1 (PROCEEDINGS RESUMED PURSUANT TO SHORT RECESS) 2 3 THE COURT: Mr. Wolf. 4 MR. WOLF: My lord, I'm going to move from the Babine River 5 territory of Nii Kyap to another Nii Kyap territory at 6 Tutadi Lake. The one we pointed out on the map 7 earlier. It's at page 71 of my submissions. 8 THE COURT: All right. 9 MR. WOLF: This territory is located in the northeast corner of 10 the claim area 50 miles north of Bear Lake. And Neil 11 J. Sterritt described the territory in his affidavit. 12 And this is another of those territories where there's 13 no evidence before the court that anyone ever used it. 14 THE COURT: Yes. 15 MR. WOLF: Neil J. Sterritt had been informed by David Gunanoot 16 about the territory, but Neil J. Sterritt had never 17 used the territory. And David Gunanoot, who gave 18 commission evidence about the territory, did not give 19 evidence that he used it either. Therefore, we say, 20 there's no evidence which establishes the plaintiffs 21 have used the territory or have any rights to it. 22 I'm sorry, my lord, I appear to have jumped over 23 that territory earlier. That came before the 24 Skiik'mlaxha territory. I meant to deal with that, 25 but I hadn't. So I'll jump over the Skiik'mlaxha 26 territory which we covered, the one about Bowser Lake, 27 and I'll ask you to turn to page 80 of my submissions. 28 This is the Miluulak territory on the Duti River. 29 This is another territory on the upper Skeena. It's 30 this territory up here, my lord. 31 THE COURT: Yes. 32 MR. WOLF: This territory was described in the affidavit of Sam 33 Morrison, brother of James Morrison. Again, we say, 34 that there is no admissible evidence before the court 35 that this territory was used by the plaintiffs. And, 36 therefore, we say, they haven't established they have 37 any rights to the area. 38 It is evident from Sam Morrison's testimony that 39 he learned of this territory when he was on the 40 adjacent Wiigyet territory with his father Simon 41 Morrison. And that's the Wiigyet territory that I 42 made submissions about earlier. That's the one at 43 Chipmunk Creek. Sam Morrison testified that his 44 father showed him the territory when Sam was 23 or 24 45 years of age. Mr. Morrison was 67 years old when he 46 testified in 1988. The plaintiffs at page 140 of 47 their argument refer to Mr. Morrison's evidence that 592 Submissions by Mr. Wolf 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. WOLF: MR. GRANT MR. WOLF: MR. GRANT MR. WOLF: he was trapping at Chipmunk Creek, but it is clear from his evidence that he was trapping south of Chipmunk Creek on Wiigyet's territory, and that he wasn't actually on the territory of Miluulak. Although Mr. Morrison testified that this territory is managed by Robert Jackson Sr., a chief in the House of Miluulak, there is no evidence that Robert Jackson has ever been to the territory. Robert Jackson also testified that he could control who goes onto the territory, and that no one has been there since Johnny Moore died. Johnny Moore died in 1987 at the age of 85 according to the Wii Gaak genealogy. Jackson also testified that Johnny Moore had used the territory in the past. However, we say, that this evidence is probably hearsay because as noted above Jackson does not appear to have been on the territory. If he had been on the territory he would have been the appropriate person to swear the affidavit in regard to it. The next territory I would like to refer you to is at page 84 of our submissions. This is the Niist territory at Kotsine Creek. And it's located on the upper Nass River. That's a very large territory, my lord. It's this one up here. : Yes. And this territory was described in the affidavit of Walter Blackwater. Our conclusions with respect to the area are that although Mr. Blackwater testified that he had been on the territory there is no direct evidence that it was used for hunting and trapping. Therefore, we say, the plaintiffs have not established that they have any aboriginal rights to hunt or trap in the area. : What does my friend mean when he says "no direct evidence"? That seems to be a modifier he isn't using generally. Is there some indirect evidence that my friend doesn't want to refer to? Well, the only reference, my lord, is that Mr. Blackwater had been on the territory. There's no description of what he was doing on the territory, whether he was travelling on the territory. No evidence that he was hunting or trapping. That's what I mean by that. : Thank you. I should also point out, my lord, that we've endeavored in every possible case to add additional evidence which the plaintiffs missed in their review 593 Submissions by Mr. Wolf 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 of the evidence and in their submissions. We've added references to use and occupation which we found in the record and which does not appear on the plaintiffs' argument. As I've already mentioned this morning, Walter Blackwater testified that he was born and raised on Wii Minosik's territory at Damdochax Lake, which is immediately to the southeast of this area. When Mr. Blackwater was old enough his grandfather took him on this territory. When his mother was still alive he would come home and then go onto the territory of Niist northwest of the Nass River. Mr. Blackwater's mother Mary died in 1974. Walter Blackwater also testified that his brother David Blackwater, who is Niist, traps at ninth cabin and parts of Kotsinta Creek and Muckaboo Creek. There is no indication of how long David Blackwater has trapped in that area, and what the source of Walter Blackwater's information is. Walter does not state that he trapped with his brother, therefore it would appear that this information is hearsay and inadmissible. THE COURT: These numbered cabins relate to the construction, did they not, of the Yukon telegraph? MR. WOLF: That's correct. THE COURT: In about 1900? MR. GRANT: 1898, 1899, 1901 or 1902. THE COURT: Yes. Was it ever completed? MR. GRANT: Yes, it was, my lord. MR. WOLF: Yes, it was. That was the line that was abandoned in the 1930s. THE COURT: I see. Did it follow the route of the Collins line to Fort Stager and then take off on its own beyond that point? MR. WOLF: Yes. I believe so. THE COURT: All right. Thank you, MR. WOLF: My lord, the next territory that I would like to refer you to, it's at page 91, it's the Gyologyet Taylor River territory. And this territory is adjacent to the Niist territory we just referred to. The features of the area include the Nass and Taylor Rivers. And the territory was described in the affidavit of Richard Benson. Again, it's quite a large territory. THE COURT: Is it the north one or the south one? MR. WOLF: It's the most northern of the three Gyologyet territories. It's on the north side of the Nass 28894 Submissions by Mr. Wolf 1 River. 2 Our conclusions with respect to the evidence 3 before the court on this territory is that the only 4 evidence of use is Richard Benson's testimony about 5 his one trip into the area in 1935. And, we say, that 6 this evidence is insufficient to establish that the 7 plaintiffs have continually used or occupied the area. 8 Richard Benson testified that he trapped along the 9 Taylor River in 1935 with Marianne, Tommy and Jasper 10 Jack. Benson trapped the right side of the Taylor 11 River travelling north with Jasper Jack for four days. 12 Marianne and Tommy Jack trapped the other side of the 13 creek. And Benson estimated that he travelled 35 14 miles from the mouth of the Taylor River. On this 15 trip the Benson party hunted moose for food and 16 trapped beaver and marten. Mr. Benson testified that 17 this was the only trip he ever made to the Taylor 18 River area. And that is the only evidence before the 19 court that this territory was used by the plaintiffs. 20 My lord, Ms. Koenigsberg has handed me an overlay 21 for our desk series of map which shows the Collins 22 Overland Telegraph Trail and the Yukon Telegraph 23 Trail. And it is Exhibit 1247 tab 7. 24 THE COURT: Just a moment. I wonder where I was when I made 25 that note. 26 MR. WOLF: That would be at page 84 of our submissions. 84 and 27 85. 2 8 THE COURT: Yes. All right. And what's the exhibit number 29 again, please? 30 MR. WOLF: 1247 tab 7. 31 THE COURT: Thank you. 32 MR. WOLF: It shows the two telegraph trails. And it appears 33 that the Yukon Telegraph Trail followed the course of 34 the Collins Overland line and then pushed on to the 35 north from Fort Stager. 36 THE COURT: Yes. When did you say it was abandoned, Mr. Grant? 37 MR. WOLF: I said I thought it was in the 1930s. Victor Giraud 38 gave evidence that he was trapping along a trapline in 39 that area from third to sixth cabin. And I believe 40 that he said it was abandoned at that time. And in 41 fact he was using as -- for trapping cabins he was 42 using some of the old telegraph cabins. 4 3 THE COURT: Thank you. 44 MR. WOLF: The next territory I'd like to refer you to, my lord, 45 is the Luutkudziiwus territory on the north side of 46 the Suskwa River. It's at page 115 of my submissions. 47 That's this territory here, my lord. 595 Submissions by Mr. Wolf 1 THE COURT: Yes. 2 MR. WOLF: I referred to this territory yesterday as one in 3 which there is extensive evidence that it has been 4 used for hunting and trapping. The territory was 5 described in the affidavit of Arthur Ridsdale. And 6 Mary McKenzie, David Green and Ray Mclntyre also gave 7 evidence about the area. 8 Our conclusions with respect to this evidence is 9 that unlike most territories in the claim area there 10 is a wealth of evidence concerning aboriginal uses, 11 and in particular trapping. The evidence establishes 12 that the plaintiffs have continuously trapped and 13 probably hunted on parts of this territory at least up 14 to the present time. However, the evidence does not 15 sufficiently delineate the areas used by the 16 plaintiffs and without such evidence we say that the 17 court cannot rule which areas are subject to 18 aboriginal rights. 19 And I've alluded to that problem before with the 20 evidence, my lord, that there is evidence of hunting 21 and trapping on this territory, but it is not specific 22 as to the area. 23 The evidence with respect to the territory. Art 24 Ridsdale testified that he used to camp and travel on 25 the territory with Ben McKenzie Sr., the husband of 26 Mary McKenzie, and Chief Luutkudziiwus, when they were 27 younger. He also testified that he travelled with Tom 2 8 Campbell on the territory. Tom Campbell was the 29 former Luutkudziiwus. And that he had been there last 30 year, 1987. Mr. Ridsdale's travels with Tom Campbell 31 must have occurred before 1945 which is when Mr. 32 Campbell died according to the Luutkudziiwus 33 genealogy. 34 Mary McKenzie testified that she and her husband 35 Ben McKenzie Sr. used this territory extensively. She 36 stated that her husband's grandmother had a homestead 37 on the territory where she raised cattle and horses. 38 The first time that Mrs. McKenzie appeared to have 39 visited the territory was in 1937 when she had to stay 40 at home cabin to look after the family horses. She 41 testified that there was a hay field there and the 42 family kept horses that were used to guide hunters in 43 the summer. When Ben McKenzie went trapping by 44 himself during winter it was necessary for Mary to 45 stay in the cabin to look after the horses. They 46 would often go out together in November of the year 47 and stay on the territory until March. She also 596 Submissions by Mr. Wolf 1 stated that they would sometimes go out to the 2 territory in May for beaver. Mrs. McKenzie testified 3 that she only went out with her husband on his 4 trapline once, and it took them three and a half weeks 5 to travel its length. Ben McKenzie usually only took 6 two weeks to travel his trapline if he was by himself. 7 Mrs. McKenzie testified that she was last on her 8 husband's territory in 1980 when they went trapping 9 for beaver in April. She also gave evidence of 10 picking berries on the territory. 11 Ray Mclntyre gave evidence concerning trapping 12 activities for part of this area. He gave evidence 13 about two individuals who had applied for special ARDA 14 funding in relation to their traplines. Those 15 individuals were Simon Muldoe and Delbert Turner. And 16 they have registered traplines that take in very small 17 parts at the western end of this territory. 18 Mr. Mclntyre testified that Simon Muldoe was rather 19 vague about his trapping experience. And Exhibit 20 1231-44 is a note of Mr. Mclntyre's interview with 21 Simon Muldoe in which Mr. Muldoe told him that he had 22 not trapped in approximately 15 years. And Mr. 23 Muldoe's registered trapline number is 608T034. And 24 you'll see that on your trapline overlay. 25 I was trying to find the exhibit number for the 26 trapline overlay, my lord. That's 1243G for the desk 27 series of the defendant. 28 THE COURT: 1243G? 29 MR. WOLF: Yes. And that shows 608T034, that registered 30 trapline takes in a very small portion at the very 31 western end of the territory. The territory or the 32 trapline, registered trapline which is immediately 33 south of that trapline is number 608T046. And that 34 trapline is Delbert Turner's trapline. And it's 35 located at 15 Mile Creek. 36 And Mr. Mclntyre -- just returning to my 37 submissions at the bottom of page 117 -- testified 38 that Delbert Turner told him that he was an active 39 trapper. And then I described where that trapline 4 0 was. 41 Arthur Ridsdale testified that Kenny McKenzie, 42 Simon Muldoe and Delbert Turner trapped on this 43 territory. Mr. Ridsdale did not state that he had 44 travelled with these individuals out to their 45 traplines, and therefore his information is probably 46 hearsay. This conclusion is supported by the fact 47 that Mr. Ridsdale's statement about Simon Muldoe's 597 Submissions by Mr. Wolf 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. WOLF: THE COURT MR. WOLF: THE COURT MR. GRANT activities contradicts Simon Muldoe's statements to Ray Mclntyre which I just referred to. And others -- there was one other person who gave evidence about this trapline, and that was Jeff Boys, the Indian agent at Hazelton in the late 1940s. And he recalled in his commission that he had gone out on one native trapline, and that was Ben McKenzie's. David Green who's a chief in another house, his name is Wagilwil (phonetic), he testified that he occasionally hunted on the McKenzie or north side of the Suskwa River. He gave evidence about the Gyetm Galdoo territory immediately across the river to the south. And, we say, that one other submission with respect to this evidence is that Ben McKenzie probably trapped in the area of his registered trapline. That's the best that we can say with respect to where his trapping activities were. But that's a very large area and it's likely that he did not use all of this area. And it's not reasonable -- we say, respectfully, that it's not reasonable to infer that he used all of the territory. : What do you say I should do if I find, everything else being equal, that there was use of a part of a territory, but it's not possible to determine what part of the territory was so used? Excuse me for a moment. One conclusion that you can draw, my lord, is that the plaintiff's claim fails. However, we will make submissions at the end of our case about how you should deal with that type of situation. : All right. If that's all right. : Yes. : I just wonder also, because my friend -- the question I wanted, if he could deal with this, answer this question either now or at that time, my friend suggests, and here's a good example where he says there's extensive use but not clear of where. And in my friend's theory of use is necessary to prove for aboriginal title my question is what is he saying must be shown in the detail of where? Does it presumably in a territory has to be something less than every square inch, but it seems like it's pretty -- it's much greater than square mileage. What does -- does it have to show that people have walked or utilized the whole territory or the depth of detail. And I'd Submissions by Mr. Wolf 1 like that question answered before we reply. 