@prefix ns0: . @prefix edm: . @prefix dcterms: . @prefix dc: . @prefix skos: . ns0:identifierAIP "bdf78ef8-e0b1-47b5-8da7-4baae0482805"@en ; edm:dataProvider "CONTENTdm"@en ; dcterms:isPartOf "Delgamuukw Trial Transcripts"@en ; dcterms:creator "British Columbia. Supreme Court"@en ; dcterms:issued "2013"@en ; dcterms:created "1990-06-09"@en ; dcterms:description "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."@en, ""@en ; edm:aggregatedCHO "https://open.library.ubc.ca/collections/delgamuukw/items/1.0018525/source.json"@en ; dc:format "application/pdf"@en ; skos:note " 2801? Submissions by Mr. Willms 1 JUNE 9, 1990 2 VANCOUVER, B.C. 3 4 THE REGISTRAR: Order in court. In the Supreme Court of British 5 Columbia, this 9th day of June, 1990. Delgamuukw 6 versus Her Majesty The Queen at bar, my lord. 7 THE COURT: Mr. Willms. 8 MR. GRANT: Before my friend starts, my lord, I may have misled 9 my friend when I said at the very end of yesterday 10 that regarding the Robinson report the whole -- it 11 says the whole thing could not go in. What I meant 12 was that it had been agreed at the time that certain 13 chapters of that dissertation we were not opposed to 14 going in or certain sections. Our difference is that 15 my friend wants everything in, and we say only those 16 sections referred to should go in. So I just didn't 17 want to mislead my friend. 18 THE COURT: All right. 19 MR. WILLMS: My lord, the next tab in the blue book is tab 2. 20 If your lordship could have volume 4 of the 21 plaintiffs' argument. As with the last instance, you 22 will see the only difference here, my lord, is that 23 there is a second tab in volume 4. There is a tab 2 24 in the plaintiffs' argument, not in the blue book, my 25 lord, but in the plaintiffs' argument in volume 4 26 there is a tab 2. 2 7 THE COURT: Yes. 28 MR. GRANT: And this should — after that tab 2 in the 29 plaintiffs' argument the heading should be \"Nature of 30 the Gitksan and Wet'suwet'en Organized Societies at 31 Contact\". 32 THE COURT: Plaintiffs' volume 4? 33 MR. WILLMS: Plaintiffs' volume 4, tab 2. 34 THE COURT: Yes. All right. 35 MR. WILLMS: Now, what I would like to do is once again I am not 36 going to go through all of them. I will just go 37 through a number of them. 38 What I have done on the first page is on the very 39 first page of tab 2 at the bottom in volume 4 of the 40 plaintiffs' argument they start quoting extracts from 41 Harmon, and they quote over the next couple of pages a 42 number of extracts from Harmon. And I have added 43 other extracts from Harmon which I say relate to the 44 argument that the plaintiffs make which follows. 45 And so, for example, my lord, on page 1 of the 46 blue book, the very first paragraph I point out that 47 on June 16th, 1811 Harmon reports something that the 28019 Submissions by Mr. Willms 1 Babine people have told him. 2 3 \"But they (Babine) say there are numerous Tribe 4 who are scattered over a large tract of country 5 almost west of this, and that it is not more 6 than eight or ten days march to their first 7 village.\" 8 9 Not canoe, my lord, but march. 10 11 \"They also inform us of a large river that 12 passes through their country, and no great 13 distance from there disembogues (discharges) 14 into the Pacific Ocean. They likewise say that 15 every Autumn a number of white people come up 16 that river in barges to traffic with the 17 Indians who live along its banks but I could 18 not learn from them of what nation those white 19 people belong.\" 20 21 So this is in 1811 that Harmon notes that. And on 22 the next page Harmon actually goes, and I mean on the 23 next page of this annotation at the top you will see 24 in the very first paragraph Harmon on January 20th, 25 1812 was at Babine Lake and said: 26 27 \"The day following we proceeded further on and 28 during our jaunt saw four others of their 29 villages and at all of which we were well 30 received for at the second we found the two 31 Indians who last summer came to our Fort 32 therefore they were not much surprised to see 33 us among them, for I had promised the two that 34 I would in the course of this winter pay them a 35 visit to see their country, et cetera and they 36 now gave us some account of the white people 37 who came up the large river as they had done 38 before when at the fort last summer and to 39 convince us of what they had said was true they 40 showed us many articles, which they barter from 41 their neighbours the Atenas who purchase them 42 directly from the white people which were guns, 43 cloth, blankets, axes and cast iron pots, et 44 cetera.\" 45 46 And the point there, my lord, is this is ten years 47 before Brown gets to Babine Lake, and this is what 28020 Submissions by Mr. Willms 1 Harmon notes at Babine Lake. 2 Now, at the bottom of this page, my lord, Harmon 3 says about the Carriers: 4 5 \"Their language is very similar to that of the 6 Chipewyans, and has a great affinity to the 7 tongues, spoken by the Beaver Indians and the 8 Sicaunies. Between all the different villages 9 of the Carriers, there prevails a difference of 10 dialect, to such an extent, that they often 11 give different names to the most common 12 utensils. Every village has its particular 13 name, and its inhabitants are called after the 14 name of the village, in the same manner as 15 people in the civilized world receive a name, 16 from the city or country which they inhabit 17 ...\" 18 19 The point there, my lord, is back to Kobrinsky and 20 Morice and Septs (?) and the villages that we 21 mentioned. And the top of the next page, my lord, 22 just refers to what they prefer to wear. 23 Now, the next extract I would like to draw your 24 lordship's attention to is at page 4 of the blue book. 25 And it's another reference to Harmon. And this is 26 Harmon talking about the Carriers in general. 27 28 \"The Carriers have little that can be 29 denominated civil government, in the regulation 30 of their concerns. There are some persons 31 among them, who are called Mi-u-ties or Chiefs, 32 and for whom they appear to have a little more 33 respect than for the others; but these chiefs 34 have not much authority or influence over the 35 rest of the community. Anyone is dubbed a 36 Mi-u-ties who is able and willing occasionally, 37 to provide a feast, for the people of this 38 village. An Indian, however, who has killed 39 another, or been guilty of some other bad 40 action, finds the house or tent of the chief as 41 safe retreat, so long as he is allowed to 42 remain. But as soon as he leaves it, the Chief 43 can afford the criminal no more protection, 44 than any other person of the village can, 45 unless he lets him have one of his garments. 46 This garment of the chief, will protect a 47 malefactor from harm, while he wears it; for no 28021 Submissions by Mr. Willms 1 person will attack him, while clothed with his 2 safeguard, sooner than he would attack the 3 chief himself; and if he should, the chief 4 would revenge the insults in the same manner as 5 if it were offered directly to himself. The 6 revenge which the chief, in this case, would 7 take, would be to destroy the life of the 8 offending person or that of some of his near 9 relation, or the life of one of the same tribe, 10 if he should happen to be a stranger.\" 11 12 And that note, my lord, at a very early occasion, 13 you might recall comes up again in Brown and other 14 people in the area. 15 But the next reference is at page -- if your 16 lordship could turn to page 18 of the blue book. And 17 at the same time turn to page 13 of the plaintiffs' 18 argument. 19 MR. GRANT: Just so I am clear. I understood yesterday that the 20 blue book wouldn't include, and in this case it's Mr. 21 Adams' submissions, it wouldn't be the entire 22 submission but extracts from the transcript, is that 23 right, but not sequentially, not the whole thing. 24 MR. WILLMS: No, I haven't put in Mr. Adams' whole submission. 25 I tried to put in the submissions -- 2 6 THE COURT: To which you wish to reply. 27 MR. WILLMS: To which I wish to reply here, and to draw your 28 lordship's attention to where Mr. Adams is making the 29 submission as he is going through the book. 30 MR. GRANT: Okay. 31 MR. WILLMS: And so it does two things at the same time. You 32 see whether Mr. Adams resiles from any of the 33 propositions or supplements them. 34 But here I point out that at the bottom of the 35 page, my lord, of page 13, the plaintiffs start a 36 quote from Exhibit 964-12. After the word 37 \"followers\", the document carries on to say, and this 38 is what I note on page 18 of the blue book, goes on to 39 say: 40 41 \"With a number of others belonging to the clans. 42 The whole amounts to 24 families. Casepin is 43 now in his prime and would be a tolerable good 44 hunter if he was not of such an indolent and 45 lazy disposition.\" 46 47 And then picking up again, the plaintiffs then 28022 Submissions by Mr. Willms 1 quote the beginning of another sentence in their 2 argument. They start off with \"his followers are 3 few\", and then there is three dots after tribe. But 4 after tribe the exhibit continues: 5 6 \"And over these he has but little control which 7 is as well for if he had more influence he 8 would be both more troublesome and expense.\" 9 10 And then I note another part, my lord. The quote 11 carries on over to the next page of the plaintiffs' 12 argument, over to page 14 of the plaintiffs' argument, 13 my lord, at the very top, and they refer to a chief 14 called Houchete tah kie as a chief who was an inferior 15 chief with no independent band of his own. 16 Well, the other reference in Brown that is 17 important is that this chiefs: 18 19 \"... lands are very extensive, and are the best 20 stocked with beaver of any in the vicinity of 21 the lake. Of which he is particularly careful 22 in neither killing too many ...\", 23 24 And that should be T-O-0 many, not T-W-O. 25 26 \"... himself, nor allowing any other to do so. 27 He generally gives into the fort from 20 to 30 28 skins in the course of the season.\" 29 30 So that my submission, my lord, when you add what 31 is left out of the quote, you can see that an inferior 32 chief with no tribe has the best lands (Houchete tah 33 kie), another chief has little control over his 34 \"followers\", that's Casepin, and another chief appears 35 to have influence over his village and others (Ack Koo 36 Shaw). 37 And what I say from that is that none of those 38 facts fit within the plaintiffs' claim of house 39 territories. You have got someone whose got large 40 territories, but apparently no house. He's got no 41 tribe, but he's got extensive territories. You have 42 got another one who is acknowledged to be a chief who 43 has no control over his followers, and a third chief 44 who not only has influence in his own village, but 45 influence outside, which is reminescent of people like 46 Legaix from the coast, the super chiefs, the people 47 who had influence outside their own village. 28023 Submissions by Mr. Willms 1 The next extract I would ask your lordship to turn 2 to is at page 28 of the blue book. And the reference 3 is to page 20 of the plaintiffs' argument. And on 4 page 20, my lord, in the first sentence of the very 5 first paragraph the plaintiffs say on at least two 6 occasions Brown speaks of trading beaver coating with 7 the Gitksan. So with respect to that comment I point 8 out on page 28 beside paragraph 3 that it's misleading 9 to say 'on at least two occasions' Brown speaks of 10 trading beaver coating with the Gitksan. Exhibit 11 964-12, which was his trip down the Babine River -- 12 sorry, 964-12 is his 1826 report. It includes a 13 summary of his voyage, which is set out at 964-14. So 14 what has happened here is Brown has summarized in his 15 report what happened on his voyage. It shows up in 16 two documents authored by Brown, but it was only one 17 occasion, not two occasions. 18 My friend is quite right. And if all my friend 19 meant to say that on at least two occasions Brown 20 spoke of trading beavers, but he only traded it on one 21 occasion. Now, that doesn't leap out from the 22 argument, my lord. The argument seems to suggest that 23 there were two instances of trading with the Gitksan. 24 Then the plaintiffs carry on there and say this on 25 page 20: 26 27 \"While on another occasion he has spoken of as 28 having procured a small quantity of beaver from 29 the Gitksan, all of which suggests ...\", 30 31 And then they carry on. Well, the reference 32 there, my lord, is a reference to the new -- and I 33 point this out in paragraph 4 on page 28. I say it's 34 even more misleading to say that on another occasion 35 he had spoken of having a small quantity of beaver 36 from the Gitksan. This is taken from the New 37 Caledonia district report of 1826, Exhibit 964-4, page 38 143, which is again a reference to Brown's trip 39 initially described at 964-14. 40 So what's happened here is the plaintiffs have 41 turned one instance of two pounds of beaver coating 42 into three separate, in my submission, three separate 43 instances of trading. There was only one, not three. 44 The next reference is at page 29 of the blue book, 45 and it's another reference again to page 20. The 46 plaintiffs say on page 20 of their argument that there 47 was also evidence put to Professor Ray on 28024 Submissions by Mr. Willms 1 re-examination of the Gitksan feasting on beaver, as 2 if -- and this was to go to the point of whether the 3 Gitksan at the time of Brown ate beaver. And so my 4 friends in their argument, they suggest, well, it's in 5 the re-examination of Professor Ray. When you look to 6 the re-examination of Professor Ray, the reference is 7 to Downie, 1859. And that's the point at the bottom 8 of page 299. It's not a reference to anything that's 9 happening at the time of Brown, it's over 30 years 10 after Brown that is put to Professor Ray in 11 re-examination. 12 THE COURT: Where is Kittcoonra? 13 MR. WILLMS: Kittcoorna, I think is — 14 THE COURT: K-I-T-T-C-O-O-N-R-A. 15 MR. WILLMS: I think that is Kitwangar. I think it's Kitwangar. 16 Now, the next reference is to page 39. 17 THE COURT: Of the summary? 18 MR. WILLMS: Of the summary. And page 32 of the argument. Page 19 39 of the summary, page 32 of the argument. 20 Here the plaintiffs are making a submission about 21 regional trade in feasting. They quote from Professor 22 Ray at the bottom of the page, and then they stop the 23 quote at the word \"peripheries\". Really there should 24 be three dots after the word \"peripheries\". Because 25 what Professor Ray then said after that was he said: 26 27 \"Of even greater importance, it was an economy 28 in which the Gitksan held the whip hand because 29 of their superior strategic position.\" 30 31 He was referring to the Atna practise of barring 32 the river to prevent fish from ascending to Babine 33 Lake. 34 When you read the plaintiffs' argument on this 35 point, it looks like there is sort of an equal 36 exchange relationship going on. That's not the tenor 37 of what Professor Ray was trying to suggest in his 38 evidence, and that is pretty clear from this deletion. 39 The next point is at page 51 of the blue book, and 40 page 44 of the argument. What I point out here, my 41 lord, is that the quote on page 44 from Exhibit 964-12 42 ends with the word \"provisions\". When you read on, 43 you see that Brown then says: 44 45 \"To manage the business of this place to 46 advantage it would require from three to four 47 hundred skins yearly and at least three-fourths 28025 Submissions by Mr. Willms 1 of these of the best quality.\" 2 3 That's leather, my lord. 4 5 \"With such a supply little else would be 6 necessary: except guns, traps, ice chisels - 7 beaver nets and ammunition - while good returns 8 might be relied upon.\" 9 10 And I say this is important because it was the 11 European fur trade that brought the leather to the 12 Atnah's and the Carriers. It was not prehistoric 13 native trade. When the plaintiffs say at lines 23-24, 14 and I'll turn to that in a minute, that's a reference 15 to the oral argument, that \"it's not the European fur 16 trade which is driving these economies and these 17 societies\", they ignore the fact that leather brought 18 in by or from Europeans, was not used primarily for 19 subsistence but was used primarily in the potlatches. 20 So if you read down below, my lord, you will see 21 starting at line 21 at the bottom of page 51, this is 22 from Mr. Adams, he is making this submission: 23 24 \"And again, my lord, say on this evidence, that 25 there is every indication from this material 26 that it's not the European fur trade which is 27 driving these economies in these societies.\" 28 29 What my friends were pointing to there was the 30 fact that they said it was really leather that the 31 people wanted, and not European goods. But I say it 32 doesn't matter, because it was the fur trade that 33 brought leather to the people. It wasn't any native 34 trading network. It was the Hudson's Bay Company from 35 the interior, the coastal traders from the coast who 36 brought the leather. So when I say European fur 37 trade, my lord, I don't limit fur trade to trade in 38 European items. I include the leather apparently the 39 people of the claim area were desperate to have. 40 THE COURT: So you say this three to four hundred skins refers 41 to skins to leather, not fur skins? 42 MR. WILLMS: That's the leather — they were bringing in the 43 leather to trade for the furs, and there is evidence 44 that some of the leather came from as far way as down 45 the coast from Oregon and up the coast and then some 4 6 came over land. 47 The next point, my lord, is at page 59. The 28026 Submissions by Mr. Willms 1 reference in the plaintiffs' argument is to page 50. 2 In the plaintiffs' argument they say on page 50 that 3 the plaintiff argues in its summary quoting Dr. 4 Robinson that the fur trade seems to have spurred to 5 Gitksan occupation of the middle Nass and especially 6 the Upper Nass and Upper Skeena. Then they carry on 7 with a second quote. What I point out on page 59 8 towards the bottom, my lord, is that although the 9 second part of the quote, that is the part that says 10 where the resources is close at hand, that is Dr. 11 Robinson, the first part of the quote is not Dr. 12 Robinson, it's Dr. Rigsby that's being quoted. So my 13 friends suggest here that this is what Dr. Robinson 14 said. In fact it's what Dr. Rigsby said. 15 My lord, then you will see that this ends with 16 section -- page 65, and then you start after page 65 17 with April 23rd, again another reference to the 18 transcript that I am taking extracts from. 19 THE COURT: All those submissions up from the start of your tab 20 2 are from April 20th? 21 MR. WILLMS: Are all from April 20th, yes, and then it switches 22 to April 23rd. My lord, the first number of extracts 23 that I was going to draw to your lordship's attention 24 to here tie-in with my submission on Dr. Robinson, and 25 I don't want to make it if my friend isn't ready to 26 deal with it today, and I don't -- maybe my friend 27 could -- whether he's had a thought about it overnight 28 and whether he wants to deal with it. If he wants to 29 deal with it today, I will do these next series, if he 30 doesn't, I'll save them. 31 MR. GRANT: I advised my friends yesterday it wasn't possible. 32 MR. WILLMS: All right. 33 MR. GRANT: So I'm not ready to proceed to make my argument on 34 Dr. Robinson today. 35 MR. WILLMS: Now, the first number of extracts that I wanted to 36 direct your lordship's attention to relate to my 37 friends submissions about Dr. Robinson, and I am going 38 to save those until my friend is ready to proceed. 39 But I would ask your lordship to turn to page 15 on 40 the second part of the blue book. At the bottom of 41 the page I refer to page 66 of the plaintiffs' 42 argument. And on page 66 of the plaintiffs' argument 43 the plaintiffs suggest that the -- they make an 44 argument about the value of marten versus the value of 45 beaver, and refer to Dr. Ray's point that if the value 46 is the important thing or one of the important things, 47 why wasn't exactly the same thing applied to marten, 28027 Submissions by Mr. Willms 1 river otter, muscrat and lynx. Those furs actually 2 had a higher relative value than beaver. That's the 3 quote that my friends put in. What they don't refer 4 to at this point is that Dr. Ray gave evidence, and I 5 don't have the cite on page 66, but I did refer to it 6 in my argument, my lord, but Dr. Ray gave evidence 7 that marten had a three pelts equals one made beaver 8 value. So with respect to marten, at least you have 9 got a bit of an inconsistency in what Dr. Ray said. 10 But Dr. Ray said earlier on in his evidence that you 11 have three marten pelts to one made beaver. Dr. Ray, 12 I point out, did not refer to any territoriality 13 associated with marten. He said there was none. 14 And then here we -- I would like to read the 15 exchange between myself and Mr. Adams. I said -- I 16 asked my friend if he could give me a reference to 17 where Dr. Ray said there was any territoriality about 18 marten. I said I didn't recall that from any of Dr. 19 Ray's evidence. Mr. Adams says at the bottom of the 20 page: 21 22 \"I will pursue it and supply it if I can, to 23 suit my friends.\" 24 25 I note over at the top of the next page that no 26 such reference was ever provided by Mr. Adams. I say 27 that because the only territoriality noted in the 28 early records was with respect to beaver. 29 The last extract from this tab that I would like 30 to draw to your lordship's attention is at page 41. 31 The reference to 86 and on, my lord, is a reference 32 that from page 86 and on, and you don't need to turn 33 to it, but from that page to the end of this part of 34 the plaintiffs' argument they dealt with a lengthy 35 discussion of Drs. Dyen and Aberle. I point out here 36 that the published writers that have considered Dyen 37 and Aberle's work have not come to the conclusions 38 that the plaintiffs' witnesses have come to. 39 Dr. Bishop considered Dyen and Aberle twice, and 40 it didn't effect his opinions. Dr. Kobrinsky 41 considered and rejected Dyen and Aberle even with 42 respect to matrilineality. Dr. Toby commented on Dyen 43 and Aberle's matrilineality, but said it didn't effect 44 the discussion of borrowing of the potlatch rank 45 complex. Dr. Robinson said that the borrowing of the 46 potlatch rank complex is acknowledged by Drs. Dyen and 47 Aberle, and that they only speak to matrilineality. 2802? Submissions by Mr. Willms 1 Dr. Ives considered the work of Drs. Dyen and Aberle, 2 and did not consider it relevant, other than to 3 matrilineality. I say when it is independently 4 tested, Dr. Robinson's theory stands up better than 5 the plaintiffs on what Dyen and Aberle mean. 6 Now, the next section, my lord, is -- 7 MR. GRANT: My friend indicated that there was a part he didn't 8 want to refer to now. I think as long as my friend is 9 clear that the issue I understand that I was not 10 prepared to deal with is what is in Part 4, that is 11 the admissibility of the dissertation of Dr. Robinson. 12 I understand -- my friend may have other comments 13 about how Dr. Robinson -- but he may need that for 14 that point. I just want him to be clear as to what I 15 cannot deal with -- 16 MR. WILLMS: Well, yes, the point on Dr. Robinson is that my 17 friends attack on Dr. Robinson's credibility, and his 18 attack on Dr. Robinson's research only has merit if 19 her dissertation is excluded. In other words, if the 20 dissertation is not in evidence, then my friend can 21 make the arguments that he makes. If the dissertation 22 is in, the dissertation refutes each and every one of 23 the plaintiffs' arguments on the credibility of Dr. 24 Robinson and on the extent of her research. 25 Now, that's why I skipped over the points here 26 that I dealt with, my lord, where my friend -- it is 27 in this part of my friends' argument that they attack 28 Dr. Robinson, and my friend did that in 29 cross-examination as well, and it's the dissertation 30 that deals with that. And that's what I am saving. 31 The credibility aspect of Dr. Robinson, the allegation 32 that she didn't do detailed research. 33 Now, I would then ask your lordship to turn to tab 34 3 and have volume 8 of the plaintiffs' argument. In 35 volume 8 at tab 2, my lord, volume 8 of the 36 plaintiffs' argument in the black book at tab 2, you 37 should see an argument entitled \"establishment 38 acceptance or use of reserves as surrender, cession of 39 purchase\". That is what this replies to at tab 3. 40 So if you turn the page. I have done this one 41 somewhat differently, my lord. You will see at the 42 top of the first page I have page references in the 43 left-hand column. Ill to 148. Those are at tab 2. 44 And what I say is that the plaintiffs in their 45 argument, pages 111 to 148, discuss the laying out of 46 reserves in the claim area in the period 1871 to 1898. 47 Rather than deal with the plaintiffs' submissions page 28029 Submissions by Mr. Willms 1 by page, this annotation at this part will deal with 2 the section. Most of the documents which are referred 3 to in the following pages are also referred to in the 4 plaintiffs' argument. Here they are dealt with in 5 chronological order, and the extracts are not taken 6 out of context or selectively quoted as they are in 7 the plaintiffs' argument. When the documents are 8 considered in their totality, it is our submission 9 they support the allegations in paragraph 34 of the 10 Statement of Defence. 11 What I have done then, my lord, from here on, is 12 given you the exhibit number of the exhibit that I am 13 going to quote from, and I have tried to avoid three 14 dots in all of this as much as possible. 15 So for the first document, for example, is the 16 letter from Dewdney to Pearse talking about what 17 Dewdney did at Hazelton. 18 And over to the second page of the blue book you 19 will see a reference to the notice. And when it's 2 0 indented and quoted, my lord, it's from the document. 21 When it goes out to the margin those are my comments. 22 So when you go out to the margin you will see \"there 23 is a notice attached to the letter which reads as 24 follows:\" That's my comment. Then it quotes from the 25 notice. And then I say my comment again, I say there 26 is a map attached to the letter which is entitled 27 \"sketch showing Indian reserve at the Aguilgate and 28 proposed townsite\". On the last page of the document, 29 which is dated September 1871, Pearse says, and then I 30 quote from what the documents say again. 31 And the point, for example, of this document in 32 respect of the plaintiffs' argument is at page 3. And 33 what I try to do, my lord, is at the end of each 34 document make some comment that would relate it to the 35 plaintiffs' argument. This is an important document 36 to review in full. But when the document in full is 37 reviewed, I say it at page 3 of the blue book, that 38 the plaintiffs' counsel asked during the course of 39 argument where he could find the evidence which shows 40 that Dewdney laid out an Indian Reserve at Hazelton in 41 1871. This is the document that shows it. There is a 42 map, there is a note, and there is a discussion of it, 43 and there is also a discussion of Lieutenant-Governor 44 Musgrave's comments on the authority that Dewdney had 45 to do what he did. 46 THE COURT: I think the plaintiffs' point was that it wasn't 47 formalized and completed, gazetted -- 28030 Submissions by Mr. Willms 1 MR. WILLMS: Well, it wasn't surveyed. That is clear. The 2 townsite was surveyed, but the reserve wasn't 3 surveyed. But, my lord, the whole process of the 4 reserves was that, for example, when O'Reilly came 5 through, O'Reilly laid out the reserves and then a 6 surveyor came through later to survey it. And it's a 7 two-stage process for the reserves. You have the 8 laying out and then a subsequent survey. 9 MR. GRANT: And O'Reilly laid out this — the reserve in 1991 in 10 this area --. 11 MR. WILLMS: Well, that's next year — 12 MR. GRANT: I said 1891. 13 MR. WILLMS: Perhaps to go to another example, if you could turn 14 to page 8 of the blue book. I point out here -- this 15 is Exhibit 1035-54, report of Charles W. Clifford of 16 the Hudson's Bay Company in 1890. This is before 17 O'Reilly comes up. And he has a sketch plan of the 18 Hazelton post in his report, which shows an Indian 19 village to the north of the property claimed by the 20 CMS, the missionaries. But he also says in his 21 report, he says: 22 23 \"In 1870 or 1871 the flat was laid off by the 24 Government as a townsite but no lots were sold. 25 A few occupants paid ground rents for a short 2 6 time but when the Omineca mining excitement 27 passed away the place was almost deserted and 28 all landmarks lost and forgotten.