2 THE COURT: Well, your friends can reply to that if they wish. 3 MR. GRANT: It's the theory they have, my lord. Their theory 4 which is different than the plaintiffs. But their 5 theory is to proof aboriginal title you have to prove 6 use. So then here we come to a territory and they 7 say, yeah, here they show use, but it's not specific 8 enough or it's not everything. It's not part of -- 9 THE COURT: That argument arises because of the internal 10 boundaries that you have made as part of your case. 11 MR. GRANT: Well, take away the internal boundaries. I presume 12 the argument would apply even if there were no 13 internal boundaries. My friends would say -- 14 THE COURT: That's part of the argument, that's why the question 15 assumes to me some greater importance. If I was to 16 conclude that the internal boundaries on a particular 17 territory are not reliable for the various reasons 18 shown in Mr. McKenzie's latest chart, for example, and 19 as you say take them away and then I have in this area 20 I have Canada saying, well, I think there was some 21 aboriginal use in here somewhere, but I don't know 22 where. Then where am I? 23 MR. GRANT: Well, I'm assuming that on the plaintiffs' theory 24 they're not saying that it's impossible for an 25 aboriginal group to prove aboriginal title in this 26 country. I'm assuming that for the purpose of this 27 argument. For the purpose of this particular 2 8 argument. 29 THE COURT: You're using aboriginal title in the sense of use. 30 MR. GRANT: That's right. 31 THE COURT: That's exactly what Calder — 32 MR. GRANT: They're saying you can use aboriginal title as of 33 use, and that that's not impossible. But they're 34 saying even in a case such as Luutkudziiwas' territory 35 where they can see an extensive evidence of use of a 36 fairly delineated piece of land they're saying it's 37 not specific enough even though they concede there's 38 lots of evidence. So what I'm saying is what my 39 friends are saying can be shown on this theory of use, 40 if they're saying it's something you can do. Do you 41 have to show every square inch. It becomes increasing 42 to me that maybe you do on their theory. I would just 43 like to know so we can respond to that part of this 4 4 argument. 4 5 THE COURT: Mr. Wolf. 46 MR. WOLF: Well, I don't think that it's our responsibility to 47 tell the plaintiffs how they should prove their claim. 599 Submissions by Mr. Wolf 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. WOLF: THE COURT But we say that there should be some reference to geographical points, otherwise the evidence is too generalized to be useful. And I will come in a few minutes to a territory or a description of a trapline, it's Herbert Wesley's evidence I believe in the Guxsan territories, one of the Guxsan territories where he discusses exactly where he trapped, along which features. And in that kind of situation we say, well, there's enough specific evidence for the court to find that they used that specific area. But there's lots of evidence in that case on Guxsan territory that he wasn't on three-quarters of it. : I'm just casting about for difficulty at the moment, but it seems to me there may be a difference between a claim for this kind of aboriginal right where the aborigines are nomadic as on the Canadian Prairies perhaps. If they were. I don't know if they were or not. And in an area where they lived in villages and went out into -- seasonally into other areas for the exercise of aboriginal use. If they were nomadic and they moved around in a random way it would only be necessary on one view of the case to say, well, this was within the range of their sweep or within the range of their likely utilization. And I'm not sure that that's necessarily an accurate or sufficiently specific way to give effect to Chief Justice Dickson's dictum about aboriginal rights having to be considered site specific if it's not a nomadic wandering sort of utilization. But I'm not sure that's a useful analysis of this. I haven't given it much thought, but I'm beginning to become alive to the difficulties that your submission raises, Mr. Wolf, as to what I'm to do if I conclude within or apart from internal boundaries I accept the submission that somebody went trapping on this property, but where. And it seems to me it's conceivable that someone would trap along the left or the right bank of a river or stream and never cross to the other side. Well, that's certainly their evidence in this case given the way they have carved up the territories. They say you don't have a right to go across that creek to use it. : I'm making -- dividing up the piece of pepper even smaller and saying what if both sides of the creek are within an area, an identifiable area. In this case, for example, within a -- well, let's take Mrs. McKenzie's northern territory where they only trap the 28900 Submissions by Mr. Wolf 1 one side of the Taylor River, or assuming that was the 2 only side of the river that was trapped on yet both 3 sides of the river are within the territory. Does the 4 trapping on one side of the river give rise to a claim 5 for these kinds of evidence or rights on the other 6 side. You're saying, I take it, no. 7 MR. WOLF: That's correct. 8 THE COURT: Yes. Well, your friend has notice of what you're 9 saying for the purpose of his reply, and I have notice 10 of the fact I've got a terrible problem here. 11 MR. WOLF: Yes, it is a problem, and we will provide a few more 12 submissions at the conclusion of our case. 13 THE COURT: Yes. All right. 14 MR. WOLF: That might help you a little bit on that. 15 THE COURT: Thank you. 16 MR. WOLF: The next territory -- I'd like to try to get through 17 the Gitksan territories before lunch so we can cover 18 the Wet'suwet'en territories this afternoon, my lord. 19 The next territory I'd like to refer you to is 20 32(A) and it's at page 125 of my submission. This is 21 the Nika Teen territory at Mount Glen in the vicinity 22 of Hazelton. That's this territory right here, my 23 lord, just above Hazelton. 2 4 THE COURT: Yes. 25 MR. WOLF: This territory was described in Steve Robinson's 26 affidavit. Mr. Robinson in his evidence did not 27 distinguish between this territory and the other Nika 28 Teen territory which is located immediately to the 29 south of Hazelton. It appears to be on the south side 30 of the Skeena River. They are -- in the plaintiffs' 31 evidence there's the two areas are distinguished, but 32 Mr. Robinson's evidence about what he had done there 33 does not distinguish between the two areas. But we 34 say that given the fact that this territory is located 35 very close to the village of Hazelton it is not 36 surprising that there is very little evidence of 37 recent hunting and trapping. Mr. Robinson testified 38 that he had hunted and trapped with his father on Nika 39 Teen's territory. However, he stated that as an adult 40 he only trapped infrequently around the reserve - 41 "occasionally I slip a little trap in here and there". 42 And we say this evidence is insufficient in our 43 submission to establish that the plaintiffs have 44 continuously hunted and trapped in this area. 45 The next territory I would like to refer you to is 46 moving into the western Gitksan territories at page 47 129. And this is the Tenimgyet territory at Cedar 28901 Submissions by Mr. Wolf 1 River. This territory is located at the western end 2 of the claim area here. 3 THE COURT: Yes. 4 MR. WOLF: Art Matthews Jr. gave quite a bit of evidence about 5 it, but the area was described in his father's 6 affidavit. 7 And our conclusions with respect to this area is 8 that although the plaintiffs have set out detailed 9 submissions in their argument regarding the territory, 10 there is insufficient evidence before the court to 11 establish that the plaintiffs have continuously used 12 the area. The only admissible evidence before the 13 court regarding the area arises from the personal 14 observations of Art Matthews Jr.. Because Mr. 15 Matthews does not appear to have been on the territory 16 prior to the mid 1970s -- 17 THE COURT: That's because Mr. Art Matthews Jr. does not appear? 18 MR. WOLF: That's correct. The plaintiffs have not established 19 that they have continously used the territory. 20 Without additional admissible evidence we say the 21 court cannot find on the facts before it that the 22 plaintiffs have any aboriginal rights to the area. 23 With respect to the evidence on the area, Art 24 Matthews Jr. testified that Wallace Morgan took him 25 into this territory at least three or four years 26 before Morgan's death in 1978. Mr. Matthews' 27 statement that Wallace Morgan's family lived at Lax 28 Lilbax, which as I recall is an island in Sand Lake at 29 the very western end of this territory, for much of 30 the year is not admissible if it relates to a period 31 prior to when Art Matthews Jr. first visited the 32 territory because it must be based on hearsay. His 33 testimony at the same page that Richard Morgan was 34 born on the territory is also almost surely based on 35 hearsay. 36 Art Matthews Jr. testified that the trail which is 37 depicted on the map of Tenimgyet territories, which is 38 Exhibit 349, is still used. The particular stretch of 39 trail which is in use starts at An gol Hon on the 40 Skeena River. Perhaps I should refer your lordship to 41 the reference. I believe we may be moving here into 42 our second or third volume of references which I 43 haven't handed up to you yet. This is in Volume 2 of 44 our references. 45 THE COURT: All right. 46 MR. WOLF: If I could ask Madam Registrar if — 4 7 THE COURT: Thank you. 28902 Submissions by Mr. Wolf 1 MR. WOLF: 2 3 4 5 6 7 THE COURT 8 MR. WOLF: 9 THE COURT 10 11 MR. WOLF: 12 THE COURT 13 MR. WOLF: 14 THE COURT 15 MR. WOLF: 16 THE COURT 17 18 MR. WOLF: 19 20 THE COURT 21 MR. WOLF: 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 THE COURT 39 MR. WOLF: 40 THE COURT 41 MR. WOLF: 42 43 44 45 46 47 There are a total of five volumes of references that we've provided with respect to the Gitksan Wet'suwet'en use and occupation evidence, which is our best attempt to master the huge volume of evidence. At tab 34A.4 there should be a sketch map of this territory. : 34? 34A.4. : Right. We're almost out of this volume, are we? Yes, I have it. Thank you. This is -- do you have the sketch map there? : I think I do. It should be at the front of the tab, my lord. : 34A.4? Yes. : I don't think it is. No. I'm sorry. I'm at 34.4. Yes, it's here. Thank you. This was the sketch map which the plaintiffs used to lead some of Art Matthews Jr. testimony. : Yes. I remember it well. The trail is depicted. You can see on the Skeena River a place called An Gol Hon. It's a little triangle. And that evidently is the starting place of this trial he gives evidence about. And I believe that in fact that is not within the territory of Tenimgyet at Cedar River. That territory is -- or that boundary of that territory is marked by a broken line about two inches to the left, but the trail starts off near the Skeena River and then heads through someone else's territory before it gets to the Cedar River territory. Mr. Matthews testified that this stretch of trail from An Gol Hon on the Skeena extends through Tsim Tsitxs, which is another triangle located on the Skeena, to Yag Axa Loobit on the Cedar River. And that feature is a creek in the middle of the Cedar River territory. Do you see that creek? : Yes. Yag Axa Loobit. : Yes. He also stated that he has gone to this territory every year since 1981 to pick berries, although location is not specified. And he gave evidence about the type of berries picked. The plaintiffs' submissions at pages 194 to 196 of their argument of trapping on this territory do not reflect that the source of Mr. Matthews' evidence 28903 Submissions by Mr. Wolf 1 about trapping cannot be based on personal 2 observation. There is no evidence that Mr. Matthews 3 himself trapped on this territory, and as noted above 4 he does not appear to have visited the territory prior 5 to the mid nine 1970s. Mr. Matthews states that 6 Richard Morgan and his brother were currently trapping 7 on the territory, but if he has not been on the 8 territory trapping with him it is difficult to see how 9 this information can be anything but hearsay. 10 So all we have then is Mr. Matthews' evidence that 11 he has used this trial to go on to the territory and 12 that he has picked berries there. And we say that the 13 evidence is insufficient to be admissible evidence 14 before the court. It is insufficient to establish 15 that the plaintiffs have continuously used the area or 16 that they have any rights to the area. 17 The next territory I would like to take you to is 18 page 142 of our submission, territory 38(C). 19 THE COURT: Yes. 20 MR. WOLF: Gaxsbgabax, Burdick Creek territory. This territory 21 is located on the north side of the Skeena between 22 Kitsegukla and Hazelton. It's below the Luutkudziiwas 23 territory at Hazelton Creek. It's the next territory 24 down towards Kitsegukla. 2 5 THE COURT: Yes. 26 MR. WOLF: Stanley Williams described this territory in his 27 affidavit. And a sketch map of the territory is 28 marked as Exhibit 446-4P. 29 Our conclusions with respect to the evidence on 30 this territory is that the evidence concerning the use 31 made of it is so vague and indefinite that it's not 32 possible to determine whether it was used at all. 33 Furthermore, there is no evidence before the court of 34 any plaintiffs presence on the territory after Simon 35 Turner died in 1947. It is plain therefore that the 36 plaintiffs have not established that they have used 37 this territory continuously or otherwise and we say 38 that they have not proved that they have any rights 39 there. 40 The evidence with respect to the area. Stanley 41 Williams testified that he travelled on this territory 42 with Simon Turner and that Mr. Turner used this 43 territory. There is no evidence of what Turner or 44 Williams did on the territory other than that. 45 Furthermore, there is no evidence that this territory 46 was used after Simon Turner died. He was born in 1884 47 according to the Gaxsbgaxbax genealogy. And he died 28904 Submissions by Mr. Wolf 1 in 1947 according to some state administration 2 documents. 