\" 29 30 I just pause there -- well, I'll read the next 31 extract, because I have summarized it at the bottom. 32 If you skip the next paragraph, Clifford then says: 33 34 \"It has been proposed that the flat should be 35 made part of the Indian Reserve.\" 36 37 Are you with me, my lord? 3 8 THE COURT: Yes. 39 MR. WILLMS: So the point that I make at the bottom of this 40 document, is that if there were no Indian reserve, as 41 the plaintiffs allege, Clifford would have said an 42 Indian reserve, not the Indian reserve. He clearly 43 knew there was an Indian reserve there. And the 44 notice posted by Dewdney in 1971, he referred to 45 ground rent that would have to be paid by pre-emptors. 46 And as Clifford notes here, ground rent was paid for 47 awhile, but then people stopped paying the ground rent 28031 Submissions by Mr. Willms 1 under the pre-emption. So the point I make, my lord, 2 here is that 20 years later his acknowledgement that 3 land was pre-empted, because the ground rent was paid, 4 but the pre-emptions were never carried through. 5 That was another point, I think, that my friends 6 made about -- they said that the land was never 7 pre-empted. Well, there is a difference between 8 carrying a pre-emption through to getting a Crown 9 grant and starting out on the pre-emption. And as 10 Dewdney pointed out in his notice, in order to start 11 the pre-emption process, you pay the ground rent for a 12 period of time before you are entitled to the grant. 13 That happened, but people never entitled themselves to 14 the grant. 15 The next document, my lord, which is not a 16 document that my friends refer to in their argument, 17 is O'Reilly's letter of instructions. And it says -- 18 gives the exhibit number, my lord. And the part of 19 the instructions that are important for these purposes 20 are at the bottom of page 9 where O'Reilly was 21 instructed that: 22 23 \"... in allotting reserve lands to each band you 24 should be guided generally by the spirit of the 25 Terms of Union between the Dominion and local 26 governments which contemplated a 'liberal 27 policy' being pursued towards the Indians. You 28 should have special regard to the habits, wants 29 and pursuits of the band, to the amount of 30 territory in the country frequented by it, as 31 well as to the claims of the white settlers (if 32 any).\" 33 34 And I will come back to that in a moment. But I 35 say at the bottom, and once again this is my comment, 36 because it's not indented at the bottom. I say that 37 it is clear from the provincial Order in Council and 38 from the instructions to O'Reilly that he was to carry 39 out the policy commenced by Douglas before Union. 40 That policy, in contradistinction to the the U.S. 41 policy, was to leave the Indians in possession of 42 their villages rather than to remove them and to allow 43 the Indians to hunt, fish and carry on their 44 activities over unoccupied Crown land, rather than to 45 confine them to the reserves. As was made evident in 46 the meetings with the Indians described in the 47 documents which follow, the reserve process clearly 28032 Submissions by Mr. Willms 1 contemplated settlement and alienation after reserves 2 had been laid out. However, to the extent that lands 3 were not settled or alienated, there was to be as 4 little interference with the aboriginal lifestyle as 5 possible. 6 I say at the top of page 11, my lord, this 7 prospect was well-known by each of the bands whom 8 O'Reilly visited. In light of O'Reilly's instructions 9 and the statements in the meetings, no band could have 10 been under the misapprehension that all the land was 11 theirs, after the reserve had been laid out. 12 The arguments advanced by the plaintiffs to this 13 effect can only be based on ethnocentric 14 characterizations of the ability of the bands visited 15 by O'Reilly to understand exactly what was taking 16 place in the reserve process. Throughout the 17 plaintiffs' argument respecting the laying out of 18 reserves, this ethnocentric approach to the 19 understanding of the Indians during O'Reilly's 20 meetings underlies, and I say is necessary to their 21 submissions especially when you read the back and 22 forth that takes place. 23 And so what you can see following, and I am not 24 going to go through them, my lord, but following this 25 I have tried, whenever there was a meeting, to put the 26 whole extract in of what happened between the 27 commissioner and the band that he was meeting with. 28 THE COURT: I don't understand that second paragraph. 29 MR. WILLMS: The second paragraph, my lord, is an argument that 30 my friends make from time to time that on the one hand 31 the -- there is some sort of thinking going on in 32 looking at the historical record that the native 33 population couldn't speak for themselves, they didn't 34 understand what was going on. My friends refer time 35 and time again to what they have called the racist 36 theory of viewing the dealings between the aboriginees 37 and the white people. What I say is that when they 38 ask your lordship to interpret every single one of 39 these documents as if the Indians didn't understand 40 what was happening, they are falling into exactly the 41 same trap that they have warned this court about and 42 us about time and time again throughout their 43 argument. They are making the suggestion that when an 44 aboriginal person is quoted, that you have to take 45 from that that he probably didn't know what he was 46 saying, he probably didn't understand the process, he 47 was confused. You have got to give him every break, 28033 Submissions by Mr. Willms 1 construe every ambiguity, even in conversations in his 2 favour. What I say, my lord, is that argument is 3 ethnocentric. It's also completely contrary to the 4 evidence that the plaintiffs led which I say shows 5 that the plaintiffs' ancestors clearly understood what 6 was going on at all times in the claim area. There 7 were no misapprehensions. 8 THE COURT: So you're saying, really, just give the Indians' 9 pronouncements the literal meaning. 10 MR. WILLIAMS: Literal meaning, my lord. 11 Now, as I said, my lord, what I have tried to do, 12 and I won't go through it, but in the next several 13 pages set out the back and forth when O'Reilly had 14 minutes. But I would ask your lordship to turn to 15 page 28. And this is one occasion when I would ask 16 your lordship also to turn to page 118 of the 17 plaintiffs' argument. This lends, my lord, support to 18 my suggestion that you have got to read all of the 19 documents, and that you can't take selective quotes as 20 the plaintiffs have done. 21 What the plaintiffs say on page 118 in the second 22 full paragraph: 23 24 \"Finally writing on July 18, 1892 O'Reilly 25 observed with respect to the establishment of a 26 reserve at Hazelton in 1891 there was a very 27 considerable complication in regard to the 28 townsite of Hazelton portions of which the 29 Indians had fenced and cultivated.\" 30 31 They put that in a section in a submission to try 32 to show that there were a lot of problems that 33 O'Reilly had in the reserve process. 34 Now, when you look at the document, and I start 35 the document at page 28, this is the document that my 36 friends refer to, the whole paragraph is on the next 37 page. And it's the second full paragraph beginning: 38 39 \"my reception ...\" 40 41 \"My reception by the Chief, 'Tet mol doc', and 42 the members of his band was most cordial; I had 43 several meetings with them; they expressed the 44 utmost satisfaction at the prospects of having 45 their lands defined; they were reasonable in 4 6 their demands, and though there was a very 47 serious complication in regard to the townsite 28034 Submissions by Mr. Willms 1 of Hazelton, portions of which they had fenced 2 and cultivated, I was fortunately able to 3 satisfy them both as to cultivable land and 4 timber.\" 5 6 Then when you read the whole document, you can see 7 that it was but a very, very minor difficulty, yet 8 that is the part that the plaintiffs pull out and put 9 in their argument, leaving the balance of the document 10 which describes the -- what O'Reilly did, and the 11 reception that he had as being most favourable. And 12 when you review the minutes of the meeting, my lord, 13 it's quite clear that O'Reilly had no difficulties at 14 all at Hazelton. 15 The next point, my lord, goes to something that my 16 friend, I think it was Mr. Grant asked me, where is 17 the evidence of pre-emptions; that O'Reilly knew about 18 pre-emptions in the reserve process. And if you go to 19 page 31 of the blue book, there is a reference to 20 Exhibit 997-12, a letter from O'Reilly to the 21 Superintendent of Indian Affairs. And Here O'Reilly 22 is writing about what happened at Kitwanga when he was 23 at Kitwanga the year before. On the next page, on 24 page 32 he says this in respect of the claim of the 25 people at Kitwanga: 26 27 \"This stretch of country, thirty-five miles, 28 included the pre-emption claims of two 29 settlers, and I told them I had no power to 30 give it to them.\" 31 32 Now, that I just draw to your lordship's attention 33 and my friend's attention because he asked where is 34 the evidence of pre-emptions at the time of O'Reilly. 35 So not only do we have the pre-emptions at Hazelton, 36 but in the land claimed by the Kitwanga people for a 37 reserve, O'Reilly knew of two pre-emptions which 38 prevented him to the knowledge of the Indians from 39 laying that reserve out. 40 THE COURT: What do you take that to mean, \"I told them\", the 41 pre-emptor's or the Indians? 42 MR. WILLMS: The Indians. You see, he had no power to gift the 43 land to the Indians because of the two pre-emptions. 44 The next -- if you turn to page 40 of the blue 45 book, my lord, I refer to -- at the bottom of the page 46 a letter from Loring to Vowell of August 3, 1896. And 47 on the next page -- I quote the whole letter, or I 28035 Submissions by Mr. Willms 1 quote a considerable part of the letter, and then say 2 at the bottom of page 41: The plaintiffs, in their 3 argument, incorrectly date this document as 1898 4 instead of 1896. And it's page 145 where they 5 incorrectly date it. And then they make a submission 6 about -- they say O'Reilly didn't care about the 7 wishes of the Indians, he just wanted to know what 8 Loring thought. And I say that the only reason why 9 Loring was asked to investigate the reserve issue at 10 Kispiox was because O'Reilly, in his letter of April 11 9, requested a report from Mr. Loring before 12 undertaking the great expense of returning to Kispiox. 13 That return was necessitated by two letters in 14 February of the same year, which I have set out in 15 this extract, my lord, from the Indians at Kispiox, 16 asking Mr. O'Reilly to return. 17 So I point out that all that Loring was being 18 asked to do in 1896 was not to find -- not to give his 19 opinion on how big the reserves should be. He was 20 asked to confirm that he understood what the wishes of 21 the Kispiox Indians were, because O'Reilly didn't want 22 to go to the expense of coming back up to Kispiox 23 unless there was going to be something done at 24 Kispiox. 25 The next extract that -- if I can ask your 26 lordship to turn to page 48 of the blue book, and at 27 the same time to page 129 of the plaintiffs' argument. 28 On page 129 of the plaintiffs' argument they say in 29 the second paragraph: 30 31 \"As for O'Reilly's statement about never making 32 a promise without seeing the land I was 33 reserving, Loring wrote in 1918\" 34 35 And then they quote from Loring's letter, and this 36 is the letter, my lord, that I have set out in greater 37 detail at page 48. 38 Now, when you read the letter, and especially the 39 part quoted, you can see that what Loring is writing 40 about was Lot 1196, range 4 partly occupied by an 41 Indian named William Leo or Canyon Creek William. All 42 right. Then he refers to William Leo or Canyon Creek 43 William, and he gives his description, and then it's 44 on the next page where you find the paragraph from 45 which the plaintiffs have taken the quote that they 46 have reproduced on page 129. The suggestion that the 47 plaintiffs make is that O'Reilly didn't go to all of 28036 Submissions by Mr. Willms 1 the places where people were, he just stayed in a 2 couple of locations. 3 The point that I make after this, my lord, is that 4 Loring's letter was written in 1918. In another 5 document, and I have the document later on in this 6 argument, it was noted that Canyon Creek William, far 7 from being on lot 1196 since time-immemorial, had only 8 been there for six years before 1915. 9 William Leo or Canyon Creek William, who this 10 letter is really about, had only been on the land 11 since 1909. It's no wonder O'Reilly missed it. 12 Now, that -- the first 49 pages, my lord, deal 13 with that reserve process, and then I carry on with 14 the other method of just putting the page number in 15 the left-hand margin. 16 THE COURT: In tab? 17 MR. WILLMS: In tab 3. So the pages 1 to 49. 18 THE COURT: Yes. 19 MR. WILLMS: Are my detailed response, including comments -- 20 including the documents on the reserve process from 21 1871 to 1898 dealt with by the plaintiffs at page 111 22 to 14 8, and that ends on page 49. And then what I do 23 from page 49 on is I set out again the page reference 24 in the plaintiffs' argument in the left-hand column 25 and then my comments in the body. 1 to 49, including 26 comments. But I have tried to put in as much of the 27 document, leaving as little out as possible, and 28 basically they are the same documents that the 29 plaintiffs have referred to, only I just set them out 30 in chronological order so you can see the story. 31 THE COURT: Then 50 to 54, then. 32 MR. WILLMS: You will see — 33 THE COURT: Are other format. 34 MR. WILLMS: The rest of the comments up to the end of this 35 section of the plaintiffs' -- 36 THE COURT: Yes. All right. 37 MR. WILLMS: -- argument. So the last extract is at page 51 38 that I would like to refer your lordship to. And what 39 I do here, my lord, is I make a reference in the 40 left-hand column to pages 163 to 176 of the 41 plaintiffs' argument, and I say that on these pages 42 the plaintiffs quotes extensively from 1035-380, the 43 1915 Royal Commission on Indian Affairs for the 44 Province of B.C., Babine Agency. I point out 45 throughout the statements of the Indians made to the 46 Royal Commission, their requests for the land back. 47 As stated earlier, this is not consistent with the 28037 Submissions by Mr. Willms 1 continued and existing ownership. It is consistent 2 with a change of mind after cession, surrender or 3 abandonment. You don't ask for your own land back, if 4 you're still asserting that it's your land. You are 5 not asking for the government to give it back to you. 6 It's your land. And if you read through these 7 sections you will see almost invariably there is at 8 least one comment in each location \"We want the land 9 back.\" 10 Now, I also set out some other extracts which I 11 say are relevant, and I do -- 12 THE COURT: Isn't that semantical, Mr. Willms? How am I to know 13 at what point what they meant or put it differently? 14 Why should I assume that the request to have land back 15 does not include the unspoken? 'It's always been 16 mine. You took it. I want it back.' 17 MR. WILLMS: My lord, when you read the whole sections, and you 18 just have to read the whole section in which they say 19 we want the land back. Because they say that in the 20 context of its our forefather's land, the white people 21 are here, we want the land back. And I just say that, 22 my lord, you take it as they say it. What they mean 23 what they say, and they are not saying, as was said at 24 Metlakatla, that \"It's all ours, and it's not yours. 25 You don't have it.\" That's not what they are saying 26 in this series of meetings. It's not Metlakatla, it's 27 \"We want it back\". And the important aspect of that, 28 my lord, is this all takes place after O'Reilly and 29 Vowell have been through laying out the reserves. And 30 I say it adds support to the submission that is made 31 that there was no misunderstanding at the time of the 32 effect of the reserve process, none at all, that each 33 of the bands visited knew, that after the reserves 34 were laid out the rest of the land was going to be 35 opened up to pre-emption, and that was that, and to 36 the extent that lands weren't pre-empted or otherwise 37 alienated, there was the continuing right to hunt, 38 which is held in common by every one over unoccupied 39 Crown land, but that was it. 40 So I just draw on that, my lord, as further 41 support for that earlier proposition. But you do have 42 to read the whole thing, my lord. I don't want to 43 take the word back out of context. I say when you 44 read it in context, that's what it means. 45 The other point, and I didn't draw your lordship 46 to the document, but you might recall the Kitwanga 47 people complaining about the Kitsegukla people on 2803? Submissions by Mr. Willms 1 their reserve and that correspondence. They weren't 2 complaining about the Kitsegukla people being on their 3 traditional tribal lands. They didn't complain about 4 the Kitsegukla people being on their house 5 territories. They complained about the Kitsegukla 6 people being on their reserve. And I say that that's 7 even further support for the understanding that after 8 the reserves were laid out that the rest of the land, 9 whatever interest they may have had or may have 10 thought they had was gone as part of that process, to 11 their knowledge and with their agreement. 12 Now, the last extract, my lord, is at page 53 that 13 I would like to direct your lordship to. And here I 14 am quoting at the bottom of the page from the Babine 15 Agency meetings, and it's from page 101 from the 16 exhibit that I start quoting from some two pages 17 before. 18 THE COURT: What is this exhibit? 19 MR. WILLMS: The exhibit is Exhibit 1035-380. 2 0 THE COURT: What is that? 21 MR. WILLMS: That is the evidence — the 1915 Royal Commission 22 on Indian Affairs, Babine Agency. 23 THE COURT: Yes. All right. 24 MR. WILLMS: And there was a joint meeting at Hazelton with the 25 Babine, Kuldoe and Kisgegas bands of Indians, and at 26 the conclusion of the meeting, and I quote this at the 27 bottom of the page, Jimmy Michell of Hagwilget, and 28 that should be in square brackets, my lord, one of the 29 ancestors of the plaintiffs, because that is not part 30 of the quote, that's me saying -- because there is 31 evidence that Jimmy Michell of Hagwilget is one of the 32 ancestors of the plaintiffs. 33 THE COURT: Yes. 34 MR. WILLMS: Met commissioners McKenna and McDowell and made the 35 following statement. 36 37 \"We object to the Gitenmax tribe getting part of 38 our reserve at Hagwilget, and if the government 39 wishes to give this part away, we, the 40 Hagwilgets, must be paid for it in money. 41 There are 203 acres in the piece and we value 42 it at $20 per acre. Or if they don't want to 43 do that, the government must give us a piece of 44 land equally as good as the piece they're going 45 to take away from us. We also wish to have our 46 fishing rights preserved from the Gitenmax and 47 we want the river to be the dividing line.\" 28039 Submissions by Mr. Willms 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. GRANT THE COURT Two things there, of course, my lord. The difference of opinion between the Wet'suwet'en and the Gitksan as to the reserve at Hagwilget, and I think your lordship has heard some evidence that there is some rule of Gitksan and Wet'suwet'en law that allows that reserve to be there, but not according to Jimmy Michell. He was unhappy about the prospect of giving part of it to the Gitksan in 1915. The second point, my lord, is the reference to the \"government must give us a piece of land\". All right. That's inconsistent with it being their land. It's completely consistent with them wanting land back. And I have already made submissions on that. Now, that takes care of that, my lord. So there are two things still that I would like to deal with, and my friends have -- I want to deal with Dr. Robinson, and I would like to deal with Dr. Robinson as soon as possible outside of normal sitting hours, so that we don't take up the small time that we have left to deal with Dr. Robinson. The second point, my lord, you might recall that I handed up the draft -- the document that Downie wrote in hand that was reproduced in the colonial -- in a colonial paper. And I only did that to show your lordship that Downie had written two documents, and one said that there was a village at the forks, and the other one didn't mention the village at the folks. And my friend said that Mr. Rush would have to speak to that. I don't know what there is to speak to, but those are the two things that I still would like to deal with, and I would like to deal with them as soon as possible. But I am in my friend's hands, I think. : When will you be ready, Mr. Grant? : I had suggested out of court to my friends that Tuesday -- we would be ready Monday or Tuesday. But if my friend is now proposing to -- if he is going to take the entire day on other parts of his submission today and not moving things up and needs the time, it's really, as far as I am concerned, in the early part of next week. If he wants it on other hours, it would be subject to your lordship's view as to what would be a convenient evening. I discussed it with Mr. Rush, and he has analyzed the Downie document, and that's why -- : Well, I hesitate to say that my social side is starting to intrude on this trial for the next three 28040 Submissions by Ms. Sigurdson 1 weeks. June is always a dreadful month. All the 2 various organizations of the bar wanting to have their 3 various functions before they depart for wherever 4 lawyers depart for in July and August, and I have very 5 few evenings in June that aren't already committed. 6 MR. GRANT: Well, I understood -- I mean, as I said, I have 7 talked to Mr. Rush. We are prepared to deal with it 8 Tuesday. 9 THE COURT: What about 9:00 o'clock Tuesday morning? 10 MR. GRANT: That's fine. That's fine with me. 11 MR. WILLMS: That's fine with me, my lord. 12 THE COURT: All right. Look forward to hearing it then. 13 MR. GRANT: Thank you. My lord, that concludes my dealing with 14 1 through 3. And Ms. Sigurdson will now deal with 15 some further points. 16 MS. SIGURDSON: My lord, I am dealing with the next tab in the 17 blue book, and that's tab 5. 18 THE COURT: 5. 19 MS. SIGURDSON: Yes. And it's an addendum to Part 4, Section 2, 20 paragraph 41. 21 Mr. Plant in his submission noted that: 22 23 \"Although the house is given pride of place in 24 the Plaintiffs' model of Wet'suwet'en social 25 organization ... it is clear that the line 26 between the house and clan is ...\" 27 28 THE COURT: I'm sorry, I'm not sure what — your Part 4 of the 29 plaintiffs' argument. 30 MS. SIGURDSON: Our argument, my lord, the province's summary of 31 argument. 32 THE COURT: So this is an addendum to plaintiffs' argument. 33 Would it be better to leave it here, or should it be 34 put into that volume? 35 MS. SIGURDSON: At your convenience. You will find when we have 36 our final index that we stay in the blue supplement 37 binder. May be convenient to make it there. 38 THE COURT: I should make a note that there is this addendum. 3 9 Is volume 4 handy? 40 MS. SIGURDSON: It will be the blue volume 2. 41 THE COURT: I'm sorry. What I need, though, is the province's 42 volume 2, I guess. 4 3 MS. SIGURDSON: Volume 1. 44 THE COURT: Plaintiffs' volume 1. 45 MS. SIGURDSON: Province's volume 1. 46 THE COURT: And it's Part 4, Section 2. 47 MS. SIGURDSON: And it should be entitled \"identity geneaology 28041 Submissions by Ms. Sigurdson 1 and descent\", and it's paragraph 41 in that section. 2 THE COURT: Yes. All right. Thank you. 3 MS. SIGURDSON: And in that part Mr. Plant submitted that: 4 5 \"Although the house is given pride of place in 6 the plaintiffs' model of Wet'suwet'en social 7 organization ... it is clear that the line 8 between house and clan is in many cases so 9 sketchily drawn as to be virtually invisible 10 ...\" 11 12 And Mr. Plant referred to your lordship a few 13 examples that indicated the Wet'suwet'en witness 14 considered the clan to be the determining factor for 15 ownership and for rights of access to territory. 16 And in paragraph 41b I set out the exchanges that 17 occurred in the transcript at that time where your 18 lordship said: 19 20 \"THE COURT: Well, I did not understand the 21 plaintiffs' evidence to be that the clan 22 members as such have rights on each other's 23 territory.\" 24 25 And Mr. Plant asserted that there was evidence to 26 that effect. 27 On page 2 your lordship said: 28 29 \"THE COURT: Because that's not what I 30 understood the burden of the plaintiffs' 31 evidence is, that house territory belongs to 32 members of a house. This is introduced in a 33 different regard, that is to say, that clan 34 territory is for clan members. And I would 35 have taken this statement of Mrs. Daum's to be 36 out of step with the burden of the evidence and 37 indeed the burden of the plaintiffs' 38 submissions ... a contradiction, as it were, in 39 the plaintiffs' basic submission.\" 40 41 And Mr. Plant agreed that it was a contradiction, 42 but had a different view of the burden of the 43 plaintiffs' evidence. 44 In this addendum, my lord, he set out further 45 examples from the evidence of the Wet'suwet'en 46 witnesses where they assert that ownership or rights 47 of access turn on clan, the clan designation of the 28042 Submissions by Ms. Sigurdson 1 member, not the house. And I will not take your 2 lordship through all of them, but I will highlight a 3 couple. And on page 3 in the evidence of Bazil and 4 Josephine Michell, and the second question: 5 6 \"Q When you say that you want to keep your 7 territory for your grandchildren, does that 8 Wet'suwet'en word mean for the younger 9 generation of people in your clan? 10 A When I refer to the future generation I am 11 referring to the people from my clan.\" 12 13 And at page 4 Emma Michell of the Laksilyu or 14 Beaver clan was asked: 15 16 \"Q Emma, if the Wet'suwet'en chiefs win this court 17 case against the province, can you tell us what 18 you would like to see changed in how your 19 territory is managed and controlled? 20 A I would like to see my grandchildren who have 21 the rights to the territory look after the 22 territories, Laksilyu and Gilseyhu and all the 23 other clans.\" 24 25 And I refer you, but will not read the evidence of 26 Mr. David at page 7. There is another extract from 27 the evidence of Madeline Alfred and from Henry Alfred 28 of the House of Wah Tah Keght, and I draw your 29 attention to the underlined portion of Madeline 30 Alfred's evidence: 31 32 \"Q So do the people of the different houses of 33 the Laksilyu have the right to go on each 34 others territories? 35 A Yes.\" 36 37 And at page 8 I have an extract from the evidence 38 of Mr. Joseph. And I said the association between 39 territories and clans was also noted by the 40 Plaintiff's expert on the Wet'suwet'en, Dr. Mills. 41 Dr. Mills was of the opinion that: 42 43 \"Under Wet'suwet'en law, feast names are legally 44 related to distinct territory ... The feast 45 names are passed on from clan member to clan 46 member, and not to someone outside of the clan 47 28043 Submissions by Ms. Sigurdson 1 ... The assumption of a name in the clan is a 2 manifestation of the holder's right to use clan 3 territory.\" 4 5 And she cites a personal communication with Mr. 6 Joseph. 7 8 \"All the name holders belong on all the clan 9 territory.\" 10 11 THE COURT: Well, is Dr. Mills perhaps using clan and house 12 interchangeably? 13 MS. SIGURDSON: She in her opinion has a section on clans and on 14 houses. She does not use the words interchangeably. 15 THE COURT: All right. 16 MS. SIGURDSON: And I conclude by saying these examples, and I 17 digress to say these are but examples of the 18 Wet'suwet'en witnesses but several other examples that 19 could be given. These examples provide further 20 illustration of the contradiction in the basic 21 position of the Wet'suwet'en plaintiffs. While it is 22 contended on their behalf that territory belongs to 23 houses, it is clear that many of the Wet'suwet'en 24 chiefs see matters quite differently. For those whose 25 evidence has been quoted above, including Dr. Mills, 26 ownership and rights of access to territory are 27 matters for the clan, not the house. 28 And those are my submissions on that point, my 29 lord. 30 Turning down to the next tab in the blue 31 supplement binder, tab 6. Before I get into the text, 32 I will just explain what we are doing here. We are 33 returning to the issue of territories. Submissions 34 were made by Mr. Mackenzie in Part 4, Section 5 on the 35 inconsistent and conflicting evidence as to the 36 ownership and boundaries of a selection of 37 territories. Mr. Willms addressed your lordship on 38 the extent and the effect of overlapping claims of the 39 enabling nations. 4 0 THE COURT: Yes. 41 MS. SIGURDSON: It was and is our position that those examples 42 that were described by Mr. Mackenzie are included in 43 his submissions and other material, and that part of 44 the argument show that there is no reputation of the 45 type asserted by the plaintiffs in the community as to 46 the ownership or the boundaries of the claimed areas. 47 However, to respond more directly to the plaintiffs' 28044 Submissions by Ms. Sigurdson 1 territory by territory argument, we will cast the net 2 a little wider and show that the evidence is 3 inconsistent and contradictory throughout claim area. 4 Mr. Mackenzie will follow me, and he will make 5 submissions on several territories and several bodies 6 of evidence. In my submissions I focus on one type of 7 evidence, and that's the sworn statements of 8 hereditary chiefs describing their territories, and 9 the statements I refer to are their affidavits in 10 response to interrogatories delivered by the province, 11 and the maps that were attached to those 12 interrogatories. And in these submissions they are 13 compared to the claimed areas as shown on Exhibit 14 646-9A and 9B. That's the plaintiffs' so-called final 15 map. 16 And turning to my addendum, I note that throughout 17 the course of the trial and in final argument, the 18 plaintiffs have emphasized that knowledge of house 19 territory, boundaries and features is essential to 20 their claim of ownership. Boundaries and features 21 within the territories are commonly known in each of 22 the Gitksan and Wet'suwet'en communties, and 23 hereditary chiefs have a duty to know the boundaries 24 of their and their neighbours' territories. And I set 25 out a few references from the plaintiffs' argument. 26 And I will just draw your attention to the underscored 27 portion on page 2 where Mr. Rush as I recall said: 28 29 \"It is one of the principle responsibilities of 30 the Gitksan and Wet'suwet'en hereditary chiefs 31 when they are invited to the feast of other 32 houses and clans to perform the essential role 33 of witnesses and validators to the claims to 34 chiefly names and titles to territories made by 35 other chiefs and houses. In order for chiefs 36 to perform their roles in this distinctive form 37 of public acknowledgement of land title, they 38 are trained by their predecessors in the 39 boundaries of their own house, territories and 40 the boundaries of the territories of the 41 neighbours.\" 42 43 And the other reference refer to the plaintiffs' 44 assertion that boundaries, ownership are common 45 knowledge in each of the Gitksan and Wet'suwet'en 4 6 communties. 47 Turning to page 3, we submit that it is part of 28045 Submissions by Ms. Sigurdson 1 the plaintiffs' case that knowledge of territories, 2 boundaries, et cetera, is widely dispersed, and that 3 the chiefs have a particular obligation to know their 4 territories, and their neighbours' territory. 5 Exhibit 646-9A and 9B allegedly depict the 6 boundaries of the house territories. These maps were 7 based on territorial affidavits, many of which were 8 sworn by persons other than the hereditary chiefs of 9 the houses claiming ownership of and jurisdiction over 10 the territories. 11 Prior to the commencement of trial, this defendant 12 delivered interrogatories to each of the named 13 plaintiffs, and that would be the hereditary chiefs of 14 the houses as described in the Statement of Claim. 15 Answers were received by way of affidavits. 16 Each named plaintiff was asked, 'Does your house claim 17 ownership of or jurisdiction over any particular 18 territory, and if so, what are the boundaries of your 19 house territories?' 20 Now, in several cases a map was attached to the 21 affidavit, and usually it was labelled a draft map, 22 and it is accepted that the hereditary chiefs' 23 affidavits were true as they swore them to be to the 24 best of their information and belief. It follows that 25 it must be accepted that the interrogatory maps 26 reflect the information and beliefs of the hereditary 27 chiefs at the time the affidavits were sworn. The 28 draft designation must be understood to refer to a 29 draft in terms of the mapping process. In that 30 context it is reasonable to expect that a boundary 31 line may be modified to more accurately reflect a 32 height of land or the extent of a drainage system. 33 Subject to that minor qualification, the 34 hereditary chiefs' descriptions in their responses to 35 the interrogatories must be taken as true statements 36 of the chiefs' knowledge of the ownership and location 37 of the territories, the key geographic features on the 38 territories, their boundaries, and the ownership of 39 neighbouring territories. 4 0 In this addendum we go through several examples, 41 comparing the interrogatory responses to map 9A and 42 9B, and it will be shown that the boundaries and 43 ownership of territories claimed by the hereditary 44 chiefs in their interrogatory responses are often 45 strikingly different from the boundaries and ownership 46 described in the territorial affidavits and depicted 47 on maps 9A and 9B. And those differences in most 28046 Submissions by Ms. Sigurdson 1 cases, many cases go far beyond any cartographic 2 inaccuracy that could be encompassed within the 3 designation draft. 4 And we say the differences show that ownership and 5 boundaries of territories are not a matter of common 6 knowledge in the Gitksan and Wet'suwet'en communties. 7 Further, the sworn statements of the hereditary chiefs 8 in their responses to interrogatories cannot be 9 reconciled with the differing depictions of their 10 territories on Exhibits 646-9A and 9B. If the latter 11 depictions are correct, then where there is a 12 discrepancy the affidavits are false. The 13 interrogatory affidavits are false. Assuming that the 14 chiefs had no intention to mislead, only one 15 conclusion follows, that the hereditary chiefs do not 16 know their territories, and on the plaintiffs' theory 17 of the case, that cannot be. 18 What I propose to do, my lord, is go through two 19 examples, and leave the rest for your lordship. But 20 for the first example I would like -- I would ask that 21 Exhibit 1020-2 be put before you. 22 Before turning to that, if I can just locate your 23 lordship on the map. The territory I am referring to 24 is shown on Exhibit 646-9A as being claimed by 25 Gaxsgabaxs, Wiis Dis and Hanamuxw. Now, that is just 26 at Kitsegukla Village. 27 THE COURT: Yes. No, I haven't found it. 28 MS. SIGURDSON: If your lordship has Skeena Crossing and the 29 Kitsegukla Reserve and Andimaul, that's in that -- 30 THE COURT: Well, this map has so many overlays on it that it's 31 hard to figure it out. 32 MS. SIGURDSON: Perhaps if I can point it out on my map and — 33 THE COURT: I know the area. I just can't quite pick it out 34 because the names of the houses are supposed to be on 35 here, and I don't recall them with three names on it. 36 MS. SIGURDSON: Three separate territories on it. One 37 Gaxsgabaxs, one Hanamuxw, one Wiis Dis. 38 THE COURT: All right. 39 MS. SIGURDSON: This may be a way of doing it. 4 0 THE COURT: Let me come down there. There is Gaxsgabaxs, I have 41 that one. 42 MS. SIGURDSON: And Hanamuxw territory and Gaxsgabaxs territory. 43 THE COURT: Yes. All right. Yes. Thank you. 44 MS. SIGURDSON: That will be what I am referring to. 45 THE COURT: All right. 46 MS. SIGURDSON: Now, in his interrogatories response Larry Wright 47 who owns the name Haakaxs, he is the head chief of 28047 Submissions by Ms. Sigurdson 1 that house, swore his affidavit, and I have the 2 affidavit, and he says in paragraph 1: 3 4 \"I am one of the plaintiffs in this action and 5 have received interrogatories served on me by 6 the defendant. I have attached hereto and 7 marked Exhibit A to this my affidavit, my 8 answers to those interrogatories. Those 9 answers are provided in the same numerical 10 order as the interrogatories.\" 11 12 Paragraph 3. 13 14 \"The answers that are attached to Exhibit A to 15 this my affidavit are true to the best of my 16 knowledge including information which I have 17 received from others.\" 18 19 And I point out in paragraph 4 that these are 20 further responses to the interrogatories as were 21 ordered by Mr. Justice Locke. But turning to the map 22 attached to Mr. Wright's affidavit. 2 3 THE COURT: Yes. 24 MS. SIGURDSON: In the centre southern of the territory your 25 lordship may be able to see the Kitsegukla Village. 2 6 THE COURT: Yes. 27 MS. SIGURDSON: Skeena Crossing the Kitsegukla Reserve. 2 8 THE COURT: Yes. 29 MS. SIGURDSON: Up in towards the northern part you may be able 30 to see Carnaby, which is in the territory claimed by 31 Hanamuxw. It's right on the border of the Haakasxw 32 territory. And it's my submission that these can be 33 compared, and this whole territory claimed by Haakasxw 34 in his interrogatories is virtually the same as the 35 three territories now said to be claimed by the houses 36 of Gaxsgabaxs, Wiis Dis and Hanamuxw on Exhibit 37 646-9A. 38 That 1020-2 is the affidavit and map of Larry 39 Wright. 4 0 THE COURT: What you're saying is that the map attached to Mr. 41 Wright's affidavit or affidavit response to 42 interrogatories, Exhibit 1020-2, is approximately 43 equivalent to three territories shown in 646-9A? 44 MS. SIGURDSON: Yes. 4 5 THE COURT: Yes. 46 MS. SIGURDSON: And we say those are completely inconsistent 47 assertions, and in light of that type of evidence it 28048 Submissions by Ms. Sigurdson 1 cannot be said that there is a reputation in the 2 community as to the ownership of that territory. 3 THE COURT: Is it convenient to take the morning adjournment 4 now? 5 MS. SIGURDSON: Yes, my lord. 6 THE COURT: You are going to another set of documents now? 7 MS. SIGURDSON: Yes. 8 THE COURT: I think we will take the adjournment now. Thank 9 you. 10 THE REGISTRAR: Order in court. Court stands adjourned. 11 12 (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS) 13 14 I HEREBY CERTIFY THE FOREGOING TO BE 15 A TRUE AND ACCURATE TRANSCRIPT OF THE 16 PROCEEDINGS HEREIN TO THE BEST OF MY 17 SKILL AND ABILITY. 18 19 2 0 LORI OXLEY 21 OFFICIAL REPORTER 22 UNITED REPORTING SERVICE LTD. 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 28049 Submissions by Ms. Sigurdson 1 (PROCEEDINGS RESUMED AT 11:15) 2 3 THE REGISTRAR: Order in court. 4 MS. SIGURDSON: My lord, I've placed before you another overlay. 5 This is an overlay that fits on the judge's series, or 6 Mr. Macaulay's map. For the purposes of these 7 submissions, I won't ask your lordship to put it on 8 the map. I have taped it to a paper print of map 9A 9 and 9B. What this map is was a cartographer's attempt 10 to map the interrogatories maps as available at that 11 time. And on the green overlay -- or I should say the 12 paper print is -- the black and white is a paper print 13 of map 9A and 9B on the 1 to 500,000 scale. The 14 legend to the overlay is in the upper right-hand 15 corner, and what the cartographer did was try to plot 16 the interrogatories maps. You'll notice that wherever 17 there is a solid circle, or a solid line around -- 18 circle around a number, that is where there was an 19 interrogatories map provided. In other areas there's 20 a broken line around a circle, and that is where the 21 interrogatories and just a general written description 22 was provided. And I tender this not as an exhibit, of 23 course, this is the exhibit -- is the interrogatories 24 map itself, and it's on the interrogatories map that 25 you see the geographic features that were claimed by 26 that hereditary chief and the neighbours that were 27 claimed by that hereditary chief, but this may be of 28 some assistance in placing your lordship in seeing the 29 differences in discrepancies. 30 By way of example, on the interrogatories map 31 legend number 1 is Xhliimlaxha, here spelled 32 X-H-L-I-I-M-L-A-X-H-A, and on the northern boundary of 33 the land claim area and about the centre, your 34 lordship may see a number 1? 35 THE COURT: Yes. 36 MS. SIGURDSON: And this is a long thin territory of 37 Kliiyemlaxhaa. Now, in her interrogatories response, 38 the chief of the House of Kliiyemlaxhaa attached this 39 map, or a map approximately showing that area as 40 describing the area over which she claimed ownership 41 and jurisdiction. And you'll note it extends far past 42 the northern boundary as presently claimed. 4 3 THE COURT: Yes. 44 MS. SIGURDSON: And you'll notice that it does not go as far 45 west as it previously did. The difference there, my 46 lord, is the boundary line on her interrogatories map 47 follow the river, the Nass River. More recently the 28050 Submissions by Ms. Sigurdson 1 claim has been altered, and her claim is asserted to 2 territory west of the Nass as well. And the other one 3 that I will point out is the Ma'uus territory that I 4 set out in paragraphs 15 to 18 of my submissions. 5 Now, on the west boundary of the land claim area, 6 and it's just at and north of Kispiox on the map -- in 7 fact, if you can recall where the Gaxsbgabaxs 8 territory we were talking about earlier -- 9 THE COURT: Yes. 10 MS. SIGURDSON: North of that is the Luutkudziiwas territory, 11 north of that Angulilbix and Ma'uus, and the Ma'uus 12 territory is the area addressed in the following 13 paragraphs of my submission. And I note in my 14 submissions that on Exhibit 646-9A Ma'uus claims two 15 territories on the west side of the Kispiox River, at 16 and north of the Kispiox Reserve, and a small Wii 17 Elaast/Amagyet territory on 9A divides those two 18 territories. In 1986 Jeffrey Harris Jr., Chief 19 Ma'uus, swore an affidavit in response to 20 interrogatories, and his answer to question 59(c) was: 21 22 \"I will accept the map attached to Schedule 'B' 23 because it is a 'draft' and it is subject to 24 change in the future to more accurately reflect 25 the exact boundaries of my territory.\" 26 27 And harken back to my submission on \"Draft\". That is 28 what we say the chiefs had in mind by the designation 29 \"draft\". It was accurate to their best of their 30 belief and knowledge, but they contemplated there 31 could be a modification to more accurately reflect the 32 precise location of a boundary point. Chief Ma'uus' 33 description of the territory of Ma'uus is inconsistent 34 with the description given by his father, Jeffrey 35 Harris Sr., who holds the name Luus, in his 36 territorial affidavit. And some of the 37 inconsistencies are on the interrogatories map. 38 Ma'uus does not claim ownership of the southern 39 territory at Kispiox village shown at 646-9A. And if 40 you can see on the overlay, my lord, that area is with 41 the interrogatories map of Antgulilbix, that's 6B. 42 THE COURT: Yes. 43 MS. SIGURDSON: So at that time, according to Jeffrey Harris 44 Jr., the chief of the house, he didn't claim that 45 area. On the interrogatories map Ma'uus claims the 46 mountains north of Date Creek. Now, on 9A Antgulilbix 47 claims those areas, although those weren't claimed in 28051 Submissions by Ms. Sigurdson 1 her interrogatories. On Exhibit 1020-8, that is the 2 interrogatories map, Ma'uus' neighbour to the north is 3 Amagyet, whereas on 646-9A the neighbour is now 4 Kliiyem lax haa. On the interrogatories map there is 5 no reference to a small Wii Elaast/Amagyet territory 6 at Date Creek, whereas on Exhibit 646-9A there is. On 7 the interrogatories map, Ma'uus' neighbour on the east 8 of the Kispiox River is Kliiyem lax haa. And that, 9 I'm afraid, you would have to see from the 10 interrogatories map itself. But on 646-9A the 11 neighbour is said to be Delgamuukw. 12 Now, we say, my lord, that it must be noted that 13 the lands in question are not remote or inaccessible 14 mountain peaks; they are the hills readily available 15 from the village, and they can be seen by people in 16 the village who are people who pass through the area. 17 And we say the question deserves to be asked on what 18 basis can a claim based on exclusivity of possession 19 be advanced where the owner cannot identify that which 20 is said to be possessed? And I take that from 21 paragraph 18 of my submissions, my lord, at page 8. 22 And, my lord, because of time constraints, I will 23 not go through the rest of my submissions orally. I 24 would just draw your attention to a conclusion at page 25 20, and where we say that the examples set out show 26 that the hereditary chiefs' perception of their 27 territories is quite different from the claims 28 described in Exhibit 646-9A and 9B. Exhibit 646-9A 29 and 9B do not reflect a consensus, or reputation, 30 within the community as to the ownership of territory 31 within the claim area, and we say that must be clear 32 in light of the conflicting contradictory evidence of 33 the hereditary chiefs themselves and their sworn 34 statements and sworn responses to interrogatories. 35 And, my lord, that concludes my submissions. 3 6 THE COURT: Thank you. 37 MS. SIGURDSON: And Mr. Mackenzie will now address you. 38 MR. GRANT: I just wondered if my friend could -- our map ratio 39 is, of course, different from Mr. Macaulay's, and if 40 my friend would have the courtesy of providing me with 41 at least the underlay so that I could follow this as 42 well. 43 MS. SIGURDSON: Yes. It is for the judge's series, and he has 44 that, but I can provide an underlay as well. 45 MR. GRANT: Yes, my lord. 46 MR. MACKENZIE: My lord, I will be speaking about Part VII, 47 which can be inserted in your lordship's binder, which 28052 Submissions by Mr. Mackenzie is volume IV of the plaintiff -- of the Province's summary. COURT: Volume IV? MACKENZIE: The blue book. COURT: Oh, in this? MACKENZIE: Which your lordship has. COURT: Oh, this is volume IV. Yes, all right. MACKENZIE: And this, as your lordship can see, is tab VII. Your lordship may not wish to insert that right now, it's — COURT: First tell me where I should install it in this blue book now, what tab number? MACKENZIE: Tab VII, my lord, Roman numeral VII. COURT: It's going to be difficult, again I don't think I have a tab VII. MACKENZIE: I just handed it to your lordship. COURT: All this? Oh, I see. That won't conveniently go in the book, I don't think. MACKENZIE: It will eventually, my lord, because it has three-hole punches that -- it's punched for three holes and it's just kept together for easy reference together with a press. COURT: Shall I put it in? MACKENZIE: No, my lord. If your lordship will remember to put it in at that tab. COURT: Okay. I'll just put a little reminder. MACKENZIE: Just take a little time to get all the separate pages in, right now it might take a little longer. COURT: All right, thank you. MACKENZIE: So — COURT: So this is Plaintiffs' — MACKENZIE: The Province's — COURT: All right, the Province's -- the Province's volume IV, tab VII. MACKENZIE: Yes, my lord. COURT: And when I get a diskette of this book it will include this tab VII, will it? MACKENZIE: Yes, my lord, the written portions of it. COURT: Yes, all right. MACKENZIE: That tab VII, as I say, can be put conveniently into your lordship's blue binder so that madam registrar has it. COURT: All right, thank you. MACKENZIE: I refer to the Table of Contents which follows the tab, my lord, to orient your lordship to the position of this material in the Plaintiffs' -- in the Province's argument. This is an addendum to Part IV, 1 2 3 THE 4 MR. 5 THE 6 MR. 7 THE 8 MR. 9 10 11 THE 12 13 MR. 14 THE 15 16 MR. 17 THE 18 19 MR. 20 21 22 23 THE 24 MR. 25 26 THE 27 MR. 28 29 THE 30 MR. 31 THE 32 MR. 33 THE 34 35 MR. 36 THE 37 38 MR. 39 THE 40 MR. 41 42 43 THE 44 MR. 45 46 47 28053 Submissions by Mr. Mackenzie 1 5(g) of the written summary. 2 THE COURT: All right. Now I've got to go to — I've got to go 3 to that now. Is part (g) in volume II perhaps? 4 MR. MACKENZIE: Yes, my lord. 5 THE COURT: Yes, all right. 6 MR. MACKENZIE: It carries over in part. 7 THE COURT: May I have volume II of the Province, please. 8 MR. MACKENZIE: The title of this addendum — oh, sorry. 9 THE COURT: That's all right. Thank you. 10 MR. MACKENZIE: My lord, the section to which this is an 11 addendum, that is 5(g), was a detailed analysis of 12 territorial boundary evidence, as it appears from the 13 top information on the Table of Contents here. And 14 the title of this material, this addendum, which I'll 15 be -- to which I'm directing your lordship's 16 attention, is \"Inconsistent Evidence As To Plaintiffs' 17 'Core' Claim Area Ownership and Boundaries\", that is 18 claim areas not covered by non-plaintiff overlaps. 19 So, my lord, this is -- these are territories that 20 are in the heartland of the Plaintiffs' claim area 21 unaffected, or only partially affected by the overlaps 22 from neighbouring nations. And referring to the Table 23 of Contents, section A contains written submissions, 24 at which I'll be going through, dealing with the 25 evidence. Section B contains a table -- just 26 referring that to your lordship, section B, which is 27 tab B, contains a table. And if your lordship will 28 just look at that to see that there is a table there 29 with several pages, 27 pages, and I'll be discussing 30 that in more detail, my lord. That is a summary of 31 inconsistent territorial ownership and boundaries 32 evidence. And then section C consists of four 33 detailed analyses: CI, C2, C3, C4, dealing with 34 analysis of some of these territories in the core 35 area. And then finally, section D is a map. Perhaps 36 your lordship can pull that out, because it will be of 37 relevance to the discussion, and your lordship will 38 see this is a paper copy of map 9A and 9B, and 39 highlighted on this map are the territories which are 40 dealt with in the table and in the submissions I'm 41 making today. If your lordship would keep that handy, 42 there are 70 territories highlighted on that map. 43 THE COURT: There's 70 pink lines on this map? 44 MR. MACKENZIE: Yes, my lord, 70. 45 THE COURT: All right, thank you. 46 MR. MACKENZIE: Now, my lord, I'll move to section A of these 47 submissions. And commencing with paragraph 1 of 28054 Submissions by Mr. Mackenzie 1 \"Introduction\", my lord, I have referred your lordship 2 to the section 5(g) of the Province's summary, where 3 there was a detailed analysis of evidence for certain 4 claim areas. And that was designed to show 5 inconsistencies and conflicts in the evidence with 6 maps 9A and 9B. At the time those submissions were 7 made, counsel submitted that \"the same exercise could 8 be done for every House territory\". 9 Following the Defendant Province's submissions, my 10 lord, your lordship commented, as I've outlined in 11 paragraph 2, that every territory had not been dealt 12 with in detail. I won't read that quote from your 13 lordship's comments, I'll pass on to paragraph 3. 14 This submission deals with boundary and ownership 15 evidence for 70 territories located in the core area 16 of the claim area which are not covered or are only 17 partially covered by overlapping claims of 18 non-plaintiff Indian groups. And I've referred your 19 lordship to the map, which your lordship has removed 20 for easy reference. 21 Paragraph 5 I refer to the table, which is at tab 22 B. It is emphasized that that table is not a detailed 23 analysis of the evidence, it's a general summary. 24 In paragraph 6 I note that there is a detailed 25 analysis of five of the core claim areas: Hagwilnegh, 26 Spookw, Wah Tah Keght, K-E-G-H-T, Wiigyet, and Wii 27 Minosik. Those two latter territories are in the 28 Shedin Creek Valley north of Kispiox. These are 29 territories -- I'm just adding to paragraph 6 now, my 30 lord. These are territories in the heartland of the 31 Plaintiffs' claim area. In our submission, the 32 unreliability of the evidence has shown that these 33 analyses adversely affects all the neighbouring house 34 claim areas. 35 The table and the map for these 70 claim areas 36 provide further support for our earlier submission 37 that for virtually every house claim area comprising 38 the entire Plaintiffs' claim area there is conflicting 39 evidence of ownership and boundaries. These 40 inconsistencies dilute the alleged reputation evidence 41 of ownership and boundaries contained in the 42 territorial affidavits and on maps 9A and 9B. 43 Reference is made to the Defendant Province's 44 submissions on reputation evidence earlier in our 4 5 summary. 46 Now, my lord, the next part of my submissions 47 review the sources of conflicting evidence, which 28055 Submissions by Mr. Mackenzie 1 comprise the contents of the table. And if your 2 lordship could have open page 1 of the table, just to 3 follow along -- the table is at tab B -- your lordship 4 will see the column headings. If your lordship would 5 just have that open as we go through paragraphs 9 and 6 10. As your lordship reviews the table, your lordship 7 can see that along the top of the table are the 8 various categories of information, with column 1 9 indicating the house claiming area, column 2 10 indicating the claim area Indian name, column 3 11 indicating the claim area English name, column 4 12 identifies the territorial affidavit, column 5 13 discusses interrogatories, column 6 refers to Exhibit 14 22. 15 THE COURT: What's Exhibit 22? 16 MR. MACKENZIE: Exhibit 22 is Chris Harris' map, my lord. I 17 will refer to that in these submissions as we go 18 through those. Exhibit 101 was that map of the 19 territory with certain areas indicated by codes. 20 Exhibit 5 — 21 THE COURT: Just a moment, please. What is Exhibit 102? 22 MR. MACKENZIE: My lord, I'm just referring your lordship now to 23 the top of the table in summary fashion, I go into 24 this in some detail later in my submissions, but 25 Exhibit 102 is a map prepared by Marvin George in 26 October, 1985. 27 THE COURT: October, 1985? 28 MR. MACKENZIE: Yes, my lord. 2 9 THE COURT: Thank you. I know what Exhibit 5 is. 30 MR. MACKENZIE: And the last two columns summarize other data 31 and evidence and the general remarks column, referring 32 to the table. 33 Now, my lord, returning to my submissions on page 34 3 at tab A, your lordship will see that I review these 35 various categories of evidence set out on the table. 36 At paragraph 10 I summarize those various sources of 37 evidence, at paragraph 11 I discuss Exhibit 22. 38 Your lordship will recall -- I'm now reading page 39 4, Exhibit 22. The court reviewed Exhibit 22 in 40 detail during the Province's submissions as to the 41 relationship between house claim areas and registered 42 traplines. 43 Exhibit 22 is a map which Neil J. Sterritt 44 obtained from Chris Harris in 1975. Mr. Sterritt made 45 notations on the map. Mr. Sterritt did not know 46 whether Chris Harris had drawn the map. The original 47 information on the map is hearsay evidence which is 28056 Submissions by Mr. Mackenzie 1 not admissible for the truth of the information 2 depicted. The map information, however, can be used 3 to dilute ownership and boundary evidence in the 4 territorial affidavits. In addition, Mr. Sterritt's 5 annotations are direct evidence inconsistent with 6 evidence in territorial affidavits, particularly those 7 relating to the Thutade and Bear Lake claim areas. I 8 refer there to the Province's earlier submissions on 9 that point. 10 Exhibit 22 is a significant source because the 11 information was obtained relatively early in the 12 information-gathering process prior to the beginning 13 of the litigation. 14 Now, Exhibit 102, as your lordship asked, that was 15 prepared by Marvin George. Mr. George testified that 16 that information was based upon Mr. Sterritt's and 17 other researchers' working maps and data sheets 18 containing information obtained from the hereditary 19 chiefs. This map is significant because it reflected 20 the views of Mr. Sterritt's and the other researchers' 21 informants at a relatively early stage in the 22 information-gathering process prior to the intensive 23 research project directed towards the production of a 24 map and affidavit to be used in this court. 25 And I now hand up to your lordship another overlay 26 for your lordship's series of that map, Exhibit 102. 