3 The next territory I would like to direct your 4 attention to, my lord, is Wii Hlengwax territory at 5 Stenstrom Creek. This territory is located 6 approximately 20 miles northwest of Gitwangak. And 7 that's this territory up here on the edge of the claim 8 area. 9 THE COURT: Yes. 10 MR. WOLF: It's at page 149 of my submissions. Territory 39(E). 11 This territory was also described by Stanley Williams 12 in his affidavit. 13 Our conclusions with respect to the area are that 14 Mr. Williams testified that he hunted mountain goats 15 on this territory five times with Mathias and Joe 16 Bright. His evidence is insufficient to establish 17 that the plaintiffs have aboriginal hunting rights to 18 the area. There is no indication of when these hunts 19 took place although they are unlikely to have happened 20 recently given Mr. Williams' age at the time he 21 testified, and the fact that both Mathias and Joe 22 Bright are deceased. Nor is there any evidence of 23 where these goat hunts took place on the territory. 24 The evidence with respect to the area. Mr. 25 Williams testified that he went to this territory with 26 his father and Mathias Bright. He stated that he 27 hunted goats on this territory with Mathias just 28 twice, and he went with Joe Bright, hunting 29 presumably, three times. It is not clear from this 30 evidence what Mr. Williams was doing with his father 31 on this territory although they appear to have been 32 travelling to another territory to trap at a place 33 called Tsim An Makhl. 34 According to the Wii Hlengwax genealogy Mathias 35 Bright died in 1945 at the age of 72. According to 36 the same genealogy at page two, Mathias Bright had a 37 nephew named Josiah Bright who took the chief's name. 38 Josiah Bright, according to the genealogy, was born in 39 1899 and is deceased. We say this man is likely to be 40 Joe Bright that Stanley Williams referred to although 41 Mr. Williams said that Joe and Mathias were brothers. 42 The genealogy does not indicate that Mathias had a 43 brother named Joe. We say it was probably his nephew 44 he was referring to, the one that was born in 1899 45 according to the genealogy. 46 The next territory I'd like to refer you to, my 47 lord, is at page 172 of my submission. Territory 28905 Submissions by Mr. Wolf 1 44(B), the Lelt territory at Quill Creek. This 2 territory is located approximately 18 miles southwest 3 of Gitwangak. That's this territory here. That's at 4 page 172 of my submission. 5 THE COURT: Yes. 6 MR. WOLF: Again, this territory was described in the affidavit 7 of Stanley Williams. 8 THE COURT: I thought it was Fred Johnson. He gave evidence, 9 didn't he? 10 MR. WOLF: Yes, that's correct. 11 MR. GRANT: No. That was commission evidence before the trial 12 started. 13 THE COURT: Yes. 14 MR. GRANT: Before the ruling on that afidavits. 15 MR. WOLF: It appears that Mr. Johnson didn't give evidence 16 about this territory in his commission. 17 MR. GRANT: Well, I think my friend's mistaken in that. 18 MR. WOLF: Our conclusions with respect to the area are that 19 there are some sketchy evidence of trapping activities 20 on this territory when Solomon Harris was still alive. 21 This evidence appears to be confined to the time prior 22 to Solomon Harris' death in 1938. There is no 23 evidence of this territory being used after that time. 24 And we say that the plaintiffs have not established 25 that this territory was used continuously for trapping 26 or any other purpose. 27 The evidence with respect to the area. Mr. 28 Williams testified that he went to this territory with 29 his father and with Solomon Harris when he still had 30 his eyesight. That is when Solomon Harris had his 31 eyesight. After Mr. Harris lost his eyesight Mr. 32 Williams and his father went to the territory two more 33 times while his father was still strong. These two 34 last trips appear to refer to a time after Lelt had 35 lost his eyesight, but before he died. As noted above 36 the genealogy of Lelt showed that Mr. Harris died in 37 1938. 38 It appears that on one of the occasions that Mr. 39 Williams was on the territory with his father trapping 40 he caught the flu and his father took him home. This 41 trip took place after Mr. Williams had taken the name 42 Gwis Gyen when he was ten years old. That is he took 43 the name of Gwis Gyen at the age of ten and this trip 44 took place sometime shortly after that. After Mr. 45 Williams regained his strength he went back to the 46 territory with his father. He also testified that 47 many people died of the flu at this time which places 28906 Submissions by Mr. Wolf 1 it, I think, around the late nineteen teens or early 2 1920s. 3 I'd like to refer to a Guxsan territory now of 4 page 179 of my submissions. Territory 46(B). This is 5 Dam Giist or Kitsegukla Lake. And this territory is 6 located south of Kitsegukla. That's this territory 7 here. This was the territory that I referred to you 8 earlier. It was described in the affidavit of Herbert 9 Wesley. 10 Our conclusions with respect to the area are that 11 Herbert Wesley appears to have trapped most of his 12 life on a trapline stretching from a creek called Xsan 13 Gokhl. That creek is unnamed in the affidavit on the 14 area. That is it's unnamed with an English name. 15 Unnamed on government maps as Mr. Grant informs me. 16 And that trapline stretched from that creek along 17 Rocky Ridge to Kitsegukla Lake. Mr. Wesley appears to 18 have trapped this area very frequently since the 19 1930s. We say therefore that the plaintiffs have 20 established that they have used this area within the 21 Guxsan territory for trapping and they have an 22 aboriginal right to trap in that area. However, Mr. 23 Wesley did not appear to have direct knowledge of 24 activities in other parts of the territory because he 25 did not trap in those other areas. As a result 26 although he testified that these areas were used by 27 other people the source of his information is likely 28 hearsay and therefore inadmissible. With respect to 29 the areas outside of the trapline described by Mr. 30 Wesley, the plaintiffs have not established that they 31 continuously used those areas. 32 The evidence with respect to the territory. 33 Herbert Wesley testified that he went out on this 34 territory with his grandfather Daniel Guxsan, his 35 uncle Peter Mark, and his brother Mathias and Ed 36 Wesley. He also stated that he had trapped on the Dam 37 Giist territory a lot of times. Mr. Wesley described 38 Segyukla, the mountain called The Nipples on 39 government maps, as the place where the cabins were 40 and that was the starting point when we go trapping. 41 He stated that they would trap starting at a creek 42 called Xsan Gokhl and they would go along Gaakhl 43 Segyukla, or Rocky Ridge, as far as Dam Giist or 44 Kitsegukla Lake. 45 Kitsegukla Lake is on the eastern end of the 46 territory near the boundary with the Wet'suwet'en 47 people. Rocky Ridge is this ridge on the northeast 28907 Submissions by Mr. Wolf 1 2 3 4 5 6 7 8 9 10 11 12 13 THE COURT 14 MR. WOLF: 15 THE COURT 16 MR. WOLF: 17 THE COURT 18 MR. WOLF: 19 20 21 THE COURT 22 23 24 MR. WOLF: 25 THE COURT 26 MR. WOLF: 27 28 29 THE COURT 30 MR. WOLF: 31 32 33 34 THE COURT 35 MR. WOLF: 36 37 38 THE COURT 39 MR. WOLF: 40 THE COURT 41 MR. WOLF: 42 43 THE COURT 44 MR. WOLF: 45 THE COURT 46 MR. WOLF: 47 edge of the Guxsan territory. And the creek that he mentions I believe is in some vicinity or in the vicinity of the Kitsegukla River, though I'm not sure. But I believe this trapline he's referring to is in this northeastern area of the territory. Mr. Wesley testified that he had trapped on the trapline that was registered in 1955 from one end of the trapline to the other. A map of this registered trapline is marked as an exhibit, 607A2. And perhaps we should refer to that. I believe we're in Volume 3 of our references now, my lord. And this will be at tab 46B paragraph 4. : 46? 46B.4. : Yes. And at the second page of that tab -- : Yes. -- There is a trapline showing the -- pardon me. There's a map of the registered trapline of Herbert Wesley. : Yes. It says Wesley Edward and Company and then it says Herbert Wesley. You think it's the northern one, the one in heavy black lines? Yes, I believe that's the case. : Yes. Thank you. I believe even though he was not the head person on that line he was a registered -- or he was a member registered as part of the trapline company. : Yes. And this map here appears to take in the northeastern one-third of this territory. If you flip over to the next page of that tab I've tried to photocopy the desk sized or the desk series of overlays and base map. : Yes. And the trapline which we're referring to here I believe is 609T039. Do you see where Guxsan is on this map, my lord? : Not yet. It's in this area, the lower middle part of the page. : Yes. Yes, I have that. Just above that to the right you see the Kitsegukla River on there as well. : Yes. And just above that is registered trapline 609T039. : Yes. I believe that that is the trapline that we're referring to here. And it's easier to see it if you 2890? Submissions by Mr. Wolf 1 actually look on the desk sized series of overlays. 2 That only takes in part of this Guxsan territory in 3 the northeastern section, and that's why I'm referring 4 to this. 5 THE COURT: All right. 6 MR. WOLF: Mr. Wesley testified that there are a lot of house 7 members who use different areas of the territory and 8 one person just doesn't go and use the whole area. 9 Different members use different areas of the territory 10 within the territory of Guxsan 11 Page 181 of my submissions. Mr. Wesley stated 12 that the trapline that he used with Ed Wesley "goes up 13 Segyukla where the cabins are". He stated that that 14 was the trapline he used with Ed "and other people and 15 other members of the House of Guxsan use other areas 16 of the territory within the territory". These people 17 he described as Arthur Sampare, Ed Wesley, Mathias 18 Wesley and Ben Woods. He stated that all of these men 19 trapped on the territory and that they are deceased. 20 Finally Mr. Wesley testified that he trapped 21 between the time that he stopped working on the coast 22 at about age 26 until he retired. 23 And Mr. Alfred Joseph also testified that Guxsan 24 had a cabin on this territory at the west end of 25 Kitsegukla Lake. 26 So with this territory we have evidence that 27 Herbert Wesley used this territory continuously at 28 this one area and no place else on the territory. 2 9 THE COURT: All right. 30 MR. WOLF: I have one other Gitksan territory that I could just 31 deal with in two minutes, my lord. 32 THE COURT: I can't. I'm sorry. I have a heavy press of social 33 obligations. I'm entertaining my departing law clerks 34 for lunch today so I'll have to do this after lunch. 35 I'm sorry. 36 THE REGISTRAR: Order in court. Court stands adjourned until 37 2:00. 38 39 40 41 42 43 44 45 46 47 28909 Submissions by Mr. Wolf 1 (PROCEEDINGS ADJOURNED) 2 3 I hereby certify the foregoing to 4 be a true and accurate transcript 5 of the proceedings transcribed to 6 the best of my skill and ability. 7 8 9 10 11 12 Peri McHale, 13 Official Reporter, 14 UNITED REPORTING SERVICE LTD. 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 28910 Submissions by Mr. Wolf 1 2 3 THE REGIS1 4 THE COURT 5 MR. WOLF: 6 7 8 9 10 THE COURT 11 12 MR. GRANT 13 14 15 THE COURT 16 MR. WOLF: 17 18 19 20 21 22 23 24 25 26 THE COURT 27 MR. WOLF: 28 29 30 THE COURT 31 MR. WOLF: 32 33 34 THE COURT 35 36 37 MR. WOLF: 38 THE COURT 39 MR. WOLF: 40 41 THE COURT 42 MR. WOLF: 43 44 THE COURT 45 46 47 MR. WOLF: (PROCEEDINGS RECOMMENCED AT 2:00 P.M.) PRAR: Order in court. : Mr. Wolf. Thank you my lord. I am just going to finish off with one more Gitksan territory. It's page 181 of my submission. This is the Yal territory. It's the only Yal territory, and it's located 15 miles northwest of Kitwangak, and that's this territory right here. : Yes. There wasn't another Yal territory way up north somewhere? : No, my lord. There was a member of the house of Antgulilbix whose name was Yal, and she, Mary Johnson talked about that a bit. But that's another Yal. : Thank you. This territory was described in the affidavit of Phillip Turner, but Mr. Turner was unavailable for cross-examination due to illness, and as a result there is absolutely no evidence before the Court that this territory has ever been used, and therefore we say that the plaintiffs have not established that they have any aboriginal rights in this area. A short submission, my lord. The next section, my lord, is our Wet'suwet'en section. : Yes. I would ask Madam Registrar to hand up our submission on this. This is to replace whatever you have in your binder on Wet'suet'en territories. : Where will I find that? Well, it would be in Part 9, Tab 9 of our summary, and this follows on the Gitksan materials that I've -- that we have just gone through. : I wonder if I have already thrown it out. What I have now starts with your index and runs, I think, consecutively through to page 181 -- 182. Yes. : Does this start at 183? No, it doesn't start. It starts again from page 1, but it follows page 183. : All right. Thank you. And perhaps on Monday I will provide the registrar with the dividing tabs so it separates the two parts. : You don't need to do that. Mr. Macaulay has given me three, and I only used two. He is always very generous. The first territory I would like to address is the 28911 Submissions by Mr. Wolf 1 territory at the very beginning of my submission on 2 the Wet'suwet'en territories, and that's the Gisdaywa 3 territory at Owen Lake. And this territory is -- 4 begins about 25 miles south of Smithers. The only 5 Gisdaywa territory, and that's right here. 6 THE COURT: Yes. 7 MR. WOLF: There was no affidavit describing the boundaries of 8 this territory. Albert Joseph described the territory 9 and his boundaries during evidence at trial. Our 10 conclusions with respect to this territory are that it 11 appears not to -- pardon me, it appears to have been 12 abandoned by the plaintiffs in approximately 1940. 13 There is little, if any, admissible evidence that the 14 plaintiffs used this territory for hunting or trapping 15 after the 1930's. Mr. Joseph's evidence indicates 16 that his family only claims to use a small fraction of 17 the Gisdaywa territory as it's depicted on Exhibit 18 646-9B. They say the plaintiffs have not established 19 that they continually used this territory. 20 The evidence with respect to the area, historical 21 documents show that Mr. Joseph's grandfather, Felix 22 George, who was Goohlaht, appeared before the 23 McKenna-McBride Commission in 1915 requesting land for 24 himself and his family. Originally Felix George 25 requested land in the Ootsa Lake area. This land was 26 unavailable. As an alternative lot 3417 was 27 constituted a reserve for Felix George. This lot is 28 located on the north end of Owen Lake in Gisdaywa 29 territory. Historical documentation also indicates 30 that Felix George had already applied to pre-empt this 31 same lot. Felix George's son, Thomas George, who was 32 Gisdaywa and was Mr. Joseph's maternal uncle, also 33 pre-empted land at Owen Lake, which he subsequently 34 sold in 1937. This is the first known and recorded 35 presence of any ancestors of the plaintiffs in this 36 area. 37 THE COURT: What do you mean by "this"? The two of them, Felix 38 George and Thomas George? 39 MR. WOLF: Yes. 4 0 THE COURT: Yes. 41 MR. WOLF: Mr. Joseph claimed to have no specific knowledge of 42 this history, and it is not reflected in the crest, 43 songs and traditions of the house of Gisdaywa. 44 During his cross-examination, Mr. Joseph acknowledged 45 that the Felix George Indian Reserve on Owen Lake on 46 this territory is currently allotted to the Broman 47 Lake Band. Mr. Joseph stated that to his knowledge 28912 Submissions by Mr. Wolf 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. WOLF: THE COURT MR. WOLF: THE COURT MR. WOLF: there was only one person, Rita George, who was both a member of the house of Gisdaywa and the Broman Lake band. Mr. Joseph testified that he remembered being at Owen Lake as a child with his family. After 1931, however, his family moved to Hagwilget and did not return to Owen Lake. Mr. Joseph made intermittent trips through the territory. There is no evidence he hunted or trapped on the territory, however, Mr. Joseph's knowledge of the area has, by his own admission, been acquired largely from and grew, and Leonard George, sons of Thomas George, who he said, Alfred Joseph said, use a trapline within the area. Mr. Joseph also said that there is always someone on the territory. It is obvious, however, that much of Mr. Joseph's knowledge of hunting, trapping and fishing in the area is based on inadmissible hearsay. With respect to berry picking, Mr. Joseph testified that there were some berry picking sites on the Owen Lake territory near Morice Mountain. During cross-examination, however, he admitted that his grandmother, Cecilia George, picked berries around the village of New Hazelton. He further admitted that it was not necessarily travelling to the territory to pick berries that was important, but rather to go to an area where there had recently been a burn. Mr. Joseph's perspective about the size of this territory did not coincide with the area depicted on maps provided by the plaintiffs which were marked as Exhibits 5 and 646-9B. Mr. Joseph was cross-examined about his territory, as it was depicted on Exhibit 5, which was the map at that time as far as we knew that was the final version of the internal boundaries of the claim area. If you compare that to the 646-9B boundaries, they are very similar. There is only one or two minor changes. The territory that is mapped on Exhibit 5 is approximately the same size and shape as the mapping of the area on Exhibit 646-9B. When asked the -- : What is Exhibit 1243E and H? Those are the overlays. One is the Exhibit 5 overlay. : Yes. The Exhibit 5 overlay is 1243E, and the map 9A and 9B overlay is 1243H. : All right. When asked the approximate size of this territory in 28913 Submissions by Mr. Wolf 1 square miles, Mr. Joseph responded it was 2 approximately 40 square miles in size. In 3 cross-examination it was suggested to Mr. Joseph that 4 this territory was actually 315 square miles. When 5 this figure was put to Mr. Joseph he stated that this 6 could be the total size, but that his house used 7 approximately 40 square miles. This evidence taken in 8 conjunction with later evidence regarding the speech 9 made at the Moricetown all-clans feast by Leonard 10 George suggests that the area used by the house of 11 Gisdaywa is synonymous with the trapline registered by 12 Leonard and Andrew George. This trapline is located 13 in the southwest portion of the territory and 14 comprises less than -- my submission says it's a 15 quarter of the area, but I think it's closer to 16 one-third, and I would ask you to change your copy of 17 our written submission. 18 THE COURT: Thank you. I'm not sure that I understand what 19 you're saying here at the top of the page where you 20 say "compare Exhibit 5 with the overlays". You're 21 saying they are all the same, aren't you? 22 MR. WOLF: I am saying they are virtually the same. When Mr. 23 Joseph was cross-examined, he was referred to Exhibit 24 5 and asked about the size of his territory, and at 25 that time it was put to him that the territory was 315 26 square miles. Subsequently, of course, the plaintiffs 27 delivered another version of the boundary of the house 28 of Gisdaywa or the territory of Gisdaywa, and there 29 are some slight changes in that boundary, but it's 30 approximately the same size and shape. So we are 31 saying that his testimony about the territory in 32 relation to Exhibit 5 is -- applies also to 646-9B. 33 That is the size of the territories are approximately 34 the same shape as they are depicted on the two maps, 35 and his testimony that his house only used 40 square 36 miles in relation to that map can be applied to the 37 more recent map. 38 THE COURT: Is it your point that he didn't realize or that his 39 concept of his territory was as depicted on those 40 maps? It's a bit smaller than it really is. He 41 didn't really know how big his territory was. 42 MR. WOLF: Well, the 40 square miles is his concept of what his 43 house used. 44 THE COURT: Yes. I see. 45 MR. WOLF: I mean, I haven't reviewed his evidence recently, but 46 I assume that when he gave his evidence, he gave the 47 boundaries as they appear on 646-9B, and that would be 28914 Submissions by Mr. Wolf 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. WOLF: THE MR. THE COURT WOLF: COURT MR. WOLF: THE MR. COURT GRANT THE COURT MR. GRANT the source of his evidence, would be the source of the -- of Marvin George's information when he mapped this area. : Is 315 square miles the actual square mileage of the Gisdaywa territories shown on 9B, or is 315 square miles something else? Well, that's approximation. That was put to him in cross-examination. : Yes. And that's — : I'm just speculating here, but I would have thought that if this territory of Gisdayway's -- I would have thought it's much more than 315 square miles if there is 24,000 square miles of the whole territory. I would have thought that territory would be a thousand square miles. But I am just eyeballing it. I don't know. Well, 315 square miles may be a very generous estimate in terms of the plaintiffs. : All right. : I think it's important, my lord, on that point that my friend, as he rightly says, hasn't looked at that evidence quite -- just recently. And when you look at 48-7, I -- that is in the tab of my friend's authorities where he has put that reference. What Mr. Joseph says is not what my friend summarized. He talks about hunting and trapping, but then he says, "We don't use for hunting and trapping, we only use the valleys and the lakes, and the plateaus and the mountains are for summer and fall hunting." So the answer must be read in its full contention. And Mr. Joseph did not suggest that he did not use all the territory. He didn't use it all for hunting and trapping at certain times is what is apparent from his whole answer. : He offered 40 square miles as -- "How big is the territory of Gisdaywa?" And he said it was around 40 square miles. : Then the question was: "I thought it was larger than that." And the answer is: "It is larger than that, but we don't use for hunting and trapping". And that's where my friend suggests they only use 40 square miles for hunting and trapping, but he doesn't pay attention to the rest -- the second sentence of the answer. "We only use the valleys and the lakes, and the plateaus and the mountains for summer and fall hunting". So Mr. Joseph was, I say -- the 40 square 28915 Submissions by Mr. Wolf 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 miles is referring to the valleys and the lakes, but he is talking about what he does use the plateaus and mountains for. THE COURT: Well, you are not suggesting you would use the mountains for winter trapping and hunting, would you? MR. GRANT: Well, what I am saying is my friend says that -- but that his house used approximately 40 square miles. That's my friend's summary of argument, but that's not what Mr. Joseph, I say, says, when you look at his actual evidence. He only uses -- he uses for hunting and trapping. THE COURT: He says, "We only use the valleys and the lakes and the plateaus and the mountains for summer and fall hunting." MR. GRANT: Yes. THE COURT: What else is there? MR. GRANT: Well, you see, this is in the context of its larger than that, and Mr. Joseph says, "It is larger than that, but we don't use for hunting and trapping." Then he explains what he means, "We only use the valleys and the lakes." THE COURT: No, he says, valleys, lakes, plateaus and mountains. MR. GRANT: "We only use the valleys and lakes and plateaus and the mountains are for summer and fall hunting." I interpret that, my lord, that Mr. Joseph is saying when we don't use for hunting and trapping, we only use the valleys and the lakes. He is talking there about the 40 square miles, the smaller area, and the plateaus on the mountain are for summer and fall hunting, and my friend says his house used approximately 40 square miles. I don't think that's what he is saying there. THE COURT: I'm sorry, I may not be reading this rightly, but I don't see where he has made any distinction between summer and winter hunting. He has said, "We use the valleys, the lakes, the plateaus and the mountains." MR. GRANT: "We only use the valleys ..." THE COURT: What else is there that they would use other than for summer and fall hunting? What is there that would increase the area that we use in the winter-time or use beyond the 40 square miles he is talking about? MR. GRANT: What I am saying, my lord, is that I take it my friend is referring to -- he's asked about the 40 square miles, and he says "I thought it was larger than that." Then Mr. Joseph says, "It is larger than that, but we don't use for hunting and trapping." And then in the same answer, "We only use the valleys and 28916 Submissions by Mr. Wolf 1 the lakes", and what I am saying is -- 2 THE COURT: No, it goes on. "We only use the valleys and the 3 lakes and the plateaus and the mountains." 4 MR. GRANT: "We only use the valleys and the lakes for hunting 5 and trapping." This is what I am asking you to -- and 6 the plateaus and the mountains are for summer and fall 7 hunting. The plateaus and the mountains are not for 8 the trapping, which would make sense, because of 9 course you wouldn't be trapping on the mountains in 10 the summer and the fall. 11 THE COURT: So you say I should read that as if all he was doing 12 there was describing 40 square miles as being what 13 they use for -- what they use for summer and fall 14 hunting and trapping, which would be the valleys and 15 the lakes? 16 MR. GRANT: That's right. Because he does say it is larger than 17 that, and then the plateaus and the mountains are for 18 summer and fall hunting. 19 THE COURT: All right. 20 MR. WOLF: Well, that's not the way that we submit the evidence 21 should be read, my lord. Paragraph 8 of my submission 22 Mr. Joseph testified that there was considerable 23 logging and clear cutting on this territory, which has 24 affected the ability to trap and destroy the trails. 25 And that, of course, we say would be evidence of 2 6 extinguishment. 27 Mr. Mclntyre, a former employee of the Department 28 of Indian Affairs, who was the Superintendent of the 29 Burns Lake sub-agency during the late 1960's, 30 testified that during his tenure with the Department 31 of Indian Affairs, Felix George Indian Reserve on Owen 32 Lake was held by the Omineca Band. He testified that 33 in the course of his duties he travelled to Owen Lake. 34 He did not see any Indian people living on the 35 reserve, nor any signs of old habitations. Mr. 36 Mclntyre was, however, aware that the reserve "was at 37 one time a home site of an Indian person or persons 38 and their families." We say that this evidence 39 undermines Mr. Joseph's assertion that there is by the 40 ongoing use by the plaintiffs of this territory. 41 The next territory I would like you to turn to, my 42 lord, is at page 13 of our submission, Section 50(B). 43 This is the Woos territory on Upper Harold Price 44 Creek. That's this territory, small territory here. 4 5 THE COURT: Yes. 46 MR. WOLF: Alfred Mitchell swore an affidavit and gave evidence 47 at trial with respect to this territory. And our 28917 Submissions by Mr. Wolf 1 conclusion about the evidence given on this area is 2 that Alfred Mitchell gave contradictory evidence 3 concerning the number of occasions he hunted there. 4 At best he was there three or four times, at worst 5 once in 1955. However, we say that even if Mr. 6 Mitchell hunted on the territory three or four times 7 over the course of 20 or more years, this evidence 8 does not establish that the plaintiffs continually use 9 the territory. Furthermore, there is no evidence that 10 the plaintiffs or their ancestors used this territory 11 prior to 1955 for any purpose. And we say that on the 12 whole this evidence is insufficient to support a claim 13 for aboriginal rights to this territory. 14 With respect to the evidence about this area, in 15 cross-examination Alfred Mitchell appears to have 16 stated that he had been on this territory three or 17 four times between 1955 and the 1970's. However, on 18 examination in chief he stated that he hunted goats on 19 only one occasion. In 1955 he went in an area with 20 Dick Naziel and William Naziel. And he identifies 21 that place by its name, which I won't try to 22 pronounce. But that place is shown on Exhibit 211 as 23 in the southern area of the Woos territory. I won't 24 refer you to that reference in our binder, my lord, 25 but that exhibit map will be in our references if you 26 care to look at it. And this is the only trip for 27 which specific evidence is provided by the plaintiffs. 28 The plaintiffs assert in their final argument at 29 page 342 that Alfred Mitchell hunted deer and moose in 30 this territory. And there is a page citation given, 31 however, at this page in the transcript Mr. Mitchell 32 is speaking about hunting on another territory, we 33 say, however he did state at this page that there was 34 moose and deer on the Upper Harold Price Creek 35 territory, but he did not say that he hunted them. 36 The next territory I would like to refer you to is 37 at page 14 of our submissions, and this is the Woos 38 territory at McBride Lake. Section 50(C) of our 39 submission. And that is this territory down here. It 40 includes part of Morice Lake. It's a large territory. 41 THE COURT: South of Morice Lake? 42 MR. WOLF: It actually includes most of Morice Lake and McBride 43 Lake. And this is the territory that I mentioned in 44 my general submission earlier, is one in which there 45 is some evidence that the plaintiffs have been in this 46 territory on a relatively continuous basis hunting and 47 trapping. Mable Critch was the person who described 2891? Submissions by Mr. Wolf 1 and gave evidence about the territory, and Roy Morris 2 and Pat Namox also gave some evidence. Our conclusion 3 with respect to this evidence is that it appears that 4 parts of this territory have been used for trapping on 5 a relatively continuous basis up to current times. 6 Mable Critch and Roy Morris testified that they 7 trapped in this area on Matthew Sam's trapline. 