27 Now, my lord, I will not be requesting your lordship 28 to review this overlay at this time or to use it on 29 your lordship's series, but your lordship will see the 30 use to which that overlay can be put later in these 31 submissions. I may say, my lord, that one of the 32 Plaintiffs' overlays purported to be a copy of that 33 trial Exhibit 102, and this is in fact a reproduction 34 of that Plaintiffs' overlay, Exhibit 646-4. As it 35 turns out, there were -- it is not a true copy of 36 trial Exhibit 102. The copy that I've handed to your 37 lordship has a legend on it summarizing the codes 38 which are contained in the various territories on 39 trial Exhibit 102. I have put trial Exhibit 102 on 40 the board beside your lordship's desk, and that is the 41 actual trial exhibit, and I'll refer to that later in 42 these reasons. 43 THE COURT: Well, this says — this shows that it's Exhibit 44 646-4. 45 MR. MACKENZIE: Yes, my lord. As I indicated, my lord, that is 46 the Plaintiffs' overlay, which purports to be a copy 47 of trial Exhibit 102. 28057 Submissions by Mr. Mackenzie 1 THE COURT: All right, yes, all right. 2 MR. MACKENZIE: And that was the understanding upon which that 3 overlay was marked as Exhibit 646-4. 4 THE COURT: What's the difference between this, what you've 5 given me now, and 646-4? 6 A What you have now, the difference between that is 7 simply the legend. 8 THE COURT: Oh. 9 MR. MACKENZIE: With the codes. The plaintiffs did not include 10 that. I submit it's a little difficult to use that 11 map without those codes, because that explains what 12 those territories are. 13 THE COURT: You put the Exhibit 102 code onto 646-4? 14 MR. MACKENZIE: That's correct, my lord. 15 MR. GRANT: But, my lord, the code — the code on the 16 Plaintiffs' map -- this code is -- it was put on the 17 base so that when you had 646-4 on your Plaintiffs' 18 map, you will see the code, it was just a question of 19 cartography. So it wasn't on the overlay, it was 20 actually on the base, so there is no difference when 21 you look at them again. 22 THE COURT 2 3 MR. GRANT 2 4 THE COURT There's no difference if I look at 102? If you look -- 102, when it's -- when it's super-imposed on the 25 base of 646-4. 26 MR. GRANT: Right. The copy of 102, which is 646-4. If you put 27 it on the base of our series you will have all of the 28 information. 2 9 THE COURT: Yes, all right. 30 MR. MACKENZIE: Yes, that's correct, my lord. This was made for 31 use with the judge's series, and so the -- so that's 32 the reason that the code was added to the overlay. 33 THE COURT: All right. 34 MR. MACKENZIE: Now, there are some other points about that that 35 I will be making later in my comments. 36 And now moving over to page -- to page 6 and 37 paragraph 14, I refer to Exhibit 101. Now, that is 38 the Carrier-Sekani overlay map. Marvin George 39 prepared that map for display at the All Clans Feast 40 at Moricetown in April 1986. It depicts the 41 boundaries of the Wet'suwet'en claim areas and the 42 extent of the Carrier-Sekani overlap. At the All 43 Clans Feast the Wet'suwet'en chiefs relied on this map 44 as an accurate depiction of their territories. 45 There's no indication on Exhibit 101 that this is a 46 draft map. There is no evidence that anyone at the 47 All Clans Feast said that it was a draft map. There 2805? Submissions by Mr. Mackenzie 1 were several references in the All Clans Feast 2 transcript, Exhibit 82, to this map as depicting the 3 Wet'suwet'en territories. 4 And in my table, references to 101 are contained 5 in the second-to-last column with other data and 6 evidence. 7 Now, carrying on to Exhibit 5. Your lordship is 8 familiar with Exhibit 5, and I have placed a copy 9 beside your lordship's desk for later reference as 10 well. That was the first map produced at the trial 11 depicting the boundaries of all the house claim areas. 12 Exhibit 5 is dated May 2, 1987. It was delivered to 13 the Defendants as a \"correct copy of the internal 14 boundaries with the names of the chiefs of those 15 territories marked thereon\". Plaintiffs' counsel 16 submitted the map for marking as an exhibit proper. 17 It was marked, however, as an exhibit for 18 identification on May 20, 1987. Plaintiffs' counsel 19 referred to Exhibit 5 as a map of the Plaintiffs' 20 internal boundaries. There is no indication on 21 Exhibit 5 that it is a draft map. Several witnesses, 22 such as Mary McKenzie, Mary Johnson and Alfred Joseph, 23 identified the boundaries of their house claim areas 24 as depicted on Exhibit 5. They testified that Exhibit 25 5 boundaries were correct. In addition, these 26 witnesses identified in further detail the house claim 27 area boundaries on enlarged maps with boundaries 28 similar to Exhibit 5. In the summer of 1987 the 29 Plaintiffs and their counsel regarded Exhibit 5 and 30 these enlarged excerpts from Exhibit 5 as accurate 31 depictions of the boundaries and the ownership of the 32 claim area. 33 Continuing on with the summary of these categories 34 of evidentiary sources, my lord, I turn to 35 Researchers' Field Notes and Data Sheets. 36 Information from these sources appears on Exhibit 37 102 and the interrogatories maps, which Miss Sigurdson 38 dealt with. The field notes and data sheets are 39 significant because they identify sources of some of 40 the information recorded on the data sheets, the 41 working maps and Exhibit 102. The working maps were 42 the maps that Mr. Sterritt and the other researchers 43 kept to record their information and which they passed 44 on to Marvin George. For example, in the case of the 45 Spookw claim area, there are several data sheets 46 indicating that Neil J. Sterritt obtained information 47 from Steven Robinson, who is chief Spookw, and Henry 28059 Submissions by Mr. Mackenzie 1 Wright of the House of Wii Gaak, which conflicts with 2 boundary and ownership information in Mr. Robinson's 3 later territorial affidavit and on map 9A. 4 Now, that evidence and those references are dealt 5 with in detail in my analysis of the Spookw territory 6 in these submissions at section C2. 7 Paragraph 17. In the case of the Tsabux, Wii 8 Minosik and Wiigyet claim areas in the Shedin Creek 9 watershed, Mr. Sterritt obtained from Henry Wright of 10 the House of Wii Gaak information conflicting with 11 James Morrison's later territorial affidavit and map 12 9A. Mr. Morrison deposed that he relied upon Mr. 13 Wright as one of his informants. Detailed references 14 to that information are contained in my analysis of 15 that -- those territories at tab C4 of these 16 submissions. Passing on to interrogatories, my lord, 17 Miss Sigurdson has dealt with interrogatories in 18 detail. I refer to Peter Muldoe's interrogatories in 19 paragraph 18. I point out that the Plaintiffs who 20 responded to the interrogatories each swore an 21 affidavit attaching interrogatories responses. 22 Subsequently, several Plaintiffs swore supplementary 23 affidavits, so in many cases we have two affidavits. 24 For example, Peter Muldoe swore an affidavit in 25 September 1986 and a supplementary affidavit in 26 February 1987. And we dealt with those in Mr. 27 Muldoe's cross-examination. 28 In his September interrogatories affidavit, Mr. 29 Muldoe deposed in paragraph 3: 30 31 \"The answers that are attached as Exhibit 'A' to 32 this my affidavit are true to the best of my 33 knowledge except where stated to be upon 34 information and belief and where so stated I 35 verily believe them to be true.\" 36 37 Interrogatory 59(c) was as follows: 38 39 \"What are the boundaries of your house's 40 territory?\" 41 42 Mr. Muldoe responded as follows: 43 44 \"The boundary of some of Gitludahl's territory 45 is set out in Schedule C.\" 46 47 Schedule C was a map of the Gitludahl territory. 28060 Submissions by Mr. Mackenzie 1 At tab 10 of these submissions following what I'm 2 reading now, my lord, is contained -- are contained 3 the references which I make in these paragraphs 4 dealing with Mr. Muldoe's interrogatories. I won't go 5 through those in detail. I have a copy, for example, 6 of the transcript and Mr. Muldoe's interrogatories 7 affidavit there. 8 Paragraph 21. Mr. Muldoe then swore a 9 supplementary affidavit, where he deposed again: 10 11 \"The answers that are attached as Exhibit A to 12 this my affidavit are true to the best of my 13 knowledge including information which I have 14 received from others.\" 15 16 And in -- Mr. Muldoe, in that February affidavit, 17 referred again to his interrogatories map, and Miss 18 Sigurdson has dealt with this question of draft maps 19 in paragraph 23 of my submissions. 20 Paragraph 24 I point out, as Miss Sigurdson did, 21 in many cases there are major discrepancies between 22 the location and boundaries of the house claiming area 23 shown on the interrogatories map and those shown on 24 maps 9A and 9B. And that can be seen from an 25 examination of the interrogatories map overlay and the 26 map 9A and 9B base which Miss Sigurdson handed to your 27 lordship. 28 These responses are true to the best of the 29 Plaintiffs' knowledge, referring to paragraph 25 of my 30 submissions. The Plaintiffs' responses to 31 interrogatory 59(c) are not said to be based upon 32 information and belief. The information is alleged to 33 be true to the best of the personal knowledge of the 34 Plaintiff answering the interrogatories. 35 Where such sworn evidence in the interrogatories 36 responses and maps conflicts with territorial 37 affidavits and maps 9A and B, the alleged reputation 38 as to boundaries and ownership in the territorial 39 affidavit is diluted to the point of invisibility. 40 There is significance also if the response to 41 interrogatory 59(c) does not identify a house claim 42 area later depicted on map 9A or 9B. The inference is 43 that the Plaintiff is unaware of that claim area. In 44 addition, if the -- 45 THE COURT: You mean is or was? 46 MR. MACKENZIE: Was at the time of swearing the affidavit, my 47 lord. 28061 Submissions by Mr. Mackenzie 1 THE COURT: Yes. There aren't any areas that are left unclaimed 2 at the end of the day, are there? 3 MR. MACKENZIE: That's correct, my lord. 4 THE COURT: Yes, thank you. 5 MR. MACKENZIE: In addition, if the response to the question 6 \"What are the boundaries of your house's territory?\", 7 consists of a vague reference to an area without any 8 boundaries indicated, that, too, is significant. The 9 obvious inference from such vagueness or lack of 10 response is either that the boundaries are 11 unimportant, or that ignorance was the state of the 12 Plaintiffs' knowledge when he or she swore the 13 affidavit to which the responses were attached. 14 Now, my lord, that concludes my discussion of the 15 general areas of evidence contained in the table. The 16 whole point of my submissions, of course, is simply to 17 hand the table to your lordship, and what I am doing 18 now is describing the table for your lordship. And on 19 page 12 I summarize the contents of the various 20 columns, which I've already done with your lordship. 21 Page 13, paragraph 33 of my submissions I point 22 out the analysis in the Table is not exhaustive; there 23 are many more examples of inconsistencies in the 24 evidence in addition to those summarized in the Table. 25 Paragraph 34 I refer to the various overlays which 26 your lordship now has in order to compare the mapping 27 for these claim areas over the years, and the -- to 28 determine the inconsistencies. And for your 29 lordship's convenience, I have actually provided 30 excerpts from all of these overlays for one territory. 31 I plan to go through each overlay for one territory in 32 this table to show your lordship how this table works. 33 Now, paragraphs 35 and 36 I refer to the map which 34 I have — 35 THE COURT: That's this one? 36 MR. MACKENZIE: — to which I've drawn your lordship's 37 attention. Yes. It shows the areas in the core which 38 are dealt with in these submissions. 39 Now, I turn then, my lord, to give your lordship 40 an example of the working of the table, and turn to 41 the table at page 10 -- page 10 and 11. And I now 42 deal with the Hagwilnegh information. Does your 43 lordship see Hagwilnegh on page 10 of the table? 4 4 THE COURT: Yes. 45 MR. MACKENZIE: If your lordship will open page 10 and page 11 46 and have those handy. Now, I will proceed through 47 those columns, and, my lord, I have provided for your 28062 Submissions by Mr. Mackenzie 1 lordship the references in this -- these entries so 2 that the table may be used for all the entries after 3 this example has been completed. The overlays and 4 maps to which I will refer are contained in a pocket 5 following tab 10 in your lordship's binder. If your 6 lordship could take those materials out, and if your 7 lordship can keep the paper clip handy, that will be 8 useful to pin the overlays to the base map. 9 The first document which appears is the base map, 10 and that is a black and white copy of the base map for 11 the judge's series. And directing your lordship to 12 that, this is an excerpt from the base map showing the 13 area covered by Hagwilnegh's claim, and I'm going to 14 now orient your lordship to that location. Your 15 lordship may see Smithers in the upper right-hand 16 corner. 17 THE COURT: I understand the map. 18 MR. MACKENZIE: Yes, my lord. And McDonell Lake is an important 19 geographic feature in these submissions. The next 2 0 document is -- the next document is an overlay which 21 is an excerpt from Exhibit 646-9B. It should be a 22 black plastic overlay, and it should say \"Hagwilnegh\". 2 3 THE COURT: Yes. 24 MR. MACKENZIE: That, my lord, is the claim area of Hagwilnegh. 25 That may be placed on the base map by aligning the 26 external boundaries generally to get an idea of the 27 current claim area presently claimed by Hagwilnegh on 28 map 9B. Now, using the paper clip, your lordship 29 could affix the overlay to the base map. 30 THE COURT: They don't coincide. 31 MR. MACKENZIE: No, this one doesn't coincide exactly, but your 32 lordship could place that on by aligning the external 33 boundary on the left. 34 THE COURT: As close as you can make it? 35 MR. MACKENZIE: Yes, my lord. 3 6 THE COURT: Yes. 37 MR. MACKENZIE: So now your lordship will see, having placed 38 that overlay on the base map, that Hagwilnegh claims a 39 large area from McDonell Lake south across the Telkwa 4 0 River. 41 THE COURT: Yes. 42 MR. MACKENZIE: And down to just north of — and including the 43 headwaters of a river known as the Thauril River. 4 4 THE COURT: Yes. 45 MR. MACKENZIE: And now that's the claim area. If your lordship 46 will just keep that handy, and referring to page 10 of 47 the table, we are now at column 4 of the table. If 28063 Submissions by Mr. Mackenzie your lordship could just keep those documents handy. COURT: Yes. MACKENZIE: And the reference to the territorial affidavit is contained in column 4, my lord, that's Mr. Johnny David's territorial affidavit. If your lordship could write there \"tab 1\", because that affidavit appears at tab 1 of your lordship's binder. COURT: That is J. David, tab 1? MACKENZIE: Yes, my lord. COURT: Tab 1 of what? MACKENZIE: Tab 1 of your lordship's binder. COURT: Of this book? MACKENZIE: Yes. And without going into that, my lord, I will say that in that section is contained references to this territory set out on map 9B. COURT: Yes. MACKENZIE: And actually at page 6 of that table, paragraph 19 and paragraph 21 of that -- sorry, tab 1 -- COURT: Yes. MACKENZIE: Mr. David refers to McDonell Lake, and he refers to this area which is shown that is claimed by Hagwilnegh. Now, moving on -- does your lordship have that general reference? COURT: Yes. MACKENZIE: Yes. Now, moving on with the overlays and now -- and on the table, my lord, the next column on the table deals with interrogatories, and the next overlay should be a green overlay, which is an excerpt from the interrogatories maps that Miss Sigurdson handed up to your lordship. And that can be placed on the base map and 9B aligning along the external boundary. COURT: Yes. MACKENZIE: If your lordship does that, of course, my lord, this can be done with the large overlays too, these are just excerpts. COURT: Oh, yes. MACKENZIE: Your lordship will see the number 15a at McDonell Lake, and that is, as will be seen from -- as could be seen from the legend on the overlay map, is John Namox's interrogatory, the interrogatory of Wah Tah Kwets. And looking at my table, page 10, in column 5 I say: 1 2 THE 3 MR. 4 5 6 7 8 THE 9 MR. 10 THE 11 MR. 12 THE 13 MR. 14 15 16 THE 17 MR. 18 19 THE 20 MR. 21 22 23 24 25 THE 26 MR. 27 28 29 30 31 32 33 34 THE 35 MR. 36 37 38 THE 39 MR. 40 41 42 43 44 45 46 47 'Major inconsistency. Wah Tah Kwets interrogatories map covers McDonell Lake claim 28064 Submissions by Mr. Mackenzie 1 area.\" 2 3 Does your lordship see that on the table? 4 THE COURT: Yes. 5 MR. MACKENZIE: If your lordship would make a note at that 6 point, tab 2 is Mr. Namox's interrogatories response, 7 his affidavit, that's Exhibit 828. 8 THE COURT: Yes. 9 MR. MACKENZIE: And then Mr. Namox swears the usual affidavit, 10 then carrying on, Mr. Namox refers to in interrogatory 11 58 to a geographical feature, MacDonald Lake, which 12 may or may not be McDonell Lake. I'll just hang on. 13 Does your lordship have tab 2, Exhibit 828? 14 THE COURT: Yes. 15 MR. MACKENZIE: And I've referred your lordship about four pages 16 in to the interrogatories responses. 17 THE COURT: Yes. 18 MR. MACKENZIE: Carrying on, my lord, to interrogatory response 19 number 63 at just another two pages on at tab 1 -- 2 0 THE COURT: Yes. 21 MR. MACKENZIE: And at that response Mr. Namox says: 22 23 24 \"A copy of the map of my territory which roughly 25 delineates the boundaries is set out as 26 Schedule B to these answers.\" 27 2 8 THE COURT: Yes. 29 MR. MACKENZIE: And carrying over to tab 3, my lord, is the 30 interrogatories map. That is John Namox's 31 interrogatories map, Wah Tah Kwets' interrogatories 32 map. Now, on the right-hand side is the north 33 designation, my lord. 34 THE COURT: Yes. 35 MR. MACKENZIE: And the point of the arrow should be pointed 36 north up to the top, and Smithers is right there on 37 the right-hand side about -- just up from the north 38 designation, just to orient your lordship. Does your 39 lordship see the \"N\" for \"North\"? 4 0 THE COURT: Yes. 41 MR. MACKENZIE: And does your lordship see \"NR\" going up to 42 Smithers? 4 3 THE COURT: Yes. 44 MR. MACKENZIE: The purpose of that, my lord, is simply to 45 orient your lordship. If your Lordship would go west 46 to Smithers we see Hudson Bay Mountain. 4 7 THE COURT: Yes. 17 THE COURT 18 MR. GRANT 19 THE COURT 28065 Submissions by Mr. Mackenzie 1 MR. MACKENZIE: And then you have the claim area, or Mr. Namox's 2 interrogatories area, in the centre of this map west 3 of Hudson Bay Mountain, and right in the north-west 4 portion is a lake with a Wet'suwet'en name, but that 5 is MacDonald Lake right on the boundary there. 6 THE COURT: Yes. 7 MR. MACKENZIE: So does your lordship see that? 8 THE COURT: No. I can't say that I found the lake yet. What's 9 the Indian name for the lake? 10 MR. MACKENZIE: It starts with D-Z-O, my lord. There are some 11 district or mining lot numbers right on the boundary, 12 north central boundary straight across from Smithers 13 west of -- past Hudson Bay Mountain, and lot numbers 14 are lot 2549, lot 517. 15 THE COURT: Yes, I see the lake, yes. 16 MR. MACKENZIE: Yes, my lord. Right on the boundary. D-A-T. D-A-T, yes, I have it. 20 MR. MACKENZIE: Perhaps your lordship could circle that for ease 21 of reference. 22 THE COURT: Yes. It didn't look like that when I saw it. 23 MR. MACKENZIE: So, my lord, your lordship will see that the 24 green overlay which we've placed on the base map 25 represents the area which is depicted on John Namox's 26 interrogatories map. 2 7 THE COURT: Yes. 28 MR. MACKENZIE: Thank you, my lord. I've finished with that 29 interrogatories map, my lord. 30 THE COURT: So have I. 31 MR. MACKENZIE: Now, my lord, we're still in the table, 32 interrogatories column on the table. 33 THE COURT: Yes. 34 MR. MACKENZIE: And your lordship could make a point that the 35 map, Exhibit 828A is at tab 3. And if your lordship 36 would just put tab 3 -- 37 THE COURT: Yes, all right. 38 MR. MACKENZIE: Then carrying on in that table, my lord, is the 3 9 comment: 40 41 \"Hagwilnegh interrogatories response to 59(c) 42 does not mention McDonell Lake or Keel 43 Weniits.\" 44 45 If your lordship could put tab 4 at that comment. 46 Now, my lord, the point that is probably clear, but 47 Hagwilnegh is said to claim this area we are speaking 28066 Submissions by Mr. Mackenzie about now, but there's no mention in his interrogatories response about this area. Now, if your lordship would be kind enough to turn to tab 4, your lordship will see Hagwilnegh's interrogatories affidavit and response set out there. Does your lordship have that reference? COURT: Yes. MACKENZIE: And that interrogatory 59(c), the question is: \"Q What are the boundaries of your house's territory? A Boundaries are Blunt Creek to the east and the western boundary is Blunt Mountain.\" In other words, Mr. Williams is there referring to the — COURT: I haven't found that yet. MACKENZIE: Sorry, my lord, we're at tab 4. COURT: Yes. MACKENZIE: And if your lordship can follow past the affidavit to interrogatories answer 59(c) on page 11 -- COURT: Oh, yes. MACKENZIE: Does your lordship have that? That's quite a ways down the page. COURT: Oh, yes. The boundaries are Blunt Creek to the east and the western boundary is Blunt Mountain. MACKENZIE: Those are — COURT: Blunt Mountain is on the other side of the Skeena, isn't it? MACKENZIE: Other side of the Bulkley, my lord. COURT: Bulkley, sorry, yes. MACKENZIE: It's north-east of Moricetown. That's Blunt Creek and Blunt Mountain, that area which is now claimed by Goohlaht Kaspit. COURT: Yes. MACKENZIE: Now, turning to the table, my lord, column 6 refers to Exhibit 22, but Exhibit 22 it deals with Gitksan territories and claim areas, so that is not applicable here. Carrying on to column 7, a reference to Exhibit 102. Now, if your lordship now will return to your overlays, your lordship will see an overlay in red ink. That, my lord, is an excerpt from Exhibit 646-4, which purports to be Exhibit 102. COURT: Yes. MACKENZIE: So aligning that with the external boundaries, 1 2 3 4 5 6 7 THE 8 MR. 9 10 11 12 13 14 15 16 17 THE 18 MR. 19 THE 20 MR. 21 22 23 THE 24 MR. 25 26 THE 27 28 MR. 29 THE 30 31 MR. 32 THE 33 MR. 34 35 36 THE 37 MR. 38 39 40 41 42 43 44 45 46 THE 47 MR. 28067 Submissions by Mr. Mackenzie your lordship will see that -- just looking at the overlay, that the house or the designation of the house claiming the McDonell Lake area is 7-H-44. Does your lordship see that? COURT: Mm-hmm. MACKENZIE: And going down to the Telkwa River, the designation of the house claiming that is 7-H-43. COURT: Yes. MACKENZIE: Carrying on south, the designation is 7-H-44. Does your lordship see that? COURT: Yes. MACKENZIE: Now, my lord, on the legend which is affixed to Exhibit 102, 44 refers to Wah Tah Kwets, K-W-E-T-S. COURT: Yes. MACKENZIE: I have a copy of the legend to hand up to your lordship. COURT: I have it here. MACKENZIE: The designation of 43 is Hagwilnegh. Now, my lord, I have to say now that the point can be made that is still inconsistent with the Hagwilnegh claim to McDonell Lake, but I have to say now that trial Exhibit 102, the trial exhibit does not have these numbers, the numbers have been changed, and I have an excerpt from trial Exhibit 102, and I've also put up trial Exhibit 102 on the sideboard beside your lordship. Now, does your lordship have a white and black paper photocopy of trial Exhibit 102 in your lordship's collection? COURT: With the legend? MACKENZIE: With the overlays, small eight and a half by eleven. COURT: Overlay? MACKENZIE: It should follow the overlays, my lord. Here's a copy. Yeah, it's the very last one. It should say -- I've handed one to your lordship so your lordship can add that in. I'm just making the point here, my lord, I'm moving over to the copy of trial Exhibit 102 which I've placed before your lordship's desk, and I have the excerpt from that map and trial exhibit in my hand, and I now point your lordship to the designation at McDonell Lake, which is number 45. COURT: Yes. MACKENZIE: And the designation further south is number 43, so that has not changed, but the designation further south is number 45. COURT: Yes. MACKENZIE: And, my lord, number 45 on the legend is Wah tah 1 2 3 4 5 THE 6 MR. 7 8 THE 9 MR. 10 11 THE 12 MR. 13 14 THE 15 MR. 16 17 THE 18 MR. 19 20 21 22 23 24 25 26 27 28 29 THE 30 MR. 31 32 THE 33 MR. 34 35 36 37 38 39 40 41 42 THE 43 MR. 44 45 46 THE 47 MR. 2806? 1 2 THE 3 MR. 4 5 6 7 8 9 10 11 THE 12 MR. 13 14 THE 15 MR. 16 17 18 19 THE 20 MR. 21 22 THE 23 MR. 24 THE 25 MR. 26 THE 27 MR. 28 29 THE 30 MR. 31 32 THE 33 MR. 34 THE 35 36 MR. 37 38 MR. 39 THE 40 MR. 41 42 43 THE 44 MR. 45 THE 46 MR. 47 Submissions by Mr. Mackenzie Keght, K-E-G-H-T. COURT: Yes. MACKENZIE: So, my lord, to that extent the overlay, the Plaintiffs' Exhibit 646-4, is not a true copy of trial Exhibit 102, as it is indicated as being. But that is a point that's not necessary to be made any further with respect to the table, my lord. Trial Exhibit 102, as I've indicated on the table, has the area attributed to Wah Tah Keght. Does your lordship have that? COURT: Yes. MACKENZIE: Yes. And it also has the area to the south attributed to Wah Tah Keght. I made an error there. COURT: Yes. MACKENZIE: So if your lordship could amend the table in column 7 to put Wah Tah Keght, K-E-G-H-T, for the McDonell Lake area, and also for the house and creek area in column 7. COURT: It should be Wah Tah — MACKENZIE: K-E-G-H-T. That's the bottom, my lord, house and creek area. Does your lordship see that? COURT: You're talking about the bottom? MACKENZIE: Paragraph — entry. COURT: Paragraph on the Exhibit 102 column? MACKENZIE: Yes, my lord. COURT: And what is the change that should be made? MACKENZIE: It should be changed from K-W-E-T-S to K-E-G-H-T. COURT: Yes. MACKENZIE: That's the reference to the actual trial exhibit. COURT: Yes. MACKENZIE: But the point can be made -- sorry, my lord. COURT: But both of these territories on the overlay you showed me are attributed to 44? MACKENZIE: That's correct, my lord. And that is Wah Tah Kwets, K-W-E-T-S. MACKENZIE: K-W-E-T-S. COURT: Yes. MACKENZIE: So the overlay is inconsistent as well. The point that I'm making here is that it's different from Exhibit 102, which is -- was not expected. COURT: What's the number of the overlay? MACKENZIE: The overlay is Exhibit 646-4. COURT: Yes, all right. MACKENZIE: My lord, then I'll pass on to the rest of this -- moving on to column number 8, which is the 28069 Submissions by Mr. Mackenzie 1 Exhibit 5 column, your lordship will find an overlay 2 with blue coloured ink. These are all indicated in a 3 tab in the upper right-hand corner by their exhibit 4 number, my lord. 5 THE COURT: Yes. 6 MR. MACKENZIE: Now, affixing that Exhibit 5 excerpt to the 7 external boundary, your lordship will see the 8 information summarized in the table column 8 with 9 respect to Exhibit 5. 10 THE COURT: Yes. 11 MR. MACKENZIE: Now, Exhibit 5, Wah Tah Kwets, K-W-E-T-S, 12 claims McDonell Lake and the Howson Creek areas to the 13 south. Does your lordship see that on Exhibit 5? 14 THE COURT: Yes. 15 MR. MACKENZIE: Yes. That completes the reference to Exhibit 5, 16 my lord. 17 THE COURT: Hagwilnegh claims only the middle area? 18 MR. MACKENZIE: Yes, my lord. And that is indicated on table 19 column 8. 2 0 THE COURT: Yes, my lord. Moving to column 9, I have not — or 21 I will not go through the evidence in detail, but I'm 22 going to ask your lordship to note the tabs where this 23 evidence is contained in your lordship's binder. Now, 24 reading in column number 9: 25 26 \"Lucy Bazil and Pat Namox stated that McDonell 27 Lake is in Wah Tah Kwets claim area.\" 28 29 And if your lordship could put down there tab 5 for 30 Exhibit 99. 31 THE COURT: Yes. 32 MR. MACKENZIE: Tab 6 for Exhibit 672A. Does your lordship have 33 that reference? 34 THE COURT: Yes. 35 MR. MACKENZIE: And as I've already pointed out to your 36 lordship, this table is a summary analysis, it doesn't 37 go into details. A lot of the details can be made, 38 but Lucy Bazil and Pat Namox are members of the House 39 of Wah Tah Kwets who were examined on commission. I'm 40 just speaking now in elaborating on this point, my 41 lord, and they gave that evidence which is set out at 42 those tabs. I should also point out that there is a 43 detailed analysis of this area, much more detailed, 44 set out at tab -- in section CI of these submissions. 