8 Matthew Sam was Mable Critch's father. This trapline 9 appears to be in the vicinity of McBride Lake and on 10 the northern end of Morice Lake. Although the 11 evidence is not very detailed, it appears likely that 12 this trapping activity is confined to the northern end 13 of the trapline formerly registered by Matthew Sam now 14 held by Gordon Hall. And we say that with respect to 15 this area only, we say that the plaintiffs have 16 established that they continuously used this area for 17 trapping. Other evidence tends to establish that the 18 western end of this territory is not used by natives. 19 The evidence on this territory is that Mable Critch 20 testified that she and her parents used this territory 21 regularly. She and her family would go into this 22 area -- 2 3 THE COURT: Go ahead. 24 MR. WOLF: — in the fall. The trapline in this area belonged 25 to her father Matthew Sam. She said that she has gone 26 out to the territory for most or all of her life and 27 "we" trap on different areas. Mrs. Critch also 28 testified that she trapped all her life at Sunset Lake 29 on a different territory, and that her father did so 30 as well until shortly before his death. 31 And that's the territory -- that territory is over 32 here in the southeast portion of the claim area at 33 Sunset Lake. Yes, it's the Hagwilnegh territory here. 34 So she says that she trapped all her life here and 35 over here. 36 At page 16 of my submission I say Roy Morris also 37 testified that Matthew Sam had a trapline in the 38 vicinity of Morice Lake. He testified that it was 39 around McBride Lake and went over to the north side of 40 Morice Lake. McBride Lake is in this area in the 41 centre of the territory, and the north end of Morice 42 Lake would be this area here. So this would be the 43 area that Roy Morris was talking about. 44 Mr. Morris testified that he had trapped this 45 line. When and how often was not specified. Mr. 46 Morris stated that Gordon Hall was currently 47 registered on this trapline, and he further testified 28919 Submissions by Mr. Wolf 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. COURT WOLF: THE COURT MR. THE MR. THE MR. GRANT COURT GRANT COURT GRANT THE COURT MR. THE WOLF: COURT MR. GRANT MR. WOLF: that he believed Gordon Hall was last out on the trapline in 1985. The source of this information was not elicited, but it is likely to be hearsay. It should be noted that Mr. Hall would have been age 85 in 1985. Mr. Hall is not a plaintiff? Yes, he is. He is Gylogyet in the house of Woos, I believe. Mable Critch testified that John Wall, a white man, has a registered trapline and traps on the south side of Morice Lake. It is likely therefore that she does not trap in that area. Charlie Austin is registered on the trapline which borders the northwest side of Morice Lake. And Mr. Austin testified that he had never been out on that trapline. Pretty steep mountain on the northwest side of Morice Lake -- the northwest end of Morice Lake? That's right. That's a sheer face or pretty close to it. That would be the north -- I think that would be the northeast, my lord. That was right up on the eastern end. I suppose the lake does run a bit that way. If you see on the map, the lakes run down right at one end, so actually would be the northeast side. All right. I think you are right. Certainly wouldn't want to have a trapline on the other end. Okay. Well, are you referring to the western end of the lake, my lord? I suppose I would have -- I think that I believe the lake ran more north, south than east, west. I think you are right, it runs Morice west. It was actually right up into that mountainous area just up on the north side of the lake towards the eastern end. Well, my submission was with respect to the western end of the lake where Charlie Austin had his registered trapline on the north side of the lake and John Wall had his registered trapline on the south side, and evidence that Charlie Austin doesn't trap in this area and John Wall traps there, and the implication is that Mable Critch doesn't go down and trap in that area I say from the evidence. The next territory I would like to refer you to, my lord, is at page 27 of our submission. This is 28920 Submissions by Mr. Wolf 1 Section 52(A). Kweese territory at Shea Lake. This 2 territory is located approximately 30 miles southwest 3 of Smithers. That's this territory here. It includes 4 the Burnie Lake and river system. And Florence Hall 5 described this territory in her affidavit. Our 6 conclusion with respect to the evidence on the 7 territory are that this territory was once used for 8 hunting and trapping by an ancestor of Florence Hall 9 named Mooseskin Johnny. Subsequent to Mooseskin 10 Johnny's death in 1930 there was only sporadic use of 11 this area. And after 1937 there is virtually no 12 admissible evidence regarding the plaintiffs' 13 activities on this territory. The plaintiffs have not 14 established that they continuously used this territory 15 since that time. 16 The evidence with respect to the territory is that 17 Mrs. Hall stated that she has never hunted or trapped 18 on this territory. However she recalls going to this 19 area with her family at a time when Mooseskin Johnny 20 was alive. That is before 1930. She stated that her 21 mother and father both trapped when they were at this 22 territory. Primarily they hunted beaver, but they 23 would also catch marten, fisher, lynx, otter and mink. 24 When questioned further on these catches, she admitted 25 it was quite rare to catch a fisher, "sometimes two", 26 or a lynx, "sometimes one", and the same applied to 27 mink as well. Moose were rarely hunted because of 28 there scarcity. Mooseskin Johnny had a house on the 29 territory and he died in 1930. 30 Mrs. Hall testified that others used the 31 territory. August Pete, Mooseskin Johnny's successor 32 to the name of Kweese, seems only to have gone to this 33 area once with Florence Hall's father, Paddy Isaac, 34 Peter Alfred, Francis Alfred and Dan Joseph. Gordon 35 Hall, Florence Hall's husband, went out on the 36 territory with Florence's brother Sam. He went out 37 between the years 1937 and 1959, but how often is 38 unclear. She stated that Gordon built a cabin on the 39 trapline in 1937. We say, however, that most of this 40 information with respect to her husband's activities 41 appears to be based on hearsay because Mrs. Hall only 42 visited the territory once after 1937. 43 Contrary to what the plaintiffs suggest at page 44 369 of their argument, Mrs. Hall admitted that between 45 1937, when she was married, and 1962 she did not go to 46 the territory at all. Although Mrs. Hall made the 47 broad assertion that she went out on the territory all 28921 Submissions by Mr. Wolf 1 the time, when the evidence is examined it would 2 appear that the period she is referring to is after 3 the age of 10, and prior to her marriage, that is 4 between 1921 and 1937. Mrs. Hall admitted that she 5 had not been on the territory in a long time. 6 Mrs. Hall visited the territory in 1962 with 7 Gordon Hall, Alex, "mother", and Andrew Albert and 8 stayed in the cabin with her husband. Although Mrs. 9 Hall testified that her brothers Jim and Alex spent a 10 lot of time on this territory with their mother, Mrs. 11 Hall appears not to have been with them, and there is 12 no specific evidence of use or where they were on the 13 territory. Mrs. Hall's knowledge of recent events on 14 the territory came from her brothers Alex and Jim, who 15 flew into the area for 20 days in 1985. They reported 16 to Mrs. Hall that the population was very low, and 17 those that they did catch looked like they were 18 starving. I think she is referring to game animals 19 there. 20 During the 1985 trip all they did was walk all the 21 trails. The traps were gone and the cabin had 22 collapsed, however this information about this trip is 23 obviously hearsay, and we say it's inadmissible. 24 With respect to fishing in the area, the only 25 evidence of use before the Court dates back to the 26 1920's when Mrs. Hall's mother caught trout and white 27 fish through the ice. 28 Mrs. Hall's family never did much berry picking on 29 the territory because they were there in the winter 30 and it was pretty hard to pick huckleberries. 31 So the evidence shows, just to recapitulate, my 32 lord, that there is only, we say, admissible evidence 33 on one occasion of a visit to the territory since 34 1937, and there is no evidence that when they were 35 there in 1962 that any hunting or trapping took place. 36 The next territory I would like to refer you to, 37 my lord, is at page 34 of our submission. This is 38 Section 53(B), Smogelgem, McQuarrie Lake territory. 39 This territory is located 20 miles southeast of 40 Smithers, and it includes the town of Walcott. 41 Walcott is there and McQuarrie Lake is in the 42 northeast corner of the territory. 4 3 THE COURT: Yes. 44 MR. WOLF: It's in the heart of the Bulkley Valley. 45 Mary Joseph swore a territorial affidavit and was 46 cross-examined on this territory. 47 THE COURT: Yes. Thank you. 28922 Submissions by Mr. Wolf 1 MR. WOLF: With respect to the conclusions on the evidence 2 before the Court on this territory, we say that the 3 evidence indicates that portions of this territory 4 were used around Grouse Mountain and Barrett Lake -- I 5 don't think Grouse Mountain is depicted on our judge's 6 series map. I am having trouble finding it on this 7 larger map as well. My lord, I believe it's in the 8 eastern portion of this territory. And the evidence 9 also indicates that the area around Barrett Lake was 10 used in the past, but there is little concrete 11 evidence that the territory was used after 1953. Mary 12 Joseph had a limited knowledge of the area. She 13 admitted she had not been on the territory in 20 14 years. There is no admissible evidence that any part 15 of the territory is currently used by the plaintiffs, 16 and therefore we say the territory has been abandoned. 17 With respect to the evidence, we say the area 18 which Mrs. Joseph is most familiar is in the 19 mid-southwest section of the territory, near Barrett 20 Lake where two adjoining lots were pre-empted by her 21 father and grandfather, Arthur Charlie and Bill Nye. 22 Mrs. Joseph testified she grew up in this area, but 23 that she moved to Smithers 20 years ago. 24 Mrs. Joseph was aware that Florence Hall had taken 25 over the trapline registration for part of this 26 territory. She further admitted that before Florence 27 Hall, Emily Dennis, Florence Hall's mother, had 28 territory at Walcott. Mrs. Joseph testified that 29 Emily Dennis lived right in Walcott, and that's why 30 they trapped in that territory. 31 Mrs. Joseph stated that Margaret Williams trapped 32 on the other side of the river towards Nelgii, 33 N-e-1-g-i-i, I believe that's on the west side of the 34 river, but gave no evidence as to what Mrs. Williams 35 trapped, nor when Mrs. Williams had used the trapline. 36 Mrs. Joseph testified that Bill Nye, her grandfather, 37 used the territory nor her grandmother, but no 38 specifics as to when or where the territory was used 39 are in evidence. Furthermore, Bill Nye died in 1963, 40 and was blind for many years before he died. 41 So the evidence of his activities obviously pre-dates 42 1963 by a number of years. 43 Additional evidence of the use of this territory 44 is found in the testimony of Bazil Michell, who was a 45 member of the house of Hagwilnegh. His evidence for 46 this territory focuses on the area at Barrett Lake and 47 Grouse Mountain. He testified he had hunted and 28923 Submissions by Mr. Wolf 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. WOLF: THE COURT MR. WOLF: THE COURT MR. WOLF: trapped, as did his father and many other people of the Laksilyu clan who lived at Grouse Mountain. They hunted groundhog, mountain goat, caribou and trapped beaver, mink and other wild game. Mr. Mitchell stated that once there were many caribou and very little moose at Grouse Mountain; now there is a lot of moose and very little caribou. He could not recall exactly how his father came to use the area, except he was able to use the area because of his ancestors who used it before. Mr. Mitchell testified there was also fishing in this area where the CN tracks cross the Bulkley River near Houston. People used fish traps there to catch salmon. He also testified that berries and roots were picked at both Grouse Mountain and near Barrett Lake. Bazil Michell testified that he was raised on the territory at Grouse Mountain. The Grouse Mountain is where his grandfather had died, and he testified there was a village there because of the good hunting. People would gather and smoke meat there. There were also houses at Barrett Lake, and people would travel between the two places. People lived in the area all year round. At an unspecified time, the people were forced off the land at Grouse Mountain. : Grouse Mountain? Lhe Tait is Grouse mountain. : I see. Mr. Michell testified that after this he never went back to the area. Mr. Michell acknowledged that any remaining houses there have rotted down. Mr. Michell further stated that after his father's death in 1953 people did not use the territory as much, although he believes Margaret Williams uses the territory. So there is quite a bit of evidence of use of that territory, my lord, but it appears to refer to the time prior to the 1950's, we say. And there is very little, if any, specific use or admissible evidence of use of the territory since that time. The next territory I would like to refer you to is set out at page 38 of my submission. That's the next page, territory 53(C). This is the Smogelgem territory at Parrott Creek, which is located approximately 45 miles southwest of Smithers. And that is this territory, I believe, on north side of Francois Lake. Parrott Creek as shown there. : Yes. All right. I may have said southwest, my lord. I meant 28924 Submissions by Mr. Wolf 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. COURT WOLF: MR. GRANT MR. WOLF: MR. GRANT MR. WOLF: THE MR. COURT GRANT THE COURT MR. GRANT southeast of Smithers. : Yes, all right. This was a territory that Roy Morris swore an affidavit on. : Just before my friend goes to this one, I take it given that we've heard much evidence, although my friend isn't fully aware of -- the description of Barrett Lake, what happened there, because my friends say that no matter why persons left an area, in fact the case of Bazil Michell in burning out, that it is irrelevant as to why they left an area for the purpose of the argument of abandonment. Well, we say it is relevant because the evidence of voluntariness, but we say that there is all types of -- there is many examples of other kinds of evidence that people did voluntarily abandon areas and moved into places like Smithers and off the land. : Is that the case with Barrett? Is that what my friend is saying with respect to Barrett, people voluntarily move, this territory we are talking about? Well, I would say, my lord, that if there were camps or houses at Barrett Lake that people were forced to move from, they still had the opportunity to go back to the area. Even after they were forced to move from the area, that didn't