45 Now, carrying on in that column 9: 46 \"Johnny David agreed that Wah Tah Kwets owns an 47 area around Beaver Creek near McDonell Lake.\" 28070 Submissions by Mr. Mackenzie 1 2 That is tab 7. Johnny David, of course, was the 3 territorial affient, he was cross-examined. Carrying 4 on in column 9: \"Alfred Joseph testified that the 5 Howson Creek claim area\" -- that's the southern 6 most -- \"was Wah Tah Kwets\". And that reference is 7 tab 8. And because of the time constraints, I'm just 8 going to summarize Alfred Joseph's evidence by 9 directing your lordship to Exhibit 5. 10 Alfred Joseph is Gisdaywa, and he was asked to 11 describe the territories bordering his claim area, and 12 he spoke about the northern tip of his claim area, and 13 he said that Wah Tah Kwets owned the area to the west 14 of the northern tip of his claim area. And that is a 15 reference on Exhibit 5 to this southern area, which 16 was then claimed by Wah Tah Kwets. And carrying on in 17 that column, my lord, this is on -- we're on page 11, 18 carried on on page 11. 19 THE COURT: Yes. 20 MR. MACKENZIE: On Exhibit 101, the McDonell Lake area is 21 attributed to Wah Tah Kwets, and I have included a 22 paper copy of Exhibit 101 with your lordship's 23 overlays. It is noted as being Exhibit 101 in the 24 upper right-hand corner of the exhibit. 2 5 THE COURT: Yes. 26 MR. MACKENZIE: And the information your lordship can orient 27 yourself with Smithers on the right. 2 8 THE COURT: Yes. 29 MR. MACKENZIE: Yes. So that's that point. This is Exhibit 30 101, which is the Carrier-Sekani overlay map, my lord. 31 THE COURT: Yes. 32 MR. MACKENZIE: We discussed in detail. Now, reading from the 33 table on page 11: Johnny David and John Namox were 34 both at the All Clans Feast on April 6th, 1986, where 35 Exhibit 101 was displayed. They were prominent 36 participants. Finally in that column, another 37 reference to Pat Namox, my lord. He has a registered 38 trapline at McDonell Lake. He continues to hunt and 39 trap there, and the reference there is tab 9 of your 40 lordship's binder. 41 THE COURT: And that's 672A. 42 MR. MACKENZIE: Yes, my lord. 4 3 THE COURT: Is tab 9. 44 MR. MACKENZIE: Yes. And that completes my review of the 45 references, my lord. 46 And finally, the final column for this territory 47 on page 10, is a summary of the -- of what in our 28071 Submissions by Mr. Mackenzie submission arises from all this inconsistent evidence. Does his lordship have that column? COURT: Back to page — MACKENZIE: Page 10, my lord. COURT: Of your text? MACKENZIE: No, page 10 of the table, my lord. COURT: Oh, yes, yes. MACKENZIE: Just continuing on under \"Hagwilnegh\", \"Remarks\": Until at least 1988, when map 9B was produced, the Plaintiffs regarded McDonell Lake and Howson Creek as Wah Tah Kwets' claim areas, and in our submission, no reputation has been established there for the ownership and boundaries of these territories. My lord, that is a summary review of one entry in this table showing how the table operates. And would your lordship wish to adjourn at this time or -- COURT: Oh, yes, I think so, but before we do, could you make a suggestion what I should do with these overlays? MACKENZIE: The overlays should be put together, my lord, and returned to the pocket following tab 10 in your lordship's binder. COURT: Yes, all right. Is it necessary to have the paper in between each one; do they rub off? MACKENZIE: No. I think that's because it was wet at the time, my lord. MACKENZIE: Sometimes they stick to each other, my lord. COURT: They were in this envelope, were they? MACKENZIE: Yes, my lord, pocket tab 10 in your lordship's binder. COURT: All right. We'll adjourn then until 1:32 or thereabouts. REGISTRAR: Order in court. (LUNCHEON RECESS TAKEN AT 12:30) 1 2 3 THE 4 MR. 5 THE 6 MR. 7 THE 8 MR. 9 10 11 12 13 14 15 16 17 THE 18 19 20 MR. 21 22 23 THE 24 25 MR. 26 27 MR. 28 THE 29 MR. 30 31 THE 32 33 THE 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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. 28072 Submissions by Mr. Mackenzie 1 (PROCEEDINGS RESUMED AT 1:30 p.m.) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Yes, Mr. Mackenzie. 5 MR. MACKENZIE: Thank you, my lord. My lord, this morning we 6 reviewed the entry for the House of Hagwilnegh and in 7 the table at tab B of your lordship's binder, we 8 reviewed the references contained in the table for 9 that entry. Same exercise can be done for the rest of 10 the 17 entries in that table. Some of those claim 11 areas have been dealt with in more detail at tab C of 12 your lordship's binder, and I'll refer to that tab now 13 if your lordship has that. 14 THE COURT: Yes. 15 MR. MACKENZIE: The first item at tab C is the detailed analysis 16 of the Hagwilnegh area which we have just gone through 17 on the table, and your lordship is now aware that 18 that -- has been aware that that area is just west of 19 Smithers in the McDonell Lake area, and that appears 20 on this map that I have handed up to your lordship of 21 map 9A and B. Perhaps your lordship might note that 22 Hagwilnegh is dealt with at tab CI in detail. 23 That's -- I point out as a result of the analysis in 24 these pages -- that these pages are not as detailed as 25 the analysis we did earlier in section 5G, but the 26 submission is made that the inconsistent evidence 27 supports the proposition that the reputation for 28 ownership and boundaries of that house have been 29 reduced to the point of invisibility and unreliability 30 and that affects the reputation for the surrounding 31 and adjoining house claim areas. And can your 32 lordship locate that on map 9A and B? 33 THE COURT: I was just looking at Hagwilnegh and, yes, I have 34 it, thank you. 35 MR. MACKENZIE: The next item at tab 2 in your lordship's 36 binder, section C, is the Spookw territory. I am 37 turning to that now, my lord. That is the area near 38 Hazelton and it's referring to the map again that's 39 right in the centre of the plaintiffs' claim area. 40 Does your lordship have that? 41 THE COURT: Yes. 42 MR. MACKENZIE: That is dealt with in detail at tab 2, and of 43 course is also dealt with in summary in the table at 44 page 21 of the table. The same comment can be made 45 for the Spookw territory and I refer your lordship 46 briefly to paragraph 15 on page 5 of the Spookw 47 analysis. The final point should be made that the 28073 Submissions by Mr. Mackenzie 1 Spookw claim area is in the Gitksan heartland. This 2 is not a remote wilderness claim area. The many 3 serious inconsistencies as to Spookw claim areas and 4 ownership illustrate the lack of any settled 5 reputation as to the location and ownership of this 6 and all the plaintiffs' claim areas. Your lordship 7 will recall that is the territory right at New 8 Hazelton. 9 Continuing on, my lord, to tab 3. I deal here 10 with the Wah Tah Keght, k-e-g-h-t, area and this is 11 Moricetown. This is Wet'suwet'en heartland area. In 12 my submission, the points made in this analysis 13 supports the conclusions on pages 6 and 7 of this 14 section, C-3. Refer your lordship to paragraph 21 on 15 page 7. This is with respect to the Wah Tah Keght, 16 k-e-g-h-t, territory at Moricetown. The lack of 17 reliable evidence or reputation as to the Wah Tah 18 Keght boundaries affects the boundary evidence for all 19 other claim areas with which this claim area has a 20 common boundary, including Goohlaht, Woos, Woos, 21 (Gyologyet), Hagwilnegh, Guxsan, Gwis Gyen and 22 Djogaslee. 23 And continuing on now to the final section of 24 this -- these analyses, my lord. This is section 4 25 and this refers to the Wiigyet and Wii Minosik claim 26 areas just north of Kisgagast and I locate your 27 lordship to that location. 2 8 THE COURT: I have found it. 29 MR. MACKENZIE: Yes, my lord, that's in the Shedin Creek 30 Watershed. And, in summary, the evidence as analyzed 31 in the section 4 and also referred to in the table 32 shows that there are several inconsistencies both in 33 the interrogatories, maps and data sheets on previous 34 maps and in other evidence relating to these two 35 territories which leads to the propositions on page 6 36 of this section at paragraph 16. Whether or not the 37 conflicting evidence is more reliable, it casts 38 doubt -- casts doubt on the credibility of the James 39 Morrison's territorial affidavit. It is submitted 40 therefore there is no reliable evidence as to 41 boundaries and ownership of these two claim areas. 42 THE COURT: When you say whether or not it is more reliable, 43 more reliable than what? 44 MR. MACKENZIE: More reliable than the evidence in the 45 territorial affidavit, my lord. A point should be 46 made again, my lord, that the map is based upon the 47 territorial affidavits. 28074 Submissions by Mr. Mackenzie 1 THE COURT: Yes. 2 MR. MACKENZIE: And the fact that this conflicting evidence is 3 being compared to the territorial affidavit would 4 appear from my reading of the previous paragraphs in 5 the section. And so, my lord, paragraph 17, the 6 conclusion follows that there is no reliable 7 foundation and no reputation for the boundaries and 8 ownership of these two claim areas. 9 The lack of reliable evidence or reputation as to 10 the boundaries and ownership of these two claim areas 11 affects the boundary evidence and the ownership 12 evidence for all other claim areas with which they 13 have a common boundary, including Tsabux, Shelf Ridge, 14 Tsabux, Upper Shedin, Luus, Larkworthy Creek, and Wii 15 Gaak - Shelagyot/Sustut. 16 THE COURT: Are those names somewhere conveniently available for 17 madam reporter? 18 MR. MACKENZIE: The madam reporter is following along with these 19 submissions, my lord. She has them in front of her. 2 0 THE COURT: Thank you. 21 MR. MACKENZIE: And so, my lord, all these territories 22 highlighted on your lordship's map can be found in 23 alphabetical order in the table with those five to 24 which I have just referred -- dealt with in more 25 detail in these analyses at tab C. 26 That completes my submissions on that material, my 27 lord. 28 THE COURT: All right. And is it your suggestion that I should 29 now put this material into your volume 2, was it? 30 MR. MACKENZIE: It is volume 4, my lord. 31 THE COURT: I am sorry, yes, you were going to put it in volume 32 4. 33 MR. MACKENZIE: Of the Province's supplement. And it goes in 34 there under tab 7. 35 THE COURT: All right. 36 MR. GRANT: Could I get clarification? When the disk is 37 available for this, will the table be included in that 38 disk? 39 MR. MACKENZIE: I don't think the table will be included in the 4 0 disk, my lord. 41 THE COURT: All right. Perhaps I won't put it in right now. We 42 can do it later. All right, thank you. 43 Now, this map D of inconsistent ownership and 44 boundary evidence, that's just an aide memoire, is it? 45 MR. MACKENZIE: That, my lord, goes at tab D in your lordship's 46 binder of this section. 47 THE COURT: Yes, all right. 28075 Submissions by Mr. Mackenzie Submissions by Mr. Goldie 1 MR. MACKENZIE: That is more than an aide memoire, that is a 2 paper copy of maps 9A and 9B, the plaintiffs' claim 3 area and it's an aide memoire in the sense that it is 4 highlighted in those areas which are dealt with in the 5 table. Those are the areas which generally speaking 6 are in the core of the claim area partially or not 7 affected by the overlapping claims. Your lordship 8 does have another piece of paper there and that's the 9 code -- codes for Exhibit 102 and your lordship might 10 put that paper right in that pocket following tab 10 11 as your lordship is doing. 12 THE COURT: Yes, all right. What about this overlay? 13 MR. MACKENZIE: That overlay is to go in the judge's series, my 14 lord. Can be used with the judge's series. 15 THE COURT: All right. Can you look after that? 16 THE REGISTRAR: Yes. 17 THE COURT: Thank you, Mr. Mackenzie. 18 MR. GOLDIE: My lord, could I return your lordship to volume 2 19 of the Defendant's summary, and I am going to complete 2 0 one item remaining under tab Roman IX. 21 THE COURT: Am I going to need this new book of — 22 MR. GOLDIE: I hope to get to that immediately after. 23 THE COURT: All right. What number was it? 24 MR. GOLDIE: It's tab Roman IX, Arabic 8, and Mr. Plant has 25 dealt with 8(a), and following 8(a) page 7 is 8(b), my 26 lord, Miscellaneous Matters South African War Land 27 Grant. And your lordship will also need the yellow 28 binder, volume 19, and I am wishing to complete some 29 of the documents under that. In the yellow binder, if 30 your lordship would turn first to tab IX/8b-2, the 31 thinner of the two insertions that I have handed up is 32 an additional Proclamation, and it with the blue 33 separator sheet should immediately follow the 34 Proclamation that is presently under tab 8b-2. 35 THE COURT: Yes. 36 MR. GOLDIE: And then under tab 8b-10, the additional documents 37 which start with the page number in the lower 38 right-hand corner, page 8. 39 THE COURT: I am sorry. 40 MR. GOLDIE: I am sorry, page 7 would immediately follow the 41 last blue separator sheet -- I am sorry, would 42 immediately follow with the blue separator sheet 43 preceding page 6. 4 4 THE COURT: Thank you. 45 MR. GOLDIE: Now, my lord, if I could go back to the narrative 46 in volume 2 of the Province's summary, it is headed 47 South African War Land Grant, and I say Dr. Lane filed 28076 Submissions by Mr. Goldie 1 evidence of her researches -- of her researches into 2 grants of land made under the South African War Land 3 Grant Act as amended from time to time. The preamble 4 to the Act stated its purposes: recognition of 5 military service and: 6 7 \"...it is also expedient that such recognition 8 should take the form of grants of land to be 9 made in such manner as will be conducive to the 10 actual settlement of the public lands of 11 British Columbia.\" 12 13 Neither of these purposes was new. Douglas' 14 Proclamation of March 18, 1861, and of February 23, 15 1863 providing for remission of purchase price and the 16 use of location tickets issued to retired officers of 17 the army and navy in respect of unoccupied and 18 unreserved country lands. And those are the two 19 Proclamations which are under 8b-2, one of which I 20 just added. The second purpose -- returning to my 21 summary -- the second purpose, settlement, was of 22 course pressed upon Douglas by Lytton as early as July 23 1858. And that was the exhortation that -- and it is 24 page 7 under that tab 8b-2, my lord, where the last 25 paragraph of the second paragraph of Lytton's despatch 26 of July 1, 1858 to Douglas states, and I quote: 27 28 \"All claims and interests must be subordinated 29 to that policy which is to be found in the 30 peopling and opening up of the new country, 31 with the intention of consolidating it as an 32 integral and important part of the British 33 Empire.\" 34 35 I say that the South African legislation expressly 36 protected Indian settlements and villages in Section 3 37 where lands other than \"...unoccupied, unclaimed and 38 unreserved Crown lands...\" were excluded from 39 settlement. The applicant was required to swear that 40 the land sought was not an Indian settlement. And 41 that appears under the next tab, my lord, which is a 42 photocopy of the declaration -- does your lordship 43 have the declaration? 4 4 THE COURT: Yes. 45 MR. GOLDIE: The declarant was required to swear that the land 46 that for which he has made application, and this is 47 the third line down: 28077 Submissions by Mr. Goldie 1 2 \"...is unoccupied and unreserved Crown Land, 3 within the meaning of the 'Land Act' and is not 4 an Indian settlement or any portion thereof.\" 5 6 Returning to my summary. I say: Although the 7 terms of the Act respecting exemption from taxation 8 and freedom from execution were meant to encourage 9 permanent settlement by the returned volunteer the 10 favourable access to land represented by the scrip 11 itself created a speculative interest. There is no 12 evidence that this result was intended. 13 Now, I say that the purposes of the legislation 14 were as stated in the Act itself of settlement and a 15 reward for service in the Armed Forces and that the 16 manner in which it was set up was unremarkable in the 17 sense of achieving those purposes. 18 And paragraph 5, I say: The utilization of scrip 19 in the Bulkley Valley resulted in disputes over land 20 between Indians, mainly those who were utilizing off 21 reserve lands east of Moricetown, and settlers who 22 claimed rights to Crown lands open to pre-emption. It 23 has been suggested that the Indians affected were 24 dispossessed of traditional lands. It is submitted 25 that this was not the case and that the Indian use of 26 the lands in question was recent and occurred after 27 the principal reverse had been set aside. In any 28 event, it cannot be suggested that the Province in any 29 way departed from the policy of setting aside reserves 30 for the protection, use and occupation of Indian 31 peoples. The evidence of the -- these disputes is 32 largely irrelevant to the issues in the case at bar 33 and will be reviewed only briefly. 34 In relation to the Indians of the Bulkley and 35 Skeena Valleys the operation of the South African land 36 grant legislation was no different than the 37 legislation providing for settlement by pre-emption. 38 The Indian interest was protected by the continuation 39 of the Colonial policy of setting aside reserves 40 comprising the Indian settlements as indicated by the 41 Indians. This had been largely accomplished by 42 O'Reilly in 1891 - 1893. 43 In the period between Downie and 1857 and 44 Poudrier, who was employed on behalf of the Provincial 45 Government, reporting on his survey of 1892 - 93, the 46 habits of the native peoples had undergone substantial 47 changes. With the advent of horses in 1866 it became 2807? Submissions by Mr. Goldie 1 necessary to obtain winter feed and with the advent of 2 the white man the cultivation of vegetables became 3 more widespread as well as commercially rewarding. In 4 1891 the agricultural activities at Moricetown were 5 rudimentary and within the area set aside by O'Reilly. 6 There are two documents under that tab in the yellow 7 binder, my lord, the first is Poudrier's report of his 8 survey in the Bulkley Valley in January of 1893, and I 9 will come to that in a little greater detail, and the 10 second at page 8b-7 page 8 is O'Reilly's report of 11 March 26 on the reserves which he had set aside in the 12 Bulkley Valley. And, in particular, I refer to page 13 435, and I am referring to a handwritten number in the 14 upper right-hand corner, my lord. 15 THE COURT: In this tab? 16 MR. GOLDIE: Under this tab, yes. 17 THE COURT: What number? 18 MR. GOLDIE: Well, perhaps the better way to go about it is it's 19 8b-7 page 9 at the bottom of the page. 2 0 THE COURT: Yes, thank you. And this is from what? 21 MR. GOLDIE: This is from O'Reilly's report on his setting aside 22 the reserves in the Bulkley Valley. 2 3 THE COURT: Yes. 24 MR. GOLDIE: And he says at the top of the page: 25 26 \"The Hagwilgets are good hunters and trappers, 27 they also engage in packing between Hazelton 28 and mines. They grow a limited quantity of 29 vegetables, but have not hitherto engaged in 30 agriculture. They possess a few horses and 31 cattle, and they expressed their intention to 32 add to their number.\" 33 34 I ask your lordship to bear in mind that that's 1892, 35 and the horses were introduced into the Valley in 36 1866. Now, returning to my text, I say that most 37 agricultural development took place after 1892 is 38 evident from Poudrier's report. It is clear that 39 there were no Indian settlements beyond Moricetown 40 until one reached the Endako River - outside the claim 41 area - where it was noted that an Indian had 42 cultivated some 30 acres of land. And that, my lord, 43 is -- Poudrier's report is under the next tab. 44 THE COURT: His report is in twice. 45 MR. GOLDIE: It's in twice because it's referred to in the two, 46 but -- now he is reporting in 1893, and on page 5 and 47 the page number is the one in the lower right-hand 28079 Submissions by Mr. Goldie 1 corner, he begins a discussion under the heading 2 Climate. 3 THE COURT: Yes. 4 MR. GOLDIE: He says about six lines down beginning with the 5 sentence: \"At Moricetown\". 6 THE COURT: Yes. 7 MR. GOLDIE: 8 9 \"...where the altitude is also 1,200, potatoes, 10 turnips, carrots, are raised without any 11 trouble by the Indians, and their system of 12 cultivation is of the most primitive nature.\" 13 14 And then he goes on to the last sentence, last 15 paragraph, he says: 16 17 \"Beyond the head of the Bulkley River, but in 18 the continuation of the same valley on the 19 Endako River, there is an Indian who has a 20 ranch of over thirty acres under cultivation. 21 He raises barley, oats, potatoes, turnips, 22 carrots and other vegetables in abundance, and 23 that was a very defective method of farming.\" 24 25 THE COURT: What would you understand he meant \"beyond the head 26 of the Bulkley River\"; the headwaters of the Bulkley, 27 is it? 28 MR. GOLDIE: Yes, that's my understanding. I take that having 29 regard to the reference to the Endako. 30 THE COURT: So the headwaters of the Bulkley is somewhere west 31 of Burns Lake. 32 MR. GOLDIE: Yes, yes. It's — I think that's correct. 33 THE COURT: Somebody told me where it was once but I don't 34 remember now. And north of the present railway 35 corridor. 36 MR. GOLDIE: Well, the railway runs along — 37 THE COURT: I am sorry, east, yes. All right. 38 MR. GOLDIE: Yes. 39 THE COURT: He doesn't really say there is nothing between 40 Moricetown and -- 41 MR. GOLDIE: This settlement. 42 THE COURT: — this settlement. 43 MR. GOLDIE: No, he doesn't, and I am going to refer, my lord, 44 back to -- back to O'Reilly who is there not much more 45 than a year before where he says at -- and all my page 46 numbers will all be to the pages in the lower 47 right-hand corner, under the tab 8b-7, it's page 8. 28080 Submissions by Mr. Goldie 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 Under tab 8b-7 O'Reilly says: \"I have now the honour to forward\" -- THE COURT: I am sorry, you are at what page? MR. GOLDIE: Sorry, my lord? THE COURT: What page? MR. GOLDIE: 8b-7 page 8. THE COURT: Yes, yes. MR. GOLDIE: He says: \"I have now the honour to forward herewith Minutes of decision and sketches of twelve reserves defined by me during the past season for the use of a portion of the Hagwilget tribe of Indians who reside on Babine Lake, and on the Hagwilget River which discharges into the Skeena immediately below the town of Hazelton.\" That's the Bulkley, of course. He says: \"The Hagwilget Indians occupy scattered settlements from the Hagwilget river to Fort George, on the Frazer river, a distance of about two hundred miles, the greater number of the reserves for these Indians have not therefore been dealt with.\" And then I have read the next paragraph, and then he proceeds to describe the various reserves. Number 1 is I think clear, it is Moricetown. He says: \"...about thirty-five miles from the mouth of the Hagwilget river. The principal village of the tribe, consisting of 18 houses, is at this place and has, according to the census supplied by the local Agent, a population of 76, of whom Legoul is the chief.\" He says: \"The most important fishery of the band is immediately in front of the village; here great quantities of salmon on annually taken.\" And the next page he says: \"Although there is a considerable extent of good land on this reservation, nothing has been done 28081 Submissions by Mr. Goldie 1 for its improvement, or utilization, excepting 2 only that a few potatoes and vegetables are 3 grown in isolated patches.\" 4 5 Number 2: 6 7 ...about two miles from Moricetown; and is used 8 by the Indians as a winter run for horses. 9 10 I point out, my lord, that as I said a few minutes ago 11 the horses were introduced in 1866. Number 3: 12 13 \"...situated on the Frazer Lake trail, about 14 five miles south of Moricetown, contains 160 15 acres, the layer portion of which is good hay 16 land.\" 17 18 And then — 19 THE COURT: Would that not be \"larger\"? I don't know what a 20 layer portion is. 21 MR. GOLDIE: The larger portion is -- yes, I guess that's what 22 it is, a larger portion of which is good hay land. 23 Now, the next one, my lord, is on the right bank 24 of the Babine River so we have left the Bulkley 25 Valley. Number 5 is on the left bank of the Babine 26 River. Number 6 is a reserve at the foot of Babine 27 Lake; and number 7 is a timber reserve, 100 acres 28 situated on the western shore of Babine Lake. Number 29 8 is on the eastern shore of the Babine Lake; number 9 30 is on the western shore of the Babine Lake; and number 31 10 is on the eastern shore of the Babine Lake; and 11 32 is the same thing. And the 12th, a timber reserve, 33 some 330 acres, is about a mile and a half southwest 34 on the western side of the Babine Lake. 35 In my submission, it is clear that when O'Reilly 36 laid out those reserves, most of which were on the 37 Babine Lake, he was dealing with the settlements which 38 he found in that area. 39 Now, I have referred to Poudrier who went through 40 that area a year or so later and he found, as I said, 41 an Indian who had cultivated some 30 acres of land. 42 Poudrier of course had before him the so-called 43 telegraph trail, the Old Collins Telegraph Trail. And 44 he describes its effect, and I am going to refer at 45 page 3, my lord, of that, in the lower right-hand 46 corner. 47 THE COURT: I am sorry, what are you looking at now? 28082 Submissions by Mr. Goldie 1 MR. GOLDIE: Poudrier's report again under tab 8b-7 -- I am 2 sorry 8b-8. 3 THE COURT: I am sorry, is that Poudrier's report? 4 MR. GOLDIE: Yes, it's repeated again. 5 THE COURT: I think it is either 7 or 9, isn't it? 6 MR. GOLDIE: It is under 7. 7 THE COURT: I am sorry, no -- you are right, it's under 7. Yes, 8 thank you. 9 MR. GOLDIE: But at page 3 of that report or the third page of 10 that report he talks about the -- he talks about the 11 various townships that he is crossing and he -- at the 12 bottom of page 2, he says: 13 14 In Township 2, twenty-two entire sections have 15 been surveyed. The old Telegraph Trail runs 16 through a number of these. The general 17 appearance of this township is rather uneven, 18 and the greater part is covered with timber. 19 20 He says in the next page that: 21 22 \"...numerous extents of open country covered 23 with a rich growth of hay, where from two to 24 three tons can be cut to the acre. Several 25 tons have been cut by the Indians, and it would 26 be quite easy to use a mower on all open land. 27 The meadows lie near the trail or along the 28 numerous small streams, where some parts of 29 them are rather wet.\" 30 31 And he says in the Township 3, the third line: 32 33 \"All the parts surveyed could be used either as 34 farming or grazing land.\" 35 36 There is an absence of any present use in those terms. 37 And then he talks about, in Township 4: 38 39 \"The Bulkley Valley crosses the south-west 40 corner of the township, and the old Telegraph 41 Trail traverses it from north to south. There 42 are some very rich open meadows, especially 43 along the trail and along the river. On the 44 side-hills the grazing land is also very 4 5 abundant.\" 46 47 And the last -- the last -- and that's near Lake 28083 Submissions by Mr. Goldie 1 Aldermere, my lord. 2 3 \"On the north end there is a small house, built 4 years ago as a station of the Union Telegraph 5 Company, and now occupied by Indians.\" 6 7 And then the next township is again close to Aldermere 8 Lake, and he speaks about the next township, best 9 township for grazing. And then over the page at the 10 end of the paragraph dealing with -- the section 11 dealing with Township 6, he says: 12 13 \"All parts of this township will be utilized 14 some day or other as farming or grazing land.\" 15 16 Now, I say that, if one reads that report in its 17 entirety, it is clear that he is reporting on 18 potential use, not actual use or occupation, or he 19 notes where there is occupation but not -- but he 20 reports nothing of any -- of any farms other than the 21 one that's about 30 miles from -- not 30 miles, but 22 the one that was some distance from Moricetown. 23 THE COURT: What is this gentleman doing, laying out townsites? 24 MR. GOLDIE: He is a provincial government surveyor. 25 THE COURT: So he is not establishing reserves. 26 MR. GOLDIE: No, no, he's got nothing to do with that. His sole 27 purpose was to go through the country and determine 28 its suitability for agricultural purposes and to lay 29 out townsites. 