prevent them from going back to the area hunting and trapping off lands that were pre-empted. There is evidence that most of the land or much of the land along the river in the Bulkley Valley are farms and ranches, and a lot of that area is no longer suitable or nor is it permissible to hunt or trap in those areas, and obviously with respect to that we would say that any hunting and trapping in those areas have been extinguished. : I don't recall at the moment what it is Mr. Grant is referring to. Is this one of the ones -- : Mr. Michell describes how his family, their cabin, their place at Barrett was burned out, and they were forced out, and it was then homesteaded, and he gave evidence, mind you it wasn't before your lordship, it was commission evidence. This is evidence which has been alluded to by the plaintiffs in argument. : Yes. But I thought it might have been Mr. Goldie that said that that resulted from homesteaders who had South African war script -- : I can't recall. It certainly was a result of homesteading. I am not sure when you say was it the South African war script, I can't recall right off the 28925 Submissions by Mr. Wolf 1 2 3 4 5 6 7 8 9 10 MR. WOLF: 11 12 13 14 15 16 17 18 19 THE COURT 20 MR. WOLF: 21 22 23 24 25 26 27 28 29 30 31 32 33 34 THE COURT 35 36 MR. WOLF: 37 THE COURT 38 MR. WOLF: 39 THE COURT 40 MR. WOLF: 41 THE COURT 42 43 MR. WOLF: 44 45 THE COURT 46 MR. WOLF: 47 THE COURT top whether that particular instance, South African war script, but my friend here is arguing that this territory was abandoned, and I am questioning whether in the circumstances like that, where people were burned out, is he saying that the abandonment argument even applies there. No matter why they left it doesn't matter. And that's why I focused on this territory, because my friend -- he says it was abandoned. Well, there is other evidence that I refer to, my lord, of people who say that their ancestors have used the territory, and they -- there is no evidence that they were forced off the land. However, if the only evidence before the Court was that Mr. Michell was forced off the land, his evidence was the only evidence that that particular area was being used, we would say that that would be extinguishment and not abandonment in that area. : Thank you. To return to page 38 of my submission, which is the Smogelgem, Parrott Creek territory. As I said, Roy Morris swore an affidavit on the area. However, our conclusion is that there is no evidence before the Court to substantiate the claim that the plaintiffs used this territory. That is because they have presented no evidence. There is no evidence before the Court regarding the use by any plaintiffs of the Parrott Creek territory. The only other evidence regarding use and occupancy of this territory came from J.P. Tourond, who testified that in his experience he had not seen native people trapping in the Parrott Creek area. : This is the property immediately to the east of the one you just mentioned, is it? No, my lord. : Where is this one? This is the one on the north side of Francois Lake. : I'm sorry. Yes. Down here. : That's the one you were just talking about, was it not? The one about Bazil Michell that gave evidence about Grouse Mountain, that is up here. : That northern one? That's the Walcott territory. : Which one is Barrett? 28926 Submissions by Mr. Wolf 1 MR. GRANT: The same as Walcott, my lord. 2 MR. WOLF: That is Barrett, B-A-R-R-E-T-T. 3 THE COURT: That's the one that is south of Lakwiget? 4 MR. WOLF: That's right. The Smogelgem territory down here is 5 Parrott Creek. 6 THE COURT: That's the one that is on north shore of Francois 7 Lake? 8 MR. WOLF: Yes. 9 THE COURT: Yes, all right. 10 MR. WOLF: I was referring to the evidence of J.P. Tourond, who 11 testified that he hadn't seen native people trapping 12 in the Parrott Creek area. The plaintiffs' submission 13 at page 377 of their argument is that Mr. Morris traps 14 at Parrott Creek, and we say that that submission is 15 not supported by the evidence. Mr. Morris's 16 registered trapline is to the west of Parrott Creek in 17 the Knedebeas territory. I won't refer your lordship 18 to the exhibits, the maps showing where that trapline 19 is located, but we say it is located outside of this 20 territory and in the adjacent Knedebeas' territory to 21 the west. 22 We also say that Mr. Morris's assertion that he 23 traps are too vague and non-specific. He does not 24 testify as to when or where he actually trapped. And 25 since he doesn't seem to have trapped in this 26 territory, his testimony on that point is irrelevant. 27 The next territory I would like to refer you to is 28 a Goohlaht territory. This is at page 5 of my 29 submission. This is Section 56(B) of our argument. 30 Goohlaht, Nanika River territory. This territory is 31 located in the southwest corner of the claim area. 32 THE COURT: Yes. I have it. 33 MR. WOLF: This one here, south of Morice Lake. Stanley Morris 34 and Jimmy Morris both swore affidavits on the area, 35 and Stanley Morris was cross-examined because his 36 father Jimmy Morris was said to be too ill to be 37 cross-examined. 38 Our conclusion with respect to this area and the 39 evidence given on it is that there is virtually no 40 admissible evidence that this territory was used by 41 the plaintiffs, and we say therefore they have not 42 proved that they have any rights to this area. 43 When Stanley Morris was cross-examined about his 44 knowledge of Goohlaht or Caspit territories, he 45 responded he did not know where the Goohlaht, Caspit 46 territories were. 47 Mr. Morris was asked if, traditionally in the old 28927 Submissions by Mr. Wolf 1 days, Caspit, a chief in the house of Goohlaht had his 2 own separate hunting and trapping grounds. Mr. Morris 3 responded, "There is quite a few places, and I 4 wouldn't know exactly". Mr. Morris was then asked if 5 Caspit had a hunting ground at Ootsa Lake. He 6 responded that Caspit did have a territory, that he 7 had heard Moses David talking about it, but Mr. Morris 8 did not know exactly where it would be. Mr. Morris 9 also did not know if Caspit had any hunting ground 10 around Francois Lake. 11 And Mr. Morris is Caspit today, my lord. 12 Mr. Morris testified that the former Caspit, Jimmy 13 Thomas, was a trapper. He stated that Jimmy Thomas 14 held a trapline in white man's way, presumably a 15 registered trapline in the Nanika Lake, Nanika River 16 area. Stanley Morris testified he had never trapped 17 in the Nanika River area, neither did he know who the 18 present registered owner of the trapline in the area 19 was. Further to his knowledge, no member of his house 20 trapped around Nanika Lake. Since the price of fur 21 was low in the 1950's, his father and them all -- they 22 all didn't go out any more. And I referred you to 23 that reference in our general submission on the 24 evidence of abandonment. 25 Mr. Morris's trapping experience is quite limited. 26 He testified he trapped only in the Telkwa area once 27 when he was about 24 years old, some 21 years ago. 28 With respect to the Atna Lake area, which is in 29 the northern part of the territory, this territory, my 30 lord, goes around the west end of Morice Lake and 31 extends along the northern side of Morice Lake, and 32 that is the area that I am referring you to now. Atna 33 Lake is at the head of Atna Bay, and Atna Bay is a 34 northern arm of Morice Lake. 35 And with respect to that Atna Lake area, which is 36 in the northern part of the territory, Mr. Morris had 37 heard of Antoine Jimmy going out with somebody out 38 there, but I don't know about them trapping out there. 39 Similarly, he testified that Frank Jimmy, Jimmy Thomas 40 and his father went out to the Atna Lake area. This 41 testimony is clearly based on hearsay because Stanley 42 Morris had never been there. 43 When asked if any member of his was currently 44 trapping in the Atna Lake area, Mr. Morris replied 45 "Noostel" trapped in that area. For the reason 46 discussed above, this statement is almost certainly 47 based on inadmissible hearsay. 2892? Submissions by Mr. Wolf 1 Noostel is Walter Williams in the house of 2 Knedebeas, my lord. 3 Pat Namox testified that since 1977 he has gone 4 into this area to trap. He stated he trapped on both 5 the east and the west side of Morice Lake. There is 6 no evidence as to what Mr. Namox trapped, nor when he 7 was in the area, nor how often he was there. 8 And this evidence, we say, is too vague to 9 establish that they were trapping on this territory, 10 that he was trapping on this territory. 11 THE COURT: Should we take the afternoon adjournment? 12 MR. WOLF: Yes, my lord. 13 THE REGISTRAR: Order in court. Court stands adjourned. 14 15 (PROCEEDINGS ADJOURNED) 16 17 I HEREBY CERTIFY THE FOREGOING TO BE 18 A TRUE AND ACCURATE TRANSCRIPT OF THE 19 PROCEEDINGS HEREIN TO THE BEST OF MY 20 SKILL AND ABILITY. 21 22 2 3 LORI OXLEY 24 OFFICIAL REPORTER 25 UNITED REPORTING SERVICE LTD. 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 28929 Submissions by Mr. Wolf 1 (PROCEEDINGS RESUMED AT 3:15) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Wolf. 5 MR. WOLF: Thank you, my lord. If you would turn to page 65 of 6 my submissions, I'm now going to refer you to the 7 Uncha Lake territory of Goohlaht, section 56(D) of our 8 submission, and this territory is located in the 9 southeast corner of the claim area at part of the 10 Francois Lake. It's a large territory. This 11 territory was described in the affidavit of Elsie 12 Quaw. 13 And our submissions on what conclusions should be 14 drawn from the evidence are as follows: Mrs. Quaw 15 gave evidence that she hunted on this and other 16 territories. The frequency and the location of her 17 hunts on this territory are not in evidence. Although 18 there is evidence of fishing, it was over 40 years 19 ago. There are 15 Indian reserves on this territory 20 allotted to bands whose members, with a few 21 exceptions, are not Plaintiffs in this action. 22 MR. GRANT: Well, I object to that, because I don't think that 23 there is any evidence in support of that proposition, 24 unless my friend can provide me with the source of 25 that. I don't think there's evidence of band lists of 26 these bands in evidence, and I know that there are 27 persons who have been witnesses who are members of 28 each of the bands to which my friend is referring. 29 MR. WOLF: To my knowledge, my lord, there are a number of -- 30 there are some Plaintiffs who are members of the 31 former Omineca band, the Nee Tahi Bund band or the 32 Brawma(?) Lake band. Many of the reserves in this 33 particular area are allotted to Cheslatta people. 34 They are not Plaintiffs, but I would say the 35 majority -- it's our submission that the majority of 36 members of the bands in those areas are not 37 Plaintiffs, and I think that we've been through this 38 before with Mr. Macaulay. He made submissions on 39 this. 4 0 THE COURT: Yes. 41 MR. GRANT: But, you see, I went back, my lord, to see if there 42 was evidence of these band memberships that my friend 43 makes the statement. I don't think there is any 44 evidence of these bands, lists of these bands. If my 45 friend knows of such evidence, I would like him to 46 direct us to it. 47 THE COURT: Is it a matter of onus? 28930 Submissions by Mr. Wolf 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. GRANT MR. WOLF: MR. GRANT: Well, my friend is making an argument of what -- he's stating a fact. He's saying there's -- these members are not Plaintiffs, the members of these bands aren't Plaintiffs. Nobody knows, that is what I'm saying. THE COURT: Well, surely the Plaintiffs have to know. MR. GRANT: We certainly know. I know a large number of witnesses who are Plaintiffs. We didn't tender band lists as evidence, and I don't think the Defendants did either. THE COURT: I seem to recall some evidence that -- not a band list, but of evidence that these reserves were established to accommodate the Cheslatta people after the flooding or because of the imminent flooding and post-flooding of Ootsa Lake. It seems to me that's enough to raise transfer of onus of calling evidence upon the Plaintiffs. Well, certainly the Cheslatta Reserves are included in this area. I thought my friend was also referring to the Nee Tahi Bund and the others as well. I was referring to both types, my lord. The evidence, you may recall, is that of Rae Mclntyre, who -- he gave evidence that these reserves in this area were part of his jurisdiction when he was Burns Lake Agency superintendent in the late 1960's, and we tendered a number of documents through his evidence which refer to band council meetings and things like that, and there was an issue then as to whether any of these people were Plaintiffs. And certainly there was at least one of a list of four or five or six band councillors that we were able to identify as the Plaintiffs. At that time Mr. Grant was objecting, saying this evidence is irrelevant because these people were not Plaintiffs. We say there are some Plaintiffs there, but there are also other Indians who are not Plaintiffs who are members of these bands. THE COURT: All right. MR. WOLF: In fact, Mrs. Quaw, who is the person who gave evidence about this territory, is not a Plaintiff in this action. And we say that the Plaintiffs have not provided sufficient evidence to support their claim, if they ever had one, to use or occupy this territory. And the evidence with respect to their territory is as follows: Mrs. Quaw is a Cheslatta Indian and not a Plaintiff, she states that in her affidavit. She was born in 1927 and has lived at Stoney Creek from the time she was married in 1947 until an 28931 Submissions by Mr. Wolf 1 unspecified date, probably 1969, when she was 2 divorced. She testified that her children are part of 3 a Stoney Creek clan. Mrs. Quaw testified she was 4 raised on the Uncha Lake territory. Currently she 5 lives at Grassy Plains, which is a community within 6 the territory. 7 Mrs. Quaw testified that the last time she hunted 8 in the area was with her father, Keom Morris, in 1971. 9 And Keom Morris may or may not be a Wet'suwet'en 10 person. I should just refer you back to paragraph 3 11 of section 56(C), which is at page 62 of our 12 submissions, and who Keom Morris was was an issue in 13 the cross-examination on another Goohlaht territory, 14 this is at Whitesail Lake, and this was Thomas K. 15 Morris, who is I believe the brother of Elsie Quaw, 16 and their father was Keom. And our submissions at 17 paragraph 3 of that territory submission is that Mr. 18 Morris does not appear -- that is Keom Morris does not 19 appear on Wet'suwet'en genealogy. However, Thomas K. 20 Morris says his father's mother was from Hagwilget or 21 Moricetown. And Mr. Morris, Thomas Morris, considered 22 himself to be a Wet'suwet'en, but neither does he 23 appear on Wet'suwet'en genealogy. And further, he 24 said he wasn't represented in the case at bar, and in 25 his affidavit he stated that he was a Cheslatta 26 person. 27 THE COURT: Did Mr. Shelford have something to say about Keom 28 Morris? 