30 THE COURT: He's building very substantial townships, some of 31 them are 16 sections. 32 MR. GOLDIE: Yes, it is. 33 THE COURT: A section is a square mile, isn't it? 34 MR. GOLDIE: Yes, 640 acres, yes. 35 THE COURT: All right. 36 MR. GOLDIE: I am now back at my summary, and I have -- in 37 paragraph 9, I say: The absence of Indian settlements 38 or occupation is confirmed by the absence of reserves. 39 O'Reilly's care in laying out reserves where and to 40 the extent requested by the Indian peoples themselves 41 is revealed both in his diaries and in the long 42 transcript of the meetings he held in 1888 on the 43 Coast. It is inconceivable, in my submission, that 44 O'Reilly would not have set aside reserves for farms 45 of the kind described in 1907, and that's the date 46 that some difficulties arose with respect to 47 Wet'suwet'en people in the Bulkley Valley, continuing, 28084 Submissions by Mr. Goldie 1 if they had existed in 1891. Now, I say that having 2 regard to O'Reilly's instructions, having regard to 3 the absence of settlement that is reported on by 4 Poudrier in 1893, I say that O'Reilly would have had 5 no restrictions in the form of existing white 6 settlement on laying out reserves in 1891 or 1892 if 7 they were there. I say: His report of his reserve 8 allocation for the Hagwilget tribe whose \"...scattered 9 settlements (extend) from the Hagwilget River to Fort 10 George on the Frazer\" and I have already read that, my 11 lord, makes no reference to settlement or Indian 12 occupation between Reserve 3, six miles south of 13 Moricetown on the Frazer Lake trail and the reserves 14 on the Babine River and Lake. 15 Now, the dispute which was the subject matter of 16 Dr. Lane's researches was aired before the Royal 17 Commission by Father Godfrey, a missionary whose 18 sincerity was doubted by Mr. Brody but whose statement 19 to the Royal Commission of the changes in the 20 lifestyles of Moricetown peoples is consistent with 21 all other available evidence. And his -- an extract 22 from his evidence on April 26, 1915 is found under tab 23 8b-10, and he addresses the Commission on behalf of 24 the chief and the Indians as follows, and about 25 half-way down the paragraph after some introductory 26 remarks, he says: 27 28 \"The main grievance around here which may be 29 summed up in the general way is that they 30 desire to have a little more land allotted to 31 them than they have at the present time. A 32 large portion of the land in and around the 33 Moricetown Reserve is not what you would call 34 exactly good agricultural land.\" 35 36 And then down at the bottom of the page, three lines 37 from the bottom: 38 39 \"They have looked into the ways and means of 40 living of the white population, and for the 41 past ten years, or ever since they came into 42 contact with the white man and especially 43 during the last three or four years, during the 44 railway construction days, they have 45 endeavoured, as far as they were able, to get 4 6 work from the white man and to take out 47 contracts from them...\" 28085 Submissions by Mr. Goldie 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 And so on. And then midway down the page, my lord, there is a sentence which begins with the words: \"There is a greater desire on the part of the Indians ...\" THE COURT: MR. GOLDIE: Yes. \"...towards the increasing of their stock, and, I daresay, every one of them wants to launch into cattle raising, and in order to do this, they desire to have a little more land, so that they will be better able to feed their stock than they are at the present time.\" And right at the bottom he says: \"Formerly, all these men made their living by hunting, going out in the winter time, about September till about Christmas and from the middle of January to the end of June.\" THE COURT: I am sorry, I am having problems with that. MR. GOLDIE: That's right at the bottom of that page, my lord. THE COURT: Yes. MR. GOLDIE: And then after talking about the difficulties that they have with their hunting, I go over to page -- the page at the lower right-hand corner 8b-10 page 4, and -- this is about a third of the way down the page beginning with the sentence: \"Another point I am asked to draw your attention...\" THE COURT: MR. GOLDIE: Yes. '...is regarding some special claims and grievances which have existed in the past. We have had cases I daresay seven, eight or nine cases where certain families have taken possession of certain pieces of land conveniently located near a beautiful lake, which land naturally offered facilities for cutting hay, especially formerly when there 28086 Submissions by Mr. Goldie 1 were no mowing machines. Some of these pieces 2 of land have now been alienated by the 3 Government and have come into the possession of 4 some white settlers. I daresay that one of 5 those cases is the case of a family around Tyee 6 Lake or McClure Lake. Those living there are 7 Tyee Lake David, John Baptiste and Big Pierre. 8 Another instance of this kind is a case of two 9 families living at Canyon Creek...\" 10 11 And it gives the names of those. And he is -- he says 12 on the next page in response to the question from the 13 chairman: 14 15 \"THE CHAIRMAN: Is there any cultivation on 16 these lands? 17 A. There were some spots cleared around the 18 houses where they used to cut hay for their 19 horses. In each of these cases they had houses 20 on these lands which were used for hunting 21 cabins, and in a great many cases these cabins 22 have been destroyed by the incoming white men.\" 23 24 And then that, my lord, was in 1915. 25 THE COURT: Now, this wasn't the McKenna-McBride Royal 26 Commission? 27 MR. GOLDIE: Yes, it was. 28 THE COURT: Oh, it was. This is — yes, thank you. 29 MR. GOLDIE: I say that the -- I am back in my summary, my lord. 30 After saying that Father Godfrey's evidence is 31 objective, I say in page 6: Evidence with respect to 32 the most notable example, Jean Baptiste, was collected 33 by Dr. Lane and Dr. Galois. From these it is clear 34 that by 1923 the Department of Indian Affairs had 35 purchased land for Baptiste. It is also reasonably 36 clear by Baptiste's own account that there was no 37 Indian occupation of this land before 1899. Now, that 38 is under tab 8b-10, and it's page 29, and this is a 39 report from Mr. Loring to Mr. Ditchburn of March 20, 40 1920. Now, my lord, Mr. Baptiste was a man who 41 couldn't be moved and he refused to move. He said 42 that he had improved the land he was on; he had had to 43 move before and he wasn't going to move his wife and 44 family again. And Mr. Loring is reporting that the 45 owner of the north half of 882 had said there was an 46 Indian by the name of Jean Baptiste occupying that 47 land and the question was had he occupied that land 28087 Submissions by Mr. Goldie 1 before it became alienated, and \"in context to the 2 above\" -- this is the second paragraph of Loring's 3 letter: 4 5 \"I here beg to state that with the intent to 6 elicit the information required I requested 7 Constable Jas. Hevenor to investigate...\" 8 9 And then there is set out what Hevenor's information 10 was: 11 12 Regarding Lot 882, Range V, the information 13 gleaned in the Provincial Land Office at 14 Smithers it stood: 15 Applied for under the S.A.W.G. in the year 16 1904, allowed February 5th, 1905. Crown 17 Grants issued to Robert Whittington. 18 19 Then with respect to Baptiste, he has on that land a 20 log house; log stable; implement shed; hay shed; root 21 house; 35 acres of land cleared and sown in timothy; 22 and fence; part logs, part poles, for about a mile in 23 length; 21 head of stock, consisting of 19 horses and 24 9 head of cattle. He has a wife and five children and 25 claims to have been on the land for the last 21 years. 26 That's the basis for my statement that he had not 27 occupied the land before 1899. And I draw your 28 lordship's attention to the fact that he had a -- a 29 considerable holding of stock for people whose 30 occupation some 40 or 50 years before had been hunting 31 and trapping and who were -- to whom domestic animals 32 such as horse and cows were unknown prior to 1866. 33 My lord, some of the people in question fully 34 realize that they were not dealing with lands that 35 were theirs, and I refer to Mr. Thomas George, 36 beginning at page -- under 8b-10 page 33, is the 37 Order-in-Council approving Mr. George's application 38 for pre-emption. My lord -- your lordship may recall 39 that Mr. Thomas George was at one time Gisday wa and 40 this pre-emption in fact is in the middle of the lands 41 claimed by Gisday wa. And your lordship will see in 42 the Order-in-Council which is 1921: 43 44 \"It is also represented that Thomas George is a 45 young man, twenty-eight years old, and is 46 industrious, intelligent, of good character and 47 a thoroughly deserving Indian.\" 28088 Submissions by Mr. Goldie 1 2 And he owns three cows, two calves, four horses, 3 harness and wagon, and so on. 4 Now, returning to my summary, I note that: In 5 law, it had been acknowledged by the Dominion that 6 Indian rights to lands outside reserves was to be -- 7 were to be determined by Provincial laws of general 8 application. Now, I am referring there, my lord, to 9 an Order-in-Council of the Dominion which was passed 10 in 1895, and it reads as follows: 11 12 \"The Committee of the Privy Council have had 13 under consideration a Despatch, hereto attached 14 dated 14 October 1895, from the 15 Lieutenant-Governor of British Columbia, 16 transmitting a copy of his Report of the 17 Committee of his Executive Council, relative to 18 the unsatisfactory state of affairs in 19 connection with Indians settling upon lands 20 other than reservations in different parts of 21 the Province of British Columbia, but 22 especially in the East Kootenay District.\" 23 24 And then it's referred to the Superintendent-General 25 who reports, beginning at the third line from the 26 bottom: 27 28 \"...that the Indian Superintendent, at Victoria, 29 states that for several years he has repeatedly 30 instructed the Indian Agents to discourage the 31 settling of Indians on land other than their 32 reservations, and to advise the Indians that 33 they should, as much as possible, confine 34 themselves to the reserves allotted for their 35 use, endeavouring to make them understand that 36 they could be summarily ejected without 37 compensation from land squatted upon 38 unlawfully.\" 39 40 And then I go over to the page 8b-ll page 3, the 41 second -- the paragraph at the bottom of the page: 42 43 \"The Minister observes, as to the statement in 44 the Report, that it is open to the Provincial 45 Authorities to put the law in operation against 46 the offending Indians and to have them expelled 47 from the land which they have squatted upon; 28089 Submissions by Mr. Goldie 1 that he does not consider that the right of the 2 Province in the matter, is open to question.\" 3 4 So from 1895 on, the Dominion's position was that the 5 settlement of Indians on lands beyond reserves must be 6 governed by provincial laws of general application. 7 Now, the ejectment of Indians occupying Crown lands 8 open to pre-emption upon the happening of such an 9 event or upon the happening of the acquisition of the 10 fee by a veteran or assignee of the veteran of the 11 Land War Grant Act would cause hardship is 12 self-evident. Most of the people referred to by 13 Father Godfrey were encouraged to pre-empt lands in 14 place of what they lost and a number did. 15 Now, that, my lord, is evident from the material 16 under tab 10, and as I said earlier, it was apparent 17 that by in the 1920s lands had been purchased by the 18 Indian Department for Jean Baptiste, for instance, 19 under tab 8b-10 page 17 is Mr. Ditchburn's letter to 20 the Indian Agent at Hazelton on behalf of Round Lake 21 Tommy, and obtaining pre-emptions for them, and page 22 18 is to the same effect, it is 1925, reporting that 23 Jack Joseph has received his pre-emption record and 24 then in the last paragraph he says: 25 26 \"To my own personal...\" 27 28 This is the Indian agent: 29 30 \"To my own personal knowledge Tommy has fished 31 on Round Lake and trapped muskrat since 1909. 32 33 Members of Tommy's family are still in evidence 34 and were there over sixteen years ago, so one 35 can quite understand that this Indian has a 36 craving to reside in the vicinity.\" 37 38 And urging the acquisition of a small piece of land. 39 And that is recorded as having been achieved in 1927 40 at page 19. Now, the -- some of -- there is 41 correspondence between the registered owners and the 42 Indian Department or Agencies with respect to Jean 43 Baptiste at pages 29 and 30, I have read part of that, 44 and Mr. Ditchburn's letter to Mr. Scott in Ottawa, 45 page 31. And then a report on page 32 which indicates 46 that Baptiste has been resettled on land purchased on 47 his behalf by the Department of Indian Affairs, that's 28090 Submissions by Mr. Goldie 1 1923. 2 My lord, what I have to say in relation to all of 3 this is that this episode, painful as it was, is 4 unrelated to any aspect of the claims made in the case 5 at bar. The Indian occupation of the lands subject to 6 claims created by the use of scrip under the South 7 African War Land Act was recent, it reflected a change 8 in lifestyle since the advent of the white man and the 9 horse, and it confirmed in the earlier acknowledgement 10 of the Dominion that outside the reserves the Indian 11 peoples had no interest other than that afforded by 12 the laws of the Province. If the events referred to 13 by Mr. Brody and Dr. Lane are intended to support a 14 claim to ownership and jurisdiction they are, in my 15 submission, ineffectual and serve to demonstrate the 16 opposite. 17 My lord, I wish to turn to volume 4. I am going 18 to — 19 THE COURT: I think, Mr. Goldie, if you don't mind, we'll take a 20 short adjournment. We have been going a little over 21 an hour now. 22 THE REGISTRAR: Order in court. Court stands adjourned. 23 24 (PROCEEDINGS ADJOURNED AT 2:40 p.m.) 25 26 I hereby certify the foregoing to 27 be a true and accurate transcript 28 of the proceedings transcribed to 29 the best of my skill and ability. 30 31 32 33 34 35 Tannis DeFoe, 36 Official Reporter, 37 UNITED REPORTING SERVICE LTD. 38 39 40 41 42 43 44 45 46 47 28091 Submissions by Mr. Goldie 1 (PROCEEDINGS RECOMMENCED AFTER BRIEF RECESS) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Mr. Goldie. 5 MR. GOLDIE: My lord, I am turning to Roman numeral VIII in 6 Volume 4. It's headed \"Addendum and Supplement to 7 Submission of the Province\". 8 THE COURT: Yes. 9 MR. GOLDIE: Contained in Part 5 of its written summary, Royal 10 Proclamation. Part A. Comments on the plaintiffs' 11 final argument on the Royal Proclamation of 1763 runs 12 from pages 2 to 13. And, my lord, I am not going to 13 do anything other than hand that up. It's in the same 14 form as -- or roughly the same form as others like it, 15 namely, there is a comment from my friends' written 16 argument -- I'm sorry, an extract from my friends' 17 written argument followed by a comment. 18 And then item B, addenda, runs from pages 14 to 19 22. And it is a comment, firstly, on the case of 20 Mohegan Tribe v. Conneticut in the Second Circuit 21 Court of Appeal in the United States in which my 22 friends have drawn a comparison between the 23 Non-Intercourse Act of that country and the Royal 24 Proclamation. And again I do no more than hand it up. 25 And then on page 17 there is a reply to my 26 friends' argument on the proposition that even if 27 settled colonies there is a room for the application 28 of the Royal prerogative based upon a submission 29 that -- where the prerogative purports to deal with 30 constitutional matters, then there is continuing 31 application. And I do no more than hand that up. 32 And then I come at page 23, my lord, to a 33 conclusion or some submissions that can be regarded as 34 a conclusion on the role of the Royal Proclamation in 35 Canada, and in response to the court's question at 36 transcript 347, page 27479. That transcript reference 37 is under Tab VIII-1 immediately following, and at 38 lines 3 to 36. Your lordship indicates an interest in 39 the effect of the enlargement of the province of 40 Quebec, and what it had on the operation of the Royal 41 Proclamation, and that's what I am going to deal with 42 now. 43 I say the response is set out in point form below, 44 A. The great reserve or hunting reserve created in B, 45 and that is the designation in Exhibit 1160 which we 46 have been using, the copy of the Royal Proclamation 47 annotated with letters to indicate various sections. 28092 Submissions by Mr. Goldie 1 And B is the section which creates the hunting 2 reserve, I'll call it, west of the Appalachians and 3 east of the Mississippi. Now, it excluded the old 4 Quebec. When I say it excluded, its text excluded the 5 territory of the Quebec that was defined in the Royal 6 Proclamation. 7 Now, under Tab 2 I have an enlargement taken from 8 a map that is over there, my lord, the territorial 9 evolution of Canada. 10 MR. RUSH: And I take objection to that. I take objection to 11 this enlargement and the map. 12 THE COURT: I haven't found it yet. You say tab 2? 13 MR. GOLDIE: Tab VIII-2, my lord. 14 THE COURT: Oh, yes. 15 MR. GOLDIE: It's just a photographic -- not a photographic, a 16 photocopy enlargement of the third map which is 1763. 17 MR. RUSH: It's not an exhibit. It's not a treatise. It 18 doesn't qualify under any of the heads however 19 liberally applied. It's a map made in 1969, 20 Government of Canada, for its purposes. We don't know 21 the author. We don't know who made it. We know 22 nothing about it. It happens to be a convenient 23 pictorial depiction of my friend's argument, and 24 nothing more. It shouldn't be used. It has no 25 status. And it's visual value is more to my friend's 26 purpose than its evidentiary basis or its provenience. 27 THE COURT: Well, if I walked into a library, I might come — 28 and picked up an atlas, I could come across it, I 29 suppose, could I? 30 MR. RUSH: That's a very good question. I suspect that that was 31 obtained from the Government of Canada, the Department 32 of Mines, Minerals and Energy, and is probably housed 33 in there. Now, if your lordship's search took you 34 there, perhaps. 35 THE COURT: It's not a map in general distribution? 36 MR. RUSH: I would say it's in general distribution by the 37 Government of Canada, by one of its departments for 38 their purposes, whatever they are. But I say, my 39 lord, that if your lordship is moving from the view 40 that your lordship could go out and look for a map of 41 this kind in your own judicial inquiries for the 42 knowledge to come to your lordship, I would say that 43 this map is not likely to be in the libraries, 44 although I couldn't say for sure. It's likely to be 45 in the Government of Canada, but whatever the case, if 46 that's -- if that's the standard, my lord, then I say 47 it's a very, very baseline standard for the 28093 Submissions by Mr. Goldie 1 acquisition of information about the case, since you 2 know so little about its basis. 3 THE COURT: But we have -- but we have in the evidence, I 4 suspect, all the documents that brought about these 5 changes of boundaries, do we not? 6 MR. GOLDIE: Yes. All this is is a depiction of the description 7 which is contained in the Royal Proclamation. 8 MR. RUSH: That's not what it is, with respect. 9 MR. GOLDIE: I beg your pardon? What is under VIII-2 is a 10 description of the old colony of Quebec, and I am not 11 relying upon it. It's not evidence. It is simply a 12 means of advancing my argument. 13 Now, as far as -- so far as the authority of the 14 document is concerned, on its face, it is produced and 15 printed by the surveys and mapping branch, 1969. 16 Copies may be obtained from the map distribution 17 office, Department of Energy, Mines and Resources. It 18 is stated that these maps are to be published in the 19 National Atlas of Canada. So there is representation 20 that it is for the public use, and it is created by 21 that office of government which has the responsibility 22 for it. 23 Your lordship is now judicially encouraged by the 24 judgment in the Seaqua (?) case to undertake your own 25 researches. 26 THE COURT: I hope that's not good law. 27 MR. GOLDIE: It raised a few eyebrows, but all that I think with 28 respect to His Lordship Mr. Justice Lemare, all that 29 he was saying is that there are certain things of 30 which a judge can take judicial notice, and the 31 boundaries of the country is one of them. 32 Now, this is historical, and if my friend wishes 33 me to -- well, I don't need to do it. The description 34 of the boundary is firstly in the Royal Proclamation. 35 The description of the enlarged Quebec is in the 36 Quebec Act of 1774. The description of what happened 37 after the conclusion of the American Revolution and 38 the creation of Upper and Lower Canada in 1791 is 39 found in the Constitutional Act of that day. All of 40 these can be found in text, and it is not part of -- I 41 don't have to prove the boundaries of Quebec, but I am 42 responding to a question from the Court. 43 MR. RUSH: This proving nothing, my lord. It proves my friend's 44 argument. That's -- it supports his argument, not 45 proves it. It does nothing more than that much. My 46 friend says the boundary of Quebec is \"x\" for his 47 argument. I say it is not. To have a depiction -- 28094 Submissions by Mr. Goldie 1 THE COURT: Well, I have had the boundary of Quebec explained to 2 me with -- in terms of degrees of Latitude and 3 Longitude and by landmark. 4 MR. RUSH: And that should be sufficient. 5 THE COURT: Well, I was going to come to that. I suppose Mr. 6 Goldie could make his argument by including in his 7 argument those descriptions whenever he found it 8 necessary to do so. 9 MR. RUSH: He is asking you to accept as so the pictorial 10 representation of what he says the boundary is on this 11 map, and that is a point of contention, my lord. And 12 my argument, I don't think, would have the same force 13 if I could say I know what this was based on, I know 14 who did it, whether it was Bellin, whether it was Bone 15 or who, but I can't in any way challenge what is 16 alleged to be the pictorial representations on this 17 map. We don't know the authors, we don't know what 18 they relied on, and at the very least, my lord, if you 19 were to go to a library and look at this map and say I 20 can't tell who did the drawing or the coloring on this 21 map, I cannot tell what they relied upon, you would 22 reject it out of hand. It would be worthless to you. 23 THE COURT: Well, if I had a description in — by degrees of 24 Longitude and Latitude and by landmark, and I had a 25 map prepared by the Government of Canada purporting to 26 describe that, I don't think I would reject it. 27 Unless somebody showed me that it was clearly wrong, I 28 think I would accept it as probably an accurate 29 pictorial description of the so-called metes and 30 bounds description that's contained in the documents. 31 MR. GOLDIE: Well — 32 MR. RUSH: Well, my lord, you have to accept 101 opinions by 33 this map-maker as you go through it. 34 THE COURT: You do that on every map. 35 MR. RUSH: Precisely. But that means you have to be satisfied 36 on each and every one of those metes and bounds 37 descriptions, that the opinion is accurate. And I say 38 it is self-evident by looking at this that it's simply 39 not so. 40 THE COURT: Well, Mr. Rush, there is another problem. Mr. 41 Goldie has been referring to this map throughout his 42 argument. He has been pointing this out. I would 43 think he has gone to that map a dozen times. 44 MR. RUSH: He has indeed, my lord, and if he attempted to do 45 anything with that map, as he is now attempting to do 46 it, and that is to place it before your lordship and 47 say you should accept this as some authority or 28095 Submissions by Mr. Goldie 1 reference to rely upon, that's the point of this, then 2 I object to it as a visual -- 3 THE COURT: All right, Mr. Rush. I think the thing to do is — 4 I haven't got it open in front of me. Where is it 5 again? I think I will take it out, and you will have 6 to count on me to remember, when Mr. Goldie shows it 7 on the map, what it is he shows me. 8 MR. GOLDIE: Before your lordship fully throws it away, I refer 9 to my friend's words in transcript 308, page 23255, 10 where an issue or a question arose as to the judge's 11 series and the interrogatories overlay, and my friend 12 Mr. Rush said, in raising an objection, line 26: 13 14 \"Well, I object to that, my lord, and this 15 particular one, the problem that is now clearly 16 arising is the distinction between aide-memoire 17 and an exhibit is fast becoming irrelevant. 18 And for the most part all of the overlays are 19 being added as exhibits because the underlying 20 facts have now been proven in one way or 21 another. That's not true with this one, and it 22 can't be true until somebody comes and proves 23 what was done with this map, and I think if my 24 friends want to make use of this in argument as 25 an aide-memoire, then at the time of argument 26 they should produce and make use of it in that 27 form.\" 28 2 9 And that's all I am doing. Now, my friend invited 30 us to use whatever we wanted as a means of clarifying 31 and giving some point to our submissions. 32 MR. RUSH: Not whatever he wanted. I don't think I would be 33 that foolish. 34 THE COURT: I don't think you said that. Well, let's get along, 35 Mr. Goldie. I don't have to have it in my book. I 36 have a general idea now that Quebec in 1763 was a 37 great deal smaller than it was the day before 38 yesterday. And as a matter of fact it's -- I didn't 39 really appreciate until quite recently that the 40 Hudson's Bay Company had more than half of what is now 41 Quebec. And I know now that it's a relatively small 42 area on both sides of the St. Lawrence River. And I 43 can follow it, if I can go and look at the map, I have 44 a picture in my mind now of what it is, and I think I 45 can follow it without having to have a copy of a 46 portion of it, an enlargement of a portion of it in 47 the documents I am going to take away. And we'll all 28096 Submissions by Mr. Goldie 1 have to take your chances on my memory, because I am 2 not going to likely get out another map and plot my 3 own from the Latitude and Longitude and descriptions 4 that appear in the documents. 5 MR. GOLDIE: Your lordship may recall that when I was dealing 6 with the Star Chrome case, I was at some pains to 7 outline the boundaries of old Quebec. 8 THE COURT: Yes. 9 MR. GOLDIE: And it's taken straight from 'D' of the Royal 10 Proclamation. 11 THE COURT: Yes. 12 MR. GOLDIE: 13 14 \"The Government of Quebec bounded on the 15 Labrador Coast by the River St. John ...\" 16 17 That's where we start on the north coast. 18 19 \"... and from thence by a line ...\" 20 21 That is to say a straight line. 22 23 \"... drawn from the head of that river through 24 the Lake St. John, to the south end of the Lake 25 Nipissim; from whence the said line, crossing 2 6 the River St. Lawrence and the Lake Champlain 27 in 45 degrees of north latitude ...\" 28 29 Another straight line. 30 31 \". . . . passes along the high lands ...\" 32 33 Which is natural line. 34 35 \"... which divides the rivers that empty 36 themselves into the said River St. Lawrence 37 from those that fall into the sea ...\" 38 3 9 And so on. 4 0 THE COURT: Didn't you show me that in that map that was part of 41 your submission in relation to the Star Chrome case? 42 MR. GOLDIE: Yes. Yes, I did. I was showing your lordship the 43 southeastern part of the boundary where it changes 44 from 45 degrees to the height of land. 45 THE COURT: Yes. All right. 46 MR. GOLDIE: Now, that was excluded from the hunting reserve, 47 and that is 'S' in the Royal Proclamation -- I'm 28097 Submissions by Mr. Goldie 1 sorry, I should say 'V, where the King said: 2 3 \"And we do further declare it to be our Royal 4 Will and Pleasure, for the present as 5 aforesaid, to reserve under our Sovereignty, 6 Protection, and Dominion, for use of the said 7 Indians, all the lands and territories not 8 included within the limits of our said three 9 new governments.\" 10 11 So we start, then, with the knowledge that the 12 so-called hunting reserve never extended to what I 13 will call the bounds of old Quebec. 14 Now, the Quebec Act of 1774 enlarged the 15 boundaries of the old or 1763 Quebec, and took in a 16 great part of the northern part of the reserve down to 17 the Ohio River. 18 Now, my friend, I suppose, will object to Tab 3, 19 which is a depiction of the extension of the old 20 Colony of Quebec as a result of the Quebec Act of 21 1774. But if we look at the Quebec of 1774 itself, 22 and that's under tab 4, my lord -- 23 MR. RUSH: My friend is anticipating that I do object to it, 24 but, my lord, for the two reasons that I have 25 indicated, is that provenience and notes and 26 authorship, I can't do anything with a map like that, 27 to answer it. 28 MR. GOLDIE: I am referring to the Quebec Act under tab 4. 2 9 THE COURT: Yes. 30 MR. GOLDIE: And in the preamble it recites the Royal 31 Proclamation, and in the second preamble it says, and 32 I quote: 33 34 \"And whereas by the arrangements made by the 35 said Royal Proclamation a very large extent of 36 country ...\" 37 38 THE COURT: What page are you on now? 39 MR. GOLDIE: I am under tab — 4 0 THE COURT: I have the Act. Whereabouts in the Act? 41 MR. GOLDIE: It's the first paragraph, my lord. 42 THE COURT: All right. Yes. 43 MR. GOLDIE: And it's the second preamble which is about seven 44 or eight lines down. 4 5 THE COURT: Yes. 46 MR. GOLDIE: And the recital refers to the fact that: 47 2809? Submissions by Mr. Goldie 1 \"Very large extent of country, within which 2 there were several colonies and settlements of 3 the subjects of France, who claimed to remain 4 therein under the faith of the said treaty ...\" 5 6 That is to say the Treaty of Paris. 7 8 \"... was left, without any provision being made 9 for the administration of civil government 10 therein. And certain parts of the territory of 11 Canada, where sedentary fisheries had been 12 established and carried on by the subjects of 13 France, inhabitants of the said province of 14 Canada, under grants and concessions from the 15 government thereof, were annexed to the 16 government of Newfoundland.\" 17 18 Now, that tells your lordship that to the east of 19 the old colony of Quebec, established under the 20 Proclamation of 1763, there were subjects of the 21 former province of Quebec -- former province of Canada 22 whose territories were annexed to Newfoundland. And 23 that is, of course, the origin of the present claim of 24 Labrador. 25 And then the substantive parts of the 26 Proclamation: 27 28 \"May it therefore please your most Excellent 29 Majesty that it may be enacted; and be it 30 enacted by the King's most Excellent Majesty, 31 by and with the advice and consent of the Lords 32 spiritual and temporal, and commons, in this 33 present parliament assembled, and by the 34 authority of the same. That all the 35 territories, islands, and countries in North 36 America, belonging to the Crown of Great 37 Britain, hounded on the south by a line from 38 the Bay of Chalcurs, along the high lands which 39 divide the rivers that empty themselves into 40 the River Saint Lawrence from those which fall 41 into the Sea, to a point in forty-five degrees 42 of northern Latitude, on the eastern bank of 43 the River Connecticut, keeping the same 44 Latitude, directly west, through the Lake 45 Champlain, until, in the same latitude, it 46 meets the River Saint Lawrence.\" 47 28099 Submissions by Mr. Goldie 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 Now, my lord, that describes a boundary of the old province, but going in the opposite direction. THE COURT: Uh-huh. MR. GOLDIE: \"... from thence up the eastern bank of the said river to the Lake Ontario.\" We begin to depart from the old colony. \"Thence along the Lake Ontario, and the river commonly called Niagara; and thence along by the eastern and southeastern bank of Lake Erie And by this time we are getting into the United States. THE COURT: We are out west now? MR. GOLDIE: Yes. \"... following the said bank, until the same shall be intersected by the Northern Boundary, granted by the Charter of the Province of Pennysylvania, in case the same shall be so interested; and from thence along the said Northern and Western Boundaries of the said Province, until the said Western Boundary strike the Ohio.\" And then: \"But in case ...\" There is an interjection there with respect to the case. Then following: \"The said bank until it shall arrive at that point of the said bank which shall be nearest to the north western angle of the said province of Pennsylvania, and thence, by a right line, to the said northwestern angle of the said province; and thence along the western boundary until it strike the River Ohio.\" That was the provision in case there wasn't an intersection. 28100 Submissions by Mr. Goldie 1 THE COURT: 2 MR. GOLDIE 3 1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 21 22 23 1 24 THE COURT: 25 MR. GOLDIE 26 THE COURT: 27 MR. GOLDIE 28 THE COURT: 29 MR. GOLDIE 30 31 32 33 34 35 36 37 38 39 THE COURT: 40 MR. GOLDIE 41 THE COURT: 42 MR. GOLDIE 43 THE COURT: 44 MR. GOLDIE 45 46 47 Uh-huh. : And along the bank of the said river. That's the Ohio. \"... Westward, to the banks of the Mississippi, and northward to the southern boundary of the territory granted to the merchants adventurers of England, trading to Hudson's Bay.\" My lord, that comprehends a very large area of land. And then the last provision is with respect to the and attachment to Quebec of part of the Labrador coast. Now, I have traced that, irrelevant as it may be to my friend's consideration, on both of the maps that are on there, and I can assure your lordship that as far as a layman's following of the boundary I have just described, it is coincidental or is pictorially depicted in the enlargement under tab 3. Now, that was the largest that Quebec ever achieved, my lord, the largest territorial extent that Quebec ever achieved. And turning back to my summary. Where are you now? : I am at page 23 of the supplement, my lord. Yes. : Item B I have just gone down. Yes. : Now, item C. The Quebec Act revoked the application of the Royal Proclamation in respect of the enlarged Province of Quebec. And that -- I go back to the Quebec Act under tab 4, and I refer to the last paragraph, which is in some versions of this Act numbered 4 on page 402 beginning with the recital. \"And whereas the provisions made by the said Proclamation ...\" Just a minute. : It's the second page under Tab 8-4, my lord. Yes. : Does your lordship see the last paragraph? \"And whereas the provisions ...\" : Yes. The side note describes it all. \"Former provisions made for the province to be null and void after May 1st, 1775.\" 28101 Submissions by Mr. Goldie 1 2 I'll read it, because it applies, as I say, to the 3 enlarged Province of Quebec. 4 5 \"And whereas the provisions, made by the said 6 Proclamation, in respect to the civil 7 government of the said province of Quebec and 8 the powers and authorities given to the 9 governor and other civil officers of the said 10 province, by the grants and commissions issued 11 in consequence thereof, have been found, upon 12 experience, to be inapplicable to the state and 13 circumstances of the said province, the 14 inhabitants whereof amounted, at the conquest, 15 to about sixty-five thousand persons professing 16 the religion of the church of Rome, and 17 enjoying an established form of constitution 18 system of laws, by which their persons and 19 property have been protected, governed and 20 ordered for a long series of years, from the 21 first establishment of the said province of 22 Canada; be it therefore further enacted by the 23 authority aforesaid, that the said 24 Proclamation, so far as the same relates to the 25 said province of Quebec.\" 26 27 That's the enlarged province. 28 29 \"... And the commission under the authority 30 whereof the Government of the said Province is 31 at present administered, and all and every 32 Ordinance and Ordinances made by the Governor 33 and Council of Quebec for the Time Being, 34 relative to the Civil Government and 35 Administration of Justice in the said Province, 36 and all Commissions to Judges and other 37 officers thereof, be, and the same are hereaby 38 revoked, annulled, and made void, from and 39 after the First day of May, One thousand seven 40 hundred and seventy-five.\" 41 42 Now, that created the state of affairs which I 43 describe in paragraph C. 44 THE COURT: Revokes for the territory of the new province, the 45 Royal Proclamation. 46 MR. GOLDIE: That's correct. But there is -- there is a savings 47 clause. 28102 Submissions by Mr. Goldie 1 THE COURT: All right. 2 MR. GOLDIE: And I say this did not effect rights granted to 3 Indians in the hunting reserve by virtue of the Royal 4 Proclamation. 5 Now, the provision -- the savings clause oddly 6 enough is in the preceding section, but it's the last 7 paragraph, and it states, and I quote: 8 9 \"Provided always, and be it enacted, that 10 nothing in this act contained shall extend or 11 be construed to extend to make void or to vary 12 or alter any right, title or possession derived 13 under any grant, conveyance or otherwise 14 howsoever of or to any lands within the said 15 province or the provinces thereto adjoining but 16 that the same shall remain and be in force and 17 have effect as if this act had never been 18 made.\" 19 20 Now, I say what is the result of that? 21 Point 'D' I say this. In the result, pre-1774 22 Indian rights in the hunting reserve were left intact, 23 and those parts of the post-1774 Quebec to which they 24 applied, namely, the lands west, south and north of 25 the 1763 Colony of Quebec. 26 Does your lordship follow me? We start with the 27 old colony being exempt, the new colony is extended 28 into lands which comprise the hunting reserve, the 29 Royal Proclamation is annulled, but there is a savings 30 clause. 31 THE COURT: Existing aboriginal rights are preserved? 32 MR. GOLDIE: Yes. 33 THE COURT: We have heard that before somewhere. 34 MR. GOLDIE: If there were any. And I say, there were by virtue 35 of the Royal Proclamation. 3 6 THE COURT: Yes. 37 MR. GOLDIE: So I say by virtue of the Treaty of Paris of 1783 38 terminating the American Revolution Quebec's southern 39 boundary became the 49th parallel. The territories 40 north of that line remained British. When I say the 41 49th parallel, I am not talking about the 49th 42 parallel west of the area that we are talking about, 43 but it's -- the statement is accurate enough for the 44 purposes of this analysis. I say the -- 45 THE COURT: I'm sorry, that doesn't somehow sound right to me. 46 It seems to me that the southern boundary of Canada 47 west of the Great Lakes was well south of the 49th 28103 Submissions by Mr. Goldie 1 parallel. 2 MR. GOLDIE: South of the Great Lakes. 3 THE COURT: Well, I'm sorry, east of the Great Lakes. 4 MR. GOLDIE: That's correct. No, that's correct. 5 THE COURT: So — 6 MR. GOLDIE: I should have traced through the boundary -- 7 well -- 8 THE COURT: This paragraph should probably say something like by 9 virtue -- I'm sorry, the Treaty of Paris of 1783 fixed 10 Quebec's southern boundary? 11 MR. GOLDIE: Yes. And I'll leave it at that. 12 MR. RUSH: You mean 1763 there don't you? 13 MR. GOLDIE: No. This is the one that finished the American 14 Revolution, and it too is negotiated in Paris. 15 MR. GOLDIE: Treaty of Versaille. 16 THE COURT: I thought one was the Treaty of Paris and the peace 17 of Paris, but it doesn't matter. 18 MR. GOLDIE: In any event, there are different people at the 19 negotiating table. 20 THE COURT: Yes. Different parties. 21 MR. GOLDIE: The territories north of, and I'll say the southern 22 boundary, remain British, and in my submission 23 continued to be subject to the hunting reserve as to 24 those who obtained rights therein prior to the 25 revocation of the Royal Proclamation. 26 Now, I refer to tab 5, which is the situation that 27 pertained after the old province of Quebec was divided 28 into Upper and Lower Canada. The boundaries are the 2 9 s ame. 3 0 THE COURT: Yes. 31 MR. GOLDIE: Now, I say this was recognized, and when I say 32 this, I mean the proposition that I put in the 33 preceding paragraph, I say this was recognized in St. 34 Catherine's Milling by Lord Watson where he said, and 35 I quote: 36 37 \"The territory in dispute has been in Indian 38 occupation since 1763.\" 39 40 And I say the significance of that is that His 41 Lordship was identifying and fixing people who had an 42 interest prior to the Quebec Act of 1774, and to the 43 same effect, when His Lordship said: 44 45 \"... there has been no change since the year 46 1763 in the character of the interest in which 47 its Indian inhabitants had in the lands 28104 Submissions by Mr. Goldie 1 surrendered by the treaty.\" 2 3 Again the significance of 1763 is that we are 4 outside of the old province of Quebec, inside 1774 5 Quebec, and the interest is -- stems from a period 6 before the revocation of the Royal Proclamation in 7 that area in 1774. And I have also noted his 8 lordship's statement. 9 10 \"Their possession, such as it was, can only be 11 ascribed to the general provisions made by the 12 Royal Proclamation in favour of all Indian 13 tribes then living under the sovereignty and 14 protection of the British Crown.\" 15 16 And I emphasize the word \"then\". 17 Point 'G'. The effect of the saving clause in the 18 Quebec Act of 1774 was expressly noted by Mr. Justice 19 Taschereau in the Supreme Court in the St. 20 Catherine's Milling case at SCR page 648. 21 And I wish to quote a little before what I have in 22 my summary. And beginning at page 647 His Lordship 23 analyzes the Indian provisions of the Royal 24 Proclamation, and he says on that page, he says the 25 words \"for the present\" in this, and that's the 26 presiding clause. And the next clause which is 'V: 27 28 \"Are equivalent to a reservation by a King of 29 his Right thereafter or at any time to grant 30 these lands when he think it proper to do so. 31 He reserves for the present for the use of the 32 Indians all the lands in Canada outside of the 33 limits of the Province of Quebec as then 34 constituted.\" 35 36 Now, His Lordship is addressing the situation that 37 pertained at that time, and when he's not considering 38 the Indian country as it was south of the border he 39 says: 40 41 \"Is that, in law, granting to these Indians a 42 full title to the soil, a title to these lands? 43 Did the sovereign thereby divest himself of the 44 ownership of this territory? I cannot adopt 45 that conclusion, nor can I see anything in that 46 proclamation that gives to the Indians forever 47 the right in law to the possession of any lands 28105 Submissions by Mr. Goldie 1 as against the Crown. Their occupancy under 2 that document has been one by sufferance only. 3 Their possession has been, in law, the 4 possession of the Crown. At any time before 5 confederation the Crown could have granted 6 these lands, or any of them, by letters patent, 7 and the grant would have transferred to the 8 grantee the plenum et utile dominium, with the 9 right to maintain trespass, without entry, 10 against the Indians. A grant of land by the 11 Crown is tantamount to conveyance with livery 12 of seisin. This proclmation of 1763 has not, 13 consequently, in my opinion, created a legal 14 Indian title.\" 15 16 Then he goes on with what I have in my summary. 17 18 \"From this result of my interpretation of it it 19 is unnecessary, for my determination of this 20 case, to consider how far the section is of the 21 Proclamation to which I have alluded, have been 22 affected by the Act of 1774. I may 23 nevertheless, remark, that any right the 24 Indians might have previously had could not, it 25 seems, have been affected by this Act, as by 26 its 3rd section it is specially provided and 27 enacted that 'nothing in this Act contained 28 shall extend, to make void, or to vary, or 29 later, any right title, or possession derived 30 under any grant, conveyance, or otherwise 31 howsoever, of or to any lands within the sad 32 Province, or the Provinces thereto adjoining'.\" 33 34 So it was clear his lordship's statement or his 35 lordship's opinion that the savings clause operated to 36 save the rights under the hunting reserve of those 37 whose territories were outside the 1763 colony or 38 province of Quebec, but remain inside Canada after 39 1774. 40 I say on page 27: The result is that in those 41 parts of Canada which were beyond the limits of 1763 42 Quebec, but within the limits of 1774 Quebec, such 43 rights existed only in respect of those Indian peoples 44 whose ancestors were within the hunting reserve when 45 it was created in 1763. In present day Canada this is 46 essentially that part of Ontario south of what was 47 Rupert's Land and east of the Quebec Ontario boundary. 28106 Submissions by Mr. Goldie 1 The Treaty of 1873 which figured in St. 2 Catherine's Milling was a surrender by Indian peoples 3 of rights granted to their ancestors in 1763. 4 In the result the only area in Canada in which the 5 hunting reserve in the Royal Proclamation had any 6 continuing effect was in Ontario. Such effect was 7 extinguished by treaties entered into before and after 8 confederation. 9 Now, I make reference to a photograph or a photocopy 10 of that part of the second map, my lord, which shows 11 the treaties negotiated in -- prior to confederation 12 and after confederation. 13 THE COURT: Can you excuse us just a moment, Mr. Goldie. 14 15 (REPORTER CHANGE) 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 28107 Submissions by Mr. Goldie 1 (CHANGE OF REPORTERS) 2 3 MR. GOLDIE: My lord, I'm at paragraph number 2 on page 28. As 4 the Royal Proclamation and the rights of pre-1763 5 Indians in the Hunting Reserve was a concern only in 6 Ontario or Upper Canada, the extinguishment thereof 7 took place both before and after Confederation. 8 Evidence has been given of that, my lord. The 9 Robinson Treaties of 1850 figured in the Bear Island 10 case. In fact, my understanding is that virtually the 11 whole of Ontario was covered by treaties at surrender. 12 Then in paragraph 3 I submit that the Royal 13 Proclamation application to British Columbia was first 14 suggested, and as no more than a suggestion, by Mr. 15 Hewitt Bernard, Deputy Minister of Justice, in his 16 report of January 19th, 1875 recommending disallowance 17 of the 1874 Crown Lands Act of British Columbia, which 18 is referred to under tab 7. 19 Now, if your lordship would look under tab 7, you 20 will find the print of Mr. Bernard's report, which was 21 adopted by the Department of Justice, and in this 22 particular print it was forwarded to the Colonial 23 Office by Lord Dufferin. And this is part of the 24 Colonial Office confidential print, and the report of 25 the Privy Council reads as follows: 26 27 \"The company of the Privy Council had under 28 consideration the report from the Honourable 29 The Minister of Justice to whom was referred 30 with the other Acts passed by legislature of 31 the Province of British Columbia in the 37th 32 year of Her Majesty's reign the following Act, 33 which was ascented to by the 34 Lieutenant-Governor on the 2nd of March, 1874.\" 35 36 Et cetera. And they adopt the recommendation of the 37 Minister of Justice. And there is the following 38 report, one of which -- well, the report is that of 39 Mr. Bernard as seen -- as is apparent from page 52, 40 the last page, and Mr. Fornier simply adds the words 41 \"I concur\". So the undersigned, who is reporting, is 42 that of Bernard's report. And my lord, the -- the 43 basic reason for recommending disallowance is that 44 adequate measures are not taken to protect the 45 interests of the native peoples. And Mr. -- this came 46 at a time when there was a dispute between British 47 Columbia and the Dominion over reserve allocation. 2810? Submissions by Mr. Goldie 1 And I say that as far as I'm aware, this is the first 2 time that Mr. -- that anybody has suggested that the 3 Royal Proclamation has an application to British 4 Columbia. 5 Now, this report became, of course, public 6 knowledge, and it became public knowledge right away, 7 because there is annually a report printed of 8 Provincial Acts which have been disallowed and the 9 reasons; therefore, it became public knowledge. It 10 was widely relied upon by the Indians and their 11 advisers. And by 1913 the Nishga, in their petition, 12 relied solely upon the Royal Proclamation. 13 Now, Mr. Bernard had been the Indian Department 14 solicitor in the pre-Confederation Province of Canada. 15 And I say as such he provided the Executive Council of 16 that province with a long report on the validity of a 17 lease granted by Indian chiefs in 1778. His 18 conclusion of invalidity was based in part on the fact 19 that the lease did not conform to the surrender 20 provisions of the Royal Proclamation. Now, he was 21 also of the view that the Quebec Act 1774 repealed the 22 Royal Proclamation in only a limited sense, and, my 23 lord, I should say that there is -- there is an 24 academic dispute, if I may put it that way, some say 25 the revocation of the Royal Proclamation in Quebec 26 extended over to government and the administration of 27 justice. I say that whatever may be the case, it was 28 treated in St. Catherines' Milling as extending to the 29 Royal Proclamation. Bernard was also of the view that 30 the Quebec Act -- well, I've read that. Although the 31 lease was considered invalid, the Indian title 32 subsisted until cession. That was his conclusion. 33 Now, his report, which the Plaintiffs put in 34 evidence, is found under tab 8. I think it was one of 35 Mr. Morrison's exhibits. So Mr. Bernard was a person 36 who, if I may say so, was steeped in the Royal 37 Proclamation and its application in what, in my 38 submission, was the only area in Canada in which the 39 rights granted under the Hunting Reserve provisions 40 subsisted after 1774. 41 Now, I submit, my lord, in paragraph 5, that no 42 foundation exists in fact or law for concluding that 43 the Royal Proclamation applies to British Columbia. 44 The suggestion in 1874 -- now, I just want to check 45 that year, my lord, just if I may. I think -- yes, I 46 think Mr. Bernard's report was '75, so if your 47 lordship could change that. The suggestion in 1875 28109 Submissions by Mr. Goldie 1 that it might apply by a Dominion official whose 2 background was clearly in Proclamation country -- 3 whether directly or through legislation -- does not 4 occur until 12 years after Confederation. It comes 5 when the Province and the Dominion were engaged in a 6 serious dispute over reserve land allocations. How 7 little Bernard himself regarded the proposition is 8 indicated by the fact that virtually identical B.C. 9 legislation was allowed to operate in the next year, 10 1875. The sole difference was the agreement of the 11 governments, the two governments, to set up the Indian 12 Reserve Commission, a body which did not deal with 13 title. If the Royal Proclamation applied in 1875, it 14 applied no less than in respect of the later 15 legislation of that year. 16 My lord, that constitutes my answer to your 17 lordship's question. In my submission, your lordship 18 is free to make whatever use of the -- of the aides 19 memoire which are attached to my submission and which 20 are tabs 1, 2, 3, 4, and 6. 21 THE COURT: Mr. Goldie, what do you say about the next 22 paragraph? Well, sorry, you didn't read it, but after 23 quoting I think from the Proclamation on page 50 of 24 your tab 7 -- 25 MR. GOLDIE: Yes. 2 6 THE COURT: Mr. Bernard says: 27 28 \"It's not necessary to...(read in)...the term of 29 that policy has been followed to the present 30 time except in the British Columbia.\" 31 32 MR. GOLDIE: Well, he was wrong, my lord, just simply factually 33 wrong. There was nothing in the old Province of 34 Quebec, there's nothing in the Province of Nova 35 Scotia, nothing in the Province of New Brunswick, 36 nothing in the Province of Newfoundland. 37 THE COURT: Nothing? 38 MR. GOLDIE: Of what he's talking about. 39 THE COURT: Nothing -- no acquisition of Indian territorial 40 rights? 41 MR. GOLDIE: That's correct. 42 THE COURT: Well, the treaties in Ontario were under the 43 acquisition. 44 MR. GOLDIE: That's west of the Quebec boundary. 45 THE COURT: I see. 46 MR. GOLDIE: As Mr. Mackenzie said, he said there are no 47 treaties of surrender, or more accurately, treaties of 28110 Submissions by Mr. Goldie 1 significance, not surrender, treaties of cession, east 2 of about the 80th parallel, which, roughly speaking, 3 is the Quebec-Ontario boundary. That statement by Mr. 4 Bernard, of course, has been picked up and has been 5 repeated ever since as if British Columbia in some 6 strange way was a unique animal. The very -- the 7 Dominion itself west of the Rockies didn't acquire 8 lands in the Yukon by treaties of cession. It wasn't 9 unique to British Columbia, it was what happened west 10 of the Rockies. 11 THE COURT: You say there were no treaties east of -- 12 MR. GOLDIE: The Quebec-Ontario boundary. 13 THE COURT: That is Newfoundland, Laborador, Quebec, Rupert's 14 Land, and -- 15 MR. GOLDIE: The Maritime — 16 THE COURT: The Maritimes. 17 MR. GOLDIE: Yes. Nova Scotia, New Brunswick, Prince Edward 18 Island. 19 THE COURT: Yes, all right. Thank you. 20 MR. GOLDIE: Your lordship may recall that I asked Dr. Lane if 21 she could produce any treaties in what is today 22 Canada, west of Ontario, and she was unable to. 23 THE COURT: And you say that need for treaties in -- west of the 24 Quebec-Ontario border arose because of the Royal 25 Proclamation? 26 MR. GOLDIE: It arose in that remnant of the post-1774 Colony of 27 Quebec, and the boundary of that Colony was a straight 28 line -- or I'm sorry -- a line from the junction of 29 the Ohio and the Mississippi to the point where it 30 intersected with Rupert's Land. And I say the rights 31 in that area was, roughly speaking, lay west of the 32 Ontario-Quebec boundary and east of the -- what was 33 determined to be the boundary between Manitoba and 34 Ontario. I say those rights arose by reason of the 35 savings clause in the Quebec Act of 1774 in favour of 36 people who had been there whose ancestors had been 37 there in 1763. 38 THE COURT: Whose ancestors were in place. 39 MR. GOLDIE: In the Hunting Reserve, and who were the 40 beneficiaries of the Hunting Reserve. 41 THE COURT: And they were in place in the Hunting Reserve in or 42 before 1763? 43 MR. GOLDIE: Yes, that's right. As Lord Watson said of the 44 people who made the surrender in 1873, he put it: 45 46 \"The territory in dispute has been in Indian 47 occupation since 1763. No change since the 28111 Submissions by Mr. Goldie 1 year 1763 in the character of the interest 2 which Indian inhabitants had in the land is 3 surrendered by the treaty.\" 4 5 THE COURT: But what about all the treaties on the Prairies? 6 MR. GOLDIE: Those were made, my lord, and I will be coming to 7 this in the counter-claim, as a result of the 8 surrender of Rupert's Land to the Imperial Government 9 and the union with Canada of Rupert's Land and the 10 northwestern territories. And I will be dealing with 11 that on -- hopefully on Monday. 12 THE COURT: All right. 13 MR. GOLDIE: My lord, under tab Roman IX of this volume is my 14 submission with respect to another question that your 15 lordship put, and the question is found under tab 16 IX-2, when your lordship said to Mr. Willms: 17 18 \"I have been considering his argument last week, 19 that it was never British colonial policy to 20 recognize aboriginal rights outside village 21 sites and cultivated fields that he referred to 22 the Select Committee of the House of Commons 23 relating to the New Zealand question, he cited 24 some Privy Council authorities. And I'd like 25 to have his assistance on this specific 26 question of whether that view is consistent or 27 inconsistent with the events that Mr. Jackson 28 described relating to either British colonial 29 activity policy or at least activities in the 30 North American colonies prior to the Royal 31 Proclamation.\" 32 33 That is what I propose addressing at this point, 34 my lord. And I'm at page 1 of the document headed 35 \"Addendum\" under tab Roman IX. 36 I say the Province has submitted that the common 37 law of England recognizes no interest in lands other 38 than one derived from the Crown. And I quote Chief 39 Justice Robinson in the Ontario 1852 case, where his 40 lordship said: 41 42 \"We cannot recognize any peculiar law of real 43 property applying to the Indians - the common 44 law is not part savage and part civilized.