29 MR. WOLF: He gave evidence about Jimmy Andrew. I don't recall 30 whether he gave evidence about Keom Morris or not. 31 MR. GRANT: I recall he met Keom Morris at an event, as I 32 recall, when he was travelling through the area. It 33 was one of the persons he knew. 34 THE COURT: I thought he said that Keom Morris and his brother 35 came through their part of the end of Francois Lake to 36 go trapping further west. 37 MR. GRANT: Yes, yeah. He did know him on the land. 38 THE COURT: Yes. I'm not sure what he said about his pedigree. 39 All right, thank you. 40 MR. WOLF: We say there's some question on the evidence -- 41 THE COURT: Yep, all right. 42 MR. WOLF: -- who Keom Morris was or where he -- what group he 43 belonged to. 44 THE COURT: Every case needs a mystery witness. 45 MR. WOLF: Returning to page 66 of my submission, paragraph 4: 46 Prior to 1971 Mrs. Quaw had hunted with Keom Morris 47 when she was a teenager during the summers of 1943 to 28932 Submissions by Mr. Wolf 1 '46. It is unclear where Mrs. Quaw hunted during that 2 period. She testified "All my life because" -- 3 sorry -- "because as an Indian family, we are nomads, 4 we go from place to place and not only my family, all 5 of the families of the Indian are, our neighbours, 6 just go from camp to camp, fishing camp". Later she 7 stated "We were all over the place. No, not one 8 place". Mrs. Quaw claims she came back nearly every 9 year to hunt on the Uncha lake territory during the 10 years she lived at Stoney Creek. Stoney Creek, of 11 course, is outside the claim area. She stated she and 12 her husband hunted black bear, beaver and some deer. 13 The Plaintiffs assert in their argument at page 14 404 that Mrs. Quaw trapped with her father on his 15 trapline, which they imply is in this area. However, 16 Mrs. Quaw's trapline is in the Whitesail River area 17 across Ootsa Lake. When asked, if as a member of the 18 Gilseyhu clan her father could trap on any Goohlaht 19 territory, Mrs. Quaw responded that he could only trap 20 where he was registered. To her recollection, her 21 father had been registered across from Ootsa Lake "All 22 his life". Mrs. Quaw said that if her father wanted 23 to trap in the Uncha Lake territory, he sought the 24 permission of his brother, Joseph Morris. However, if 25 he wanted to hunt there, he could do that at any time. 26 Mrs. Quaw testified that she fished with her 27 father in the Uncha Lake area. These fishing sites 28 are now "where the white people are living". Although 29 she had fished at Uncha Lake during the fall of '88, 30 the last previous time she had fished "in the area" 31 was either the winter of 1943 or '46 when her mother 32 died. 33 And then I go on to refer to the Indian reserves 34 in this area, that there are 15 of them, and that the 35 Reserve General Abstracts, which are exhibits, 36 indicate that they are allotted to the Cheslatta, 37 Stellaquo, and Nee Tahi Buhn bands. 38 The next territory I would like to refer you to, 39 my lord, is at page 76 of our submission, section 40 57(C). This is the Samooh territory at Tahtsa Lake. 41 And that's located of course in the southeast part of 42 the claim area. This territory was described in the 43 affidavit of Elizabeth Jack. 44 And we say that there is no evidence that the 45 Plaintiffs hunted or trapped on this territory. There 46 is evidence that Cheslatta Indians used the territory. 47 There is no evidence to support the Plaintiffs' claim 28933 Submissions by Mr. Wolf 1 that they have aboriginal rights in the area. 2 We say that the evidence is that Mrs. Jack is the 3 daughter of Batise, also known as Baptiste, Louie, and 4 a niece of Chief Louie. By her own admission, both 5 her father and Chief Louie were Cheslatta Indians. 6 Mrs. Jack is also a Cheslatta. She testified that she 7 was raised on the Tahtsa Lake territory, but had not 8 been there since 1950-52. Currently none of her 9 children or grandchildren live on or use the 10 territory. 11 With regard to hunting, Mrs. Jack stated the 12 family always did the hunting on the territory. No 13 specific area was cited. She testified that she went 14 hunting on the territory with her father and Chief 15 Louie, but she could not remember the last time she 16 went hunting with Chief Louie. He died in 1951. 17 When Mrs. Jack was asked whether the Tahtsa Lake 18 territory was Chief Louie's, she responded "It is 19 their territory, but I don't know where -- I don't 20 know where his trapline is". When she was asked about 21 hunting on the territory, she responded "They all go 22 trap in that territory". 23 Mrs. Jack stated she never trapped in the area 24 near Mount Sweeney, otherwise known as Sibola 25 Mountain, yet when she was asked who taught her the 26 territory boundaries, she stated "Ever since I was a 27 little kid we go out trapping all the time and I know 28 the territory". Mrs. Jack did not know if anyone had 29 trapped the territory since 1952. 30 Alfred Mitchell testified that there were 31 Wet'suwet'en hunters and trappers from the Ootsa Lake 32 area who used this territory, including Chief Louie's 33 son. It appears Mr. Mitchell has never been to the 34 territory. We say this information is hearsay. 35 Mrs. Jack was asked during re-examination if she 36 had ever fished on the Tahtsa Lake territory, and she 37 stated that between 1951 and 1952 she fished for 38 trout. 39 She was also asked if she had ever picked berries 40 on Tahtsa Lake territory, and she replied that she had 41 picked huckleberries there when she had lived there. 42 Mrs. Jack admitted that in 1952 she asked Keom 43 Morris to come with her to the territory so that she 44 would know that she was on the right territory. This 45 was the last time she went there. She admitted that 46 she did not know where her father's "place" was. 47 There was no evidence as to where they specifically 28934 Submissions by Mr. Wolf 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. WOLF: THE MR. THE MR. THE MR. COURT WOLF: COURT WOLF: COURT WOLF: went on the territory. Just to sum up again with respect to this territory, my lord, there is evidence of Cheslatta people trapping at this territory, there's evidence that Chief Louie, Baptiste Louie and Elizabeth Jack trapped there, and we say that there's no admissible evidence that any Plaintiffs hunted or trapped there. And furthermore, the territory does not appear to have been used since approximately 1952. The next territory that I would like to -- : Did anybody decide why Mrs. Quaw ever mentioned being nomadic? I don't remember that expression or that concept in any of the other evidence. That's the only reference that I recall. It does stick out. : Yes. But that's the only reference that I recall. : All right, thank you. At page 79 of my submission, section 58(A), I'm going to refer now to the Hagwilnegh territory at McDonell Lake and Telkwa River. This is a large territory west of Smithers, this territory here. : Yes. Johnny David described this area in his affidavit, and Pat Namox and Lucy Bazil also gave evidence about it. And our conclusions with respect to the evidence are that the Plaintiffs have not established that they consistently used the territory, especially in the last few decades. Lucy Bazil's evidence of use, we submit, is inadmissible. John and Pat Namox had not consistently used the territory. Indeed, it is only within the last two years that Pat Namox has gone to the area. And we say that there is insufficient evidence before the court to make a finding that the Plaintiffs have aboriginal rights. With respect to the evidence, we say that in his commission evidence Johnny David testified that people from Moricetown and Hagwilget hunted in the Kilwoneets-Telkwa River area. And the Kilwoneets area, my lord, is I believe that area south of -- south and west of Hudson Bay Mountain in the vicinity of Aldrich Lake and Dennis Lake. That's at the northern end of the territory. Mr. David identified Old Sam, Old Dennis, Joe Nass and Thomas, Julia, Basil, and David Holland as people who used the area. From the Hagwilnegh genealogy approximate dates of 28935 Submissions by Mr. Wolf 1 birth can be obtained: Old Sam, born approximately 2 1855; Old Dennis, unknown; Joe Nass, approximately 3 1886; Thomas Holland, approximately 1876, died 1924; 4 and Julia Holland is not on a genealogy; Basil 5 Holland, born approximately 1881; and David Holland is 6 not on a genealogy. Mr. Johnny David described these 7 people as Kilwoneetzen, people of the -- or people of 8 Kilwoneets. Johnny David testified that there was 9 fishing in McDonell Lake. It was not exclusively 10 Wet'suwet'en fishing; Gitksan people also fished 11 there. In addition to salmon, the people fished for 12 trout and dolly varden. He stated that some people 13 still fish there, although he did not say who. He 14 also stated that huckleberries were picked in the 15 area. 16 Lucy Bazil testified that her uncles, Jack Joseph 17 and Pat Joseph, "used" and held the territory at 18 McDonell Lake. Mrs. Bazil said that her first 19 husband, Frank Bazil, trapped on this territory for 20 her. She also testified that George Joseph, brother 21 to Jack and Pat, had a trapline at McDonell Lake. 22 Mrs. Bazil's son, Roger, was a member of the trapline 23 at McDonell Lake, and she stated that both Pat Namox 24 and John Namox went out to the area. There is no 25 evidence, however, that Mrs. Bazil was ever on the 26 territory, and therefore we say that her testimony 27 about these individuals' activities is almost 28 certainly based on hearsay and therefore inadmissible. 29 Pat Namox testified that he had trapped out in the 30 the McDonell Lake area in 1987 and 1988. He further 31 testified that he had hunted around the McDonell Lake 32 area for moose, although he did not say when. 33 So we say that through Johnny David it's 34 established that there were people on this territory, 35 probably quite a long time ago, people who lived at 36 Kilwoneets, there's no evidence that anybody lives 37 there anymore, these people were born in the 38 nineteenth century, and some of them died at times 39 such as 1924. The recent evidence of use through Lucy 40 Bazil is, we say, inadmissible and shouldn't be taken 41 into account, and therefore, there's no recent 42 evidence, that is within a number of decades, that the 43 Plaintiffs have used the territory. 44 MR. GRANT: Well, your lordship may want to note that my friend 45 missed the evidence of Mr. Fletcher, a witness for the 46 Province, who had in cross-examination described the 47 location of Jack Joseph's cabin and Jack Joseph being 28936 Submissions by Mr. Wolf 1 out there. My friend seems to have missed that. 2 MR. WOLF: I was unaware of that evidence, my lord. 3 The next territory I would like to refer you to, 4 my lord, is at page 87 of our submissions. This is 5 the Wah Tah Kwets territory at Round Lake, and it's 6 located approximately ten miles south of Smithers in 7 the Bulkley Valley. That's this territory here. John 8 and Pat Namox swore affidavits with respect to the 9 area, and Pat Namox was cross-examined as a 10 replacement for John Namox. Lucy Bazil also gave 11 evidence about the area during her commission. 12 Our conclusions with respect to the evidence are 13 that although the area may once have been used by some 14 Indians, even Round Lake Tommy moved away and farmed 15 down in the Barrett Lake area outside this territory. 16 Pat Namox, by his own admission, has never trapped on 17 the area. Except for a visit in the past two or three 18 years, he was last on this territory approximately 60 19 years ago. We say the evidence before the court does 20 not establish that the Plaintiffs continuously used or 21 occupied the area. 22 Dealing with the evidence with respect to the 23 territory, Round Lake Tommy, a former Wah Tah Kwets, 24 "used" the land at Quick. He also owned land down at 25 Barrett Lake, where he had a large farm, that is he 26 owned in fee simple. Round Lake Tommy died in 1960 27 according to the genealogy. Round Lake Tommy's 28 brother, Louie Tommy, also "used" this land. Lucy 29 Bazil's brother, Peter Jim, has a registered trapline 30 in the area. Peter Jim, however, has worked for the 31 railway for 35 years, and during that time he was not 32 out on the territory very often according to the 33 evidence. 34 Pat Namox was last on the territory two or three 35 years ago. Whether or not he was hunting, trapping or 36 just driving through is unclear. Prior to that, the 37 last time he was on the territory was when he was a 38 young boy, aged six or seven. This was approximately 39 60 years ago. Mr. Namox admitted he had never trapped 40 on the territory, nor had he ever walked the entire 41 boundary of the territory. 42 The last territory that I'm going to refer you to 43 today, my lord, is at page 91 of our submissions, the 44 last territory in the Wet'suwet'en submissions of the 45 Attorney General of Canada. It's territory number 60, 46 and it's the only territory claimed by Wah Tah Keg'ht, 47 and that is this territory here. Basil Michell, Henry 28937 Submissions by Mr. Wolf 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. COURT WOLF: COURT WOLF: THE COURT MR. WOLF: THE MR. THE MR. COURT WOLF: COURT WOLF: Alfred and his mother, Madeline Alfred, gave evidence about the territory, and Mrs. Alfred swore an affidavit about it. There's extensive evidence about the territory. : Is that right, five miles north of Smithers, not south of Smithers? This is the southern boundary of the territory, my lord, that we're referring to. As you may recall, Smithers is in the territory claimed by Woos. : Yes. And the Wah Tah Keg'ht territory is to the north of Woos. So the southern boundary of the Wah Tah Keg'ht territory is a few miles north of Smithers, we say approximately five miles. : I thought it was just in the southern boundary, but I must be quite wrong. All right. This is Smithers, my lord, on this map, and that's in the Woos territory. : Yes. Where is Smithers now, I can't see Smithers? This one right there at the tip of my finger. : Yes, all right. With respect to our conclusions on the evidence on this territory, we say that it is clear that certain areas of this territory were used in the past. There have, however, been extended periods where vast areas of the territory have not been used, and there is significant evidence of the detrimental effects of the clear-cutting and other activities. The evidence is clear that Madeline Alfred and Henry Alfred have trapped in the vicinity of Moricetown for some time, but Mr. Alfred's testimony places the trapline that he used near Blunt Creek, which seems to be outside the territory. Henry Alfred's use of this territory for goat hunting seems to have been limited to one-time excursions into particular areas, first in the 1950's, then again in the 1980's. Basil Michell no longer uses the territory. However, it appears likely, given Mr. Alfred's testimony, that moose and deer hunting has continuously taken place in those areas depicted on Exhibit 164 as good moose and deer hunting areas except in those areas that have been logged. And as I go through the evidence, my lord, I will refer you to the map which Henry Alfred referred to in his evidence in which these areas are identified, but I'll go through my submissions and then we'll turn to that exhibit. Madeline Alfred testified that she grew up in the 2893? Submissions by Mr. Wolf 