\" 45 46 And then I refer to the question your lordship raised, 47 and then I say on page 2 \"Pre-1763\". Now, what I am 28112 Submissions by Mr. Goldie 1 endeavouring to do here is to define further what in 2 my submission was the law at or around the Royal 3 Proclamation of 1763, and I make reference here to 4 Chalmers' treatise published in 1780 entitled 5 \"Political Annals of the Present United Colonies, From 6 Their Settlement to the Peace of 1763\". And the 7 learned author suggests that the interest of James I 8 in planting colonies in North America probably 9 emulated that of the Spanish Crown \"to share in the 10 gold and silver which were expected from mines\". 11 Henry Wheaton's own \"Elements of International Law\", 12 published in 1836 when he was the resident minister 13 from the United States of America to the Court of 14 Berlin states at pages 138 to 139: 15 16 \"The title of almost all the nations of Europe 17 to the territory now possessed by them in that 18 quarter of the world\" -- 19 20 Which was the Americas: 21 22 \"-- was originally derived from conquest, which 23 has been subsequently confirmed by 24 international compacts to which all European 25 states have successively become parties. 26 The Spaniards and Portuguese took the lead 27 among the nations of Europe... 28 the heathen nations of the other quarters of 29 the globe were the lawful spoil and prey of 30 their civilized conquerors, and as between the 31 Christian powers themselves, Sovereign Pontiff 32 was the supreme arbiter of conflicting claims. 33 Hence the famous Bill issued by Pope Alexander 34 VI in 1493. . .Independent of this —\" 35 36 Your lordship will appreciate that this is a 37 condensation, and the document itself is found under 38 tab IX-4. Mr. Wheaton says: 39 40 \"Independent of this papal grant, the right of 41 prior discovery was the foundation upon which 42 the different European nations, by whom 43 conquests and settlements were successively 44 made on the American continent, rested their 45 respective claims exclusive use of each 46 nation....On the other hand, Great Britain, 47 France, and Holland disregarded the pretended 28113 Submissions by Mr. Goldie 1 authority of the papalcy, and pushed their 2 discoveries ... But there was one thing in which 3 they all agreed, that of almost entirely 4 disregarding the right of the native 5 inhabitants of these regions .... In the same 6 manner the grant from Queen Elizabeth to Sir 7 Humphrey Gilbert empowers him to 'discover such 8 remote heathen and barbarous lands, countries, 9 and territories, not actually possessed of any 10 Christian prince or people, and to hold, occupy 11 and enjoy the same with all their commodoties, 12 jurisdiction and royalties'. It thus became a 13 maxim of policy and of law that the right of 14 the native Indians was subordinate to that of 15 the first Christian discoverer, whose paramount 16 claim excluded that of every other civilized 17 nation, and gradually extinguished that of the 18 natives.\" 19 20 Now, your lordship will see there a hint of the 21 contrast between the alleged religious qualification 22 of the Christian princes and the alleged 23 disqualification of the native peoples. 24 I say in paragraph 4 the early basis in English 25 law for disregarding native title, in my submission, 26 was stated in Calvin's Case of 1608, where Sir Edward 27 Coke, in reporting the views of the Judges of England, 28 summarized the character in law a person may assume: 29 Alien born or subject born? If the former: Alien 30 friend or alien enemy? If the latter, whether 31 temporary or perpetual? And at page 397, he said 32 this: 33 34 \"All infidels are in law...perpetual 35 enemies..for between them, as with the devils, 36 whose subjects they be, and the Christian, 37 there is perpetual hostility.\" 38 39 Now, that, I say, is what appears to be a 40 rationalization for the proposition that the interests 41 of the inhabitants can be disregarded. And I note the 42 juxtaposition and date. The second or definitive 43 Charter of the Colony of Virginia was granted by James 44 I in 1609, and in 1624 it became a Royal Colony 45 instead of a Charter Colony. 46 Now, Chalmers, referring once again to the view in 47 1780 of the pre-1763 period, said at page 676 of tab 28114 Submissions by Mr. Goldie 1 3, my lord, which has the title page, and the part I'm 2 quoting from is at page 676, and I'm starting on the 3 second paragraph: 4 5 \"The American emigrants settled in a region 6 which was regarded by them as a territory of 7 the English empire, because it had been first 8 discovered and first occupied by virtue Of 9 commissions under the great seal of England. 10 The validity of this title had been recognized 11 by the approbation and practise of the European 12 world. And it had been confirmed by the law of 13 nations which sternly disregarded the 14 possession of the aborigines, because they had 15 not been admitted into the society of nations.\" 16 17 And at page 677: 18 19 \"It instantly became a fundamental principle of 20 Colonial jurisprudence, that, in order to form 21 a valid title to any portion of the general 22 dominion it was necessary to show a grant 23 either immediately or directly from English 24 monarchs. And this suggests the principal 25 cause of the general solicitude to procure 26 patents from the sovereigns of England at every 27 period, because in them the whole was supposed 28 to be invested.\" 29 30 Now, he's speaking about the situation prior to 31 1763, and then noted how the common law of England was 32 adapted to Colonial purposes. And this is at page 33 677: 34 35 \"The jurisprudence of England became that of the 36 colonies, as far as was applicable to the 37 situation at which they had newly arrived; 38 because they were Englishmen, residing within a 39 distant territory of the empire. And we have 40 beheld the wisest of the emigrants, who had 41 been born within the realm, whose affections 42 were yet warm, enforcing, by positive acts this 43 salutory principle of the common law. When the 44 legislative energy of these declarations had 45 ceased, even Colonial lawyers were often 46 perplexed to decide what part of the laws of 47 England extended to the colonies, what remained 28115 Submissions by Mr. Goldie 1 a dead letter, what judicatories they should 2 apply to for a solution of their difficulties. 3 But have not English lawyers often differed in 4 opinion with regard to a precept of the common 5 law; have they not constantly appealed to the 6 courts of justice, because these form the great 7 depository of the laws? In the same manner the 8 provincial tribunals decided, in the first 9 instance, which of the laws were suitable to 10 their circumstances; which were, therefore, to 11 be considered as a rule of action: And their 12 former decisions and daily practice are 13 authoritative evidence by which all are 14 concluded. Hence, we may infer, in different 15 provinces, a different rule may prevail.\" 16 17 And that, as I say, is taken from Chalmers' under tab 18 3. 19 And then I make reference to Blackstone under tab 20 6, the Laws of England. In 1765 Blackstone, in his 21 \"Commentaries On The Laws Of England\", Book I at page 22 104 to 105, treated a settled law that plantations or 23 colonies are either such: 24 25 \"-- where the lands are claimed by right of 26 occupancy only, by finding them deserted and 27 uncultivated, and peopling them from the mother 28 country; or where, when already cultivated, 29 they have been gained by conquest or ceded to 30 us by treaty.\" 31 32 Both these, he stated, are founded upon the law of 33 nature, or at least upon that of nations. 34 The difference between the two species of colonies 35 lay in the automatic introduction of English law in 36 the case of settled colonies, while in conquered or 37 ceded colonies, the law there remained that of the 38 conquered sovereign until supplanted by the King. He 39 stated that the American plantations were principally 40 of the latter sort: 41 42 \"...being obtained in the last century either by 43 right of conquest and driving out the natives 44 (with what natural justice I shall not at 45 present enquire) or by treaties.\" 46 47 Now, the view taken by colonial lawyers is 28116 Submissions by Mr. Goldie 1 illustrated by \"Councells Opinions Concerning Colonel 2 Nicholls Pattent and Indian Purchases\" given in 1675. 3 The second question put to Councell was whether a 4 grant from the Indians would be sufficient to any 5 planter without a grant from the King or his assigns. 6 In answer it was stated by the eight signatories to 7 the opinion, and I'm not going to try and put in all 8 the \"ye's. 9 THE COURT: Yes. 10 MR. GOLDIE: 11 \"by the Law of Nations if any people make 12 Discovery of any Country of Barbarians the 13 Prince of the people who make the Discovery 14 have the right of the Soyle and Government of 15 the place and no people can plant there without 16 the concept of the Prince.\" 17 18 Now, if I may say so, that is -- that echoes Calvin's 19 Case. 20 21 \"Though it has been and still is the Usual 22 Practice of all Proprietors to give their 23 Indians some Recompence for their Lands and So 24 Seems to Purchase it of them yet it is not done 25 for want of Sufficient Title from the King... 26 but out of Prudence and Christian Charity Least 27 otherwise the Indians might have destroyed the 28 first planters ... or refuse all Commerce and 29 Conversations with the planters and thereby all 30 hopes of Converting them to the Christian faith 31 would be Lost in this the Common Law of England 32 and the Civil Law doth agree...and therefore 33 tho some Planters have purchased from the 34 Indians yett having done So without the Consent 35 of the Proprietors for the time being the title 36 is good against the Indians but not against the 37 Proprietor without a Confirmation from them 38 upon the usual terms of Other Plantations.\" 39 40 This opinion is found in \"Documents Relating to 41 the Colonial History of the State of New York\", which 42 is -- the extract is found under tab 7. And it is the 43 opinion quoted by Chancellor Boyd in his judgment in 44 Regina versus St. Catharine's Milling at page 208. 45 And writing in 1683, a Colonial lawyer, William 46 Fitzhugh of Virginia stated: 47 28117 Submissions by Mr. Goldie 1 \"Now as to the comparing of us to Ireland and 2 therefore concluding because Ireland is not 3 bound by any Act of Parliament made in England, 4 unless particularly named, or generally 5 included, we are not neither. There is great 6 difference between Ireland and us, they having 7 the Kingdom of Conquered Christians, we of 8 Conquered infidels. They were to be governed 9 by their antiant municipal laws, till an 10 alteration made amongst them, ours if we had 11 any were ipso fact abrogated, because not only 12 against Christianity, but against the law of 13 God and nature.\" 14 15 This is found in the treatise \"William Fitzhugh and 16 His Chesapeake World\", et cetera. 17 Paragraph 10. In the Plaintiffs' Exhibit 1244-11 18 there's an extract of the \"Remonstrance of the 19 Ambassadors of the States General to King Charles I\". 20 The complete document, including the answer to the 21 Remonstrance of King Charles -- that's the answer to 22 the Remonstrance of the Dutch Ambassadors on behalf of 23 King Charles, is found in \"Documents Relative to the 24 Colonial History of the State of New York Procured In 25 Holland, England and France\", under tab 9. The Dutch 26 Ambassadors were protesting the seizure of a vessel 27 belonging to a Dutch trading company which had been 28 forced into Plymouth, England, by reason of weather 29 and was there seized because it had been trading in 30 territory with the Plantation of Virgina, which at 31 that time, my lord, extended a very long way north, 32 and in fact, the trading took place at Manhattan. In 33 answer to the assertion that Holland had for a long 34 time traded in the River Manathans, which I understand 35 is Manhattan...\"having purchased from the native 36 inhabitants and paid for a certain island called also 37 Manathans, where they remain surrounded on all sides 38 by the natives of the country\", the English response 3 9 was: 40 41 \"It is denied that the Indians were possessores 42 bonae fidei of those countries, so as to be 43 able to dispose of them either by sale or by 44 donation, their residences being unsettled or 45 uncertain, and only being in common.\" 46 47 Now, my understanding of the Latin phrase is imports 2811? Submissions by Mr. Goldie 1 one who has a title sufficient to transfer property if 2 unaware of any defects. 3 In the next paragraph of the Answer to the 4 Remonstrance the authors say: 5 6 \"The right of His Majesty's subjects have in 7 that country, is justified by first discovery, 8 occupation and the possession which they have 9 taken thereof, and by the concessions and 10 letters patent they have had from our 11 Sovereigns, who were, for the above reasons, 12 the true and legitimate proprietors thereof in 13 those parts.\" 14 15 And the outcome is recorded in the Calendar of 16 State Papers, which doesn't concern us. 17 So I say in summary, as to the period up to 1763: 18 First, the laws of England recognized no title or 19 interest other than that of the Sovereign or derived 20 from the Sovereign; (b), Religious grounds were 21 advanced in the 17th century as justification for 22 ignoring claims of indigenous peoples; (c), payments 23 made to indigenous peoples as \"Recompence\" were made 24 for reasons of prudence -- and I characterize prudence 25 as encompassing fear, seeking an ally, et cetera -- or 26 Christian charity, which appears to, and I'm quoting 27 from counsel's opinion, which appears to include 28 encouragement of trade, et cetera, as well as -- as 29 well as proselytizing; (d) occupation perfected by 30 possession was good title on the part of the Sovereign 31 in international law as well as in municipal law as 32 against prior inhabitants. There was no English 33 acknowledgement of a legal interest which bound the 34 Crown unless so acknowledged by the Crown. This is 35 consistent with the views expressed by Vattel, 36 probably the most authoritative commentator on matters 37 of international law in England prior to 1763. He 38 said: 39 40 \"There is another celebrated question to which 41 the discovery of the New World has principally 42 given rise. It is asked whether a nation may 43 lawfully take possession of some part of a vast 44 country in which there are none but erattic 45 nations, whose scanty population is incapable 46 of occupying the whole? We have already 47 observed, in establishing the obligation to 28119 Submissions by Mr. Goldie 1 cultivate the earth, that these nations cannot 2 exclusively appropriate to themselves more land 3 than they have occasion for or more than they 4 are able to settle and cultivate. Their 5 unsettled habitation in those immense regions, 6 cannot be accounted a true and legal 7 possession, and the people of Europe... 8 finding land of which the savages stood in no 9 particular need, and of which they made no 10 actual and constant use, were lawfully entitled 11 to take the possession of it and settle it with 12 colonies.\" 13 14 My lord, that was quoted by the Commissioners of 1844. 15 I included a part of their report, which was one of 16 the Plaintiffs' exhibits, in my introduction. 17 THE COURT: Which Commissioners are those? 18 MR. GOLDIE: These were Commissioners appointed to investigate 19 the payment of moneys in Crown lands in Upper Canada. 2 0 THE COURT: I think it's quoted by the Supreme Court of Canada 21 in St. Catharine's Milling. 22 MR. GOLDIE: Vatell — Chancellor Boyd quoted it. 23 THE COURT: Yes, all right, Chancellor Boyd, all right. 24 MR. GOLDIE: Yes. Now, Vattel, who died in 1767, nevertheless 25 praised the moderation of the English Puritans who 26 purchased interests from the Indians notwithstanding 27 their Charter. And tab 10 is the extract from the 28 1844 report quoting Vattel, and that part of that is 29 quoted by Chancellor Boyd. 30 Now, subsequent to 1763 -- 31 THE COURT: I wonder if we shouldn't adjourn, Mr. Goldie. How 32 are we getting along? 33 MR. GOLDIE: Well, I would like to finish this, my lord, and 34 that will really complete this part. 35 THE COURT: How long do you think it will take you to finish? 36 MR. GOLDIE: I would think about another, oh, 15 minutes. 37 THE COURT: Oh, all right. Miss Sigurdson can last, I think. 38 All right, we'll stay then. 39 MR. GOLDIE: I'm going to deal fairly quickly with the post-1763 40 part. 41 THE COURT: All right. 42 MR. GOLDIE: Wheaton, in his 1836 treatise, referred to above, 43 does not indicate any change subsequent to the 44 American Revolution of legal principles from those 45 which he described as applying to discovery and 46 occupation of European nations in North America. 47 Kent's Commentaries, my lord, are referred to in a 28120 Submissions by Mr. Goldie 1 number of prior authorities, one of them being St. 2 Catharine's Milling, first published in 1826. The 3 12th Edition in 1873 was edited by Oliver Wendell 4 Holmes, and he states the fundamental principle in the 5 English law that the King was the original proprietor 6 was said to be one that had been adopted in the United 7 States and applied to republican governments. And he 8 said: 9 10 \"In New York it was held to be settled rule that 11 the courts could not take notice of any title 12 to land not derived from our own state or 13 colonial government. This was also a 14 fundamental principle in the Colonial 15 jurisprudence. All titles to land passed to 16 individuals from the Crown, through the 17 colonial corporations, and the colonial or 18 proprietory authorities. Even with respect to 19 the Indian reservation lands, of which they 20 still retain the occupancy, the validity of a 21 patent has not hitherto been permitted to be 22 drawn in question in a suit between citizens of 23 the state, under the pretext that the Indian 24 right and title as original lords of the soil 25 had not been extinguished.\" 26 27 And the section beginning at page 512 headed \"Right of 28 Colonization\" Kent speaks of the entire Colonial 29 period and after stating that as far as Indian nations 30 had formed themselves into regular organized 31 governments within reasonable and definite limits 32 necessary for the hunter state there would seem also 33 to be no ground to deny the absolute nature of their 34 territorial and political rights. He goes on to say: 35 36 \"But beyond these points are colonial ancestors 37 were not willing to go. They seem to have 38 deemed it to be unreasonable, and a perversion 39 of the duties and design of the human race, to 40 bar the Europeans.\" 41 42 Et cetera. Now, he cites Vattel, who did not place 43 much value in the territorial rights of erratic races 44 or people, et cetera. He asserts at page 515 that in 45 point of fact the colonists were not satisfied, nor 46 did they deem it expedient to settle the country 47 without the consent of the aborigines, procured by 28121 Submissions by Mr. Goldie 1 fair purchase, under the sanction of the civil 2 authorities. There is no doubt that Kent regarded 3 this practice as invariable, but he makes no assertion 4 that it was a legal requirement either in the 5 pre-revolutionary period or in the post-revolutionary 6 period except by statute. 7 He quotes Chalmers for the proposition that \"the 8 practice of the European world had constituted a law 9 of nations which sternly disregarded the possession of 10 the aborigines, because they had not been permitted 11 into the society of nations\". He was at pains to 12 defend the Indian practice of the American Colonies 13 both before and after the Revolution. 14 THE COURT: What do you call the Indian practice? 15 MR. GOLDIE: Of purchase. 16 THE COURT: Oh. 17 MR. GOLDIE: It is -- it's very neatly summed up by the 18 Counsell's opinion of 1675. The only law was the 19 title from the King that prudence of Christian charity 20 dictated that treaties should be entered into, and, my 21 lord, I have submitted in my main summary that you 22 take all of the treaties collected by my friends and 23 they can all be -- come under that heading: Prudence, 24 to mark the end of a war, alliances; they all mark the 25 fact that these were things which either prudence, or 26 I put it, at that time, commercial development or 27 lands speculation dictated. 28 Then I refer to Regina and Symonds, decided by the 29 Supreme Court of New Zealand in 1847, and Kent's 30 Commentaries are cited in the judgments of both Chief 31 Justice Martin and Mr. Justice Chapman. It might be 32 said that the two judges drew opposite conclusions. 33 The latter believed that the practice of extinguishing 34 native titles by fair purchase was now a part of the 35 law of the land, while Chief Justice Martin said: 36 37 \"Now the general law of England, or rather of 38 the British Colonial Empire, in respect of the 39 acquisition of lands, such as those which are 40 comprised within the claimant's purchase and 41 the defendant's grant, has from very early 42 times said as follows: Wherever, in any 43 country to which (as between England and the 44 other European nations) England had acquired a 45 prior title by discovery or otherwise, there 46 were found land lying waste and unoccupied and 47 appropriated by subjects of the British Crown, 28122 Submissions by Mr. Goldie 1 it was holden that such subjects did not and 2 could not thereby acquire any legal title to 3 the soils against the Crown. And this rule was 4 understood to apply equally, whether the 5 country is partially peopled or wholly 6 unpeopled, and whether the settlers entered or 7 obtained possession with or without the consent 8 of the original inhabitants. Accordingly 9 Colonial titles have uniformly rested upon 10 grants from the Crown. This was the case in 11 the oldest British colonies in America: And it 12 is notorious that the same rule has been acted 13 upon without deviation or exception in the more 14 recent colonization of Australia.\" 15 16 This case was decided some seven years after the 17 Treaty of Waitangi and the decision has been taken by 18 the Colonial Secretary -- and the decision had been 19 taken by the Colonial Secretary in 1846 that the Crown 20 was in honour bound to accept the extreme view of its 21 effect. 22 Now, when I say that, I mean that the Colonial 23 Secretary and the Select Committee both believed that 24 the interpretation which had been given the Treaty of 25 Waitangi went beyond what -- went beyond what was 26 called for, but they considered themselves to be 27 honour bound to accept it. 2 8 In law, the views of the two judges in Symonds can 29 be reconciled with colonial law only because of the 30 view taken of the Treaty of Waitangi that it made no 31 distinction between waste lands and those actually 32 occupied by the native inhabitants. It was the 33 failure to make this distinction that drew the 34 criticism of Lord Grey in his dispatch to the Governor 35 of New Zealand in 1846. 36 Chapman refers to judgments of Colonial courts. 37 One which was referred to in the address of Sir George 38 Gipps, G-i-p-p-s, quoted with approval in the report 39 of the Select Committee, was Martin versus Johnson, a 40 judgment of the Supreme Court of Louisiana, where 41 Judge Derbigny stated, and I set out the quote: 42 43 \"The King of Spain, in taking possession of his 44 dominions in America, disregarded the rights of 45 the original lords of the soil, and declared 46 himself the sovereign of the country. As some 47 compensation, however, for that usurpation, he 28123 Submissions by Mr. Goldie 1 assigned to the former proprietors such extent 2 of land as they wanted; and particularly took 3 care to secure to them, by law, such tracts as 4 he conceived were sufficient for the purposes 5 of cultivation and which pasturage of their 6 cattle.\" 7 8 From the same jurisdiction is the case of Breaux 9 versus Jones, cited by Mr. Justice Taschereau in St. 10 Catharine's Milling, which qualified Martin versus 11 Johnson and recognized only a right of actual 12 occupancy of village sites. Breaux and Jones cited 13 Johnson and M'Intosh. 14 And then it has already been submitted that there 15 is language in respect of actual occupancy which is 16 consistent with Breaux and Jones, and I set that out, 17 the right to grant the soil while yet in the 18 possession of the natives. 19 And the top of the page: 20 21 \"So far as respect of the authority of the 22 Crown, no distinction was taken between vacant 23 lands occupied by Indians.\" 24 25 Then I refer to waste lands and to the discussion of 26 waste lands in Milirrupum, where one judicial 27 definition is there quoted, as I quote: 28 29 \"In law it has for a long time meant 'lands of 30 the Crown which have not been alienated.\" 31 32 And I submit that the invariable practice relied 33 upon by Mr. Justice Chapman in Regina versus Symonds 34 and the Plaintiffs in the case at bar was not 35 invariable in the pre-revolution colonies of Nova 36 Scotia and Newfoundland, nor was it regarded as having 37 the force of law in any colony prior to 1763. The 38 theory that that practice ripened into a rule of law 39 subsequent to 1763 was rejected by the Judicial 40 Committee in St. Catharine's Milling. That theory, my 41 lord, that quiet practice that ripened into the rule 42 of law, was that adopted by Mr. Justice Strong in the 43 Supreme Court of Canada and was that which counsel for 44 Canada argued for in the Judicial Committee. 45 The treaties and agreements in the 46 pre-revolutionary American colonies cited by the 47 Plaintiffs arose out of a variety of circumstances, 28124 Submissions by Mr. Goldie 1 many of which attest to the wisdom of treating with a 2 powerful neighbour whose land is desired. But none of 3 these derogate from the principle stated in United 4 States and Santa Fe Railroad: 5 6 \"As stated...in Johnson v. M'Intosh...'the 7 exclusive right of the United States to 8 extinguish' Indian title has never been 9 doubted. And whether it be done by treaty, by 10 the sword, by purchase, by the exercise of 11 complete dominion adverse to the right of 12 occupancy, or otherwise, its justness is not 13 open to inquiry in the courts.\" 14 15 The Plaintiffs' attempts to elevate practice into a 16 law which is binding on the Crown is negated by 17 Sparrow in the Supreme Court of Canada, where it is 18 stated: 19 20 \"...there was from the outset never any doubt 21 that sovereignty and legislative power, and 22 indeed the underlying title, to such lands 23 vested in the Crown....\" 24 25 It is submitted the Select Committee on New Zealand in 26 1844 correctly concluded, consistently with principles 27 of Colonial law, that only lands actually occupied by 28 native peoples were excepted from the general 29 description of waste lands. This was the interest 30 that was protected by Douglas. The need to purchase 31 this interest never arose. 32 That concludes my submission on that, my lord. 33 THE COURT: All right. And how is your schedule now, Mr. 34 Goldie? 35 MR. GOLDIE: Well, I'm anticipating that with the two days which 36 I have on Monday and Tuesday I can complete the 37 counter-claim and make my concluding submission. 38 THE COURT: All right. I can't speak beyond Tuesday, but I'm 39 presently engaged both Monday and Tuesday evening, so 40 you weren't planning on any evening sittings? 41 MR. GOLDIE: No. 42 THE COURT: All right, thank you. Then we'll adjourn until 9:30 43 Monday. Thank you. 44 THE REGISTRAR: Order in court. Court stands adjourned until 45 9:30 Monday morning. 46 4 7 (PROCEEDINGS ADJOURNED) 28125 Submissions by Mr. Goldie 1 2 I hereby certify the foregoing to be 3 a true and accurate transcript of the 4 proceedings herein transcribed to the 5 best of my skill and ability 6 7 8 9 10 Graham D. Parker 11 Official Reporter 12 United Reporting Service Ltd. 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"@en, "Pagination restarts from 28018."@en ; edm:hasType "Trial proceedings"@en ; dcterms:spatial "British Columbia"@en ; dcterms:identifier "KEB529.5.L3 B757"@en, "KEB529_5_L3_B757_1990-06-09_01"@en ; edm:isShownAt "10.14288/1.0018525"@en ; dcterms:language "English"@en ; dcterms:subject "Uukw, Delgam, 1937-"@en, "Indigenous peoples--Canada"@en, "Oral history"@en, "Wet'suwet'en First Nation"@en ; edm:provider "Vancouver : University of British Columbia Library"@en ; dcterms:publisher "Vancouver : United Reporting Service Ltd."@en ; dcterms:rights "Images provided for research and reference use only. For permission to publish, copy, or otherwise distribute these images, please contact the Courts of British Columbia: http://www.courts.gov.bc.ca/"@en ; dcterms:source "Original Format: University of British Columbia. Library. 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