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. WOLF: THE COURT MR. WOLF: THE COURT Toboggan Lake-Glentanna area north of Smithers, and she stated she first went out to the territory with her uncle, Peter Bazil, the previous Wah Tah Keg'ht. Madeline Alfred testified she caught muskrats, rabbits, marten and beaver at Toboggan Lake when she was young. She further testified that her ancestors caught goats. As well, she claimed she had a trapline, which had formerly been her mother's, with which she traps lynx, squirrel, wolverine and marten. Mrs. Alfred mocked the suggestion that she would have hunted moose, bear or goat, stating "How could I? No, how could I, I am a woman". Although she is 72 years old, she stated she still traps on a regular basis. The area she generally traps is close to Moricetown, so that she can go out in the morning and be back before dark. Aside from this last noted trapping activity, the majority of Mrs. Alfred's experiences on the territory were prior to when she was married, at the age of 15. Mrs. Alfred testified that after the age of 14 she did not go back to the Glentanna area. She also never trapped in the Driftwood Creek area, nor at Too Coo Kwe, nor at Trout Creek, although she said Peter Bazil trapped at the former area and her mother used Too Coo Kwe. Henry Alfred testified that at a very young age his grandmother took him out with her while she trapped. He stated that this particular line went very near Blunt Creek. This evidence concurs with Madeline Alfred's testimony regarding the location of the trapline she currently uses. Although Mr. Alfred testified about a lack of game in the area due to the effects of logging, he stated he still hunts moose throughout the whole area and deer in selected areas. And this is where the reference to Exhibit 164 comes up, my lord, and I'll just ask you to turn -- it should be at the last few tabs of volume 5 of our references, tab 60.7. : What's the tab again? I'm sorry, it should be at 60.7, but I'm having trouble locating the map at that tab. You don't have a sketch map at your tab 60.7, do you? : No. I do not. Well, I will obtain a copy of that for you and refer it to you. It's a copy of a map which shows the Wah Tah Keg'ht territory. : Oh, I think I have it committed to memory. We 28939 Submissions by Mr. Wolf 1 looked at it for so long, I know the one you mean. 2 MR. WOLF: What it shows is that there is moose hunting 3 indicated on an area to the east of Bulkley River. 4 THE COURT: Yes. 5 MR. WOLF: And this appears to be the area that Mr. Alfred 6 stated that he hunts, and it is in fact this area we 7 say that there is sufficient evidence to establish 8 that the Plaintiffs have continuously hunted in that 9 area. 10 And at paragraph 8 of my submission, bottom of 93, 11 page 93, I say that with the aid of Exhibit 164, a 12 diagram of the territory, Mr. Alfred noted that some 13 of the traplines depicted on the diagram were not 14 productive at all. Line 2 on the diagram was set for 15 the first time in 1987, but had thus far trapped only 16 three marten. 17 During cross-examination it came out that Mr. 18 Alfred's use of the territory was somewhat limited. 19 With the aid of Exhibit -- the sketch map, Mr. Alfred 20 was cross-examined about the various harvesting areas 21 shown on the map. Regarding the area in the top 22 left-hand section of Exhibit 164, identified as used 23 for goat hunting, Mr. Alfred admitted he had gone 24 there once in the 1980's. Similarly, the area in the 25 bottom left-hand corner of the map he had been to 26 once, recently, and shot one goat. The area on the 27 right of the map, also identified as "goats", he had 28 been to once, with Alfred Mitchell in the 1950's. Mr. 29 Alfred had not shot a goat there. 30 There was a period of more than a decade between 31 when Mr. Alfred was first shown the territory by Peter 32 Bazil in 1963 and his next visit to the territory in 33 the 1970's. Prior to 1963 he did not use the 34 territory. He has never stayed overnight on the 35 territory. This, of course, would be outside the 36 confines of Moricetown Reserve. 37 Both Madeline Alfred and Henry Alfred testified 38 that Peter Bazil once used the whole area on the east 39 and west sides of the Bulkley River, and that he had 40 granted Bazil Michell the use of the west side because 41 Bazil Michell had once assisted Peter at a feast. And 42 there is confusing evidence as to which side of the 43 Bulkley is or has been used by the Alfreds. 44 Bazil Michell testified that the territory he used 45 encompassed Beamont and Moricetown to an area past 46 Tobaggan Lake; the northern boundary being the Bulkley 47 River and the southern being Guxsan Lake. Bazil 28940 Submissions by Mr. Wolf 1 Michell admitted he does not trap today. 2 Mrs. Alfred testified that there were a few areas 3 where she picked berries. Occasionally she would go 4 as far as Chapman Lake, more often she gathered 5 berries nearby Moricetown or the Springhill area. Mr. 6 Alfred, Henry Alfred, agreed that a good berry-picking 7 area was across from Moricetown. 8 Mrs. Alfred testified that one of the reasons she 9 and her family did not go back to Glentanna or the 10 Glentanna area was the incursion of white settlers. 11 She also said that large parts of the territory had 12 been clear cut, thus diminishing, if not eliminating, 13 hunting and trapping prospects. And she also said 14 that farming had cut into the traditional use of the 15 area. 16 Henry Alfred also testified that there had been 17 considerable logging in the territory, and he admitted 18 that the area around some of his traplines had been 19 destroyed by clear-cutting. He also said that the 20 Moricetown Band had been involved in logging in the 21 territory, and there are six reserves in this 22 territory and they're all allotted to the Moricetown 23 Band. 24 The references to farming, my lord, clear-cutting, 25 obviously relate to the issue of extinguishment as 26 opposed to abandonment. In some situations it's 27 difficult to know whether someone's stopped using an 28 area because of an effect like extinguishment, such as 29 clear-cutting, or whether in fact they don't use it 30 anymore voluntarily. 31 If you would excuse me for just a moment, my lord. 32 My lord, I would just like to refer you back to Mr. 33 Grant's interjection with respect to the Hagwilnegh 34 territory that we were talking about. And he said 35 that Allen Fletcher had given testimony or evidence 36 that Pat Joseph had -- pardon me -- Jack Joseph had 37 been trapping in that area. 38 THE COURT: I don't think he said that. He said Mr. Fletcher 39 identified a cabin that Jack Joseph had on the 40 territory. 41 MR. WOLF: Yes. 42 THE COURT: He may have gone on — 43 MR. GRANT: Well, he knew Mr. Joseph was an active trapper as 44 well, and he also knew that this cabin belonged to 45 him. 46 THE COURT: All right. Where is that reference, where do I find 47 it? 28941 Submissions by Mr. Wolf 1 MR. GRANT 2 THE COURT 3 MR. WOLF: 4 5 6 THE COURT 7 MR. WOLF: 8 THE COURT 9 MR. WOLF: 10 11 12 13 14 15 16 17 18 THE COURT 19 MR. WOLF: 20 21 22 23 24 25 MR. GRANT 26 27 28 29 30 31 MR. WOLF: 32 33 34 35 THE COURT 36 MR. WOLF: 37 THE COURT 38 39 MR. GRANT 40 THE COURT 41 MR. WOLF: 42 43 THE COURT 44 MR. GRANT 45 46 THE COURT 47 MR. WOLF: : That's Exhibit 1145-A, my lord. : No. Where is it in the text? It's at page 79 of our submission, paragraph 2. I was just going to refer to Mr. Fletcher's affidavit, my lord, which is Exhibit 1145. : Exhibit 145? 1145. : Yes. And in paragraph 76 of that affidavit Mr. Fletcher deposed: "The only Indian trapline I know much about is Jack Joseph's line. Jack told me about his trapline at McDonell Lake in the 1930's, and I once saw a cabin there that I assumed was his during one of my packtrain trips to the area." : In 1936? It says 1930's. So his evidence is that Jack Joseph had told him about his trapline in the 1930's and that he had once seen a cabin there when Mr. Fletcher was travelling on one of his packtrain trips. And his cross-examination doesn't add anything, doesn't have anything else to say about that. : Well, I differ with that substantially. In his cross-examination he talks much more at length about Mr. Joseph than he does in that paragraph, and he also talks about it later than that. I will get the reference for you in Exhibit 1145-A, my lord. There's more than what Mr. Wolf suggests. Well, it appears that he said that he was told that Jack Joseph was trapping there, it's not clear to me that he actually knew that or saw Jack Joseph trapping there. : Well, I'll hear what Mr. Grant says in reply. Yes. : And if he doesn't remember or doesn't have time, I have a note. : I'll get a page reference. : Yes, all right. Well, part of the reference, at least, my lord, is at page 48 of his cross-examination. : You think there's a second one, Mr. Grant? : Yes. I don't have the cross-examination, my lord, but I think there is one. : All right, thank you. My lord, that completes my submissions on the 28942 Submissions by Mr. Wolf 1 individual territories. I didn't review the evidence 2 with respect to every territory with you, but we have 3 done that for each individual territory, and we say 4 that it is necessary to examine the evidence on each 5 individual territory to determine whether the 6 Plaintiffs have aboriginal rights. 7 THE COURT: How many territories did you say there are? 8 MR. WOLF: There are approximately 140. 9 THE COURT: Yes. 10 MR. WOLF: And I would also like to say, as a final submission, 11 that I've not only been through the site specific 12 territory analysis, I say that the conclusions that we 13 made, or the submissions that we made in our general 14 abandonment section, which I went through with you 15 yesterday, that's Part VII of our submission, that the 16 general evidence is that the Plaintiffs have not 17 trapped actively for at least 30 years is the general 18 evidence, and it's supported by the site specific 19 evidence. 20 THE COURT: All right. What time do you want to start — sorry, 21 Mr. Grant. 22 MR. GRANT: Yes, my lord, I just wondered, I haven't heard 23 anything further from my friend, and it was good that 24 you asked my friend of the scheduling, because I had 25 no idea until yesterday, nor did my colleagues, about 26 the Sparrow argument, which of course isn't in their 27 summary of argument, and if they're not going to give 28 us their written argument until Wednesday, if they 29 have something entirely new to say, we certainly would 30 like to know. My colleagues and I are working 31 throughout the weekend on this, and we want to be 32 moving, and we're in the last week, as we all know, 33 and I would ask that if my friends aren't going to 34 give the full argument on Sparrow until -- give it 35 until Wednesday morning, or whatever they're doing, if 36 they can give -- at least give us some summary of what 37 that is, because clearly it's different than what 38 they've done on extinguishment. 39 MS. KOENIGSBERG: I should say that as far as a written summary 40 of what we say the extent of Sparrow is on Section 35, 41 of course it wasn't in our summary, because the 42 Sparrow decision wasn't there yet. But I understand 43 that my friend, the Plaintiffs have in fact done a 44 further submission on Section 35, which is on a disk 45 that is not part of their written argument. The 46 written argument that I have copies of is quite brief, 47 and I believe Miss Mandell gave oral submissions on 28943 Submissions by Mr. Wolf 1 that. We were late getting disks. In fact, I'm not 2 certain that we have received the disks from the 3 Plaintiffs. There was some difficulty in their 4 getting them to us, and I haven't had an opportunity 5 to look for that and get a printout of it so that I'm 6 sure that we are in fact responding. We're going to 7 actually perhaps meet on an issue, and so that I would 8 otherwise have anticipated having something written 9 and given to my friend by Monday, but that really 10 depends on if what I find when I find it varies quite 11 a bit with what I'm presently anticipating. 12 THE COURT: Well, I'm not sure the usual rules of reply can be 13 expected to be followed with respect to the authority 14 that's published after the -- well after the 15 commencement of argument, and I'm not sure that it is 16 necessary that submissions on a fresh authority of 17 that kind can be confined within the usual limit of 18 reply anyways, so I think you're going to make 19 whatever submissions by way of reply or de nouveau as 2 0 they may be advised. Anything that can be done to 21 give notice is very much to be desired. I'm not sure 22 that it's quite in the same category as ordinarily the 23 responsive submissions that are generally expected, 24 and there's no order I can make at this time. I'm 25 sure that this case brings upon you, Mr. Grant, at the 26 earliest possible that you can, of anything of a new 27 and inovative nature that you might extract out of 28 recent jurisprudence. 29 MS. KOENIGSBERG: Yes. I should say that our submissions are 30 confined to our best interpretation of the Sparrow 31 decision on that issue. 32 THE COURT: All right. Do you have any idea — well, firstly, 33 what time do you want to start on Monday? 34 MS. KOENIGSBERG: Ten o'clock, my lord. 35 THE COURT: And you expect to finish still either Tuesday or 36 early Wednesday? 37 MS. KOENIGSBERG: Yes. 38 THE COURT: All right. And do you expect you're going to sit 39 evenings or anything like that, Mr. Grant? 4 0 MR. GRANT 41 THE COURT 42 MR. GRANT Next week? Yes. No. Our plan is not to sit evenings next week, but 43 we're still working out whether we would start 44 immediately after my friend. 45 THE COURT: Yes. I'm leaving that entirely with you. You start 46 when they finish or start the next day, as you wish. 4 7 MR. GRANT: Yes. 28944 Submissions by Mr. Wolf 1 THE COURT: It's a dreadful time of the year for extra-judicial 2 or judicial activities, and next week is not as bad as 3 the one I just finished, or finish later this evening, 4 but I have a couple of evening functions that I have 5 been very tentative about. You don't think we'll 6 argue in the evening? 7 MR. GRANT: No. Our objective is not to ask you to sit 8 evenings. It may be that we hope not even to sit 9 over, but it may be just to sit to 5:00 one day, if 10 that's possible. 11 THE COURT: That's convenient to me. 12 MR. GRANT: We'll discuss that over the weekend, and Mr. Rush 13 and myself will advise you. 14 THE COURT: All right. I wish you all a very pleasant weekend, 15 last weekend. Thank you. 16 THE REGISTRAR: Order in court. Court stands adjourned until 17 ten o'clock Monday morning. 18 19 (PROCEEDINGS ADJOURNED) 20 21 I hereby certify the foregoing to be 22 a true and accurate transcript of the 23 proceedings herein transcribed to the 24 best of my skill and ability 25 26 27 28 29 Graham D. Parker 30 Official Reporter 31 United Reporting Service Ltd. 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
Vancouver : University of British Columbia Library
Vancouver : United Reporting Service Ltd.
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[Proceedings of the Supreme Court of British Columbia 1990-06-22]
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